26 F.2d 769 | 1st Cir. | 1928
The original motion to suppress the evidence obtained by the search and seizure was not made too late, even if, as the government contends, it was made immediately after the jury was sworn. Amos v. United States, 255 U. S. 313, 41 S. Ct. 266, 65 L. Ed. 654. But, according to the record, this motion was made and heard before the case was called for trial and before the jury was sworn. It was made by the defendants Samson and Robrish, not by the other defendants, and did not allege that the property seized, the suppression of which as evidence was requested, was their property. This in itself would seem to be sufficient ground for the denial of the motion. Klein v. United States (C. C. A.) 14 F.(2d) 35, 36; Nunes v. United States (C. C. A.) 23 F. (2d) 905. But, if any evidence was introduced by either party at the hearing on the motion, it is not in the record, and, if it consisted of nothing more than that submitted by the government at the trial, it failed to show that the building searched was occupied by these defendants as a dwelling or that the property seized was theirs. The burden was on the defendants to establish the facts essential to the granting of their motion, which the record fails to show that they did.
After completion of the government’s evidence, with the exception of a small part of the testimony given by its last witness, the two above-named defendants asked leave to file a motion to suppress the evidence, as an amendment of their original motion. In this they alleged that the building, in which the seizure was had, was occupied by them as their home, and that the property seized was theirs. They were denied leave to file this motion. It was discretionary with the trial court whether it would then permit the amended motion to be filed, and, as it does not appear that its refusal to do so was an abuse of discretion, no question of law is presented for review.
Then, again, if the amended motion be treated as an original one, it was properly denied: First, for the reason that it was presented too late, as at that time the government’s ease was practically completed and the defendants had known of the seizure for a long time prior to the trial; and, second, for the reason that the record fails to show that the defendants presented any evidence in support of their motion at any time. The evidence of the government does not show that the articles seized were the property of Samson and Robrish, or that they were the owners or lessees of the building. On the contrary, it shows that they were mere employees engaged in operating the still, and that the building where the seizure was made, while originally constructed for a dwelling house, had been enlarged and made into a distillery, and was being used for that purpose.
The entry, search, and seizure were not made under a search warrant. The federal officers, on observing a still in operation in the building, entered without a warrant, and, finding the defendants Samson, Robrish, and Joseph Di lorio in charge, arrested them and made a search and seizure of the articles constituting the still and the liquor, the suppression of which as evidence is sought. The entry and arrest of these defendants, for the commission of a crime in the presence of the officers, was lawful, and the search and seizure, being incidental to the arrests, were likewise lawful. Agnello v. United States, 269 U. S. 20, 30, 46 S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409. The arrests, search, and seizure were comparable to those made at the “home of Alba” in the Agnello Case.
The exhibits, the admission of which is assigned as error, were portions of the still and liquor seized, and, in view of what has been above said, were properly received in evidence.
The defendants were not prejudiced because the trial judge, after having passed upon the competency of the evidence obtained by the search, instructed the jury that they could not find the defendants guilty, unless they found that the building was not used as a dwelling. This instruction was in their interest, and accorded them a privilege to which they apparently-were not entitled.
We find no error in the other assignments.
The judgment of the District Court is affirmed.