24 F.2d 965 | D. Del. | 1928
Chester Leach, charged by information filed against him by the district attorney with the unlawful possession of “property designed for the manufacture of intoxicating liquor, in violation of section 25, tit. 2, of the National Prohibition Act (27 USCA § 39), now moves, prior to his trial, that the search warrant, under color of which a seizure was made, be quashed, and the district attorney restrained from offering in evidence at the trial the articles so seized.
The ground upon which the warrant is specifically attacked is that “it did not particularly describe or name the person upon whom the search warrant was to be made;” The basis of this objection of the defendant is, of course, the Fourth Amendment to the Constitution of the United States, which reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” More particularly the objection rests upon section 3, tit. 11, of Public Law numbered 24 of the Sixty-Fifth Congress, approved June 15, 1917 (40 Stat. 228 [18 USCA § 613]), which title, by express provision of section 25, tit. 2, of the National Prohibition Act, governs . search warrants in liquor cases. Section 3 provides: “A search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person and particularly describing the property and the place to he searched-.”
The government makes no contention that the warrant adequately names or describes the person, but says that the warrant in the case at bar authorized and commanded the search of a place, not of a person, and that in such cases it is not necessary that the warrant name or describe a person. I find no cases in opposition to this contention of the government, and it has been sustained by many courts. Petition of Barber (D. C.) 281 F. 550; Gandreau v. United States (C. C. A.) 300 F. 21; United States v. Camarota (D. C.) 278 F. 388; and In re Hollywood Cabaret (C. C. A.) 5 F.(2d) 651.
Yet, for a reason, of such gravity that it cannot be ignored by the court, notwithstanding it was not specifically assigned by the defendant, the warrant is, I think, wholly void, and must be quashed. Section 25 of title 2 of the National Prohibition Act expressly provides: “No search warrant shall issue to search any private dwelling occupied as such unless it is being used for the unlawful sale of intoxicating liquor, or unless it is in part used for some business purpose such as a store, shop, saloon, restaurant, hotel,' or boarding house. The term ‘private dwelling’ shall be construed to include the room or rooms used and occupied not transiently but solely as a residence in an apartment house, hotel, or boarding house.” The
The reason and the extent to which, under the Fourth and Fifth Amendments, private dwellings are zealously guarded from intrusion by officers of the law, are set forth in Cooley’s Constitutional Limitations (8th Ed.) pp. 610-636; Boyd v. United States, 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed. 746; Weeks v. United States, 232 U. S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Silverthorne Lumber Co. v. United States, 251 U. S. 385, 40 S. Ct. 182, 64 L. Ed. 319; and Gouled v. United States, 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647. These amendments, whose preservation is indispensable to the continuance of a free people, remain unrepealed and unmodified. The court is not at liberty to permit the destruction of these amendments or statutes passed in pursuance thereof by the disintegrating forces of encroachment, howsoever indirect, subtle, or gradual the encroachment may be.
Again, the warrant was directed “to Colonel Samuel O. Wynne, Federal Prohibition Administrator, and His Deputies, or Any or Either of Them.” The jurisdiction of Col. Wynne embraces the state of Delaware and the eastern part of the state of Pennsylvania. The warrant was executed, not by Col. Wynne, but by one of the numerous officers of the designated class. In Gandreau v. United States (C. C. A. 1) 300 F.
The warrant must be quashed, and the articles seized excluded from evidence.
Search Warrant.
United States of America, State of Delaware — ss.:
To Colonel Samuel O. Wynne, Federal Prohibition Administrator, and His Deputies, or Any or Either of Them — Greetings:
“Whereas, complaint on oath and in writing, supported by affidavits, has this day been made before me John Pearce Cann, a United States commissioner for the state of Delaware, by Henry D. Thompson, prohibition agent, alleging that he has reason‘to believe and does believe that in and upon certain premises within the state of Delaware, to wit, the premises of Leach, the same being a one-story frame house, together with several other one-story frame buildings, being the first residence on the right side of a dirt road which turns to the left west of Cypress bridge, about 6% miles west of Townsend, New Castle county, Delaware, there have been and are now located and concealed intoxicating liquors (or property designed for the manufacture of intoxicating liquors) which said liquors (or property) are being sold and possessed for beverage purposes in violation of the National Prohibition Act, approved October 28, 1919, and of the statutes of the United States; and
“Whereas, the particular grounds for probable cause for the issuance of this search warrant consist of the testimony, under oath, of Henry D. Thompson, who personally appeared before me, the undersigned United States commissioner, and testified, and also further affidavits that on the 9th day of November, 1927, about 5:15 p. m., I smelled a very strong odor of férmenting mash emanating from several outbuildings on the above-described premises; and
“Whereas, this cause coming on for hearing on the application for a search warrant supported by affidavits as herein stated, and the undersigned United States commissioner is satisfied of the existence of the grounds of the said application and that there is probable cause to believe of their existence:
“Now, therefore, pursuant to title XI of the Act of Congress approved June 15, 1917, and pursuant to the provisions of the National Prohibition Act, you are hereby authorized and commanded, in the name of the President of the United States, to enter said premises during the daytime with the necessary and proper assistance, and forthwith search the same for all such liquor and property hereinbefore specified, to seize and take the same into your possession, if found; to bring the said liquor and property before the undersigned, and to report and act concerning the same as required of you by law.
“Witness the hand and seal of the United States commissioner, at Wilmington, in the state of Delaware, this 19th day of Nov., 1927.
“[Signed] John Pearce Cann, “[Seal.] United States Commissioner.”
Italics mine.