266 F. 713 | S.D.N.Y. | 1920
(1) Remarks on the Practice.
(after stating the facts as above). Motion No. 1 is simplified by an admission in open court that the one book which is the subject of that motion is in the physical possession of the United States attorney. Therefore the motion seems to be strictly within the procedure approved in Weeks v. United States, 232 U. S. 383 and described at page 287, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R.
Motion No. 2 cannot be procedural!/ a part of this case. This indictment was of course, never pending before Commissioner Hitchcock; indeed, no indictment had been found when the search warrant issued in November, 1919. The order now complained of was entered in a proceeding against the Promotion Sales Company only, and. it cannot be that that order was in, or a part of, proceedings under indictment 8043 arid recorded in Docket G -20, page 466.
I regard this order to show cause as an independent, original proceeding. having no recognized name, but based upon a theory of procedure which must be capable of being stated as follows: Any action or order by a United States commissioner, while discharging duties imposed upon him or permitted to him in his capacity as an examining or committing magistrate (e. g., Judicial Code, § 270 [Comp. St. § 1247]; Rev. Slat. § 1014 [Comp. St § 1674]), may be summarily reviewed, corrected, or set aside by the District Court for the district in which the commissioner functions.
It is further noted that although the motion is in form to vacate the commissioner’s order, such vacation of order would now be an idle ceremony, for the order to show cause itself in effect superseded and held for naught the commissioner’s order, when it impounded the books and papers in controversy and directed their deposit with the clerk of this court. It is plainly intended that whatever becomes of the books, etc., will depend wholly on an order of this court directed to its own clerk.
This court having thus possessed itself summarily of the subject-matter of controversy, the motion of the United States attorney is in substance that it shall now proceed to adjudicate the disposition of the books after considering (1) the evidence taken before the commissioner and (2) such other evidential matter as it permits to be adduced; in other words, treat the matter either like an admiralty appeal (which is a new trial) or a case removed from a justice’s to a court of record, which is a proceeding de novo.
(2) The Law Underlying Motion No. 1.,
The only ground on which this or any similar motion can rest is that the prosecutor’s possession of the book or paper is the result of an “unreasonable search and/or seizure” (Fourth Amendment), or of a deprivation of property “without due process of law” (Fifth Amendment). This must always, and here does, present a question of fact.
(3) Facts in Motion No. 1.
In my opinion the following is the truth: As above set forth, Agent Anderson had a search warrant for- a room in a building other than 138 Prince’street; he executed that warrant, and in so doing met (if he did not already know) Maresca. Him Anderson impressed with the latter’s, official station and wide general powers, and Maresca wished to propitiate so great a man. Therefore he took Anderson in his motor to 138 Prince, a place occupied by the Promotion Sales Company) against whose office the search warrant had issued.
There, without force, but under the impression that Anderson had right to take the book if resistance was made, and believing it would be, better for him to give-it up with a phow of willingness, Maresca gave Anderson the volume in question, and the latter gave it to the United States attorney. Maresca’s present opposition arises, and this motion -results, from later advice of counsel.
(4) Decision of Motion No. 1.
Here, to put it plainly, Maresca was cheated into giving up the book of Promotion Sales Company; therefore no violation of the constitutional rights under the Fourth Amendment occurred, and Motion No. 1 is denied.
(5)Effect of This Decision.
Whether the decision and its distinction is right or not, it is the ruling in this circuit; wherefore, if and when this book is offered in evidence, it seems that the defendant affected can either rest on the error he will believe to exist in this “interlocutory” ruling of mine or renew his argument by appropriate objection to admission in evidence, or do both. At all events, nothing is or can be settled either by this decision or any immediate review of it.
The question whether Anderson’s stratagem was an unreasonable seizure or became one (as has been claimed, though not in this instance) by the United States attorney’s “ratification” of his act can- be raised again and in this case. The only way I could settle it would be to grant the motion, relying on the government’s inability to appeal.
That is another peculiarity of the “interlocutory” doctrine. If the motion were granted there would be no appeal for one reason; and if the prosecution failed for lack of the book as evidence, the net result would necessarily be a judgment from which the government could not appeal at all, because it wrould occur after the defendant had been put in jeopardy.
