United States v. Conoscente, 63 F.2d 811 (2d Cir. 1933)

John J. Carlo, of Buffalo, N. Y., for appellants.

Richard H. Templeton, U. S. Atty., of Buffalo, N. Y. (Frederick T. Devlin, Asst. U. S. Atty., of Buffalo, N. Y., of counsel), for United States.

Before MANTON, SWAN, and CHASE, Circuit Judges.

PER CURIAM.

A petition was filed by Samuel Conoscente, John Clark, and Luigi Salli to set aside a search warrant issued against premises 909 Jefferson avenue, Buffalo, N. Y., occupied by Samuel Conoscente and one James Clark, and containing a public garage with apartments on the second and third floors. Luigi Salli was arrested in front of the premises without a warrant therefor. In the search of the property intoxicating liquors were found.

The building was owned by one Becker. The record is incomplete and does not justify our passing upon the claim that an illegal arrest of Salli was made. Salli's unlawful arrest, if such it was, is a matter which cannot be reviewed at this stage of the prosecution instituted. It is argued that the warrant did not describe the premises with particularity; that the evidence of probable cause was not sufficient because obtained by trespass. While John Clark's name appears in the assignment of errors, he has not appealed as a notice of appeal found in the record indicates. The record does not show that Conoscente has any interest in the premises searched or in the property seized. The evidence before the Commissioner established that he was a mere workman. When arrested he asked to "call the boss," and did telephone to some one. Since this appellant merely alleges occupancy and the only evidence in the record indicates that he was a workman not dwelling on the premises, he cannot raise the constitutional question sought to be raised here. He has no such interest. United States v. Crushiata, 59 F.(2d) 1007 (C. C. A. 2); United States v. Messina, 36 F.(2d) 699 (C. C. A. 2).

Order affirmed.