This is а motion by the defendants MeCunn and Collins for an order directing the United States attorney to return to the defendants property alleged to have been wrongfully seized and for an order suppressing the use thereof as evidence against them.
The search and seizure were made without a search warrant, and therefore can be sustained, if at all, only if made as an incident of a lawful arrest, or if made with the consent of the defendants.
The defendant Collins was arrested on the second floor of a loft building under a warrant which was issued upon a complaint, all the аllegations of which were made on information and belief by a special prohibition agent. The complаint'states: “The sources of your deponent’s information and the grounds for his belief are official investiga^ tions made by your deponent in his official capacity.”
In affidavits subsequently submitted in opposition to this motion, the speciаl agent alleged that he received the information from official communications from his superiors and various papers giving summarized and detailed reports from informers “whose names and identity for reasons of public policy and public safety it is impossible to disclose.” He also alleged that he was not at liberty to diselose the nаmes of his informers and the sources of his information, because it would cause injury to the units of the government engagеd in the investigation of vio *296 lations of the law, and that the ability of the government to procure information has alwаys been aided by the protection given to the sources of information and the persons who have given the, same, and that under Regulations of the Treasury Department he was forbidden to reveal any confidential information without the consent of the Secretary of the Treasury.
It is apparent that, on the facts presented by the complaint, the special prohibition agent, and not the committing magistrate, nor even a prosecuting attоrney, acted as the absolute judge of the sufficiency of the in- ' formation on which the probable cause for the belief in the guilt of the accused was based.
Mr. Justice Bradley of the United States Supreme Court, sitting as a Circuit Judge in Gеorgia, said: “It is plain from this fundamental enunciation, as well as from the books of authority on criminal matters in the common law, that the probable cause referred to, and which must be supported by oath or affirmation, must be submitted to the committing magistrate himself, and not merely to an . official accuser, so that he, the magistrate, may exerсise his own judgment on the sufficiency of the ground for believing the- accused person guilty; and this ground must amount to a probаble cause of belief or suspicion of the party’s guilt. In other words, the magistrate ought to have before him the oath of the real accuser, presented either in the form of an affidavit or taken down by himself on a persоnal examination, exhibiting the facts on which the charge is based, and on which the belief or suspicion of guilt is founded.” In re Rule of Court (1877 N. D. of Ga.)
To enable a committing magistrate to determine whether there is probable cause for the issuance of a warrant, the sources of the information and the grounds of the belief must be stated with sufficient definiteness to enable him to determine whether a warrant should issue.
The warrant accordingly was issued without the establishment оf probable cause, and the arrest and the search and seizure incidental thereto must be held to be'illegаl.
The.alleged consent given by Collins, who told the special government agents that there was liquor on the fourth floоr, and that the elevatorman would take them through the building, after Collins was arrested, after he was told that he could nоt consult an attorney, and after he was told, “You can be nasty if you want to, but if you want to be decent, all right,” while confronted by a number of government agents, cannot be considered a voluntary consent authorizing a search of all floors of a large loft building and the seizure of property in lofts on separate floors without a searсh warrant.
Nor can the search of a separate loft on the fourth floor of a loft building be considered an incident of an arrest made on the second floor, even if made under a warrant of arrest lawfully issued [see Agnеllo v. United States,
The mere fact that the defendants allоwed a former trial to proceed without objection to the introduction of wrongfully seized property as еvidence does not constitute an estoppel or a waiver of their right to have the same excluded оn a retrial.
Objections to the introduction of evidence because unlawfully obtained, when a motion to supрress it could have been made before trial, are overruled in order to avoid the raising of collateral issue at trial. Segurola v. United States,
The motion to suppress the evidence accordingly is granted, and the United States attorney is directed to return seized property in his possession or under his control.