DocketNumber： Nos. 57, 58
Judges： Hand, Rogers
Filed Date： 12/8/1924
Status： Precedential
Modified Date： 11/4/2024
(after stating the facts as above). The search warrants are first attacked on the ground that the possession of liquor in violation of the National Prohibition Act is only a misdemeanor punishable by a fine of not more than $500, and thaf a search warrant cannot issue in eases other than felonies. We find no sound basis for such a contention. Section 25, tit. 2, of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138%m) provides that:
“It shall be unlawful to have or possess any liquor or property designed for the manufacture of liquor intended for use in violating this title 'or which has been so used, and no property rights shall exist in any such liquor or pi'operty.
“A search warrant may issue as provided in title XI of public law numbered 24 of the Sixty-Fifth Congress, approved June 15, 1917, and such liquor, the containers thereof, and such property so seized shall be subject to such disposition as the court may make thereof.”
The law approved June 15, 1917, was the so-called Espionage Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 10212Í, 10496%a-10496%v).
The fact that the state of New York passed a special act to cover searches and seizures in eases under the Mullan-Gage Law, whether or not because the Legislature regarded the general search warrant statute of New York as limited to felonies, cannot determine the application of the Espionage Act.
Where section 25, tit. 2, of the National Prohibition Act declares it to be unlawful to possess any liquor “intended for use in violating this title or which has been so used,” and thereafter allows the issuance of search warrants “as provided” in the Espionage Act, there appears to be a clear inclusion of all liquors possessed in violation of law within the search warrant provisions. United States v. Friedman (D. C.) 267 F. 856.
The plaintiffs in error further contend that the warrants were issued without probable cause and do not sufficiently describe the persons, property, and premises to be searched. Probable cause would seem to be sufficiently shown when the affidavits described comparatively recent sales of whisky upon premises used as cabarets by, or with the approval of, the management itself. In re Search of No. 15 East Third Street (D. C.) 284 F. 914. There was plainly a sufficient description of the places to be searched by giving the street number. As no person was to be searched, no description of any individual was necessary. Where- the place
The most serious objection to the validity of the search warrant is that it was to he executed at night and insufficient facts were shown in the moving papers to justify any positive allegations of knowledge.
The Espionage Act provides, in section 10, tit. 11 (Comp. St. 1918, Comp. St.' Ann. Supp. 1919, § lOéQQy^j), that:
“The judge or commissioner must insert a direction in the warrant that it be served in the daytime, unless the affidavits are positive that the property is on the person or in the place to be searched, in which case he may insert a direction that it be served' at any time of the day or night.”
In the Hollywood ease the positive-allegations are based upon the statement that “from my observations and purchases therein I am positive that liquor is possessed on said premises,” and in the Silver Slipper ease upon the statement that “from my observation I am positive that liquor is kept on the premises for sale at night.” In neither case does any basis appear for the word “positive” except purchases made in the first ease over three weeks before, and in the second case at an indefinite time before. To sustain the search warrant it is necessary to hold that sales made three weeks or an indefinite time before the' making of the affidavit amount to positive information of the presence of liquor at the time the affiant takes oath, or else that the requirement that the affidavits be “positive” is a matter left entirely to the conscience of the affiant'. Whichever view he taken, the adoption of it involves the conclusion that there is no difference between the requirement of section 3, tit. 11, of the Espionage Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 1049614c), that “a search warrant cannot be issued but upon probable cause,” and the requirement of section 10, tit. 11 (section 1049614)), that “the judge or commissioner must insert a direction in the warrant that it be served in the daytime unless the affidavits are positive that the property is on the person or in the place to be searched.”
If such a short time had elapsed between the purchase of liquor upon the premises and the making of the affidavit-and issue of the search warrant that it was quite certain that the liquor seen or tasted was from the same stock that would still naturally be upon the premises, it is unneeesary for us to determine that the averment of positive knowledge might hot be sufficient for a night search warrant. We do not pass upon such a situation as that. But where a number of weeks or an indefinite time has elapsed between the inspection of the premises and the making of the affidavit, there can be no positive knowledge unless the word /‘positive” is indistinguishable from “probable.”
In Gandreau v. United States, supra, though the warrant provided that it might be executed during the day or night, it was executed only in the daytime. Moreover, only two days elapsed in that case between the time when the officer visited the premises and the day when the warrant issued. That decision is, therefore, not in point.
Judge Tuttle’s decision in United States v. Edwards (D. C.) 296 F. 512, may also be distinguished from the present ease. There the affidavit of the prohibition agent after reciting purchases of intoxicating liquor on February 1, 1923, went on to say: “Deponent further states, upon his own knowledge, that in and upon the premises aforesaid ° * * occupied as a soft drink stand and cigar store, and used for the illegal sale of intoxicating liquors, * * * and particularly at the bar of the building aforesaid, * * * is now a certain quantity of intoxicating liquor fit for beverage purposes, * * * used in connection with the aforesaid violation of the National Prohibition Act; said intoxicating liquor consisting of whisky and certain other intoxicating liquors.” The affidavit was made on February 2, 1923, and the search warrant issued the same day. Not only did the smallest amount of time intervene between the visit to the premises, the making of the affidavit, and the issuance of the search warrant, but there was also a positive averment by the prohibition agent that intoxicating liquor was upon the premises “to his own knowledge.” If such a night search warrant could not be sustained, it is hardly possible to conceive of a ease where a valid one could be allowed.
The orders of the District Court are each reversed, and the proceedings are remanded, with directons to quash the warrants and restore the property seized under section 16, tit. 11, of the Espionage Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10496^).