United States v. Zager

• Decision Date: 13 March 1936
• Docket Number: No. 18056.,18056.
• Citation: 14 F. Supp. 23
• Parties: UNITED STATES v. ZAGER.
• Court: U.S. District Court — District of Maryland

14 F. Supp. 23

UNITED STATES v. ZAGER.^*

No. 18056.

District Court, D. Maryland.

March 13, 1936.

Bernard J. Flynn, U. S. Atty., and C. Ross McKenrick and T. Warren Rice, Asst. U. S. Attys., all of Baltimore, Md.

Cornelius Mundy and Wilfred T. McQuaid, both of Baltimore, Md., for defendant.

CHESNUT, District Judge.

In this case the defendant was indicted on October 8, 1935, on two counts, for violation of the Liquor Taxing Act of 1934, § 201, 26 U.S.C.A. § 267 (see 26 U.S.C.A. § 1152a). The first count charges transportation of ten gallons of untax-paid alcohol; and the second count charges the felonious possession of 996 gallons of untax-paid distilled spirits. By written agreement of the United States Attorney and counsel for the defendant, the case was tried to the court without a jury, the latter not being then immediately available. As to the first count, it is sufficient to say that the evidence does not justify a verdict of guilty and therefore it need not be further considered.

As to the second count, the uncontradicted evidence shows that on April 20, 1935, agents of the Alcohol Tax Unit, acting under a search warrant issued by the United States Commissioner, proceeded in the daytime to the residence of the defendant at 3205 St. Paul Street, Baltimore, Maryland, and there found in the basement of the two-story dwelling 246 gallons of alcohol and 750 gallons of whiskey, all untax-paid. The defendant who was present at the time denied personal ownership or responsibility for the liquor but upon the insistence of the agents, after some reluctance, personally produced the key which unlocked a compartment in the basement containing 75 ten-gallon kegs of whiskey. The containers of both the whiskey and the alcohol bore marks purporting to indicate St. Pierre and Holland as points of origin, but there was no other evidence than this as to whether the liquors were foreign or domestic. The defendant did not personally testify in the case and, of course, no inference can therefore be found against him with regard to the facts of the case, but there was no testimony offered on behalf of the defendant at the trial to negative the quite plain inferences from the Government's testimony that the liquors were in the possession of the defendant. The residence was that of the defendant, and, while the upper story of the house had been rented to a third person who was said to be out of the city, there were other residents in the house, including the defendant's wife and son, who might have been but were not called as witnesses by the defendant, for possible available testimony as to the ownership or possession or control of the liquors.

The principal and only substantial defense urged by counsel for the defendant is that the evidence of violation of the Liquor Taxing Act as charged in the second count was legally inadmissible and should be stricken from the evidence because, as it is contended, the search warrant was improperly issued. A motion to quash the search warrant and to suppress the evidence obtained thereunder was filed on February 26, 1936. In the customary practice in this court such motions are usually heard, when filed in due time, before the trial of the case, but by agreement of counsel on both sides the motion was not pressed before the trial, and it was agreed that it should be heard and considered in the trial. And apart from the agreement, this would seem to be proper anyhow in this particular case as the Government's testimony fully developed facts and circumstances leading up to the issuance of the warrant. Amos v. United States, 255 U. S. 313, 316, 41 S.Ct. 266, 65 L.Ed. 654; Rose, Federal Jurisdiction and Procedure (4th Ed.) § 139.

