Reszutek v. United States

Second Circuit

Reszutek v. United States

147 F.2d 142, 1945 U.S. App. LEXIS 2121

CourtCourt of Appeals for the Second Circuit

DecidedJanuary 31, 1945

DocketNo. 215

StatusPublished

Cited by9 cases

This text of 147 F.2d 142 (Reszutek v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Reszutek v. United States, 147 F.2d 142, 1945 U.S. App. LEXIS 2121 (2d Cir. 1945).

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Opinion

PER CURIAM.

While the extent of an agent’s legal authority to consent to a search and seizure may often be a matter of grave dispute, we think a showing of consent by those admittedly “in charge” of a six-family house as "superintendents” to a search of the cellar was sufficient to justify the District Court in entering an order denying the owner’s motion to suppress evidence so obtained “without prejudice to a renewal thereof before the Trial Court.” See Raine v. United States, 9 Cir., 299 F. 407, 411, certiorari denied 266 U.S. 611, 45 S.Ct. 94, 69 L.Ed. 467; United States v. Antonelli Fireworks Co., D.C.W.D.N.Y., 53 F.Supp. 870, 874; United States v. Ruffner, D.C.Md., 51 F.2d 579; United States v. Sergio, D.C. E.D.N.Y., 21 F.Supp. 553; United States v. Thomson, 7 Cir., 113 F.2d 643, 644, 129 A. L.R. 1291; State v. Griswold, 67 Conn. 290, 34 A. 1046, 33 L.R.A. 227. Moreover, the papers show an issue, raised by the superintendent at the time of search, and later in an affidavit presented by petitioner, that the particular spot where alcohol was found was in the possession not of the owner, but of a tenant. United States v. Ebeling, 2 Cir., 146 F.2d 254, and cases cited; Matthews v. Correa, 2 Cir., 135 F.2d 534, 537; Schnitzer v. United States, 8 Cir., 77 F.2d 233, 235. Petitioner appears to have been content to rely upon affidavits; if, however, he has additional facts to offer, the opportunity given him to renew his motion at trial, should one be had, affords him ample protection. Matthews v. Correa, supra.

Order affirmed.

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PER CURIAM.

While the extent of an agent’s legal authority to consent to a search and seizure may often be a matter of grave dispute, we think a showing of consent by those admittedly “in charge” of a six-family house as "superintendents” to a search of the cellar was sufficient to justify the District Court in entering an order denying the owner’s motion to suppress evidence so obtained “without prejudice to a renewal thereof before the Trial Court.” See Raine v. United States, 9 Cir., 299 F. 407, 411, certiorari denied 266 U.S. 611, 45 S.Ct. 94, 69 L.Ed. 467; United States v. Antonelli Fireworks Co., D.C.W.D.N.Y., 53 F.Supp. 870, 874; United States v. Ruffner, D.C.Md., 51 F.2d 579; United States v. Sergio, D.C. E.D.N.Y., 21 F.Supp. 553; United States v. Thomson, 7 Cir., 113 F.2d 643, 644, 129 A. L.R. 1291; State v. Griswold, 67 Conn. 290, 34 A. 1046, 33 L.R.A. 227. Moreover, the papers show an issue, raised by the superintendent at the time of search, and later in an affidavit presented by petitioner, that the particular spot where alcohol was found was in the possession not of the owner, but of a tenant. United States v. Ebeling, 2 Cir., 146 F.2d 254, and cases cited; Matthews v. Correa, 2 Cir., 135 F.2d 534, 537; Schnitzer v. United States, 8 Cir., 77 F.2d 233, 235. Petitioner appears to have been content to rely upon affidavits; if, however, he has additional facts to offer, the opportunity given him to renew his motion at trial, should one be had, affords him ample protection. Matthews v. Correa, supra.

Order affirmed.

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147 F.2d 142, 1945 U.S. App. LEXIS 2121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reszutek-v-united-states-ca2-1945.

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