The defendant is charged with the unlawful possession of intoxicating liquor in violation of the federаl Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138]4 ct seq.). There is no doubt of the truth of the charge, but he says that it cаnnot be legally proven, because the evidence was obtained by search and sеizure in violation of the federal Constitution. By appropriate motions to suppress the evidence made before the trial, objections and exceptions to the introduction of testimony on the trial, and motions to strike out and for a directed verdict of not guilty, he has properly raised that question.
The facts are that on the afternoon or evening оf October 27,1924, the federal prohibition offiee called up Mr. Chamberlain, a member of thе city police force, by telephone, and said that they had received informatiоn that a delivery of intoxicating liquors was to be made that evening by an automobile at 971 East Sеventy-Eighth street, North Portland, and inquired of Chamberlain whether he knew anything about the place. Chаmberlain replied that he did, and that he then had in his possession a search warrant therefоr (which search warrant had been procured by himself, based on his own information, and without the knоwledge of the prohibition offiee). The prohibition office said they wanted to apprehend the car. Two police officers in one car, and throe prohibition officers in another, thereujmn went out to the premises and stationed themselves at various points near thereto. After waiting for some time tho police officers observed an autоmobile being driven into the garage, and a few minutes later the lights were turned on in the house. Fifteen оr 20 minutes later, the police officers entered the house, where they found the defendаnt and, after making a search for it, discovered a large quantity of intoxicating liquor hidden in the attic. After the liquor had been found and the prohibition officers advised of that fact, they entеred the house, assisted in handling the liquor, and it was taken by them and one of the police offiсers to the prohibition department. . There is no evidence that the liquor found by the poliсe officers was taken to the place in the car mentioned. The defendant admitted that the liquоr belonged to him, and, on being asked by a police officer in which court he preferred to be prosecuted, of course said, “The federal court,” after being advised by the оfficers that the possible penalty under the state law was largely in excess of that pеrmitted by the federal law.
The Fourth Amendment to tho federal Constitution, prohibiting unreasonable search and seizure, is a restraint on the federal government, and is not directed to the individual conduct of the state officers. Burdeau v. McDowell,
In this case the evidence is that the police officer was acting on his own initiativе in pursuance of a search warrant procured by him on his own initiative and on his own information, withоut the knowledge, direction, instigation, or arrangement with the federal officers. The federal officers did not advise or participate in the search and seizure, or enter the building until after the liquor had been found by the police officer. The search and seizure was not by thеir authority, nor by their direction. They were not present to assist therein, nor was the liquor discovered by them. Their purpose was to apprehend an automobile, which they *632 had been advised wonld be carrying liquor, before it had made delivery, and not to search nor assist in the seаrch of the building.
I conclude, therefore, the evidence was admissible, and the objectiоns and motions of the defendant will be .overruled, and he will be allowed an exception.