Opinion
George L. Grobe, U.S. Atty., of Buffalo, N.Y.
Vincent J. Mulvey, of Rochester, N.Y., for defendant.
RIPPEY, District Judge.
Defendant claims that the evidence in question was seized during an unlawful search of his automobile while he was proceeding along Empire boulevard in the city of Rochester on November 12, 1934. Two investigators in the Alcohol Tax Unit of the Treasury Department of the United States government made the search and seized the whisky. Attached to the return of the government is the affidavit of one of the agents, John H. Christner. From this it appears that the agent observed defendant and another man load two five-gallon cans of the size, shape, and appearance commonly used to contain alcohol into defendant's car at premises located at the corner of Bay and Sanders streets in the city of Rochester. The two agents followed the car and stopped the vehicle, and Christner 'inquired of the said driver what the cans which he had placed in the rear of said vehicle contained and he replied 'whiskey.' ' The agent thereupon searched the car and found the cans and that they contained whisky. If the statements of the agent as to this transaction is true, he had reasonable cause to believe that whisky was being transported in the car and reasonable grounds and cause for the search. The government is not required to show that the tax had not been paid on the whisky. The burden is on the defendant to show that the tax had been paid.
Defendant and his wife, who was riding with him, make affidavits that they did not tell the agent that the cans contained whisky. A question of fact is thus raised, and, if defendant's version of the transaction is true, the search was unlawful. But the truth of what happened in this case cannot be settled on affidavits; it must be settled at the trial.
The motion must be denied, and it is so ordered.