Opinion
April 3, 1928.
Charles H. Tuttle, U.S. Atty., of New York City.
John A. Bolles, of New York City, for claimant.
Libel by the United States against a Lot of Wine at 1914 Daly Avenue, claimed by Donato Fella. On claimant's motion for an order dismissing and discontinuing the libel, and for an order directing the Prohibition Administrator of the State of New York, or whoever has custody of said liquors, to return the same to claimant. Motion granted.
It was stipulated, for the purposes of the motion, that the search of the premises of claimant was unlawful, and that the seizure of the wine was unlawful and unreasonable.
It being stipulated that the search was unlawful, seizure of the res necessarily falls, and this entire proceeding, together with the right to hold the res, falls with it. U.S. v. Specified Quantities of Intoxicating Liquors (C.C.A.) 7 F.2d 835. That part of section 33 of title 2 of the National Prohibition Act (27 USCA § 50), which imposes upon one who possesses liquor in his home the burden of proving "in any action concerning the same" the legality of his possession, can have no application here, because in legal effect and within the meaning of the statute there is no action pending. U.S. v. A Quantity of Intoxicating Liquors (D.C.) 289 F. 278. Consequently, no burden is imposed upon the claimant, from whom the res was unlawfully taken, to prove the legality of his possession.
Motion granted.