270 F. 291 | E.D.N.Y | 1920
The government has applied for permission to file an information against one Gustave Metzger, claiming that on November 3, 1920, lie .unlawfully, willfully, and knowingly-possessed for beverage purposes certain intoxicating liquor, with appropriate proof indicating a violation of the National Prohibition Law (41 Stat. 305).
On behalf of Metzger it is claimed, and conceded by the government, (hat under a search warrant authorizing and empowering a search of the cellar and store of the premises at 1727 Atlantic avenue, borough of Brooklyn, city of New York, a safe in said premises had been removed therefrom. Later the safe was returned; two bottles of whisky were found therein, as a result of which the government is now seeking to prosecute the defendant. The government stated on the argument, and it is not denied, that the prohibition agents who executed the warrant when they entered the premises saw Metzger lock the safe; that they demanded that he open it; that he refused. It is further stated on behalf of the government that the safe was returned the following day with no change in its condition, and that upon its return it was opened and found to contain whisky.
I have considered the contentions, and I cannot agree with any of them. The District Court has power to permit an information to be filed. The allegations of the affidavits submitted to the commissioner fully justify the issuance of a search warrant, and in my opinion the reference in the National Prohibition Act to the Espionage Act only refers to the proceeding to be followed, and does not restrict the issuance of a search to cases involving property used in committing a felony. If that construction were adopted, no search warrant could be issued.
The court will direct an information to be filed as requested by the government.