250 S. W. 1004; Veal v. Com. (1923) Ky., 251 S. W. 648.

Michigan. People v. De La Mater (1921) 213 Mich. 167, 182 N. W. 57; People v. Le Vasseur (1921) 213 Mich. 177, 182 N. W. 60; People v. Vander Veen (1921) 214 Mich. 21, 182 N. W. 61; People v. Mayhew (1921) 214 Mich. 153, 182 N. W. 676; People v. Halveksz (1921) 215 Mich. 136, 183 N. W. 752; People v. Foreman (1922) 218 Mich. 591, 188 N. W. 375; People v. Margolis (1922) 220 Mich. 431, 190 N. W. 306; People v. Effelberg (1922) 220 Mich. 528, 190 N. W. 727; People v. Knopka (1922) 220 Mich. 540, 190 N. W. 731; People v. Thompson (1923) Mich. -, 192 N. W. 560; People v. Musk (1922) Mich. 192 N. W. 485; People v. Hertz (1923) Mich. 193 N. W. 781; People v. Fons (1923) Mich. 194 N. W. 543; People v. Woodhouse (1923)

Mich. - 194 N. W. 545.

Mississippi.

Tucker V. State (1922) 128 Miss. 211, 24 A.L.R. 1377, 90 So. 845; Miller v. State (1922) 129 Miss. 774, 93 So. 2; Butler v. State (1922) 129 Miss. 778, 93 So. 3. Missouri. See State v. Hyde (1923) Mo., 248 S. W. 920.

Montana.-State ex rel. Samlin v. District Ct. (1921) 59 Mont. 600, 198 Pac. 362.

New York. People v. De Vasto (1921) 198 App. Div. 620, 190 N. Y. Supp. 816; Re Graham (1922) 203 App. Div. 172, 196 N. Y. Supp. 276; Re Liquors Seized at Auto Inn (1923) 204 App. Div. 185, 197 N. Y. Supp. 758; People v. 27 Barrels of Wine (1923) App. Div. —, 199 N. Y. Supp. 34; People v. Maniscalco (1923) 205 App. Div. 483, 199 N. Y. Supp. 444; Re Horschler (1921) 116 Misc. 243, 190 N. Y. Supp. 355; Re Search Warrant (1921) 116 Misc. 512, 190 N. Y. Supp. 574; Re Clohecy (1921) 191 N. Y. Supp. 93; State v. One Hudson Cabriolet Automobile (1921) 116 Misc. 399, 190 N. Y. Supp. 481; People v. Dineen (1922) 118 Misc. 295, 192 N. Y. Supp. 905; People v. Ball (1922) 119 Misc. 772, 198 N. Y. Supp. 332.

Oklahoma. See Stanley v. State (1921) 82 Okla. 294, 200 Pac. 229;

HOYER V. STATE (reported herewith) ante, 673; Walsh v. State (1923) Wis. - 192 N. W. 1004. See also State v. Jokosh (1923) Wis. 193 N. W. 976.

Where the original entry into the defendants' home was under a defective search warrant, and was therefore unlawful, the matter cannot be cured by another warrant issued upon information secured by the unlawful entry. United States v. Mitchell (1921) 274 Fed. 128; United States v. Boasberg (1922) 283 Fed. 305.

In this connection reference may be made to People v. Christiansen (1922)

Mich., 190 N. W. 236, where the court said: "It is insisted that Mr. Yarranton, the investigator, did not have a search warrant when he went to defendant's premises and purchased the liquor of him, and that this fact was an invasion of defendant's constitutional rights, and invalidated the subsequent proceedings. But Mr. Yarranton did not visit defendant's place to search it; he went there as a customer. He did not search for liquor, he bought it. We know of no rule of law which requires that a prospective customer of a bootlegger shall be armed with a search warrant before he opens negotiations for an illicit purchase of prohibited liquors."

It may be noted that in the following cases the liquors, etc., seized, were ordered returned:

Co. v. James (1922) 278 Fed. 249 ("property" ordered restored); United States v. Boasberg (1922) 283 Fed. 305; Godat v. McCarthy (1922) 283 Fed. 689; United States v. Casino (1923) 286 Fed. 976; United States v. Vigneaux (1923) 288 Fed. 977; United States v. A Quantity of Intoxicating Liquors (1923) 289 Fed. 278. See also United States v. Harnich (1922) 289 Fed. 256. Indiana. See Thompson v. State (1921) Ind., 130 N. E. 412. Michigan. People v. De La Mater (1921) 213 Mich. 167, 182 N. W. 57. Montana. State ex rel. Samlin v. District Ct. (1921) 59 Mont. 600, 198 Pac. 362.

New Jersey. Wholesale Drug Co. v. Brown (1922) 289 Fed. 108.

