STICKEL, Jr., Magistrate: On October 3rd, 1921, acting as Magistrate under the Prohibition Enforcement Act, I issued a search warrant directed to Richard Roe, authorizing a search of the drug store, cellar and rooms attached at 7 Bloomfield Avenue, Belleville, New Jersey, and a seizure of the liquor there found, together with all vehicles, fixtures, containers, utensils, machines, contrivances, or paraphernalia whatsoever, there found used or intended to be used in the illegal keeping, manufacture, transportation or sale of liquor. This warrant was based upon an allegation by Nick Takush that he believed liquor was unlawfully possessed in such place, and that he based his belief upon the fact that he had on several occasions purchased whiskey at that address for beverage purposes, and on the 30th day of September, 1921, had purchased two gallons of alcohol there for beverage purposes.
Acting under this warrant, the sheriff, through under-sheriff Alfred C. Walker, returned the body of Luigi Caprio, admittedly the owner of said 7 Bloomfield Avenue and of the drug store, cellar and rooms attached. The said under-sheriff also filed an inventory showing that he had seized under said search warrant a two gallon can labeled, "Columbia Spirits;" a five gallon can labeled "Alcohol;" one bottle labeled "Columbia Spirits;" some liquor permits; one five gallon can, full, labeled, "Columbia Spirits;" one bottle labeled "Aromatic Elixir;" one bottle labeled "Alcohol."
Application is now made under sections 63 and 64 of the Prohibition Enforcement Act to restore the liquor and property so taken, on the ground that there was no probable cause for believing the existence of the grounds on which the search warrant was issued, and on the further ground that the liquor and chattels taken upon such search warrant are not the same as referred to in the search warrant.
There is absolutely nothing in the testimony taken before me to support the contention that there was no probable cause for believing the existence of the grounds upon which the search warrant was issued, but there is some merit in the other contention.
The search warrant directs the taking by the sheriff of "liquor found in and upon the premises aforesaid, together with any and all vehicles, fixtures, containers, utensils, machines, contrivance, or paraphernalia whatsoever found, used or intended to be used in the illegal keeping or sale of liquor." It will be readily seen that the sheriff would only be justified in his seizure of the liquor permits if they came within the description "paraphernalia," and clearly the word "paraphernalia" cannot be interpreted, particularly in the light of the words which precede it in the search warrant, to cover liquor permits. The testimony also showed that the five gallon can labeled "Columbia Spirits" was delivered by a drug concern to Caprio while the sheriff's men were there or about the time they arrived. Certainly this liquor is not the liquor referred to in the search warrant, and consequently, not being the liquor referred to in the search warrant, it must be restored to the person from whom it was taken.
Therefore an order may be presented, reciting that, so far as the Prohibition Enforcement Act is concerned, the search warrant issued by virtue of the authority thereof is not sufficient to justify the sheriff in retaining the liquor permits and five gallon can labeled "Columbia Spirits," and that in view of the Prohibition Enforcement Act the said liquor permits and "Columbia Spirits" be restored to said Caprio.
HARSEL v. FICHTER & ENGELHARDT.
(Essex Common Pleas, Dec. 27, 1921).