United States v. Johnstone

6 Alaska 323 | D. Alaska | 1920

JE'NNINGS, District Judge.

The reasons for my position were as follows: The Alaska Bone Dry Law (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, §§ 3643b-3643r) expressly provides that it shall be the duty of the Governor of Alaska, the United States marshals and their deputies, mayors and members of town councils, town marshals, and police officers of all incorporated towns in Alaska, all federal game wardens, agents of the Bureau of Fisheries, etc., prosecuting attorneys and their deputies, and all other federal and territorial executive officers, to enforce the provisions of said act. I considered that that section makes the mayor and city council and city marshal federal officers for the purposes named therein when attempting to enforce the act, and therefore the Fourth Amendment to the Constitution would apply to any search or seizure made by them. In so holding Io relied upon the case of United States v. Welsh (D. C.) reported in 247 Fed. 240.

In that case Martin, a customs house guard, requested a man by the name of McGinnis, who, it seems, .was a private detective, to keep watch for him in a' certain matter. This detective made an illegal search and seizure. The government disclaimed liability on the ground that the private detective was not a federal official, but the court held that insomuch- as the customs house guard, who was a federal official, had asked the detective to act for him while he was temporarily absént, the detective must be regarded as a government official pro hac vice, and the government could not evade responsibility for his acts..

In this case the act of Congress itself expressly invested the mayor and town marshal with the character of federal officials pro hac vice.

The search warrant under which the mayor and the town marshal acted, as appeared by the undenied petition, was an alleged search warrant issued by the municipal magistrate of the city of Ketchikan. The municipal magistrate had no power to issue a search warrant. The city council of Ketchikan had no power to pass an ordinance authorizing him to issue a search warrant. The only power that the city of Ketchikan is given as to intoxicating liquors is the power simply to pass an ordinance for the prevention of drunkenness. It would have no power to pass an ordinance making the mere possession of intoxicating liquors an offense, and certainly no power to pass an ordinance authorizing any one to issue a search warrant for anything. The mayor and town marshal, therefore, acted entirely without a search warrant, and, that being the case, the petition being undenied, and there being no evidence of any knowledge acquired otherwise than by and through the search warrant, I directed the dismissal. In this I relied largely upon Silverthorne Lumber Co. v. U. S., 251 U. S. 392, 40 Sup. Ct. 182, 64 L. Ed. 319, where the court said that the absence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court, but that it shall not be used at all. If knowledge of the facts is gained from an independent source, they may be proved like any others, but the knowledge gained by the government’s own wrong cannot be used by it in the way proposed. See. also, Weeks v. U. S., 232 U. S. 383, 34 Sup. Ct. 341, 58. L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Flagg v. U. S., 233 Fed. 481, 147 C. C. A. 367.

While I entertain no doubt in my own mind of the position taken by me, to wit, that the search warrant was illegal and that no evidence obtained by virtue thereof could be admitted, I was strengthened in my opinion by the fact that the Circuit Court of Appeals for the Second Circuit, in the case of Gouled v. U. S. (C. C. A.) 264 Fed. 839, seemed so much in doubt upon a similar proposition that it certified to the Supreme Court of the United States to be answered by it and for the instruction of the said Circuit Court of Appeals, certain questions similar to the one involved in this case. 255 U. S. 298, 41 Sup. Ct. 261, 65 L. Ed. 647. I thought that if the Circuit Court of Appeals was unable to arrive at a conclusion without the opinion of the Supreme Court of the United States directly on the point, I, who had to decide the matter offhand and had no power to certify questions to the Supreme Court, was authorized to act upon my own judgment.

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