United States v. Kips Bay Brewing &. Malting Co.

S.D. New York

United States v. Kips Bay Brewing &. Malting Co.

29 F.2d 836, 1928 U.S. Dist. LEXIS 1649

DecidedSeptember 19, 1928

StatusPublished

This text of 29 F.2d 836 (United States v. Kips Bay Brewing &. Malting Co.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Kips Bay Brewing &. Malting Co., 29 F.2d 836, 1928 U.S. Dist. LEXIS 1649 (S.D.N.Y. 1928).

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Opinion

FRANK J. COLEMAN, District Judge.

This motion for the return of certain intoxicating liquor and for the suppression of evidence is denied. I believe the commissioner [837]*837erred in vacating the search warrant. The papers upon which it was granted are not perfect, but they are ample to show probable cause. The certificate of the government’s official chemist should have been verified, but the verification would have added practically nothing to its probative value. It is common practice even in a criminal trial to accept such a certificate in lieu of testimony, because counsel assume that its probative force is about the same. It sufficiently supports the allegation in Gibbons’ affidavit as to the alcoholic content. Furthermore, the allegations in regard to the third truck are not as complete as they should be but they are sufficient in view of all the circumstances set forth in the affidavits. It was a legitimate inference that all the trucks, acting in concert, had come from the garage which was actually a part of the brewery notwithstanding the alleged lease, and, furthermore, that they had been loaded with kegs from the "brewery. This inference would not have been strong enough to sustain a conviction, but it was sufficient to constitute probable cause for believing that a crime was being committed. The whole setting must be considered in determining the strength of this inference, and not merely the force of isolated allegations. Common sense is not barred by the Fourth and Fifth Amendments.

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FRANK J. COLEMAN, District Judge.

This motion for the return of certain intoxicating liquor and for the suppression of evidence is denied. I believe the commissioner [837]*837erred in vacating the search warrant. The papers upon which it was granted are not perfect, but they are ample to show probable cause. The certificate of the government’s official chemist should have been verified, but the verification would have added practically nothing to its probative value. It is common practice even in a criminal trial to accept such a certificate in lieu of testimony, because counsel assume that its probative force is about the same. It sufficiently supports the allegation in Gibbons’ affidavit as to the alcoholic content. Furthermore, the allegations in regard to the third truck are not as complete as they should be but they are sufficient in view of all the circumstances set forth in the affidavits. It was a legitimate inference that all the trucks, acting in concert, had come from the garage which was actually a part of the brewery notwithstanding the alleged lease, and, furthermore, that they had been loaded with kegs from the "brewery. This inference would not have been strong enough to sustain a conviction, but it was sufficient to constitute probable cause for believing that a crime was being committed. The whole setting must be considered in determining the strength of this inference, and not merely the force of isolated allegations. Common sense is not barred by the Fourth and Fifth Amendments.

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Bluebook (online)

29 F.2d 836, 1928 U.S. Dist. LEXIS 1649, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kips-bay-brewing-malting-co-nysd-1928.