STEELE v. UNITED STATES.

This is an appeal, under section 238 of the Judicial Code,1 direct from the District Court, being a case involving the application of the federal Constitution. The judgment complained of denied a petition of Steele for an order vacating a search warrant, by authority of which Steele's premises were searched and a large amount of whisky and other intoxicating liquor was found and seized. He contends that the search warrant violated the Fourth Amendment, because not issued upon probable cause, and not particularly describing the place to be searched or the property to be seized, and because the search conducted under the warrant was unreasonable. The affidavit for search warrant was as follows:

'Southern District of New York—ss.:

'Isidor Einstein, being duly sworn, deposes and says: I am a general prohibition agent assigned to duty in the state of New York. On December 6, 1922, at about 10 o'clock a. m., accompanied by Agent Moe W. Smith, I was standing in front of the garage located in the building at 611 West Forty-Sixth street, Borough of Manhattan, city and Southern district of New York. This building is used for business purposes only. I saw a small truck driven into the entrance of the garage, and I saw the driver unload from the end of the truck a number of cases of stenciled whisky. They were the size and appearance of whisky cases and I believe that they contained whisky. A search of the records of the federal prohibition director's office fails to disclose any permit for the manufacture, sale, or possession of intoxicating liquors at the premises above referred to.

'The said premises are within the Southern district of New York, and upon information and belief have thereon a quantity of intoxicating liquor containing more than one-half of 1 per cent. of alcohol by volume, and fit for use for beverage purposes, which is used, has been used, and is intended for use, in violation of the statute of the United States, to wit, the National Prohibition Act.

'This affidavit is made to procure a search warrant, to search said building at the above address, any building or rooms connected or used in connection with said garage, the basement or subcellar beneath the same, and to seize all intoxicating liquors found therein.

'Isidor Einstein.

'Sworn to before me this 6th day of December, 1922. Saml. M. Hitchcock, U. S. Commissioner, Southern District of New York.'

The search warrant issued by the commissioner followed the affidavit in the description of the place and property to be searched and seized and was directed to Einstein as general prohibition agent.

Section 25, title 2, of the National Prohibition Act (41 Stat. 305, 315, c. 85 [Comp. St. Ann. Supp. 1923, § 10138 1/2 m]) provides for the issue of a search warrant to seize liquor and its containers intended for use in violating the act, and provides that the search warrant shall be issued as provided in title 2 of the Espionage Act of June 15, 1917 (40 Stat. 217, 228, c. 30 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 10496 1/4 a-10496 1/4 v]).

Under that title, in conformity with the Fourth Amendment the warrant can be issued only upon probable cause, supported by affidavit, particularly describing the property and place to be searched. The judge or commissioner must before issuing the warrant examine on oath the complainant and any witness he may produce, and require their affidavits or take their depositions in writing and cause them to be subscribed by the parties making them. The affidavits or depositions must set forth the facts tending to establish the grounds of the application or probable cause for believing that they exist. If the judge or commissioner is satisfied of the existence of the grounds for the application, or that there is probable cause to believe their existence, he must issue a search warrant, signed by him with his name of office, to a civil officer of the United States duly authorized to enforce or assist in enforcing any law thereof, stating the particular grounds or probable cause for its issue and the names of the persons whose affidavits have been taken in support thereof, and commanding him forthwith to search the person or place named, for the property specified, and to bring it before the judge or commissioner. If the grounds on which the warrant was issued be controverted, the judge or commissioner must proceed to take testimony in relation thereto, and the testimony of each witness must be reduced to writing and subscribed by each witness. If it appears that the property taken is not the same as that described in the warrant, or that there is no probable cause for believing the existence of the grounds on which the warrant was issued, the judge or commissioner must cause the property to be restored to the person from whom it was taken; but if it appears that the property taken is the same as that described in the warrant, and that there is probable cause for believing the existence of the grounds on which the warrant was issued, then the judge or commissioner shall order the same retained in the custody of the person seizing or to be otherwise disposed of according to law.

