United States v. Old Dominion Warehouse, Inc.

10 F.2d 736, 1926 U.S. App. LEXIS 2260

• Court: Court of Appeals for the Second Circuit
• Decided: February 1, 1926
• Docket: 170
• Status: Published

Opinions

HAND, Circuit Judge

(after stating the facts as above). The warrant recites that Grill’s affidavit has shown that “certain intoxicating liquor” was in the warehouse, and directs him to search for “said liquor” and seize “the same.” It seems to us that the warrant was limited to the 10 or 12 barrels which Grill saw to enter; in short, that it incorporated by reference the description in the affidavit. As it is conceded that the liquors seized were necessarily greater in amount than the possible contents of 12 barrels, the petitioner argues that the warrant cannot justify the trespass. Indeed, the seizure was of “various kinds of intoxicating liquors,” and it is most improbable that 12 barrels on a single truck would have held an assortment of alcoholic beverages. The case was therefore argued, and we think that it must have been argued, as involving the question whether, if such an officer once, effects a lawful entry into a place like a warehouse, where' no liquors may be lawfully held, he is confined to the terms of his warrant or whether he may seize all other liquors that he finds.

We think that he may, and that Steele v. U. S. (No. 1) 267 U. S. 498, 45 S. Ct. 414, 69 L. Ed. 757, sets at rest any doubts which might theretofore have existed. There the warrant was in the same terms as that at bar, and the affidavit which it incorporated spoke only of “eases of whisky.” The property seized, lawfully, as the court said, consisted, not only of 150 cases of whisky, which was probably that seen, but 92 kegs, 5 jugs, and 2 barrels of whisky, 66 eases of gin, 5 gallons of alcohol, 102 quarts of whisky, and a corking machine. As the seizure was made hot-foot, even the whisky in kegs and barrels must have been other than what the warrant covered, and there could, of course, be no question about the other liquors and the corking machine.

There can be no escape, so far as we can see, from the conclusion that the court thought that upon a lawful entry the warrant was not the measure of the officer’s powers, and it seems to us an inevitable gloss that he may gather up all the liquors which he finds in a place like a warehouse, which can lawfully house no such goods whatever.

If we have understood the ease right it makes no difference what our own ideas may be, but it is relevant to the correctness of our interpretation whether the result violates the Search Warrant Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10496¼a ef seq.) and the Fourth Amendment. As we read the warrant, the question does not arise of any lack of particularity in its terms. They were specific enough; they directed Grill to seize the liquors described in his affidavit, and only those. All formal requisites were observed, and the supposed vice of the seizure goes deeper; it was without any warrant at all. And so, strictly speaking, it was; but the entry was lawful, and, as we view it, it is only that that the Search Warrant Act regulates. Once in, the question is whether the officer’s added seizure was “unreasonable” under the Fourth Amendment. We think that it was not. If we suppose the case of goods which we are inore used to thinking of as inherently contraband, like a burglar’s kit, or counterfeiting paraphernalia, the ease appears to us plain. We cannot suppose that, if an officer entered lawfully upon a warrant limited to certain described articles of this kind, he would not be justified in taking without warrant any others which he might chance upon in the premises. His seizure would not depend upon the warrant, but upon the fact that they were in their nature caput lupi; it would be as little an “unreasonable seizure” as to take property from a person arrested. Indeed, this seems to us a fair inference from Carroll v. U. S., 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790, where the seizure without warrant of liquor from a motorcar was sustained. Thus we think that the Search Warrant Act has no application to the seizure of so much of the liquors as were not contained in the barrels, and that the Fourth Amendment does not touch the case, because the added seizure was not “unreasonable”; the liquors being inevitably unlawfully possessed.

There remains the question of the affidavit. This is challenged because it did not show that the barrels held alcoholic beverages, or that they had been left at the warehouse. It is quite true that this officer depended much on his nose, but we are not prepared to say that he might not safely do so. The smell of alcohol is different from the smell of whisky, or rum, or wines, and it .is not incredible that a man might be able to tell it from the rest. Nor can we see that he must declare which sort of beverage he has distinguished, though doubtless it would have been more persuasive if he had.

Again, we think his inference that the barrels were left at the warehouse was reasonable. A warehouse is for the storage of goods, and men ordinarily bring things there to leave them. It is perhaps possible that the truck went there to add to its load; but we may take notice that a dozen barrels is in itself a fair load. No more is required than a fair presumption; the probabilities are with the officer’s conclusion. The affidavit did, indeed, leave much to be desired; but it contained enough suspicions to satisfy the requirements of the law.

Finally, we think that the lapse of nine days between the entry of the truck and the search was not too long. It is quite true that the barrels or their contents might have been taken away; but the quantity was large, and it was not probable that one would put so much in a warehouse to take it out again so soon. Besides, the very fact that it had gone where it could not lawfully be, suggested that it was there for an illegal purpose, and the event was not unlikely which actually occurred; that is, that it was to be bottled presumably for sale or consumption. We cannot say that the period was too long.

Order reversed; petition dismissed.