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THE EVELYN

March 22, 1933

THE EVELYN; THE DORIS; THE HELEN; UNITED STATES
v.
146,157 GALLONS OF ALCOHOL (FRANK RIZZO, Claimant)



The opinion of the court was delivered by: FORMAN

On December 22, 1932, the government filed a libel against the oil barge Doris and one against 146,157 gallons of alcohol allegedly found on board. Similar libels were filed against the motor oil screw Evelyn and 4 1/2 gallons of alcohol allegedly found on board and against the oil barge Helen and 3 gallons of alcohol.

On December 23, 1932, one Frank Rizzo filed a "notice of claim" under oath alleging ownership of the 146,157 gallons of alcohol.

 On the same day Matoil Service & Transport Company, Inc., claimed ownership in the three vessels. The notices of claim are signed and verified by Samuel Kessler as attorney of the claimant.

 On the same day both claimants filed answers and exceptions and gave notices of motions to dismiss the libels.

 The United States attorney on December 27, 1932, filed "exceptive allegations" to the claims and the matter came on for hearing pursuant to the notice to dismiss the libels on December 30, 1932, and was continued until January 27, 1933.

 The seizure upon which the libels are based took place at Port Johnson, Bayonne, N.J., on the afternoon of December 12, 1932. Information concerning one or more of these vessels had come to the headquarters of the coast guard, the Customs Guard George Pernisco with a party of customs guards and Boatswain Oscar E. Carlson with a number of coast guardsmen made the seizures. They found the boats lying alongside of each other at a wharf at Port Johnson.

 No one being in evidence they boarded the oil barge Doris and lifted a manhole cover and perceived the cargo of alcohol. On boarding the motor oil screw Evelyn they met Frank Rizzo and the Customs Guard Pernisco had a conversation with him during which Rizzo said, "I am just a watchman hired this afternoon by a man named "Rogers."

 Rizzo now claims to be the owner of the alcohol.

 The government in its exceptive allegations joined the issue of ownership and at the hearing the government officials testified, but the claimants relied upon their notices of claim and offered no testimony as to their ownership.

 The claimants rest upon the theory that the search being illegal the government never obtained any rights under the seizure.

 Therefore, the first question to be considered here is whether the claimants have such standing that they may question the legality of the government's seizures.

 Obviously no person can complain of a seizure unless his constitutional rights have been invaded. It is elementary that a mere passerby or some entirely disinterested person cannot question the acts of the government in its seizure. Therefore, the attack upon the seizure must emanate from the owner of the res or from a person who at the time of the seizure was clothed with such attributes of ownership as to make the seizure of the res an invasion of his rights under the Fourth Amendment to the Constitution.

 In this case we are not persuaded that the claimants have established such a status as warrants ...


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