New York. People v. De Vasto (1921) 198 App. Div. 620, 190 N. Y. Supp. 816; Re Graham (1922) 203 App. Div. 172, 196 N. Y. Supp. 276; Re Liquors Seized at Auto Inn (1923) 204 App. Div. 185, 197 N. Y. Supp. 758; People v. 27 Barrels of Wine (1923) - App. Div. —, 199 N. Y. Supp. 34; Re Search Warrant (1921) 116 Misc. 512, 190 N. Y. Supp. 574; Re Clohecy (1921) 191 N. Y. Supp. 93; State v. One Hudson Cabriolet Automobile (1921) 116 Misc. 399, 190 N. Y. Supp. 481; People v. Dineen (1922) 118 Misc. 295, 192 N. Y. Supp. 905; People v. Ball (1922) 119 Misc. 772, 198 N. Y. Supp. 332.

In United States v. Porazzo Bros. (Fed.) supra, the court said: "The motion of the government to impound the liquors in question must be denied. They were seized under a search warrant, which was later vacated by the commissioner by whom it was issued, and who thereupon ordered the articles returned to Porazzo Brothers & Company. The seizure was therefore illegal, and prompt reparation for the wrong done thereby must be made."

Where, before the 18th Amendment to the Constitution became effective, liquor was taken by armed officers without a warrant from a private home, the court, in ordering its return to the petitioner, said: "The liquor was in a private home, where liquor might lawfully be, and could

not be taken therefrom without a warrant, except upon consent of the occupants of the home, voluntarily given. A consent accorded to a show of arms, even though no open objection be made, will not be regarded as voluntary. The outlawing of liquor by the 18th Amendment did not abrogate either the 4th or 5th Amendment to the Constitution, and the zeal of the enforcement officers in pursuing this recent outlaw cannot be permitted to carry them without warrant across the threshold of the home." United States v. Marquette (1920) 271 Fed. 120, appeal dismissed in (1921) 270 Fed. 214.

In United States v. A Quantity of Intoxicating Liquor (1923) 289 Fed. 278, the court answered in the affirmative the question whether intoxicating liquor illegally taken from private dwellings without search warrants, in September, 1920, by national prohibition officers, libeled in June, 1922, ordered by the court into the possession of the marshal, and claimed by the persons from whom taken, should be ordered returned to the claimants, without evidence as to the legality of their possession thus unlawfully disturbed.

In United States v. Kelih (1921) 272 Fed. 484, the court said: "It is further contended, because the Volstead Act provides that there shall be no property rights in illicit liquors, or apparatus for their manufacture, that therefore the property in question does not come within the 4th and 5th Amendments. The reason for a return of property in all cases of this character is not based upon property rights so much as the personal security afforded by the 5th Amendment, which relieves a man from being compelled to be a witness against himself in a criminal case. To permit the government in this case to retain possession of the property described in the motion, and use it in the trial of the case before the jury, would be in legal effect to require this defendant to be a witness against himself in a criminal case, which is clearly prohibited by the Constitution."

Where officers, without search war

rant or process, entered the houses of petitioners and seized whisky, which petitioners demanded returned, but declined to say whether it was their property, the court said: "They do not claim to own it, and are not injured by the seizure of it, except that the illegal action of the officers has placed in the government's hands evidence against the petitioners which it has no right to use. . . . The constitutional rights of these petitioners will be adequately protected by an order declaring the seizure an illegal one, and all evidence obtained thereby or based thereon inadmissible, and directing that the liquor be delivered to the United States marshal and impounded in his keeping until further order of the court in relation thereto." O'Connor v. Potter (1921) 276 Fed. 32.

But in United States v. Alexander, 278 Fed. 308, the court refused to order the return of the property illegally seized, saying: "It appears that the property seized in this case was illicit liquor,' commonly called 'moonshine' or 'shine,' made contrary to law, and the same should be destroyed by the marshal of this court."

In Godat v. McCarthy (1922) 283 Fed. 689, the court said in ordering the return of seized liquor: "If officers can gain entrance to a private building by virtue of their authority, and there seize and carry away property without notice to the owner and without his assent, and if, having done so, they can retain the property for nearly two years without instituting any proceeding for its forfeiture, the 4th and 5th Amendments to the United States Constitution amount to very little as far as the protection of personal property goes.

Godat's acquisition of the liquor, and his possession of it at his garage, were unlawful under the National Prohibition Act (41 Stat. at L. 305, chap. 85, Comp. Stat. § 10,138 a, Fed. Stat. Anno. Supp. 1919, p. 202). But these facts seem to me immaterial, and I may add relatively insignificant, as compared to the violation of his constitutional rights. He should be put in statu quo, as was

ordered in Amos v. United States (1920) 255 U. S. 313, 65 L. ed. 654, 41 Sup. Ct. Rep. 266, where the liquor was moonshine, which had been illegally seized, and was contraband under the internal revenue statutes."

