The opinion of the court was delivered by: AVIS
On June 27, 1932, I filed a memorandum in which I decided that the evidence obtained by the search and seizure of the vessel Antonina should be suppressed because of illegality of such search and seizure. The United States attorney asked for a reargument, which was allowed, and additional briefs have been submitted.
Inadvertently, in my memorandum, I stated that the manifest had been produced by the master. At that time I did not have a transcript of the testimony taken, and this statement was based upon my incomplete notes. It now appears that it was not required that the boat should have had a manifest, and none was produced. However, as I view the facts and the law, this would not affect the decision.
The United States attorney argues:
(1) That the Defendant Had No Status to Make the Motion. Their status was not questioned at the time of hearing, and it does not appear by the record that the defendants did not have an interest, such as to give them the right to the relief requested. The case was submitted on the one question only, i.e., could the Coast Guard seize and search the vessel without probable cause to believe the law was being violated? The seizure was made on July 24, 1930, and I do not feel that the entire matter should be reopened at this late date.
(2) That the Decree of Condemnation Rendered the Question of the Validity of the Search and Seizure Res Adjudicata and This Decree Was Not Subject to Collateral Attack. The cases cited by the United States attorney refer only to the validity of the condemnation, and every interest in the res. No case is cited which holds that the defendants are precluded from making a motion to suppress the evidence in a criminal cause.
(3) That the Vessel Carried a Foreign Cargo, had No Manifest, and Was Properly Subject to Search Under Section 581, Tariff Act 1922, title 19, USCA § 481 (repealed; now Tariff Act 1930, § 581 [ 19 USCA § 1581]). It appears by the record that no manifest was required to be carried by the vessel. The fact that the vessel was carrying of foreign cargo was not discovered until after the search and seizure. The search being illegal, what was discovered thereby could not make legal that which was illegal at the time.
The case of Maul v. United States, 274 U.S. 501, 47 S. Ct. 735, 71 L. Ed. 1171, referred to in brief, raised no question of the legality of the search and seizure based upon probable cause. The only matter involved in that case was the right to seize a domestic vessel beyond the 12-mile limit.
(4) That the Vessel was Lawfully Searched and Seized Under Provisions of R.S. § 4377, title 46, USCA § 325. The case of United States v. The Ruth Mildred, 286 U.S. 67, 69, 52 S. Ct. 473, 76 L. Ed. 981, cited by government counsel under this heading, has no bearing upon the instant controversy. In that case the vessel was legally seized, and the court decided that forfeiture could be had under Rev. St. § 4377, and not necessarily under the National Prohibition Act (27 USCA), where the vessel was licensed for the fishing trade, but actually carried a cargo of intoxicating liquors.
For the reasons stated, the court adheres to the decision originally rendered.
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