United States v. Rabstein

• Decision Date: 17 March 1930
• Citation: 41 F.2d 227
• Parties: UNITED STATES v. RABSTEIN et al.
• Court: U.S. District Court — District of New Jersey

41 F.2d 227 (1930)

UNITED STATES v. RABSTEIN et al.

District Court, D. New Jersey.

March 17, 1930.

Phillip Forman, U. S. Atty., of Trenton, N. J., and Douglas M. Hicks, Asst. U. S. Atty., of New Brunswick, N. J. (L. J. Kosters, of Newark, N. J., on the brief), for the United States.

Louis A. Fast, of Newark, N. J., for defendants.

FAKE, District Judge.

It appears from the agreed state of facts that federal prohibition officers entered the yard of the Star Bottling Works. The building on the premises was a two-story brick and frame structure used as a bottling plant, and upon entering the yard the prohibition officers detected a strong odor of alcohol coming from a room in the rear of the building. There was a locked door leading from the bottling plant to the room from which the odors emanated. The officers removed a board, entered the room, and made the seizure complained of.

It is urged that the seizure so made without a search warrant is unreasonable and in violation of the Fourth Amendment.

The premises in question apparently being a place of business, the officers had the same right to enter the yard as would be vested in one of the general public, and having so entered, it cannot be said they were trespassers, but when they forcibly broke open and entered a locked interior room without any other evidence appealing to their senses than a strong odor of alcohol, with nothing to distinguish that general odor as to whether it escaped from alcohol suited to beverage purposes or from such denatured alcohol as is used in the arts and sciences, they stepped beyond the border of reasonableness and came into conflict with the Fourth Amendment. There is nothing here to show that the officers saw any machinery or equipment before making forcible entry, nor is there anything from which it would appear that guilty persons might escape or that the contraband might be removed while the officers or one of them sought further evidence or proceeded in the orderly way for a search warrant. The reasons for such conclusions are clearly stated by Judge Thomas in United States v. Di Corvo (D. C.) 37 F.(2d) 124, and in the absence of a contrary ruling in this circuit I feel that the rules laid down in that case should be followed here.

In the Lobosko Case (D. C.) 11 F.(2d) 892, a clear distinction is made between entering a private portion of a building without a search warrant and entering a place of business, and the mere odor of alcohol alone does not in my...