273 F. 279 | W.D. Wash. | 1921
On January 20, 1921, John B. Gordon, “justice of the peace in and for Seattle precinct, King county, Washington, sitting as police judge of Seattle,” issued a search warrant upon sworn complaint of J. J. Haag, police officer, in which warrant it appears that intoxicating liquor is being manufactured, sold, bartered, exchanged, given away, furnished, and otherwise disposed of and kept, in violation of a city ordinance, “about and upon certain premises therein and hereinafter designated and described.” The premises searched was the residence of the defendant, and certain whisky was seized. The defendant has moved a return upon the ground that the police magistrate may not issue a search warrant.
“The Legislature shall prescribe by law the jurisdiction and power of any inferior courts which may be established in pursuance of this Constitution.”
And the power is limited to that granted. State ex rel. Milroy, 71 Wash. 592, 129 Pac. 384; In re Barbee, 19 Wash. 306, 53 Pac. 155. Section 6262 — 11, Rem. Code of Wash., provides that if:
If “upon the sworn complaint * * ' * it shall be made to appear to any * * * justice of the peace that there is probable cause to believe that intoxicating liquor is being manufactured * * * or kept in violation of the provisions of this act, such justice of the peace * * * shall * * * issue a warrant directed to any peace officer in the county, commanding him to search the premises designated. * * *”■ (Italics mine.)
Section 6278, Rem. & Bal. Code of Wash., supra:
“Upon complaint being made of the violation of this section [‘liquors are kept’] a magistrate shall issue a search warrant * * * commanding the*281 sheriff or constable to * * * search the premises and seize and hold all intoxicating liquors. 234 * * ” (Italics mine.)
The Legislature, pursuant to section 12, art. 4, sppra, created municipal courts in cities of the first class, granting jurisdiction:
“(1) Of any and all criminal offenses under any ordinances of their respective cities.
“(2) Of all criminal offenses under the laws of the state of Washington, charged to have been committed within their respective cities, less than a felony.
“(3) The judges of said courts shall have all the powers of a committing magistrate as to all offenses committed within their respective cities. Wherever the jurisdiction hereby conferred may be exercised by other courts, under the Constitution and laws of tills state, tbo jurisdiction hereby conferred shall be deemed to be concurrent with such other courts.” (Italics mine.)
A magistrate is defined by Bouvier as:
“A public civil officer, invested with some part of the * * * judicial pcwer given by the Constitution. In a narrow sense this term includes only inferior judicial officers, as justices of the peace.”
Section 7520, Rem. Code, supra:
“The mayor * * 4 shall appoint one of the justices of the peace * * * police judge of such city.”
Section 7521, R. & B.:
“The police judge so appointed, in addition to his powers as justice of the peace, shall have exclusive jurisdiction over all offenses defined by any ordinance. 4 4 4 ”
The purpose of section 25, supra, was not to establish a special rule of evidence for prosecutions under the National Prohibition Act, but rather to define probable cause under the act for search. A search having been made under a local statute which was legal and the seizure therefore lawful, section 25, supra, does not change the lawful possession to unlawful. when offered as evidence by the United States in a prosecution for a violation of the National Prohibition Act.
The motion is denied.
Note. — On the day this decision was filed, the ¡Supreme Court filed a decision in Burdeau v. McDowell, 255 U. S. —, 41 Sup. Ct. 574, 65 L. Ed. —, in which it held that- papers stolen from another, and thereafter sent to agents of the Department of Justice, they having no part in wrongfully obtaining them, might be produced in evidence against the person from whom stolen, and not be violative of any constitutional provision, and a petition to direct a return was denied.