Nagle v. Cleveland , 10 Ohio Law. Abs. 539 ( 1930 )

CLINE, J.

In the case of Bender v Adams, 26 O. L. R. 128, which this court has consistently followed since the opinion was rendered, the court held:

“Before search can be made of a private residence even by those armed with a warrant, there must be an investigation resulting in reasonable grounds for belief that violation of the liquor laws is occurring therein; otherwise officers making the-search do so at their peril, and are trespassers ab inito, and liable for at least nominal damages.

The rights of the owner of a residence are not waived by the fact, that he does not make a disturbance or resist the officers making a search.”

We believe that the decision in the Bender case is sotmd and that its force should not be weakened.

When there is no evidence, direct or circumstantial, tending to prove that there was trafficking in intoxicating liquor in a private home, such home is protected against unlawful search and invasion.

The officers went to the place upon the complaint that the defendant’s home and the “Embassy Inn” which is situated next door, were frequented by young girls. Upon their admission to the place, defendant, evidently relying upon his rights to have liquor in his house if it was not trafficked in, informed the officers of the possession of liquor.

Judge Grossman of the Municipal Court, after the evidence was detailed to her, stated:

“I don’t think there is any excuse for an < officer to go down there than there is any place else. I am. holding no brief for officers doing that sort of thing.”

She held because of the quantity of liquor present, which defehdant claimed was to entertain guests at a party which he was to have the following day, that was sufficient evidence of the trafficking in liquor in the place. With this decision we would have no fault to find if there had been a search warrant lawfully obtained.

The only evidence of trafficking in "liquor in this case was the mere possession of liquor. Mere possession, this court held, is not trafficking. The officers do not claim to have any evidence of the trafficking in liquor nor any complaint of the trafficking in liquor in the home of defendant. The evidence upon this point is as fololws:

“Q. Did you ever watch this house before?

A. No, sir.

Q. It is furnished the same as your or my house?

A. It is.

Q. Did you see any trafficking in liquor going on in there?

A. No, sir.

Q. And you had no search warrant?

A. No, sir.

Q. When you walked in the kitchen you 'saw no violation of law, did you?

A. No.

Q. Did you see any young girls there?

A. No, sir.”

Therefore, there being no evidence of the trafficking in intoxicating liquors claimed by the city in its brief, and no evidence that any liquors had been trafficked in, the decision in the Bender case-will be followed.

The judgment of the Municipal Court is therefore reversed and the plaintiff in error discharged.

LEVIÍSTE, J, concurs in judgment.