27 F.2d 892 | N.D. Miss. | 1928
The indictment in this ease contains two counts, the first for unlawfully possessing, and the second for unlawfully selling, intoxicating liquors. The defendant moves “to quash the search warrant herein, together with the indictment, and to suppress the evidence,” because the search warrant was issued (1) on Sunday and (2) without probable cause.
The argument is made with emphasis that the finding by a United States commissioner of probable cause for the issuance of a search warrant is a judicial act, that cannot be performed on Sunday, which is dies non juridieus, and that all judicial proceedings on that day are void. Ball v. U. S., 140 U. S. 131, 11 S. Ct. 761, 35 L. Ed. 377; Stone v. U. S., 167 U. S. 178, 17 S. Ct. 778, 42 L. Ed. 127. It has been held that the commissioner is an “adjunct of the court, possessing independent, though subordinate, judicial powers of his own” (Grin v. Shine, 187 U. S. 187, 23 S. Ct. 101, 47 L. Ed. 130), and that in determining the existence of probable cause he exercises a discretion judicial in its nature (Veeder v. U. S. [C. C. A.] 252 F. 414; U. S. v. Elliott [C. C. A.] 5 F.[2d] 292). But the issuance of the search warrant, and the exercise of the judicial discretion precedent thereto, cannot be regarded as the judgment of a court, which is void because done on Sunday.
A United States commissioner is a “quasi judicial officer” (Chin Bak Kan v. U. S., 186 U. S. 193, 22 S. Ct. 891, 46 L. Ed. 1121), but he is not a judge or a court and
A United States commissioner is almost, but not quite, a judicial officer, though some of his duties are sufficiently similar to judicial duties to be placed in the same category. He exercises his own judgment whether there is probable cause, but, if “satisfied of the existence of the grounds of the application,” “he must issue a search warrant,” etc. Act June 15, 1917, e. 30, tit. 11, § 6, 40 Stat. 229, 18 USCA § 616. In Ocampo v. U. S., 234 U. S. 91, 34 S. Ct. 712, 58 L. Ed. 1231, it was held that a finding of probable cause for arrest is only quasi judicial, which may be delegated to a prosecuting attorney. The court said:
“It is insisted that the finding of probable cause is a judicial act, and cannot properly be delegated to a prosecuting attorney. We think, however, that it is erroneous to regard this function, as performed by committing magistrates generally, * * *, as being judicial in the proper sense. There is no definite adjudication. A finding that there is no probable cause is not equivalent to an acquittal, but only entitles the accused to his liberty for the present, leaving him subject to rearrest. * * * Such was the nature of the duty of a committing magistrate in the common-law practice, and it is recognized in Rev. Stat. § 1014 [18 USCA § 591]. Benson v. McMahon, 127 U. S. 457, 462, 463 [8 S. Ct. 1240, 32 L. Ed. 234]; In re Luis Oteiza y Cortes, 136 U. S. 330, 335 [10 S. Ct. 1031, 34 L. Ed. 464]; Todd v. U. S., 158 U. S. 278, 283 [15 S. Ct. 889, 39 L. Ed. 982]. In short, the function of determining that probable cause exists for the arrest of a person accused is only quasi judicial, and not such that, because of its nature, it must necessarily be confided to a strictly judicial officer or tribunal. ® ® * Consequently a preliminary investigation conducted by the prosecuting attorney of the city of Manila • s ® is a sufficient compliance with the requirement “that no warrant shall issue but upon probable cause, supported by oath or affirmation.’ ”
Search warrants, like warrants of arrest, are processes for emergencies, which should not be crippled in effectiveness by ancient Sabbatarian learning as to Sunday being a nonjuridieal day. They are expressly hedged about by various restrictions, which should not be extended by implication. The delay of a day would often be fatal to effectiveness and afford an immunity, smacking somewhat of the antiquated right of sanctuary, for the criminal. A warrant of arrest in admiralty on Sunday has been held proper (Pearson v. The Alsalfa [D. C.] 44 F. 358), and, as no federal statute forbids it, I am of opinion that a search warrant is not invalid solely because issued on Sunday (State v. Conwell, 96 Me. 172, 51 A. 873, 90 Am. St. Rep. 333).
But, on the merits, the facts clearly show that the search warrant was issued without probable cause, and therefore the motion should be sustained, in so far as it seeks to quash the search warrant and suppress the evidence procured by the search.
It does not appear, however, that, exclusive of the evidence obtained by the search, there was not sufficient evidence before the grand jury to sustain the indictment, and therefore, in so far as the motion seeks to quash the indictment, it should be overruled.
Accordingly an appropriate order may be entered.
