
    Babika v. City of Cleveland.
    (Decided September 21, 1931.)
    
      Mr. Milton Firestone and Mr. Henry Galen, for plaintiff in error.
    
      Mr. Harold H. Burton, Mr. Norman A. Ryan and Mr. Erwin H. Boers, for defendant in error.
   Vickery, J.

This cause comes into this court on a petition in error to the municipal court of the city of Cleveland, the purpose being to reverse a judgment of conviction for the unlawful possession of liquor rendered against the plaintiff in error, Louise Babika, defendant in the court below.

Two several grounds are urged why this judgment should be reversed. The first and the one mainly relied upon is that the search warrant under which the house was searched was issued without proper investigation, and that the motion for the return of the evidence and the discharge of the defendant in the court below should have been granted. The second one is that there was not sufficient evidence upon which the conviction of the defendant could be maintained, if it was found that the search warrant was properly issued.

Taking up these reasons for reversal in their order, we would say that the record shows that this woman and her family, and there is nothing in the record to show but what she was the head of it, were occupying a building that was used as a residence and a store, in which she, or her daughter, or family, conducted a business; that there was communication through a door from the store into the living room apartment; that there was a glass panel in this door; that prior to the day on which the search was made and the defendant arrested, complaints had apparently been made and thereafter officers watched this place at different times; that at several times the policemen watching found that several men went into this place and came out later apparently intoxicated, and that this state of affairs continued for several days, or at least twice while the police were watching, before they asked to have a warrant issued.

Upon this evidence the officers believed they had probable cause that a trafficking in liquor was going on in this place, and they swore out a search warrant and went there with it. The door between the store and the dwelling part of the house was hastily closed, and apparently a scramble was made to get into the dwelling part of the house. The officers went.to the door, and, finding it locked, broke the glass, unlocked the door, and went in, and found a bottle of what purported to be whisky hidden in a bed in one of the bedrooms. An analysis of the contents of this bottle showed that it contained forty per cent, alcohol and that it was fit for beverage purposes.

After the officers found this bottle and a jug filled with water in. the bathroom, the cork of which smelled of whisky, they made a further search of the store and found a jug which was partly filled with liquor. Upon an analysis this liquor was found to contain seven per cent, alcohol. They also found glasses and other paraphernalia that go with the vending of liquor.

An affidavit was sworn out, plaintiff in error was arrested on a charge of unlawful possession of intoxicating liquor, and was tried and found guilty, and, as already stated, it is to reverse that finding that error is prosecuted here.

We think there was ample evidence, as shown by the investigation, which would warrant the officers in thinking that there was probably a trafficking in liquor going on in the building, and that the search warrant was properly issued, and so the first ground of error must necessarily fail. Officers cannot always be certain of what they will find. They are held only to exercise enough care so they will not trespass upon the rights of bona fide occupiers of bona fide homes. They only have to have probable cause to believe that the place is being used for the vending of alcoholic drinks in violation of the ordinance of the city of Cleveland, in order to justify the obtaining of a search warrant. We think there was ample evidence in this case to show that there was probable cause. Therefore the motion to' arrest the evidence and discharge the prisoner was properly overruled.

Now from what has been said already, it would necessarily follow that the conduct of the parties after the officers got into this room in hastily locking the door, the finding by the officers of a bottle of whisky hidden in a bed and of a jug partly filled with whisky in the store, together with other paraphernalia and the glasses which go with the vending of liquor, are ample evidence to show that undoubtedly there was a trafficking in liquor going on in this place, and the finding of the court was not contrary to, but in accordance with, the evidence that was properly introduced in this case.

Therefore the only thing that this court can do is to affirm the judgment of the trial court.

The judgment is therefore affirmed.

Judgment affirmed.

Levine, P. J., and Weygandt, J., concur.  