The principal ground for suppressing the evidence contained in the motion and urged at the trial is that the affidavit which is made the basis of the issuance of the warrant does not show sufficient probable cause, as required by the Fourth Amendment to the Constitution, and the regulatory provisions regarding search warrants as specifically enacted in the Espionage Act (title 11, § 3) to be found in 18 U.S.C.A. § 613, etc. The legal sufficiency of the warrant itself is not attacked. In my view the contention is not sustainable. The Commissioner issued the search warrant on the affidavit of an agent of the Alcohol Tax Unit which was reduced to writing and stated that he had good reason to believe and did believe that a violation of the Liquor Taxing Act was being committed in the premises described as 3205 St. Paul Street, Baltimore, Maryland, and the affidavit continued at some length to state the facts and circumstances which were the basis for the sworn belief. Much condensed, these were to the effect that he had received reliable information that the premises were being used "as a storage and transfer point for untax-paid liquor"; and that he thereupon with other agents kept the premises under observation on four different days from April 3rd to April 17th, 1935, inclusive, during which time he saw "out of state cars" enter the garage located in the rear of the premises (from which it otherwise appeared at the trial that there was communication with the rear of the dwelling); that the doors of the garage would then be closed and a short time afterwards the automobiles would leave, and in the meantime the defendant and other persons would keep the alley in the rear of the premises under observation; that on several occasions he saw the defendant and his son or wife put packages in the automobiles which packages appeared to be five-gallon cans or three-gallon cans wrapped in brown paper see Wolstein v. United States (C.C.A.) 80 F.(2d) 779, C. C.A.8; and that on several occasions the automobiles belonging to the defendant and driven by him or his son, drove away, and, being followed, they were seen to deliver the same packages at various other houses; and on one occasion an automobile of the defendant driven by his son, in company with the defendant's wife, when followed was found to contain a five-gallon can of alcohol (otherwise shown to have been untax-paid); and on another occasion he saw a package resembling a five-gallon can wrapped in newspaper brought out of the front door of the premises by one man preceded by another man who was looking up and down the street apparently to see if the former was being observed. On these facts the warrant was issued on April 18, 1935, executed on April 20, 1935, and returned, with the inventory of the goods seized, on April 22, 1935.

In my opinion these facts constituted ample probable cause for the issuance of the warrant. "Facts and circumstances * * * such as to warrant a man of prudence and caution in believing that the offense has been committed," constitute probable cause. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790; Steele v. United States, 267 U.S. 498, 504, 45 S.Ct. 414, 69 L.Ed. 757; Dumbra v. United States, 268 U.S. 435, 436, 45 S.Ct. 546, 549, 69 L.Ed. 1032; Benton v. United States, 70 F.(2d) 24 (C.C.A. 4). In Locke v. United States, 7 Cranch, 339, 348, 3 L.Ed. 364, it was said by Chief Justice Marshall "the term `probable cause,' according to its usual acceptation, means less than evidence which would justify condemnation. * * * It imports a seizure made under circumstances which warrant suspicion." See, also, Rose on Fed. Jurisdiction & Procedure (4th Ed.) § 103; United States v. Jakems (D.C.Mich.) 12 F.Supp. 227. The witness, O'Dea, experienced in observation work of this character, testified quite clearly as to the significance to him of the facts observed. In United States v. Murray, 51 F.(2d) 516, 519, it was said in an opinion in this court, involving the search of an automobile: "The question of what constitutes probable cause seems to me must be determined from the stand-point of the agent with his special skill and knowledge rather than from the standpoint of the average citizen under similar circumstances." See also Steele v. United States, supra, 267 U.S. 498, at page 505, 45 S.Ct. 414, 69 L.Ed. 757. And based on experience in this court in numerous somewhat similar cases, I would say that the facts and circumstances contained in the affidavit showed ample probable cause for the issuance of the warrant. Indeed it is not inappropriate to say here, as was said by the Supreme Court in the Dumbra Case, supra, that: "Absence of a well-grounded belief that such was the fact could be ascribed only to a lack of intelligence or a singular lack of practical experience on the part of the officer."

Certainly the right of the citizen to be protected against unreasonable searches and seizures as guaranteed by the Fourth Amendment, is a basic right protected by the Constitution, which must be liberally applied in the interest of individual liberty. Grau v. United States, 287 U.S. 124, 53 S.Ct. 38, 77 L.Ed. 212; Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260, 85 A.L.R. 108; Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159. But the rights of the citizen are not unduly invaded where the procedure for the obtaining and serving the search warrant is orderly and regular, based on probable cause, and executed, as in this case, in conformity with the statutory requirements. Here there was no subtlety or subterfuge or indirect motives in obtaining the warrant. The officer acted on reliable information, followed by extended personal observation, reasonably affording probable cause for action which, when taken, fully confirmed the justifiable suspicion. Under such conditions privacy even in the home of the law violator must yield to the reasonable and orderly enforcement of the laws.

It is somewhat faintly urged that the procedure in executing the warrant was defective in that no sufficient receipt was given to the defendant upon the seizure of the liquor as required by 18 U.S.C.A. § 622. But this point is not sustained by the evidence, which...