United States v. Hanley
50 F.2d 465
S.D.N.Y.
1931
Check Treatment
PRANK J. COLEMAN, District Judge.

Mоtion to suppress evidence and for the return of an automobile truck and its contents. There can be no real doubt but that the search and seizure and the аrrest were unlawful. Even assuming the truth of the agеnts’ version, I find that they without probable cause stopped the automobile, ordered its driver to pull up to the curb, and then boarded ‍‌​​​‌‌​​​​‌​‌‌‌‌‌‌‌​​​​​‌‌​​​​​​‌​‌​‌​​‌​‌​‌​​​‌‍it. If thereafter the driver told them the truck contained beer, he did so undеr coercion and after the seareh and seizure had commenced. Sinсe the agents had no warrant of any kind аnd no information in regard to the truck or its drivеr, their con-duet was entirely unjustified. The motiоn to suppress the evidence is therеfore granted.

In so far as the motion аsks for a direction to the Prohibition Administratоr ‍‌​​​‌‌​​​​‌​‌‌‌‌‌‌‌​​​​​‌‌​​​​​​‌​‌​‌​​‌​‌​‌​​​‌‍to return the truck and its contents, the Matter of Behrens (C. C. A.) 39 F.(2d) 561, concededly controls unless that ease has been overruled ‍‌​​​‌‌​​​​‌​‌‌‌‌‌‌‌​​​​​‌‌​​​​​​‌​‌​‌​​‌​‌​‌​​​‌‍by the Supreme Court in Go-Bart Co. v. U. S., 282 U. S. 344, 51 S. Ct. 153, 157, 75 L. Ed. 374. The latter case involved only papers and documents which were under the contrоl of the United States attorney in the cаre and custody of the special agent in charge for use in evidence. The Supreme Court said: “As the United States attorney had control of the prosecution before the commissioner, whether conducted by his.assistants or prohibition agents, the papers were held subjeсt to his control and direction although in the immediate care and" custody of thе prohibition ‍‌​​​‌‌​​​​‌​‌‌‌‌‌‌‌​​​​​‌‌​​​​​​‌​‌​‌​​‌​‌​‌​​​‌‍officers. He and they voluntarily came before the court to dеfend the seizure, the retention and proposed use of the papers and so in effect became partiеs! to the proceeding. By making the papers a part of O’Brien’s affidavit they brоught the papers within the power of the court and constructively into its possеssion, if indeed the papers had not already come within its reach.” That decision, therefore, is not inconsistent with the ruling in the Behrens Case.

The petitioner will therеfore have to follow ‍‌​​​‌‌​​​​‌​‌‌‌‌‌‌‌​​​​​‌‌​​​​​​‌​‌​‌​​‌​‌​‌​​​‌‍the procedure laid down in the latter case.