United States v. Sheehan

57 F.2d 759, 1932 U.S. Dist. LEXIS 1150

Opinion

KNIGHT, District Judge.

The information charges, in separate counts, possession of intoxicating liquor and possession of articles, “utensils, and things, intend ed for use and used in tho manufacture of intoxicating liquor.” Subsequent to the filing of the information, defendant moved for the discharge of the defendant and to set aside the search and seizure. The petition for the .order to show cause on which the motion was made also asks that the United States attorney and federal prohibition director be restrained “from making any use of the things found or the information gained as a result of the search.” That motion was denied, and the order thereon duly entered in the district clerk’s office.

Defendant now presents to the court a proposed assignment of errors and a petition for an order permitting an appeal to the Circuit Court of Appeals.

In this ease no search warrant was issued. Search and seizure were made, as alleged, upon the discovery of a commission of a violation of the National Prohibition Law (27 USCA).

, The application for allowance of this appeal must be denied. 28 USCA § 225, Judicial Code § 128; Cogen v. U. S., 278 U. S. 227, 49 S. Ct. 118, 73 L. Ed. 275; United States v. Broude (D. C.) 299 F. 332; Jacobs v. U. S. (C. C. A.) 8 F.(2d) 981; Goodman v. Lane (C. C. A.) 48 F.(2d) 32; Matter of Behrens (C. C. A.) 39 F.(2d) 561; Coastwise Lumber & Supply Co. v. U. S. (C. C. A.) 259 F. 847.

The question of jurisdiction was not raised on the motion to discharge. Upon the authority of In re Behrens (C. C. A.) 39 F.(2d) 561, and Cogen v. U. S., 278 U. S. 237, 49 S. Ct. 118, 73 L. Ed. 275, and kindred cases, it would seem that there is doubt whether this court had jurisdiction to pass upon the question of the legality of the search and seizure in the proceedings as brought. However, it is not necessary now to pass upon that question.