7 F.2d 65 | 2d Cir. | 1925
(after stating the facts as above).
The evidence upon which these defendants were convicted was given by certain police officers of the city of New York. The following is an excerpt from the testimony of one of these-officers:
“Q. Did 'you see the defendant Morris Greenberg and Max Niernberg that day? A. I did.
“Q. Whereabouts? A. The comer of 102d street and Jamaica avenue, Queens county.
“Q. Here in the Eastern district? A. Yes, sir.
“Q. Were they together? A. Yes, sir.
“Q. Where were they when you saw them? Were they walking, or — -? A. There was a truek on the comer of 102d street and Jamaica avenue; we were about a block away, and saw one of the defendants roll a barrel in the cellar. We walked up to this truek and -saw this defendant, the thin one of the two, Niernberg— * * *
“The Witness: I saw him on the sidewalk with the truck. I asked him what he had on the truek. He said ‘Near Beer’. I said, ‘Open the truck.’ He says,-‘Do I have to?’ I said, ‘Yes,’ and showed him my shield, and opened the truek and found—
“Mr. Manne: I object, on the ground that the defendant was illegally forced to give evidence against himself, and his constitutional rights were invaded by the action of the officer; that there is no evidence here of anything that would warrant the officer in making such a search or in, forcing the defendant to open the truek.
“The Court: What Constitution are you referring to?
“Mr. Manne: The Constitution of the United States of America.
“íhe Court: Objection overruled.
“Mr. Manne: I respectfully except.
“Q. You saw the truek on 102d street and Jamaica avenue? A. Yes, sir.
“Q. Where was the truck — in front of the building? A. A former licensed liquor saloon.
“Q. Was this truek standing or in motion when you first observed it? A. Standing there.
“Q. Was any one with you? A. Officer Reich and Sherry and Hughs.
“Q. You saw this defendant. What was he doing when you first observed him? A. I observed about a block away a man rolling a barrel in the cellar. The cellar door was open, and walked toward there and saw Niernberg at the door, side door, of this truck, and the door was closed, and while asking him who owns the beer he wouldn’t answer.
“Q. Tell us the first thing you said to him? A. I said ‘Where did you get this?’ He wouldn’t answer me. With that, the defendant Greenberg came out of the cellar, and Officer Reich approached him and spoke to him. * * *
“Q. Tell us what you said to this defendant Niernberg, and what he said to you. A. I asked him where he got it.
“Q. Got what? A. The beer; the barrel of beer. There were 9 barrels and 6 empties, and he wouldn’t say anything at all.'
“Q. What kind of a truek was this? A. About a 2-ton truck, a closed truek.
“Q. Completely closed when you approached it? A. Yes, sir; the side door sliding.
“Q. Did you open the truek? A. I did— he did after I showed him my shield.
“Q. Did you ask him to open the truek? A. Yes.
“Q. He did? A. Yes.
“Q. What did you do? A. I went in to count the barrels, 9 full barrels and 6 empties. * * *
“Q. After your examination of the barrels what did you do ? A. Placed the two defendants under arrest, took them to the station house, and Officer Reich had one of the barrels and took a sample — ”
The admission of the evidence was objected to on the ground that neither of the police officers, who made the arrest and seizure, had a search warrant; and it is claimed that the search and seizure was unlawful, and that the testimony was inadmissible, and contrary to the Fourth and
Before concluding this opinion, wo may call attention to the fact that it is not necessary, even in the case of federal officers, that they should in all cases have a search warrant to justify a search and seizure. The Fourth Amendment only provides that “tho right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. ' ” And section 26, title 2, of the National Prohibition Act, provides in part as follows: “When the commissioner, his assistants, inspectors, or any officer of the law shall discover any person in the act of transporting in violation of the law, intoxicating liquors in any wagon, buggy, automobile, water or air craft, or other vehicle, it shall he his duty to seize any and all intoxicating liquors found therein being transported contrary to law. " ”
The right of a federal agent to search and seize without a warrant intoxicating liquors being transported in an automobile contrary to law was considered very fully in the decision of the Supreme Court in tho recent case of Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, decided on March 2, 1925. It is not necessary for us to consider whether the decision of the instant ease would have been different, if a federal officer had searched and seized the truck containing the liquors herein involved. If he had done so without a warrant, the seizure would still have been lawful, unless it appeared that the circumstances were such as to make his conduct unreasonable.
Judgment affirmed.
