HOLMES, Circuit Judge.
This appeal is from a conviction on an indictment in two counts charging possession and concealment of tax-unpaid intoxicating liquor.
Agents of the Government executed a valid search warrant for the search of appellant’s dwelling. The warrant accurately described the premises to be searched. No contraband was found in the house or on the lot described; but the officers found three gallons of liquor, upon which the charge was based, in an open space adjoining appellant’s property, and some twenty feet from the dividing line. A motion to suppress the evidence and quash the indictment was filed prior to the date of the trial. The matter came on for hearing before the court, and, on a waiver of jury trial, the proceeding to suppress the evidence and quash the indictment was heard with the cause on the merits. The court denied the motion, found the defendant guilty, and imposed sentence. This appeal is from the judgment thus entered.
Appellant contends that the evidence did not support the finding of guilty; that, since the officers were acting under a search warrant at the time of the search, they could not search premises not described therein; and that the seizure of the whiskey used as evidence against him was unlawful and the evidence inadmissible.
The proof on which appellant was convicted was the finding of the liquor, and testimony that on numerous occasions he had gone on the lot where the liquor was found, had obtained objects or articles resembling liquor containers and dispatched them in the direction in which they would go for delivery to purchasers, and That on numerous other occasions he had directed and assisted persons in finding liquor at that location. It also appeared that containers and materials used and suitable for use in dealing in tax-unpaid liquor were found on appellant’s premises when the search was made. None of this was questioned or denied by appellant. His defense on the merits consisted of a denial of ownership, possession, or concealment of the liquor in question. While the proof is circumstantial, we think it is sufficient to warrant a finding that it negatives every reasonable hypothesis except that of the guilt of appellant. The finding of the district court on this issue should not be disturbed.
As to the ruling on the motion to suppress, it is noted that the three gallons of liquor were found on open and unoccupied premises where a search could have been made without a warrant. The office of the writ is to authorize and make lawful that which legally could not have been done without its issuance. It is permissive but not restrictive. While it authorizes no more than is expressed in or implied from the language used, it does not forbid or prohibit that which would be lawful if it had never been issued. In this case, the search of the vacant lot was valid without a warrant. The fact that a lawful search of other premises was in progress at the time does not affect the validity of the seizure. Moreover, appellant disclaims ownership of the premises searched. In this situation, he cannot be heard to complain. Cantrell v. United States, 5 Cir., 15 F.2d 953; Gowling v. United States, 6 Cir., 64 F.2d 796; Whitcombe v. United States, 3 Cir., 90 F.2d 290.
The judgment of the district court is •affirmed.
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is an appellant.