The New York herald., 1921-06-29
HYLAN CQRBS POLICE
IN BOOZE SEARCHES
Hip Pockets, Bags, AutomO-
biles and Homes Immune
Without Warrants.
ORDER SENT ENRIGHT
Based on Corporation Coun-
sci O'Brien's Interpreta-
tiOn of New York Act.
16 CANS OF RUM SEIZED
Picnic Vehicle From New Jer-
sey Had Spirits Instead
of Passengers.
16 CANS OF RUM SEIZED

Sunshine was let into the lives of
those who like to keep and carry liquor
yesterday when there was forwarded
from Mayor Hylan to Police Commits
sioner Enright an opinion by Corpora
ton Counsel O'Brien to the effect that
under the language Of the Mullan-
Gage law, as he read it, the police were
without power to search any person,
his house, his baggage, his automobile.
his hip pocket or anything that was
his in quest of unlawful liquor unless
e. proper search warrant had been is
sued or a lawful arrest made.
The communication had been eX-
pected at Police Headquarters and ar
rived I'm answer to a request from
Commissioner Enright for definite in
structions as 20 whether his men had
been acting within the law. In writ
ing Mr.. Enright the Mayor said:
In compliance with my request Cor
poration Counsel O'Brien has rendered
an opinion on the question whether the
police have the right under the Mullan-
Gage law to search premises or persons
or their bags. effects, or automobiles.
without a. search warrant. I hand you
herewith for your information and guild
ance a complete copy Of his opinion.
I'm accordance with his advice, in
the future unless there has been
search warrant secured or a lawful ar
rest made, the police should not be per-
mitted to search private dwellings.
apartments. premises. persons, their
bags effects or automobiles in an at
| tempt to enforce The Mullan- Gage act"
Flaw In Mullan- Gage Act.
The Mayors letter made a complete
digest of the opinion in so far as the
| police who are out hootch hunting need
worry about Il. but the opinion. outside
| of it's practical effect. takes that part
of the Mullan-Gage law which so en-
larges the Penal code so as to take in
liquor volatcrs, and out of the very
language Of 1t finds 1t insufficient to
| Justify the police in invading any mans
castle
"The law, thus added to- declares
Mr.. O'Brien, "sets forth that it shall
be the duty OF every police officer hav-
ing knowledge OF any violation to i'm
mediately exercise all power and au-
| thority vested In him, and to appre-
hend. arrest and prosecute any person or
persons committing any such violation
This provision does not enlarge the
officers general power of arrest or
search.
THE duty Of a peace officer in respect
to the seizure of automobiles and other
vehicles In which liquor is being carried
unlavfully is provided for in another
added section of the Code OF Criminal
Procedure and provides that when
peace officer shall discover any person
In the act of transporting 1t shall
he his duty to seize the liquors found
therein and take possession or the We
hicle.
But Section s0ab in Subdivision
also Wovides for the Issuance OF
search warrant. but on verified COM
lplaint setting forth facts which show
grounds for belief. or that there is prob
| able cause for believing, and that the
! complaint shall state the name of the
person and n description OF premises
sufficient for Identification. The provi-
\ sions OF the law in this State against
| unreasonable search and seizure ought
mot to be violated. and no warrants
can issue but upon probable cause sup
n orted by oath.
"I am constrained to believe. there
fore. that the police are not invested by
the Mullan Gage law with the power 10
q earch premises or persons or their
u ags, packages, or automobiles without
warrant unless there has been law
ul arrest And while police officer
h as the power on making an arrest for
C. rime to search the premises for evil
a ence OF or objects connected with the
{, rime this gives no authority Tor
:. arches by an officer who does not know
that crime has been committed ana
oleiy for the purpose OF ascertaning
that fact"
Enright Has Nothing to sny.
Up TO the time Commissioner Enright
lett his office for the day yesterday
he had not received copy OF Mr..
O'Brien's opinion, and so had nothing
10 saw about II. except that in so far
as he knew of Il It seemed to speak
for itself. About the time 1t was on
he way ND to him the Board of Alder
men was filing requests for S1-116.39O In
| snAclal uevenue bonds from different
Lcity and county departments ror en-
forccirent OF the prohibition, laws and
of this amount Mr.. Enright had re-
kquested 81. .o21 $40 for the appointment or
| 900 additional policemen TO enforce
statutes and Sf5,VoV Tor
their expenses.
The police seized sixteen large cans
of what they believe Is fairly good
lwhislxey from a closed truck which they
found in West Fifty-third street and to
which their attention was attracted by
the number OF men who went In and
| out OF IT, IT was got up to look as
though Il weve about to start away with
load OF pltuickers and was In charge
/ OF a boy. Latter a man named Joseph
Marrno OF Paterson. N. j.. was arrested
and admitted owning II.
He told VI vld story OF being on his
way from Paterson TO this city to take
n picnic party orst when he was stopped
by n woman andt three men and aslse d
20 carry oil He agreed and after be-
ing threatened In q dark room was told
that the oil was really whskey and
was compelled to bring II here, the
woman riding on tt1e truck with him.
on the strength of his story William
waltman and Michhel Tierney OF ad-
| dresses near where the truck was found