5 F.2d 292 | 9th Cir. | 1925
(after stating the facts as above). Appellant has argued the relationship of a commissioner to the-courts, and what is the grant of power under which he acts in issuing a search warrant and holding a hearing after seizure made. But upon that question we need go no further than to express the opinion that a commissioner in finding probable cause and issuing a search warrant exercises judicial power granted directly to him by Acts of Congress known as the National Prohibition Act (St. L. 1919 [Comp. St. Ann. Supp. 1923, § 10138j4 et seq.]) and the Espionage Aet (title 11, Act June 15, 1917, 40 St. L. 217, 228 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 1049614a et seq.]).
We may say, too, that if the allegations of the petition of Finch presented to the District Court are well founded, the issuance of the warrant directing search and seizure of papers and documents, none of which is particularly described, and the seizure of the documents, papers, and memoranda under the asserted authority of the warrant, present questions of unusual importance. On the other hand, if appellant Finch has a plain and adequate remedy by appeal or otherwise) the writ of. certiorari will not be granted, and that he has a clear remedy seems apparent. Under section 2, tit. 2, National Prohibition Act, supra (Comp. St. Ann. Supp. 1923, § 1013814a), section 1014 of the Revised Statutes (Comp. St. § 1674) is made applicable to the enforcement of the Prohibition Act, and a commissioner, being an officer mentioned in section 1014, is authorized to issue search warrants under the limitations of title 11 the Espionage Aet, already cited. One of the
These several sections and provisions are explicit, and when construed in connection with the Fourth Amendment, they not only define the limits of the power of the commissioner - in issuing a search warrant, but they also clearly imply that one may go before the commissioner and controvert the grounds upon which the warrant was issued, and, if it appears that the property or paper which has been seized is not that which was described in the warrant, or that there was no probable cause for believing the existence of the grounds upon which the commissioner issued the warrant, may have such property or paper restored to him by order of the commissioner.
Appellant herein advances no sufficient reason for not having followed the course outlined. He therefore makes no cause for the issuance of a writ of certiorari.
The order is affirmed.