United States v. Slusser

• Citation: 270 F. 818
• Parties: UNITED STATES v. SLUSSER.
• Decision Date: 11 February 1921
• Court: U.S. District Court — Southern District of Ohio

270 F. 818

UNITED STATES v. SLUSSER.

United States District Court, S.D. Ohio, Western Division.

February 11, 1921

R. T Dickerson and Allen C. Roudebush, Asst. U.S. Attys., both of Cincinnati, Ohio.

Galvin & Bauer, of Cincinnati, Ohio, for defendant.

PECK District Judge.

On application for the return of property seized without warrant. Slusser has been bound over to await the action of the grand jury on the charge of illegal transportation of liquor. His automobile, loaded with liquor, was seized in his garage by prohibition agents. He disclaims knowledge and ownership of the liquor but that the results of the search may not be used in evidence against him, and in order to regain his automobile he petitions for its return.

Two prohibition officers and two city policemen went to his residence, knocked, and were admitted. One of the agents displayed his badge and said they were there to search for liquor. Slusser said: 'All right; go ahead.' They searched his house, and, finding nothing but one quart bottle partially filled with whisky, proceeded to his garage, situated on the house lot. One door was not locked, and they entered. It contained three spaces, one of which he used; the other two he let for hire. Two of the automobiles therein, one his and one another's, were found to be loaded with bottles of whisky. The officers seized the automobiles, removed the lock from one of the doors, of which there were three, with a screwdriver, and drove away.

Slusser denies the ownership of the liquor, and testifies that he had rented his car and garage space for two days to a man named Klover, and that he was in ignorance of the presence of the liquor, or that the car was to be used for its transportation. The following conclusions are reached:

First, as to the legality of the search: The search so permitted by Slusser, after declaration by the prohibition officer, with a display of his badge, that they were there to search the premises, was not by such consent as will amount to a waiver of constitutional rights, but, on the contrary, is to be attributed to a peaceful submission to officers of the law. There is nothing to the contrary in the cases cited by counsel for the government, viz. United States v. Gouled (D.C.) 253 F. 242; Ripper v. State, 178 F. 24, 101 C.C.A. 152; McClurg v. Brenton, 123 Iowa, 368, 98 N.W. 881, 65 L.R.A. 519, 101 Am.St.Rep. 323; State v. Griswold, 67 Conn. 292, 34 A. 1046, 33 L.R.A. 227.

The right of the people to be secure in their houses and effects against unreasonable searches and seizures is not limited to dwelling houses, but extends to a garage used as this was, personally and for hire. If the rule be not so, then not only a garage, but every warehouse, shop, store, and office, and even a safe deposit vault, might be ransacked for liquor by officers upon suspicion. Such is not the law. The right to be protected against unlawful search and seizure extends even to a corporation. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 Sup.Ct. 182, 64 L.Ed. 319. And a corporation cannot be said to occupy a dwelling house. In Jones v. Fletcher, 41 Me. 254, trespass quare clausum was maintained against an officer, who, with warrant to search the dwelling, searched the barn and seized liquor stored therein. See, also, People v. Marxhausen, 204 Mich. 559, 171 N.W. 557, 3 A.L.R. 1505.

An unlawful search cannot be justified by what is found. A search that is unlawful when it begins is not made lawful when it ends by the discovery and seizure of liquor. It was against such prying, on the chance of discovery, that the constitutional amendment was intended to protect the people.

Neither is the discretion of the officer, however good and well intentioned, a substitute in law for a search warrant issued by a proper magistrate. It is to the latter that the law has committed the discretion to say when a warrant shall issue; and it can only issue on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons or things to be seized. Constant reiteration of these fundamental principles is warranted by the fact that they seem to be so frequently overlooked.

The procedure for searches under the Volstead Law (41 Stat. 315) is prescribed by section 25 to be that defined in the Act of June 15, 1917, tit. 11, Compiled Statutes, Sec. 10496 1/4a et seq. The entry without permission, express or implied, into a private garage, without warrant, on a mission of search and seizure, by prohibition agents of the United States, is unlawful. Even a search for stolen goods requires a warrant. It was so by common law before the adoption of the Constitution. Lord Camden in Entick v. Carrington, 19 Howell's State Trials, at page 1067.

Second as to the competency of evidence so procured: The evidence obtained upon an unwarranted search cannot be used either to secure the owner's conviction or to forfeit his property, if petition for its return is presented to the court before trial. Boyd v. United States, 116 U.S. 634, 6 Sup.Ct. 524, 29 L.Ed. 746. And it was there declared that proceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offenses committed by him, though they may be civil in form, are in their nature criminal for all the purposes of the Fourth Amendment and that part...