In United States v. Descy (1922) 284 Fed. 724, in denying a motion to dismiss the application, it was held that, upon an application for the return of liquors unlawfully seized in a private dwelling, there does not rest upon the petitioner the burden of alleging and proving that such liquor was lawfully acquired and possessed. "We cannot believe that it was the intent of Congress to require a man to prove his innocence of a pending charge of crime in order to protect himself and his home from an unconstitutional invasion. The words of § 33, 'in any action concerning the same,' are inappropriate to a defensive application of this character."

But in United States v. Kaplan (1923) 286 Fed. 963, it was said that unless "the petition for the return of liquor, alleged to have been unlawfully seized, affirmatively shows that the petitioner is legally permitted to have possession of the liquor, the effort is to recover the possession of physical property whose possession will be a crime. There is no law requiring or justifying the return of property to anyone whose possession of it will constitute a crime, or whose use of it can be only for committing crime. 'Where liquors and stills, being used by defendants in violation of the law, were seized by officers acting under invalid search warrants, the property will not be returned to defendants, though the evidence obtained by the search cannot be used against them, because of the illegal methods by which it was procured.' United States v. Rykowski (1920; D. C.) 267 Fed. 866. I consider the above to be the correct statement of the law, and do not agree with the principle decided in the case of United States v. Ray & Schultz (1921; D. C.) 275 Fed. 1004."

So, in United States v. Dziadus (1923) 289 Fed. 837, the court, citing the case of United States v. Rykowski

(1920) 267 Fed. 866, held that intoxicating liquor seized under an invalid. search warrant would not be returned, but the evidence would be suppressed.

In Pasch v. People (1922) 72 Colo. 92, 209 Pac. 639, it appears that a Federal prohibition agent entered the pool room of defendant, and there found what he afterwards testified was whisky. On a hearing before a justice of the peace, an order was entered for the return of this liquor, but the defendant left the room without taking it; thereupon the sheriff took it. The court said, inter alia: "Section 7 of chapter 141, Laws of 1919, the statute under which the defendant was prosecuted, provides that there shall be no property interests in intoxicating liquors. Even under the Federal cases cited by counsel, there was, therefore, no right to a return of this liquor. For the same reason its admission in evidence was not error. . . . After it had been ordered returned, the defendant failed to take it, and under that state of facts we are not called upon to consider any question as to the right of the Federal officer to seize the liquor in the first instance."

It may be noted that in State v. Chuchola (1922) - Del. -, 120 Atl. 212, where it was conceded that the search warrant was void, the court stated that the seizure was illegal, but held that if intoxicating liquor is found in the possession of a person, and seized without a warrant, illegally seized, the person from whom it was taken is not entitled to its return or destruction, and it may be used as evidence against him at his trial without violating any constitutional provision. For cases of this nature, see the annotation in 24 A.L.R. 1408, above referred to.

2. Cases holding search warrant not necessary.

ed States (1921) 276 Fed. 808; United States v. Bateman (1922) 278 Fed. 231; Re Mobile (1922) 278 Fed. 949; Dillon v. United States (1921) 279 Fed. 639; Driskill v. United States (1922) 281 Fed. 146; O'Connor v. United States (1922) 281 Fed. 396; Lambert v. United States (1922) 282 Fed. 413; Vachina v. United States (1922) 283 Fed. 35; McBride v. United States (1922) 284 Fed. 416; United States v. Hilsinger (1922) 284 Fed. 585; Maldonado V. United States (1922) 284 Fed. 853; United States v. Rembert (1922) 284 Fed. 996; Bell v. United States (1922) 285 Fed. 145; United States v. Daison (1923) 288 Fed. 199. See also Herine v. United States (1921) 276 Fed. 806; McClintic v. United States (1922) 283 Fed. 781. Colorado. Sullivitch v. People (1922) 71 Colo. 376, 206 Pac. 789; Smuk v. People (1922) 72 Colo. 97, 209 Pac. 636.

Kentucky.-Bowling v. Com. (1922) 193 Ky. 642, 237 S. W. 381; Royce v. Com. (1922) 194 Ky. 480, 239 S. W. 795; Brent v. Com. (1922) 194 Ky. 504, 240 S. W. 45; Fletcher v. Com. (1922) 196 Ky. 625, 245 S. W. 134; Smith v. Com. (1923) Ky. 246 S. W. 449; Hale v. Com. (1923) Ky. —, 246 S. W. 787; Keith v. Com. (1923) Ky., 247 S. W. 42; Com. v. Warner (1923) Ky., 250 S. W. 86; Patrick v. Com. (1923) Ky. 250 S. W. 507. See also Whitaker v. Com. (1923) Ky., 246 S. W. 825. Louisiana.-State v. Lowry (1923) 153 La., 95 So. 596.