The facts developed before the commissioner on hearing this petition for return of the seized goods were these: Einstein and Moe Smith were prohibition agents. They saw a truck depositing cases in a garage on the opposite side of Forty-Sixth street from where they were. Einstein crossed the street and saw they were cases stenciled as whisky. Einstein left his companion to remain in the neighborhood until he could get the warrant, and in something more than an hour returned with it and made the seizure. The building searched was a four-story building in New York City on the south side of West Forty-Sixth street, with a sign on it 'Indian Head Auto Truck Service—Indian Head Storage Warehouse, No. 609 and 611.' It was all under lease to Steele. It was entered by three entrances from the street, one on the 609 side, which is used, and which leads to a staircase running up to the four floors. On the 611 side there is another staircase of a similar character, which is closed, and in the middle of the building is an automobile entrance from the street into a garage, and opposite to the entrance on the south side is an elevator reaching to the four stories of sufficient size to take up a Ford machine. There is no partition between 611 and 609 on the ground or garage floor, and there were only partial partitions above, and none which prevented access to the elevator on any floor from either the 609 or 611 side. The evidence left no doubt that, though the building had two numbers, the garage business covering the whole first floor and the storage business above were of such a character and so related to the elevator that there was no real division in fact or in use of the building into separate halves. The places searched and in which the liquor was found were all rooms connected with the garage by the elevator. One of them was a room on the second floor with a door open toward the elevator, in which, when Einstein made his search, three men were bottling and corking whisky. There was a room on one of the floors, flimsily boarded off, in which an employee had a cot and a cook stove. The prohibition agent seized 150 cases of whisky, 92 bags of whisky, and one 5-gallon can of alcohol on the third floor on the 609 side. On the second floor, 33 cases of gin were seized on the 609 side, and six 5-gallon jugs of whisky, 33 cases of gin, 102 quarts of whisky, and two 50-gallon barrels of whisky, and a corking machine were taken on the 611 side of the building.

The description of the building as a garage and for business purposes as 611 West Forty-Sixth street clearly indicated the whole building as the place intended to be searched. It is enough if the description is such that the officer with a search warrant can, with reasonable effort ascertain and identify the place intended. Rothlisberger v. United States (C. C. A.) 289 F. 72; United States v. Borkowski (D. C.) 268 F. 408, 411; Commonwealth v. Dana, 2 Metc. (Mass.) 329, 336; Metcalf v. Weed, 66 N. H. 176, 19 A. 1091; Rose v. State, 171 Ind. 662, 87 N. E. 103, 17 Ann. Cas. 228; McSherry v. Heimer, 132 Minn. 260, 156 N. W. 130.

Nor did the search go too far. A warrant was applied for to search any building or rooms connected or used in connection with the garage, or the basement or subcellar beneath the same. It is quite evident that the elevator of the garage connected it with every floor and room in the building and was intended to be used with it.

The attempt to give the building the character of a dwelling house by reason of the fact that an employee slept and cooked in a room on one of the floors was of course futile. Section 25 of the Prohibition Act forbids the search of any private dwelling unless it is used for the unlawful sale of intoxicating liquor, or unless it is in part used for some business purpose, such as a store, shop, saloon, restaurant, hotel or boarding house. It provides that 'private dwelling' is to be construed to include the room or rooms used and occupied, not transiently, but solely as a residence in an apartment house, hotel, or boarding house. Certainly the room occupied in this case was not a private dwelling within these descriptions, but, more than this, it was not searched and no liquor was found in it. Forni v. United States (C. C. A.) 3 F.(2d) 354.

The search warrant properly described the building searched as a garage and one for business purposes.

Then it is said that the property seized was not sufficiently identified in the warrant. It was described as 'cases of whisky,' and while there is no evidence specifically identifying the particular cases which were seized as those which Einstein saw the description as 'cases of whisky' is quite specific enough. Elrod v. Moss (C. C. A. 4th) 278 F. 123, 129; Sutton v. United States, 289 F. 488 (C. C. A. 5th); Tynan v. United States, 297 F. 177 (C. C. A. 9th); Forni v. United States, 3 F.(2d) 354 (C. C. A. 9th).

Finally it is said there was no probable cause for the warrant and the seizure, Einstein, a man of experience in such prosecutions and in such seizures, saw the name 'whisky' stenciled on cases and said they looked like whisky cases. He ascertained by his own investigation of the official records that there was no permit for the legal storage of whisky on these premises. In a recent case we have had occasion to lay down what is probable cause for a search. Carroll v. United States, 267 U. S. 132, 45 § Ct. 280, 69 L. Ed. ——, decided March 2, 1925. 'If the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offense has been committed, it is sufficient.' What Einstein saw and ascertained was quite sufficient to warrant a man of prudence and caution and his experience in believing that the offense had been committed of possessing illegally whisky and intoxicating liquor and that it was in the building he described.

The search warrant fully complied with the statutory and constitutional requirements as set forth above, the liquor was lawfully seized and the District Court rightly held that it should not be returned.

The decree is affirmed.