The opinion of the court was delivered by: BYERS
This is a motion for an order dismissing the libel and for a return of the vessel and cargo which constitute the subject matter of the libel.
In the case of United States v. Powers et al. (D.C.) 1 F. Supp. 458, a motion was granted to suppress the evidence obtained by the Coast Guard in connection with the seizure in Long Island Sound of the Elizabeth S on May 16, 1932, on the ground that the seizure of the vessel and the search conducted pursuant thereto were illegal for the reason that there was no probable cause to justify the boarding by the Coast Guard for the purpose of discovering, if possible, a violation of the Prohibition Law (27 USCA); that the contention that the boarding, search and seizure were actually justified under section 581 of the Tariff Act of 1930 (19 USCA § 1581), could not prevail because it was apparent that the unlawful acts of the Coast Guard were not performed for the purpose of ascertaining whether, in fact, there was being committed any tariff act violation.
The matter now presented for determination is whether the seizure, having been held to be illegal, may nevertheless from the basis of a valid forfeiture proceeding pursuant to the provisions of the said Tariff Act. The seizure is alleged to have been "for violation of the provisions of the laws of the United States," but reference to the specific law is carefully avoided; the causes of forfeiture as alleged in the libel are as follows:
First: To recover the penalty provided in section 584 of the Tariff Act [19 USCA § 1584] because no manifest was produced.
Second: To secure the penalty provided in the said section equal to the value of the merchandise not included in the said manifest.
Third: Because of the forfeiture of the cargo of liquor said to be contemplated by section 592 of the said Tariff Act [19 USCA § 1592].
Fourth: To secure the fine constituting a punishment for a misdemeanor for violating section 593 of the said act, 19 USCA § 1593 (although there has been no prosecution thereunder).
Fifth: Because the vessel is subject to forfeiture for having engaged in trade other than that for which it was licensed, in violation of the provisions of section 4377 of the Revised Statutes (46 USCA § 325).
The criminal charges in which the motion to suppress was granted were those of possessing and transporting intoxicating liquors in violation of the National Prohibition Act (27 USCA); following the granting of the said motion, said criminal proceedings were dismissed.
The question is whether the seizure, having been held illegal in the criminal proceedings, may still be sufficient to support the forfeiture herein sought.
Had the Coast Guard boarded the vessel for the purpose of ascertaining whether a violation of the Tariff Act was being committed, the necessity for probable cause would not have existed, and a seizure followed by proper proceedings for a violation of the Tariff Act would have avoided the objections presented and heretofore considered in the criminal proceedings. While it may be convenient to the government to disregard all that took place in connection with the criminal cause, and consider this subject as it is now presented, solely as a new issue involving only violation of the tariff law, no authority is cited which would justify such a method of approach.
A decision has been made that the seizure was illegal because it was not made under the Tariff Act but under the Prohibition Law, and it is not apparent how the court can now say that a seizure, which was illegal for the purposes for which it was made, may be upheld, nevertheless, because it would have been legal for another purpose, which was not entertained or sought to be accomplished.
The United States elected to proceed under the Prohibition Law and, having been unsuccessful, is now seeking to do what it might have done in the ...