Michigan. People v. Chyc (1922) 219 Mich. 273, 189 N. W. 70; People v. De Cesare (1922) 220 Mich. 417, 190 N. W. 302; People v. Chomis (1923) Mich., 193 N. W. 796; People v. Burt (1923) Mich. —, 194 N. W. 547; PEOPLE v. CASE (reported herewith) ante, 686.

--

Mississippi.-Faulk v. State (1922)

127 Miss. 894, 90 So. 481; Baskin v. State (1922) Miss. - 92 So. 556. Montana.-State ex rel. Neville v. Mullen (1922) 63 Mont. 50, 207 Pac. 634.

New York. Safee v. Buffalo (1923) 204 App. Div. 561, 198 N. Y. Supp. 646; People v. 738 Bottles of Intoxicating Liquor (1921) 116 Misc. 252, 190 N. Y. Supp. 477.

North Carolina.-State v. Simmons (1922) 183 N. C. 684, 110 S. E. 591. See also State v. Campbell (1921) 182 N. C. 911, 110 S. E. 86.

-

Ohio. Ciano v. State (1922) 105 Ohio St. 229, 137 N. E. 11; Houck v. State (1922) Ohio St., 140 N. E. 112. See also State v. Phillips (1922) 105 Ohio St. 541, 138 N. E. 55. South Carolina. State v. Guest (1921) 118 S. C. 130, 110 S. E. 112; State v. Kanellos (1923) S. C., 115 S. E. 636; State v. Kanellos (1923) S. C. —, 117 S. E. 640.

Tennessee. State Hughes v. (1922) 145 Tenn. 544, 20 A.L.R. 639, 238 S. W. 588.

Texas.-Yohner v. State (1923) Tex. Crim. Rep. 247 S. W. 533; Green v. State (1922) 92 Tex. Crim. Rep. 151, 241 S. W. 1014. See also Brown v. State (1922) 92 Tex. Crim. Rep. 147, 242 S. W. 218; Tiner v. State (1922) 92 Tex. Crim. Rep. 306, 243 S. W. 1092.

Utah. Salt Lake City v. Wight (1922) Utah,, 205 Pac. 900. Virginia. Quivers v. Com. (1923) Va., 115 S. E. 564. See also McClannan v. Chaplain (1923) — Va. —, 116 S. E. 495..

Washington.

State v. Llewellyn (1922) 119 Wash. 306, 205 Pac. 394; State v. Miller (1922) 121 Wash. 153, 209 Pac. 9.

Wisconsin.-Finsky v. State (1922) 176 Wis. 481, 187 N. W. 201; Silber v. Bloodgood (1922) 177 Wis. 608, 188 N. W. 84.

(b) Under statute. See also infra (e).

Some of the cases justifying search without a warrant rest upon statutes conferring such authority upon officers.

In Sullivitch v. People (1922) 71

Colo. 376, 206 Pac. 789, under a statute providing that a sheriff or other officer "having personal knowledge, or reasonable information, that intoxicating liquors have been kept in violation of law in any place (except a home, as in § 4 provided), shall search such suspected place without a warrant," etc., it was held that the cellar under the room occupied by the defendant as a residence was a place in which the sheriff might lawfully make search without a warrant, he having reasonable information that intoxicating liquors were kept in such place, the trial court having found that it was not a part of the home, but was in effect a wine shop.

In Quivers v. Com. (1923) — Va. -, 115 S. E. 564, where counsel for the defendant argued that the trial court erred in permitting the witnesses "to testify in regard to the ardent spirits found in the pocket of the accused, and on the seat of the cart in which he and Moses Russell were riding, because the sheriff had no authority to stop and arrest and search them for ardent spirits without a search warrant," the court said: "Section 4 of chapter 345 of the Acts of 1920 (Acts 1920, p. 517) expressly provides that any officer empowered to enforce the laws with reference to intoxicating liquors may enter any vehicle of travel without a search warrant for the purpose of police inspection. The sheriff, therefore, acted under, and not against, the authority of the statute upon which the defendant relies. Having thus found, on the seat between them, evidence that the occupants of the car were committing a misdemeanor in his presence, it was his right and duty to arrest them, and to search their persons for further evidence of their guilt."

See also cases cited in annotation in 3 A.L.R. 1517, and 13 A.L.R. 1317, 1318.

(c) In case of lawful arrest. Where an arrest is proper, a search of the person is lawful. United States v. Kraus (1921) 270 Fed. 578 (papers seized); Baron v. United States (1923) 286 Fed. 822 (papers