United States v. Sergio, Cr. 37249.

• Decision Date: 29 December 1937
• Docket Number: Cr. 37249.
• Citation: 21 F. Supp. 553
• Parties: UNITED STATES v. SERGIO et al.
• Court: U.S. District Court — Eastern District of New York

21 F. Supp. 553

UNITED STATES v. SERGIO et al.

Cr. 37249.

District Court, E. D. New York.

December 29, 1937.

Leo J. Hickey, U. S. Atty., of Brooklyn, N. Y. (James G. Scileppi, Asst. U. S. Atty., of Brooklyn, N.Y., of counsel), for the United States.

Morris Rappoport, of Brooklyn, N. Y., for defendants.

BYERS, District Judge.

This is a motion to suppress evidence in a case which somewhat resembles United States v. Louis Kaplan, 89 F.2d 869, 870, recently decided by the Circuit Court of Appeals for this circuit. The distinguishing features, however, are significant.

The petition is that of Raymond Beck who recites his residence in the premises in which the still was found, but he does not say that he was present when the agents visited the house on October 23, 1937, shortly after noon. He describes himself as a lawful tenant and occupant of these premises and says that he had a proprietary interest in the property searched, seized and removed (namely, a one hundred gallon still, mash, etc.), but he does not state the source of his information as to what took place.

Attached thereto is the petition of the defendant Sergio, who says that he resided in the premises with his wife at the time in question, and that he was arrested therein "under the circumstances as are more fully set forth in the petition of Raymond Beck hereto attached." He describes his interest in the premises in the same language as that employed by Beck, but does not state the source of his information as to what took place. He does not state that the arrest took place at the time that the search and seizure occurred.

The papers on behalf of the motion were filed on December 15, 1937, and eight days thereafter the affidavit of the agent was filed in opposition, but no reply affidavit or petition has been submitted.

The agent states that on the day in question he proceeded to the premises pursuant to information "received with respect to a violation of the Federal laws pertaining to the Revenues."

The premises consist of a one-family frame dwelling located on 150th Place, Flushing, Long Island, and the photograph attached to the papers indicates that the dwelling comprises two stories and an attic; there is a driveway at one side leading to the rear entrance; the latter consists of a stoop, four steps high, and a rear door having glass panels as to the upper half.

The agent deposes that he obtained a strong odor of fermenting mash which became increasingly pungent upon his more immediate approach, and that he circled the house and observed, through the door panel, five one hundred pound bags of sugar marked "brown sugar" and three bags of coke, on the floor of the kitchen. His affidavit continues, that he knocked "at the door of the premises and was greeted by a woman now known as Mrs....