278 F. 388 | S.D. Cal. | 1922
The defendant Camarota moves the court in this case to return or to destroy certain property taken by a prohibition officer without a search warrant, and upon his motion he states the facts and the grounds for his motion to be as follows:
“On the 18th day of August, 1921, the federal agent, T. J. Nicely, obtained a search warrant from the United States commissioner at Fresno, California, which search warrant authorized him to search the private premises at 1607 E street, in the city of Fresno, county of Fresno, California, and the property to be searched for named in the warrant was intoxicating liquor; that on the evening of the same day the state federal agent entered the premises known as 1607 E street, in said city, while no one was in possession pf said premises, and after searching the same took therefr.om the following articles: One 10-gall on copper still and coil complete; one Sigallon keg moonshine brandy, four 5-gallon demijohns mash; one 50-gallon barrel grape mash. Copy of said search warrant was served on defendant Allamprese, who was sitting in the yard in the rear of said premises. Defendant Camarota was not present when the search was made, and no warrant was served or shown to him, and theretofore no complaint was filed against Camarota. That on the next day, after having obtained the articles mentioned hereinabove, the said T. J. Nicely swore out a complaint for the arrest of said defendant Joe Camarota, charging him with possessing certain articles designed to manu*389 facture intoxicating liquor, and maintaining a common nuisance at Ms residence, and also charged him with manufacturing intoxicating liquor. * * * That thereafter, in November, 1921, an information was filed against the said defendants charging them with violation of sections 8, 21, and 25 of title II of the National Prohibition Act of October 28, 1919. * * * That no warrant was issued or complaint filed against defendant Gamarota until after the entry upon his premises under tho search warrant and seizure of the articles named. That no search warrant, or copy thereof, was served or shown to the defendant Gamarota. at any time. That search warrant issued to search defendant Gamarota’s premises authorized the federal agent to search only for intoxicating liquor. That the name of the defendant Gamarota did not appear in the search warrant. - * * Upon the above statement of facts defendant Gamarota filed a petition in the above-entitled court, praying for the return or destruction of all of the property taken under such search warrant from defendant Gamarota’s residence, except the intoxicating liquor, which said petition is based upon the following principles of law: That the said seizure is in violation of defendants’ rights guaranteed them by the Fourth and Fifth Amendments to tho United States Constitution. That said seizure is in violation of the law governing search warrants.”
This question is governed by the principles announced in the following cases: Adams v. New York, 192 U. S. 585, 595, 24 Sup. Ct. 372, 48 L. Ed. 575; Weeks v. United States, 232 U. S. 383, 398, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177: Silverthorne Lumber Co. v. U. S., 251 U. S. 385, 391, 40 Sup. Ct. 182, 64 L. Ed. 319.
The officer, having entered upon the premises without having committed a trespass, and thus being lawfully there, and seeing a crime being committed, had a perfect right, and it. was his plain duty, to seize the articles which were being* used in committing the crime. In making such seizure, the officer could not do so by virtue of the search warrant, but in the performance of his general duty to prevent the commission of crime. United States v. Fenton (D. C.) 268 Fed. 221; Ex parte Morrill (C. C.) 35 Fed. 261, 267; 20 Stat. at Large, 341, § 9 (Comp. St. § 1676); United States v. Welsh (D. C.) 247 Fed. 239.
The motion will be denied.