United States v. Vigneaux

• Decision Date: 06 April 1923
• Docket Number: 3500.
• Citation: 288 F. 977
• Parties: UNITED STATES v. VIGNEAUX.
• Court: U.S. District Court — District of Massachusetts

288 F. 977

UNITED STATES v. VIGNEAUX.

No. 3500.

United States District Court, D. Massachusetts.

April 6, 1923

J. White, Jr., of Boston, Mass., for the United States.

Brooks Kirby, Keedy & Brooks, of Springfield, Mass., for defendant.

BREWSTER District Judge.

The defendant in this case, having been indicted for the illegal possession of intoxicating liquors, filed a motion to exclude at his trial evidence secured on a search warrant. The warrant was held to be bad and the search and seizure unauthorized. The evidence therefore was excluded, and, there being no other evidence to support the charges, a verdict of not guilty was returned by order of the court.

The premises searched was a dwelling house, used as such by the defendant, and the officer making the search seized a quantity of liquor found on the premises. The defendant now moves in these proceedings for a return of the liquor without alleging or offering to show that he was lawfully in possession of it at the time of the seizure. No forfeiture proceedings have been instituted by the government respecting this liquor. Counsel for the defendant submits a number of cases which fully support the proposition that, when the seizure is unlawful and unconstitutional, the thing seized must be returned. Some of these cases deal with property other than contraband liquor, such as books and papers, and some arose before the enactment of the National Prohibition Act (41 Stat. 305). United States v. Friedberg (D.C.) 233 F. 313; Tri-State Coal & Coke Co. (D.C.) 253 F. 605; In re Marx (D.C.) 255 F. 344; United States v. Marquette (D.C.) 271 F. 120.

A number of the cases cited, however, deal with the rights of a defendant to a return of the liquor seized upon an invalid search warrant. Most of these cases have arisen since the passage of the so-called 'Volstead Act,' but the court in each case in the opinion discussed the question of whether or not the search or seizure was lawful, and, having determined that the seizure was unlawful, the court as a matter of course has ordered a return of the liquor. United States v. Armstrong (D.C.) 275 F. 506; United States v. Mitchell (D.C.) 274 F. 128; United States v. Ray & Schultz (D.C.) 275 F. 1004; United States v. Boasberg (D.C.) 283 F. 311; Lipshitz v. Davis, Dist. Court Pa., Dec. 1922; United States v Harnic, Dist. Court Conn., Dec. 2, 1922.

Notwithstanding this state of the law, the United States attorney has earnestly urged this court to deny the motion of the defendant, on the ground that certain provisions of the National Prohibition Act require the defendant to show affirmatively that he lawfully acquired and was lawfully in possession of the liquor at the time of the seizure.

The provisions relied upon are as follows:

(1) 'It shall be unlawful to have or possess any liquor or property designed for the manufacture of liquor intended for use in violating this title or which has been so used, and no property rights shall exist in any such liquor or property. ' Act Oct. 28, 1919, tit. 2, Sec. 25.

(2) 'After February 1, 1920, the possession of liquors by any person not legally permitted under this title to possess liquor shall be prima facie evidence that such liquor is kept for the purpose of being sold, bartered, exchanged, given away, furnished, or otherwise disposed of in violation of the provisions of this title. Every person legally permitted under this title to have liquor shall report to the commissioner within ten days after the date when the Eighteenth Amendment of the Constitution of the United States goes into effect, the kind and amount of intoxicating liquors in his possession. But it shall not be unlawful to possess liquors in one's private dwelling while the same is occupied and used by him as his dwelling only and such liquor need not be reported, provided such liquors are for use only for the personal consumption of the owner thereof and his family residing in such dwelling and of his bona fide guests when entertained by him therein; and the burden of proof shall be upon the possessor in any action concerning the same to prove that such liquor was lawfully acquired, possessed, and used. ' Section 33.

In United States v. Kelih (D.C.) 272 F. 484, the court discusses the right of a defendant to a return of liquor illegally seized since the enactment of the Volstead Act. At page 490 the court says:

'It is further contended, because the Volstead Act provides that there shall be no property rights in illicit liquors, or apparatus for their manufacture, that therefore the property in question does not come within the Fourth and Fifth Amendments. The reason for a return of property in all cases of this character is not based upon property rights so much as the personal security afforded by the Fifth Amendment, which relieves a man from being compelled to be a witness against himself in a criminal case. To permit the government in this case to retain possession of the property described in the motion, and use it in a trial of

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