Commonwealth v. Schwartz

• Court: Pennsylvania Superior Court
• Writing for the Court: KELLER, J.
• Citation: Commonwealth v. Schwartz, 82 Pa.Super. 369 (Pa. Super. Ct. 1923)
• Decision Date: 12 December 1923
• Docket Number: 22-1924
• Parties: Commonwealth v. Schwartz, Appellant

82 Pa.Super. 369

Commonwealth v. Schwartz, Appellant

No. 22-1924

Superior Court of Pennsylvania

December 12, 1923

Argued October 16, 1923

Appeal by defendant, from judgment of Q. S. Crawford Co., May Sessions, 1923, No. 47, on verdict of guilty, in the case of Commonwealth of Pennsylvania v. John Schwartz.

Indictment for possession of intoxicating liquors contrary to the provisions of the Act of March 27, 1923, P. L. 34, Before Prather, P. J.

The facts are stated in the opinion of the Superior Court.

Verdict of guilty on which judgment of sentence was passed. Defendant appealed.

Errors assigned were refusal to discharge rule to show cause why liquors seized should not be returned, overruling defendant's motions for arrest of judgment, for binding instructions and for a new trial.

Affirmed.

Albert L. Thomas, and with him George Frank Brown, for appellant. -- The search warrant was illegally issued and the evidence obtained thereby was inadmissible: 19 Ency. Pl. & Pr. 327; 25 A. & Eng. Enc. of Law 147; United States v. Ray &amp Schultz, 275 F. 1004; Ripper v. United States, 178 F. 24, 101 C. C. A. 152; Veeder v. United States, 252 F. 414; United States v. Rykowski, 267 F. 866; United States v. Borkowski, 268 F. 408; United States v. Kelih, 272 F. 484; Giles v United States, 284 F. 208.

The warrant was improperly served: State v. Ward, 5 Del. 496; Colleman v. State, 121 Ga. 594; 49 S.E. 716; Hayden v. Souger, 56 Ind. 42; 26 Amer. Rep. 1; Dietrichs v. Shaw, 43 Ind. 175; Wells v. Jackson, 17 Va. 458; Hale's P. C. 115; 2 Hawkins P. C. 13, sec. 129.

The evidence secured by the illegal search could not be used against the defendant: Weeks v. United States, 323 U.S. 383; 34 S.Ct. 341; Com. v. Vigliotti, 75 Pa.Super. 378; Boyd v. United States, 116 U.S. 616; Silverthorne Lumber Co. v. United States, 251 U.S. 385; Youman v. Com., 224 S.W. 860.

August Delp, District Attorney, for appellee.

Before Orlady, P. J., Porter, Henderson, Trexler, Keller, Linn and Gawthrop, JJ.

OPINION

KELLER, J.

Appellant is the proprietor of a hotel or rooming house in Titusville, Pa. He was convicted of the unlawful possession of intoxicating liquors for beverage purposes contrary to the Act of March 27, 1923, P. L. 34. He seeks a reversal of the judgment of sentence on the ground that the search warrant, by virtue of which the liquors offered and received in evidence against him were obtained, was illegally issued and was so defective in form and substance as to furnish no justification for the search of his premises; that the seizure thereunder was, therefore, illegal and the liquors inadmissible in evidence against him.

The specific contentions of the defendant are: (1) That the complaint on which the search warrant was based did not sufficiently comply with the requirements of the 8th section of the Act of March 27, 1923, supra. (2) That the search warrant was defective, in that, (a) it was not served by the officer to whom directed; (b) it did not sufficiently describe the liquors to be searched for; (c) it did not command the officer to make return of the things seized thereunder to the justice, for disposition according to law. We will consider them in their order.

(1) Article I, section 8 of our Constitution provides: " The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant." Practically the same provision was found in our earlier Constitutions -- see Constitution of 1776, Dec. of Rights cl. X; Constitution of 1790, Art. IX, sec. 8; Constitution of 1838, Art. IX, sec. 8. It will be noted that it is only directed against unreasonable searches and seizures. It does not forbid arrests or seizures without warrant, (Wakely v. Hart, 6 Binn. 316), wherever that may reasonably be authorized at common law, (Rarick v. McManomon, 17 Pa.Super. 154; Com. v. Rubin, 82 Pa.Super. 315, (opinion by Judge Porter filed this day), or by statute, but directs that warrants of search or seizure when issued must describe the person or things to be taken, as nearly as may be, and be based on probable cause, supported by oath or affirmation subscribed to by the affiant; in other words, such warrants were to be special, as distinguished from general warrants, which purported to authorize the apprehension of all persons suspected of a crime therein specified, without naming or particularly describing any person in special, (4 Blackstone's Comm. 291), or which authorized searches in any place for any thing, (Boyd v. U.S. 116 U.S. 616, concurring opinion, p. 641).