(6) Motion No. 2 — The Office of U. S. Commissioner.
Only a year earlier, in 1895, the Supreme Court had reviewed these acts in United States v. Allred, 155 U. S. 591, 15 Sup. Ct. 231, 39 L. Ed. 273, and as it is well known to the older bar that the same men continued to perform the same duties after 1896, the effect of the statute of that year may be said to be no more than a change of title and of fee scale, plus the infusion of a supervisory power on the part of the Attorney General. For the essential nature, scope, and legal relation of the office one must look farther back.
It does not seem useful to tabulate the numerous statutes giving special duties (e. g., matters of extradition) to commissioners, but their development as examining and committing magistrates is relevant to this motion. Since the Judicial Act of 1789 (1 Stat. 91) every “justice and judge of the United States” (in the original phrase) has had thfe power of ordering arrests and holding the accused to prison or bail. This is the essence of magistracy, and the power to commit implies and includes the power to examine and discharge.
Considering the extent of country and the fewness of judges, the original act empowered practically every state magistrate, and especially justices of the peace, to act in holding offenders for the United States courts. The substance of this part of the old act became R. S. § 727, and is now Judicial Code, § 270 (Comp. St. §' 1247).
The early files of this court contain many commitments by local justices of the peace of the state of New York, and Sandford v. Nichols, 13 Mass. 286, 7 Am. Dec. 151, shows how that system worked (or did not) in revenue cases where search warrants were needed.
It did not take long for experience to demonstrate the difficulty and inutility of the borrowed and grudgingly given services of state officials, and in 1793 (1 Stat. 334) the Circuit Courts were authorized to appoint “discreet persons learned in the law” to take bail in criminal causes.
So far as I can discover, it was from this seed that’ “commissioners” grew; the title was assumed, but was recognized by the act of 1817 (3 Stat. 350), which in enlarging the powers of the “discreet persons” of 1793, speaks of the “commissioners who now are or hereafter may be” appointed.
. Next after the original statute of 1789 the most important Judiciary Act of the first century of the republic was the statute of 1842 (5 Stat. 516), which in its first and second sections expressly gives to the commissioners of the Circuit Courts the powers of a justice of the peace in respect of “arresting, imprisoning or bailing” offenders against laws of the United. States, and the substance of this grant is now R. S. § 1014.
It follows that for many purposes, including the consideration of tire powers under review on this motion, the United States commissioner is a justice of the peace of the United States.
These rulings are entirely consistent with the nearest approach to definition of a commissioner’s status ever given (to my knowledge) by the Supreme Court, viz.: lie is “an adjunct of the court, possessing independent, though subordinate, judicial powers of his own.” Grin v. Shine, 187 U. S. at paue 187, 23 Sup. Ct. 98, 101 (47 L. Ed. 130).
(8) The History and Nature of a Search Warrant.
It is believed that no one has been able to supplement or controvert the assertion of Ford Camden, made in 1765 in the case of the general -warrants, that search warrants had imperceptibly crept into the common law.
This I take to mean that the search had crept into the warrant, as-“warrant” is the ancient common-law name for the written authority to arrest, and, by the time Lord Camden gave his historic judgment, justices of the peace had at common law authority to issue search warrants, which originally and properly were instruments authorizing both the arrest of the alleged offender and the seizure of the goods found by search in daytime on described premises, where (sub silentio) the offender would (it was hoped) be found with the goods, usually stolen. The seized goods were to be delivered to an officer of the law, for restoration to their proper owner or other lawful disposition; but on this point the old cases are inconveniently vague.
The foregoing is thought to find ample support in the text and citations of Bouvier’s Law Diet., sub nom. Search Warrants; Bishop’s New Crim. Proc., under the same title, and also Warrants; the historical part of Justice Bradley’s opinion in Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746; and Lord Halsbury’s Laws of England (volume 9, p. 310), where also may be found a truly amazing list of recent British statutes extending and amplifying the scanty traditional law on the subject of search warrants.
