Foley v. United States, 6699.

Citation64 F.2d 1
Decision Date21 April 1933
Docket NumberNo. 6699.,6699.
PartiesFOLEY v. UNITED STATES.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

R. A. Hendricks and Bart A. Riley, both of Miami, Fla., for appellant.

W. P. Hughes, of Jacksonville, Fla., for the United States.

Before BRYAN, FOSTER, and SIBLEY, Circuit Judges.

SIBLEY, Circuit Judge.

By tapping the telephone wires leading into the residence of Karl Foley in Miami, Fla., prohibition agents of the United States overheard many orders for intoxicating liquors given to Foley and his associates, arrangements made for payment and deliveries of liquors from some place of storage elsewhere, quotations of prices, and communications with Canada and Bimini respecting the purchase and importation of liquors, and so learned that the residence was the office for a large business done in imported liquors and what records and instrumentalities of the business must be in the house. One of these agents, upon his own affidavit and those of other agents setting forth fully these conversations and that by acting on information so received they had been able to seize some of the liquors, applied to the District Judge for a warrant for the search of the described dwelling and the seizure therein of properties, documents, books, papers, records, codes, and accounts used as the means and instrumentalities of committing a felony, to wit, an existing conspiracy to unlawfully import, transport, sell, furnish, and deliver prohibited intoxicating liquors, and to maintain common nuisances in the keeping and selling thereof contrary to the National Prohibition Act (27 USCA), and to unlawfully bring into the United States without inspection, declaration, and entry, and to receive, conceal, and facilitate the transportation of such unlawfully imported liquors, contrary to the Tariff Act of 1930 (19 USCA § 1001 et seq.). The books, accounts, and records were elaborately described by their contents. A typewriter and adding machine were also specified. The judge made a finding of probable cause and issued a warrant for the seizure of the described property. The warrant was executed by the prohibition agents, who made a return showing the seizure of the described books and papers, typewriter, and adding machine. Thereafter, but on the same day, warrants of arrest were issued and executed against Karl Foley and others. Foley was given a hearing before a United States Commissioner, who declined to inquire into the validity of the search warrant which he had not issued, and on the evidence of the witnesses produced bound him over to the District Court upon a charge of conspiracy. Thereupon Foley instituted the proceeding here under review. It is a petition entitled in the District Court of the United States for the Southern District of Florida, Karl Foley v. United States of America, and addressed to the judge of said court. It is brought by Karl Foley as a citizen of the district domiciled in the described dwelling in Miami and tells of the search of his home by the named prohibition agents under the search warrant issued by the judge, referring to it and the return upon it as of file in the court. It tells of the hearing before the Commissioner and his refusal to act upon the lawfulness of the warrant, and that Foley was bound over to the court, but although a reasonable time had elapsed no indictment had been brought against him. The petition claimed that the information on which the warrant had issued was unconstitutionally obtained in that neither Foley nor the telephone company to whom the wires belonged had consented to their being tapped; and that the property seized was being held by the marshal and clerk of the court, and by the district attorney, the last named proposing in the future to use it as evidence in a criminal trial in the court should petitioner be indicted. The prayers were that under 18 USCA § 625 the court would take the testimony of the witnesses in relation to the grounds for search warrant, that it would quash the warrant and would suppress the evidence thus unlawfully obtained and would order the return of the seized property to the custody of the petitioner. As parties it named the district attorney, the marshal, the clerk, and the prohibition agents. The district attorney accepted service of a notice that on a named date Foley would "move the court" for an order upon the petition, and he appeared at the hearing, the clerk and prohibition agents also being present. Foley's counsel there contended that the proceeding was before the judge as a committing magistrate who had issued the search warrant and was independent of any criminal case that might thereafter arise. He stated he had no additional witnesses, but wished to cross-examine those who made the affidavits for the issuance of the search warrant in order to show that they had no permission to tap the wires and that they did not recognize anybody's voice and could not have identified anyone prior to the search. The judge ruled that in issuing the search warrant there was no question of identifying persons but only the place and the things to be seized, and that the question of identification of persons would arise only on a trial. Thereupon "the court having heard argument of counsel and being advised in the premises, it is ordered, adjudged and decreed that the petition be and the same is hereby denied." This appeal followed.

It is urged that the judgment is not a final one from which an appeal may be taken. There is some difficulty in classifying it. It does not concern a search incident to and justified by an arrest, but concerns a search warrant. This is not a case in which a prosecution was actually in progress in the District Court, although one was evidently imminent. The petition in one of its prayers refers to 18 USCA § 625, authorizing a summary hearing touching the issuance and execution of the search warrant before the officer who issued it, whether judge or commissioner. No review is provided by that statute. The judgment rendered in such a hearing would not seem to be appealable if by a Commissioner, nor does it bind a court subsequently trying a criminal case. Herter v. United States (C. C. A.) 33 F.(2d) 402, 65 A. L. R. 1240. It may be doubted whether such a decision by a judge as the mere issuer of a warrant would stand otherwise. But this petition is filed in the district court and formally entitled therein and addressed to its judge. The notice given warns of action by the court, and the judgment is a formal one by the court, and no doubt entered upon its minutes. Besides the prayer under the statute there are other separate prayers for the return of property alleged to be in the hands of the...

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