Until the passage of the statutes providing for searches in aid of the enforcement of our laws against gambling, obscene literature, illegal possession of firearms, intoxicating liquors, etc., search warrants in this State were for the most part confined to stolen goods, which the owner was seeking to recover and was therefore able to describe with some particularity and detail. Such particularity cannot reasonably be required as to intoxicating liquors, or apparatus used in their manufacture, gaming implements, obscene literature, and like articles possessed by a criminal in violation of law, which the affiant not having owned or had in his possession cannot be expected to describe with the same detail as in the case of stolen goods. It is, therefore, sufficient to describe them as intoxicating liquors; implements and materials designed and intended for the manufacture of intoxicating liquors; gaming implements, etc., without more; nor is it necessary for the affiant to guess at the various kinds of intoxicating liquors, their quantity, or the character of the apparatus used in their manufacture, etc., which may be concealed on the premises to be searched. In such cases a general description is within the language of the Constitution; for it is not practicable to give any other: State v. Whiskey, 54 N.H. 164; Com. v. Dana, 2 Met. 329. Our statutory provisions for search warrants in aid of the enforcement of the prohibitory amendment are found in section 8 of the Act of March 27, 1923, supra. The requirements are less stringent and definite than are provided in the Act of Congress governing search warrants (Act of June 15, 1917, c. 30, Title XI, 40 Stat. 228, Barnes F. Code 10050-10069; Comp. Stat. 10496 1/4, a-v.; which were incorporated into the Federal Prohibition Enforcement Act of Oct. 28, 1919, c. 85, Title II, sec. 25; 41 Stat. 305, Barnes F. Code 8352; Comp. Stat. 10138 1/2 m.). Hence decisions of the federal courts as to the essentials of search warrants are of little use to us. Our act requires complaint by an individual in writing before any alderman, justice of the peace or magistrate, supported by his oath or affirmation, subscribed to by him, alleging that there is probable cause to believe and that he has just and reasonable grounds for believing and does believe that intoxicating liquor is unlawfully manufactured, sold, offered for sale, bartered, furnished or possessed in or upon any room, house, building, boat, vehicle, structure, receptacle, premises, or any other place or thing whatsoever -- describing the said place or thing to be searched, and the thing or things to be seized, as nearly as may be, and setting forth probable cause; whereupon the alderman, etc., if it be made to appear that there is probable cause for such belief, shall issue a warrant to search the said place or thing, and seize the said thing or things described in the aforesaid complaint; said search warrant describing the place or thing to be searched and the thing or things to be seized as nearly as may be, and being directed to any officer or officers commanding him or them to make search by day or night of the room, house, building, etc., therein described for any such thing or things, and if any such be there found, to seize the same and to make a return of said warrant, together with the thing or things so seized or taken to the alderman, etc., for disposition according to law.

Were it not for the provision in the act that the complaint shall set forth probable cause, it would have been sufficient for the affiant to make affidavit in the language of the act, viz " that there is probable cause to believe, and that he has just and reasonable grounds for believing, and does believe" etc.: Cochran v. State, 105 Ohio St. 541, 138 N.E. 54 (Ohio). Such an affidavit was held sufficient in Com. v. Dana, supra. The same provision of the Constitution which protects the people from unreasonable searches also protects them from unreasonable arrests; and yet it was held in Com. v. Green, 185 Pa. 641 that an information is sufficient to support a warrant of arrest where the affiant affirms " to the best of his knowledge, information and belief," which is certainly no stronger than the words from the act above quoted. See also Rose v. State, 171 Ind. 662, 87 N.E. 103; Rosanski v. State (Ohio), 106 Ohio St. 442, 140 N.E. 370. But in this case the affiant did not rest with the mere statement above referred to, but set forth that, " he has been informed by credible persons that they have bought from the defendant intoxicating liquor at the place hereinafter described and from his own observation is satisfied that there is probable cause to believe," etc. We think this is a sufficient compliance with the act; see Com. v. Intoxicating Liquors, 122 Mass. 14. The affiant is not restricted to violations of law within his own knowledge nor is he bound to set forth the names of witnesses or the details as to what they would testify. Probable cause...