
    UNITED STATES OF AMERICA Plff., v. ULISES MARTINEZ, Dft.
    San Juan,
    Criminal,
    No. 3170.
    Opinion filed January 3, 1924.
    
      Major Ira K. Wells, United. States District Attorney, for tbe United States.
    
      Mr. Ei B. Wilcox for tbe defendant.
   OdliN, Judge,

delivered tbe following opinion:

Tbe question presented for decision at this time in tbe above-entitled case is whether tbe second amended motion filed by tbe counsel for the defendant for tbe return of certain liquors should be granted or denied. Tbe verified statements by tbe defendant, and which have not' been refuted by tbe United States, set forth that tbe liquors in question were seized on or about January 25, 1922, from certain premises in tbe city of Caguas,. Porto Rico, not owned by tbe defendant, but which were occupied by him as bis private dwelling.

Under tbe rulings of tbe circuit court of appeals for tbe first circuit, wbicb of course are binding upon this court, as set forth in the famous Giles Case reported in 284 Fed. 208, tbe search warrant upon wbicb tbe liquor was seized in tbe case now presented to this court was illegal, null, and void; for tbe reason that tbe affidavit wbicb preceded tbe issuance of tbe search warrant set forth no specific facts but only conclusions of law; and it also appears that tbe search warrant itself was fatally defective, in that it did not describe tbe location of the premises to be searched with any words sufficient to identify tbe same. Tbe search warrant did not even give tbe name of tbe town or tbe city, or mention tbe Island of Porto Kico. But tbe United States district attorney, in resisting tbe present motion, relies upon a decision by Mr. District Judge Garvin, sitting in tbe Federal court at Brooklyn, New York, which decision was rendered July 10, 1923, in tbe case of United States v. Jensen, reported in 291 Fed. 668. Judge Garvin specifically bolds that where liquor has been unlawfully seized and application is made for its return, tbe person seeking such return must show that tbe liquor in question was lawfully possessed or acquired. This allegation of lawful possession or lawful acquirement is absent from tbe present motion now before this court for decision.

I would be strongly inclined to follow tbe ruling of Judge Garvin except for tbe fact that in bis reference to tbe Giles Case be points out that there is nothing in tbe record of that case to indicate that tbe point raised before himself, Judge Garvin, was submitted to tbe court of appeals at Boston for determination, and therefore be concludes that that- case cannot be regarded as controlling authority. ....

Counsel for defendant relies upon tbe decision of Mr. District Judge Brown, sitting in tbe United States court of Bhode Island in tbe ease of United States v. Descy, which decision was rendered on November II, 1922, and is reported in 284 Fed. 124. He distinctly bolds that tbe provision of tbe National Prohibition Act, title 2, § 33, that in any action concerning tbe same tbe burden shall be on tbe possessor of liquor to prove that it was lawfully acquired and possessed does not apply to a petition for return of liquor unlawfully seized and taken from petitioner’s private dwelling. In that case tbe liquor was ordered returned. Judge Brown refers to tbe Giles Case and points out, that, although tbe motion presented by Giles contained no allegation of lawful acquirement or lawful possession, and that tbe defendant’s right to a return was thus based merely upon the illegality of tbe seizure, there was no suggestion by the court of appeals that tbe petitioner Giles should have gone further and alleged and proved tbe lawfulness of bis possession.

Tbe writer of this opinion has himself found two recent decisions by Mr. District Judge Brewster, sitting in tbe Federal court in Massachusetts. Both are dated April 6, 1923. One is the case of United States v. Vigneaux, reported in 288 Fed. 977; the other is tbe case of United States v. Sievers, reported in 292 Fed. 394.

Judge Brewster distinctly bolds in tbe first case that a person from whose private dwelling liquor was seized and taken under an illegal search warrant is entitled to a return of the same, and be is not required under tbe National Prohibition Act to assume tbe burden of proving that bis possession of tbe liquor was lawful. Judge Brewster points out, that, while there is a conflict of opinion on this point, be would be running counter to tbe great weight of authority if he were to hold that the provisions of §§ 25 and 33 of the National Prohibition Act could operate to overturn the rule creating the constitutional privileges of the individual citizen to be secure from unreasonable and unlawful search and seizure. Judge Brewster also distinctly says that he must follow the law as laid down by the United States Supreme Court, and that he must respect the provisions of the 4th and 5th Amendments to the Constitution of the United States.

Turning to the other decision by Judge Brewster in the Sievers Case, it seems that there was a building, most of which was used as a hotel, but in this building there was a suite which was used and occupied by Sievers, not transiently but solely as a residence, and therefore this suite constituted the private dwelling of Sievers. There was a warrant issued which authorized search of the hotel only; but the officers executing this warrant seized liquor from the suite of Sievers, and the liquor was ordered returned by Judge Brewster.

The conclusion is irresistible to my mind, that, inasmuch as Judge Brown and Judge Brewster are district judges sitting in the first circuit, and Porto Bico is attached to the first circuit, these two judges must be in a better position to estimate the force and value of the doctrines laid down by the circuit court of appeals in the Giles Case than Mr. Justice Garvin, sitting in the second circuit, could be able to do. I therefore feel that I must follow the rule as laid down by Judges Brown and Brewster, and disregard the rule as laid down by Judge Garvin. It is hoped that this decision will be reviewed by the United States district attorney, in order that tbe point may be definitely settled so far as tbe first circuit .is concerned.

The motion for tbe return of tbe liquor in question is granted, and to this ruling tbe attorney for tbe United States excepts.

Done and Ordered in open court at San Juan, Porto Pico, this 3d day of January, 1924.  