United States ex rel. Finch v. Elliott, 5 F.2d 292

United States ex rel. Finch v. Elliott

5 F.2d 292 | 9th Cir. | 1925

HUNT, Circuit Judge

(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 *294grounds upon Which search warrant may issue is: When the property sought has been used as a means of committing a felony, in which ease it may be taken on the warrant from any house or any place in which it is concealed, or from the possession of the person by whom it was used in the commission of the offense, or by any other person in whose possession it may be. Section 3 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10496j4c) prohibits the issuance of a search warrant, but upon probable cause supported by affidavit, “naming or describing the person and particularly describing the property,” and the place to be searched. Section 6 (section 10498j4f) provides that if the commissioner is satisfied, after examination of the affidavits or depositions filed, of the existence of the grounds of the application, or that there is probable cause for believing their existence, he must issue a search warrant to a civil officer of the United States duly authorized to enforce or assist irf enforcing any law thereof, stating the particular ground or probable cause for its issuance, * * * and commanding him forthwith to search the person or place named “for the property specified” and to bring it before the judge or commissioner. By section 11 (section 10496j4k)j the search warrant must be executed or returned to the judge or commissioner within ten days after its date, and after the expiration of such time the warrant, unless executed, is void. By section 13 (section 10496%m), the officer is required to return the warrant to the commissioner. • Sections 15 and 16 (sections 10496y^o, 10496:(4p) lay down the procedure where, if the grounds upon which the warrant has been issued are controverted, the duty of the commissioner is to take testimony in relation thereto and requiring the testimony of each witness to be reduced to writing and subscribed by each witness. Furthermore, if it appears that the property or paper seized is not the same as that described in the warrant, or that there is no probable cause for believing the existence of the grounds on which the warrant was issued, then the eommisioner must cause the property or paper to be restored to the person from whom it was taken; but if it appears that the property or paper is the same as that described in the warrant, and that there is probable cause for believing the existence of the grounds upon which the warrant was issued, then the commissioner shall order the same retained in the custody of the person seizing it or to be otherwise disposed of according to law.

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.