United States v. Marra, 40 F.2d 271 (W.D.N.Y. 1930)

US District Court for the Western District of New York - 40 F.2d 271 (W.D.N.Y. 1930)
April 23, 1930

40 F.2d 271 (1930)

MARRA et al.

District Court, W. D. New York.

April 23, 1930.

Richard H. Templeton, U. S. Atty., of Buffalo, N. Y. (John K. Gerken, Asst. U. S. Atty., of Buffalo, N. Y., of counsel), for the United States.

William B. Mahoney, of Buffalo, N. Y., for defendants.

ADLER, District Judge.

Under the facts in this case, I find that there was no invitation given by the defendant Sam Marra to the prohibition officers to search the premises. The statement of the officers to the defendant, on presenting themselves at the door, that they were prohibition officers and were going to inspect the premises, and the reply of the defendant, "All right," might be said to be acquiescence, but under the circumstances did not amount to an invitation to enter and search. In re Lobosco (D. C.) 11 F.(2d) 892; United States v. Kozan (D. C.) 37 F.(2d) 415, at page 418.

In this case, under the facts as they were developed at the hearing before the commissioner, the prohibition officers could probably readily have obtained a search warrant for these premises. This is what they should have done instead of searching without a warrant. United States v. Di Corvo (D. C.) 37 F.(2d) 124. Also see the recent opinion of Judge Fake in United States v. Samuel Rabstein (D. C.) 41 F.(2d) 227.

Motion to suppress evidence obtained on the search is granted.

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