In re Heckman (35 F.2d 209, 1929)

HAZEL, District Judge.

The prohibition officer suspected that the premises No. 210 Dewey avenue, Buffalo, a place of business, was used, at the rear part, to illegally manufacture beer. His suspicions were aroused by seizure of a so-called wildcat brewery in Cheektowaga, a brewery where beer exceeding the alcoholic content allowed by the National Prohibition Act (27 USCA) was found, and where two compressed carbonizing tanks were seized, containing certain serial numbers. On inquiry of the seller of the tanks and the driver of a delivery van, the agent learned that the tanks had been originally delivered to defendant Heekman at the premises in question. He inspected the place of delivery and scented a strong odor of beer from the sidewalk, and, upon peering through the rear door of the building, saw beer kegs and eases and carbonizing tanks. On a subsequent visit he saw a man, employed by defendant, wearing heavy rubber boots, walking from the rear door which had been loeked, who, he said, smelled strongly of beer. On these facts, a¡et forth in the officer’s affidavit, a seareh and seizure warrant was issued by the United States Commissioner.

The first question on this motion to vacate the warrant is whether probable cause existed for its issuance. The seareh of the premises, not used as a dwelling, revealed 41 half barrels of beer, 2 quarter barrels of beer, carbonizing tanks, and other articles, to wit, capping machines, bottles, etc., articles used in bottling beer for consumption. There also were seized at the time of the Search certain books, papers, and memoranda to which no reference was made in the seareh warrant and for which no receipt was given defendant. Assuming this to have been a defect, it was waived at the hearing. Even though it had not been, the search and seizure under the seareh warrant was not invalid. U. S. v. Callahan (D. C.) 17 F.(2d) 937; State v. Noble, 96 W. Va. 432, 123 S. E. 237. The single ground relied on is that the affidavit upon which the seareh warrant was issued was insufficient in law and and contained merely suspicious circumstances, and hence the search and seizure was in violation of the Fourth Amendment to the Constitution.

In motions of this character, the esr sential question is whether the search and seizure was unreasonable in view of the facts and circumstances known to the affiant, and whether they were sueh as to eause him to believe, or have good reason to believe, that a violation of law was being committed on the premises described in the warrant. As said in Feitler v. U. S., 34 F.(2d) 30, 31, 33, recently decided by the Circuit Court of Appeals for the Third Circuit, probable cause “cannot be tested by any. fixed rule of law but can be determined by finding that they are sueh as to warrant a man of sense, prudence and caution in believing that an offense against the law is being committed.” When the odor of beer or whisky is detected, coming from premises not used as a dwelling and not operated under a permit, the thought quite naturally arises that liquors are being manufactured on the premises from whence the odor comes; and, in such case, it can hardly be held that a vigilant officer in the performance of his duty should place no reliance upon his sense of smell or sight. In such case, arrest without warrant and entry of premises for seizure of incriminating evidence has been upheld. See McBride v. U. S. (C. C. A.) 284 F. 416, and eases cited. Of course, the od