The opinion of the court was delivered by: KNIGHT
Plaintiff moves to vacate and set aside an order entered January 24, 1950, suppressing certain evidence.
A federal grand jury indicted defendant on three counts: (1) for having in his possession and under his control, on or about October 7, 1949, in Buffalo, N.Y., a 'distilling apparatus set up, * * * not being registered as required by law, in violation of Section 2810(a), Title 26, U.S.C. (26 U.S.C.A. § 2810(a))'; (2) for having 'in his possession certain distilled spirits, the immediate containers thereof not having affixed thereto a stamp or stamps denoting the quantity of such distilled spirits contained therein evidencing the payment of all Internal Revenue taxes imposed thereon, in violation of Section 2803, Title 26, U.S.C. (26 U.S.C.A. § 2803)'; (3) for being engaged on said date 'in the business of a distiller without giving notice in writing to the Collector of Internal Revenue of the district wherein such business was carried on, in violation of Section 2812, Title 26, U.S.C. (26 U.S.C.A. § 2812).'
The facts about this search and seizure are stated in the opinion of this court dated January 20, 1950. 91 F.Supp. 223.
The order in question, granted and entered January 24, 1950, provided:
'Ordered, that any and all evidence and knowledge obtained by virtue of the illegal search and seizure be set aside and suppressed, and that the United States District Attorney and the United States Internal Revenue Department, or any other branch thereof, are hereby restrained from making any use of the things seized, or of any information gained as a result of the said illegal search and seizure, and it is further
'Ordered, that the above entitled indictment No. 5194-C be quashed and held for naught, the evidence having been obtained by virtue of an illegal search and seizure.'
Plaintiff, in support of its motion, has submitted these four supplemental affidavits:
T. W. Dreesen, an Investigator in Charge of the Alcohol Tax Unit of the Bureau of Internal Revenue, who avers (affidavit verified January 24, 1950) that, on October 7, 1949, 'he was at home when he received a telephone call from a member of the Liquor Squad of the Buffalo Police, who stated that they had seized a still on the premises of 568 Busti Avenue, Buffalo, New York, and requested that he assign an Investigator of the Alcohol Tax Unit to adopt this case from the Buffalo Police Department for prosecution in Federal Court; that he immediately contacted Criminal Investigator Rudolph L. Weidemann and told him to contact Criminal Investigator Taylor and that the two should proceed to 568 Busti Avenue and adopt the case from the Buffalo Police Department.'
Rudolph L. Weidemann, said Criminal Investigator, in his affidavit of February 23, 1950, alleges that he wishes to supplement his affidavit of January 6, 1950, 'by adding that when he received a telephone call from his superior, Mr. Dreesen, that Mr. Dreesen told him that Buffalo Police had seized a still at No. 568 Busti Avenue and that Mr. Dreesen further directed him to proceed to that address for the purpose of adopting the seizure from the Buffalo Police.'
Lewis E. Newman, a Patrolman in the Bufffalo Police Department, in his affidavit of February 24, 1950, supplementing that of January 9, 1950, alleges 'that at the time he came upon said still in operation at said premises, he had no prior information of its existence or operation; he had not had instructions or conversation from any other officers, either local or Federal, relative to the still and upon finding the still, he took possession of it and remained on guard over it until he was relieved by other officers * * * that he did not remain upon the premises until Federal officers arrived and, in fact, did not, on that occasion, see any Federal officers arrive to adopt the seizure from Buffalo Police.'
Irving W. Dehn, a Police Officer of Buffalo Police Department attached to Vice and Liquor Squad, in his affidavit of February 24, 1950, supplementing his affidavit of January 9, 1950, alleges 'that from the time the still * * * was found by officers of the Buffalo Police Department * * * until the time when Federal agents were notified of its presence and came upon the premises * * * the still * * * was in the custody of Buffalo Police Department officers * * * that he had no prior knowledge of the existence of this still until it was found by Buffalo Police Officers * * * that he had no conversation or arrangements with any Federal agents relative to the existence of the seizure of said still. To the best of his knowledge, Federal agents had no knowledge of (its) existence * * * until he notified (them) to come and adopt the case from us.'
Defendant has not submitted any opposing affidavit but his and plaintiff's counsel have submitted supplemental memoranda.
None of the officers involved in this case had a search warrant. The still was first discovered by said Patrolman Newman who 'had no prior information of its existence or operation.' In his affidavit of January 9, 1950, he said: 'On or about the 7th day of October, 1949, I went to premises No. 568 Busti Avenue * * *, for the purpose of serving a notice upon the Amoia family regarding one of their children. I rang the bell at the side door, but received no response. The door was open. I thereupon stepped into the hallway and called, but again received no response. From the hallway there is a door with a stairway leading to the cellar, and I could see that a light was burning in the cellar, and I could also hear a washing machine in operation. I stepped down the cellar stairs and again called, but neither received any response nor saw anyone there. At the rear of the cellar I saw a separate room partitioned off from the rest of the cellar. There were various cracks in the partition itself and near the doorway through which I could see a light burning within. I walked to the rear * * * and I could see through the cracks * * * what appeared to me to be a still in operation. I then retraced my steps * * * and at the foot of the stairway I met * * * Mrs. Amoia. I then called into the house officer Davisson who joined Mrs. Amoia and I in the cellar. Then, accompanied by (them), I again walked to the rear of the cellar where I removed an open padlock from a hasp on the door leading to the separate room. On opening the door I saw a still in operation. I then requested officer Davisson to telephone No. 10 Precinct, which he did. Shortly thereafter we were relieved by other officers and we left the premises * * *. Neither I nor officer Davisson at any time contacted any federal agents regarding the still.'
No affidavit of officer Davisson has been submitted. Patrolman Newman does not mention defendant Joseph Amoia. Investigator Dreesen made no affidavit prior to that of January 24, 1950. Investigator Weidemann, in his affidavit of January 6, 1950, alleges that he received a telephone call from his superior, Investigator Dreesen, to proceed to 568 Busti Avenue, that he arrived there about 6:15 P.M. and 'found there certain police officers of the City of Buffalo, among them Detectives Lehmann and Dehn, and saw in the basement * * * a certain still * * * proceeded to make certain routine investigation * * * ; that at about 8:00 P.M. Joseph Amoia arrived * * * he asked (him), 'What have you got here?' and (he) answered, 'A still * * * I had 300 gallons of sour wine and I put sugar and water in it' * * * that shortly thereafter he placed (him) under arrest * * * took from the premises certain samples of mash and alcohol, and that he destroyed the ...