Atlanta Enterprises v. Crawford

• Decision Date: 01 November 1927
• Parties: ATLANTA ENTERPRISES, Inc., v. CRAWFORD, U. S. Marshal, et al.
• Court: U.S. District Court — Northern District of Georgia

22 F.2d 834 (1927)

ATLANTA ENTERPRISES, Inc., v. CRAWFORD, U. S. Marshal, et al.

District Court, N. D. Georgia.

November 1, 1927.

Albert Mayer and Thomas W. Vernon, both of Atlanta, Ga., for applicant.

Clint W. Hager, U. S. Atty., of Atlanta, Ga., for respondents.

SIBLEY, District Judge.

Under the direction of the United States district attorney, a deputy marshal, who had seen the prize fight in Illinois between Dempsey and Tunney, and had seen films thereof being there made, and who had later seen exhibited in the Howard Theater in Atlanta, Ga., motion pictures of the fight, together with another witness, made affidavit to these and other facts before the United States commissioner at Atlanta, who issued a search warrant for the seizure of the films as having been the instrument of a crime committed against the United States. Thereupon the marshal, on October 24, 1927, seized the films and carried them away from the theater. The following day, it being observed that the search warrant had not charged that the films were the instrument of committing a felony, but only a misdemeanor, in breaking the federal statutes against interstate transportation of fight films, the affidavits were reproduced with more detail, tending to show the co-operation of persons in New York with other persons there and in Georgia in sending the films into this state. A new search warrant was issued on the ground that the films had been used as the instrument of a felony, to wit, conspiracy to convey them in interstate commerce into Georgia, contrary to statute; the overt act being their actual conveyance thither.

These affidavits, as did the original ones, positively averred the films to be in the Howard Theater, the place to be searched, though they were known to be in the marshal's hands elsewhere; it being intended, however, that the marshal should redeliver them to the theater before serving the warrant. He did this on receiving the second warrant, taking both the films and the warrant to the theater about 5:30 p. m., Central time, October 25, 1927. The second warrant was executed by him a few minutes after redelivering the films. A proper receipt was given the manager of the theater, and return was made to the commissioner issuing the warrant. No contest was made before the commissioner, who still held all the papers, but a petition was filed in the District Court against the marshal and district attorney, setting up the facts and praying a return of the property on the ground that the seizure was void, both upon the face of the proceedings and under the true facts, because there was no probable cause for issuing the warrant, and because it was executed in the nighttime, and upon a false oath as to the things to be seized being in the place to be searched. On the hearing a motion was made to dismiss the petition for lack of jurisdiction in the judge of the District Court, he not having issued the warrant.

The warrant was taken under chapter 18 of title 18 of the United States Code, on the second ground set forth in section 612 (18 USCA § 612; Comp. St. § 10496¼b) to wit: "When the property was used as the means of committing a felony." By section 611 (18 USCA § 611; Comp. St. § 10496¼a) a warrant may be issued by a judge, state or federal, or a United States commissioner. The phrase "judge or commissioner" occurs frequently thereafter in the chapter, and must be understood generally as referring to the judge or commissioner who issued the warrant. Section 623 (18 USCA § 623; Comp. St. § 10496¼m) requires the executing officer to make return of the warrant to the judge or commissioner. Sections 625, 626, and 627 (18 USCA §§ 625-627; Comp. St. §§ 10496¼o-10496¼q) must be read together, and provide for a hearing by the officer issuing the warrant of any controversy as to the grounds on which the warrant had been issued, or as to the identity of the property seized, the reduction of the evidence to writing and its subscription by the witnesses being required, and direct what disposition is to be made of the seized property according to the decision reached, and provide, lastly, for the transmission of the original affidavit, the warrant, return, and inventory, and the evidence taken on the hearing, with a record of the officer's proceedings, to the clerk of the court having power to inquire into the offense involved, unless the issuing officer happens himself to have jurisdiction to try it.

This hearing is the statutory remedy to correct any mistake as to the grounds for issuing the warrant or as to the property seized. Ordinarily it should be followed, whether the officer issuing the warrant be a state judge, a federal judge, or a United States commissioner. But it will be noted that all three of the grounds for issuing a warrant specified in section 612 relate to a crime committed, and that section 627 so recognizes in requiring the proceedings to go finally to the court having jurisdiction of the the crime. Certainly, so soon as a prosecution is commenced in that court, the court is vested with authority over any evidence seized for its use, and may inquire into the propriety of the seizure. Ordinarily this inquiry ought to be made before trial of the criminal case. The judgment thereon is an interlocutory order in the criminal case, and reviewable only as such. Weeks v. United States, 232 U. S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Gouled v. United States, 255 U. S....