(9)Remedies at Common Law for Illegal Search Warrants, or Illegal Acts Done under Color Thereof.
But no book of American reports is old enough to reflect a system where one judge and one jury constituted the final arbiter of fate; and it is therefore, I think, of great moment to note that the early state reports reveal no effort directly to review a justice’s actions as a magistrate issuing warrants or search warrants; the sole remedy was an action of trespass, wherein the right to issue such documents was most narrowly construed and the acts of those executing them most jealously scrutinized. Of this Frisbie v. Butler, Kirby (Conn.) 213, decided in 1787, Grumon v. Raymond, 1 Conn. 40, 6 Am. Dec. 200, Sandford v. Nichols, 13 Mass. 286, 7 Am. Dec. 151, and Bell v. Clapp, 10 Johns. 263, 6 Am. Dec. 339, are sufficient and illuminating examples.
(10) The Possible Use of Certiorari.
That a certiorari may issue to an “inferior court” is undoubted, and the decision in White v. Wagar, 185 Ill. 195, 57 N. E. 26, 50 L. R. A. 60, goes on this ground alone, for by the law of. that state it is said a justice of the peace is “a court of limited powers.” But it does not follow that a certiorari must issue, and as against a magistrate exercising only the arresting and committing powers, it ought not to issue, and, unless imposed by statute, cannot issue under customary law, as is well and I think conclusively shown by Magie, J., in Farrow v. Springer, 57 N. J. Law, 353, 31 Atl. 215.
There is no statutory imposition of that remedy by Congress, and therefore, in my opinion, it does not exist in this matter.
(11) In What Court Does a Commissioner Sit?
Farrow v. Springer, supra, sufficiently points out the identity between an arrest by warrant and a search and seizure by warrant; the two acts are but parts of the same exercise of power, and are to be tested by the same rules and in the same way. It may first be noted that Mr. Hitchcock thought he was sitting in the District Court; the very caption of the order complained of shows it. Further, examination of files, shows that his predecessors for generations have entertained similar ideas, if the form of their papers proves anything. Also he had the powers of a commissioner of the Circuit 'Court, a title which for 80 years certainly suggested that the holder was part of that court; and, finally, the United States has never created any other court for him to sit in, nor declared that he sat in no court. Yet, by decision and tradition, he is and must be, when acting as a committing magistrate, a judicial officer, and as such he returns all his proceedings to this court.
These considerations also lead to a denial of certiorari, for I do not need to be “made more certain” of what has been done. Are not all the written records entitled in the court in which I am now sitting? Remembering that nothing but an act of Congress can make an inferior court of the United States, that no act makes a commissioner’s court, and that by tradition an examining and committing magistrate, especially a justice of the peace, holds a court, I am compelled to the conclusion that, when a commissioner issues criminal process, including a search warrant, he does it in and as part of the proceedings of the District Court.
The foregoing, with the aid of counsel, I have spelled out of the
(12)Decision on Motion No. 2.
(13) Effect of Decision on Motion No. 2.
(14) Powers of the Committing Magistrate.
In this district the question whether the new and general provisions for search warrants, contained in the Espionage Act, govern warrants issued under Rev. St. § 3462, or the kindred customs, counterfeiting, and postal acts, is academic, because this recent United States statute (40 Stat. 228) is but a copy of the material portions of tbe New York Paw. Therefore I would proceed as did Commissioner Hitchcock, though for a different reason, viz.: T deem the New York law plainly applicable, and, as it is the same as the recent federal statute, am not at present concerned with the latter’s possible or probable application.
On the question whether there was probable cause for search and seizure, much latitude as to evidence should be permitted; and if, at time of hearing, the magistrate is then of opinion that there existed probable cause when warrant issued, he should sustain the seizure. This was the holding of Judge Mantón in the Case of Gouled, 253 Fed. 770, and I agree therewith. This does not mean that knowledge gained by the very act of seizure, or from the thing seized, can be used to support a finding of probable cause.
I am quite aware that this fourteenth paragraph of what I have written is not a “decision” in any sense, but I have ventured to express my personal opinion because requested so to do.