274 F. 128 | N.D. Cal. | 1921
Much confusion seems to exist among the enforcement officers concerning the necessity for search warrants and their use. The confusion arises generally, in my opinion, because they are not willing to be bound by the limitations of the Constitution or the law. In pursuing liquor, recently made an outlaw by the Eighteenth Amendment to the Constitution, they are, in their zeal, inclined to disregard other provisions of the same document equally sacred and far more important to the rights
“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.”
The protection thus afforded to the people can only be insured by the courts. It is far more important that the right to be secure in their persons, houses, and effects be zealously guarded than that a few individuals be convicted of violating the prohibition or any other law. It is one of the most sacred rights that the Constitution guarantees, and officers sworn to defend the Constitution should be the first to recognize and defend it. There is nothing obscure about it; the language is plain, and means what it says.
Following the Constitution, Congress has provided for the issuance of search warrants (Act June 15, 1917, title 11 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 10496J4a-10496i4v):
(1) “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 be searched.” Section 10496%c.
(2) “The judge or commissioner must, before issuing the warrant, examine on oath the complainant and any witness he may produce, and require their affidavits or take their depositions in writing and cause them to be subscribed by the parties making them.” Section T0'49614d-
(3) “The affidavits or depositions must set forth the facts tending to establish the grounds of the application or probable cause for believing that they exist.” Section 10496%e.
(4) The judge or commissioner must thereupon be “satisfied of the existence of the grounds of the application, or that there is probable cause to (believe their existence,” before he can issue a search warrant which must, if issued, command the officer “forthwith to search the person or place named for the property specified, and to bring it before the judge or commissioner.” Section 10496!4f-
The National Prohibition Act further provides that 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 is in part used for some business purpose. It should not be difficult to keep within these provisions. If in the attempted enforcement of the prohibition law a search warrant is applied for, the first inquiry of the judge or commissioner should be as to the character of the place to be searched. If it be a private dwelling, then the inquiry should be:
“Wbat evidence have you that this place is being used for the unlawful sale of intoxicating liquor?”
If the officer has no such evidence, he should not apply for the warrant; or if the judge or commissioner is not satisfied with the evidence offered, he should not issue it. If the officer is acting upon information, he should lay all the facts before the judge or commissioner, with the names of the persons from whom his information is received.
The motion is granted, and the property taken will be restored to defendant.
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