United States v. West

• Decision Date: 20 February 1964
• Docket Number: No. 28455.,28455.
• Citation: 328 F.2d 16
• Parties: UNITED STATES of America, Appellee, v. Elijah WEST, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

328 F.2d 16 (1964)

UNITED STATES of America, Appellee, v. Elijah WEST, Appellant.

No. 28455.

United States Court of Appeals Second Circuit.

Argued January 27, 1964.

Decided February 20, 1964.

Michael J. Gillen, Asst. U. S. Atty., Eastern Dist. of New York, Brooklyn, N. Y. (Joseph H. Hoey, U. S. Atty. for

Eastern Dist. of New York, and Gilbert A. Bond, Asst. U. S. Atty., Brooklyn, N. Y., on the brief), for appellee.

Arnold J. Goldstein, Brooklyn, N. Y. (Goldstein & Goldstein, Brooklyn, N. Y., on the brief), for appellant.

Before LUMBARD, Chief Judge, and WATERMAN and MARSHALL, Circuit Judges.

LUMBARD, Chief Judge.

This appeal turns on whether there was sufficient basis for the issuance of a night-time search warrant and whether the warrant was properly executed. As we find that the warrant was properly issued and enforced and there was ample proof of West's guilt on count 2, we affirm the judgment of the conviction.

Elijah West appeals from his conviction on two counts of an indictment which charged him in count 1 with unlawfully having in his possession, custody, and control a still and distilling apparatus at 169-15 120th Avenue in the Borough of Queens (26 U.S.C. § 5179(a) and § 5601(a) (1)), and in count 2 with unlawfully using and possessing a still, boiler, and other utensils for the purpose of producing distilled spirits in a dwelling house (26 U.S.C. § 5178(a) (1) and § 5601(a) (6)).¹

On March 19, 1962 the United States Commissioner issued a warrant to search the premises at 169-15 120th Avenue, Queens, upon an affidavit made before him the same day by Investigator La-Perch of the Alcohol and Tobacco Tax Division of the United States Treasury Department. At 9 o'clock the next night, LaPerch, assisted by six other investigators, executed the warrant by entering the front door and the rear door of the one-story bungalow house. The investigators found a still set up and in operation and the defendant, West, hiding underneath the basement stairs.

The appellant argues that the search warrant was improperly issued for service at night because the affidavit on which it was based failed to state positively that the property was in the place to be searched, pointing out that Rule 41 (c) of the Rules of Criminal Procedure permits a warrant to be executed at night-time only where "the affidavits are positive that the property is on the person or in the place to be searched."

In our view LaPerch's affidavit met the requirement of positiveness. LaPerch stated that an informer had advised him prior to March 1 that West and one Jackson intended to operate a still on the premises and were using a Plymouth station wagon. LaPerch thereafter observed the men using the station wagon which contained a quantity of jugs "of the type used for illicit whiskey" and that he detected a strong odor of corn whiskey coming from the station wagon. He saw this automobile back into the premises on March 17. LaPerch further swore that on each and every day from March 13 to March 18 inclusive, he detected an odor of fermenting mash "emanating from the premises at 169-15 120th Avenue," that the basement windows were blacked out and all windows in the house were shaded and drawn, that "heavy condensation was apparent on all the windows, and the rear door was covered with a blanket," and that West was known to the affiant as a "previous and recurrent alcohol violator."

LaPerch's affidavit thus gave categorical support to his conclusion that he "had reason to believe that on the premises," which he described in detail, "there is now being concealed certain property, namely, a quantity of mash fit for distillation and an illicit distillery and other distilling apparatus, in violation of federal law." As LaPerch's affidavit was "positive" that the property was in the place to be searched, the Commissioner quite properly issued a warrant which authorized the agents to serve it and make their search "at any time in the day or night."

It is wholly immaterial that LaPerch did not use the word "positive" in his affidavit. Even had he done so, the validity of the warrant would depend on whether the facts stated in the affidavit were so definite and explicit that there could be little or no doubt that the property was on the premises. The affidavit showed that illegal distilling had been conducted on...