January 6, 1941.
George L. Grobe, U.S. Atty., by R. Norman Kirchgraber, Asst. U.S. Atty., both of Buffalo, N.Y., for plaintiff.
Norman C. Hise, of Buffalo, N.Y., for defendant.
This is a motion to set aside the search and seizure made herein and suppress the evidence obtained thereon. An investigator of the Alcohol Tax Unit observed the defendant enter premises at 101 Wilkerson Street, Buffalo, New York, carrying two burlap wrapped cans of the size and shape of 5-gallon cans commonly used to transport alcohol. This investigator, with another, entered into the common hallway of the building which was occupied by several different families. Upon entering the hallway the investigator detected the odor of alcohol, especially at a door of a cupboard which was locked with a padlock and located under the stairs which led to the upper floor of the building. Lumia himself was found standing behind a door at the end of the hallway. Near this door the investigator found a key container with four keys, with one of these opened the padlock and found two burlap wrapped cans, such as those seen taken by defendant into the building. The search was without a warrant. The cans with contents were seized and the defendant here claims to be the owner of the liquor and entitled to possession of it and the use of the place where found. The only question here is whether this locked cupboard in the common hallway constituted part of defendant's dwelling. Defendant with his family resided in an apartment in the building, and this was a hallway used by him to gain ingress and egress to his apartment. The question must be answered in the affirmative and the motion granted. Wakkuri v. United States, 6 Cir., 67 F.2d 844; and Temperani v. United States, 9 Cir., 299 F. 365.