Gandreau v. United States

• Decision Date: 15 July 1924
• Docket Number: 1722.
• Citation: 300 F. 21
• Parties: GANDREAU v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

300 F. 21

GANDREAU v. UNITED STATES.

No. 1722.

United States Court of Appeals, First Circuit.

July 15, 1924

Daniel T. Hagan, of Providence, R.I. (John J. Rosenfeld and Charles A. Kiernan, both of Providence, R.I., on the brief), for plaintiff in error.

Harold A. Andrews, Sp. Asst. U.S. Atty., of Providence, R.I. (Norman S. Case, U.S. Atty., of Providence, R.I., on the brief), for the United States.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

BINGHAM Circuit Judge.

The defendant was convicted of having unlawful possession of intoxicating liquor in violation of the National Prohibition Act (41 Stat. 305 (Comp. St. Ann. Supp. 1923, Sec. 10138 1/4 et seq.)) in the federal District Court for Rhode Island upon a criminal information presented by the United States attorney. Previous to the presentation of the information a search warrant had been issued by a United States commissioner to search 'the saloon and cellar numbered 578 Social street, being the premises of John Doe and being situate in the city of Woonsocket and within the district above named,' reciting that it was issued upon a complaint in writing supported by the affidavit of John W Morrill, federal prohibition agent, 'alleging that the laws of the United States, namely, the National Prohibition Act, have been and are being violated by the unlawful possession of certain intoxicating liquors containing one-half of 1 per cent. or more of alcohol by volume and fit for use for beverage purposes, the containers thereof, and certain property designed and intended for the unlawful manufacture of intoxicating liquor at the saloon and cellar numbered 578 Social street,' etc.

Under the warrant an entry was made and a search conducted at the saloon and cellar numbered 578 Social street, in said city of Woonsocket, on the 24th day of July, 1923, between 2 and 3 o'clock in the afternoon of that day, where a large quantity of liquor containing one-half of 1 per cent. or more of alcohol by volume and fit for beverage purposes was found and seized. At the trial, and before any testimony was taken the defendant moved that the evidence obtained under the search warrant be suppressed, assigning seven reasons wherein he claimed that the warrant was illegal. This motion was overruled and the defendant excepted.

During the trial Francis W. Pollard, a federal prohibition agent who executed the warrant and made the return, testified with relation to the seizure, and, subject to the defendant's exception, a bottle of beer seized at the time, shown to contain 5.18 per cent. of alcohol by volume, was put in evidence, the ground of the exception being that the warrant under which it was taken was invalid.

The particular grounds assigned for the invalidity of the search warrant were:

(1) That it authorized the search of the premises of no certain person.

(2) That it authorized the search of the premises of John Doe, and not of the defendant.

(3) That it did not attempt to describe the person whose premises were searched.

(4) That it did not state that the owner of the premises to be searched was unknown.

(5) That it was not directed to any particular officer to be served.

(6) That it authorized a search in the nighttime, without containing an affidavit that the affiant is positive that the goods to be seized are on the premises.

(7) That it was defective because it did not comply with the provisions of section 12 of the Espionage Act, title 11 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 10496 1/4l), in that the return did not show that a copy of the warrant together with a receipt for the property taken was given to the defendant.

Pollard also testified that he gave a copy of the warrant, together with a receipt for the liquor, containers, and property taken, to the defendant. The defendant excepted to the receipt of this testimony on the grounds (1) that it was too late to amend the return on the warrant; and (2) because there was no evidence that the officer, at the time he testified, was a federal prohibition officer. It appeared that he was a federal prohibition officer at the time he served the warrant, but had ceased to be such at the time he testified. The court directed the return to be amended by adding the following:

'I, Francis W. Pollard, certify that I am the officer who on July 24, 1923, served the search warrant issued by Archibald C. Matteson, United States commissioner for said district, on July 20, 1923, for the search of the saloon and cellar at 578 Social street in the city of Woonsocket in said district, on said premises.

'I further certify that a copy of the search warrant, together with a receipt for the property taken under said search warrant, was by me given to the person from whom the property was taken.

Francis W. Pollard.

'Subscribed and sworn to before me this eighth day of January, A.D. 1924.

'Wallace R. Chandler, Notary Public.'

The first four grounds of objection as to the validity of the warrant are in substance the same-- that it does not state the name or describe the person who was the owner or in possession of the premises to be searched or that his name was unknown.

The Fourth Amendment to the Constitution provides:

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

Title 11 of the Espionage Act (40 Stat. 228 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 10496 1/4a et seq.)), by section 25, title 2, of the National Prohibition Act (Comp. St. Ann. Supp. 1923, Sec. 10138 1/2m), is made a part of the latter act, and section 3 of title 11 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 10496 1/4c) provides:

'Sec. 3. A search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person and particularly describing the property and the place to be searched.'

The contention of the defendant is that, by reason of the provisions of section 3, it is essential that a search warrant, in addition to particularly describing the place to be searched and the property to be seized, should also name or describe the owner or occupant of the premises to be searched or state that his name is unknown.

We, however, are of the opinion that Congress, in the enactment of section 3, simply restated the requirements for a search warrant made essential by the provisions of the Fourth Amendment to the Constitution for the searching of persons or places, namely: That a search warrant should not issue (1) but upon probable cause; (2) supported by affidavit; (3) that if a person is to be searched and property on his person seized, the person to be searched shall be named or described and the thing to be searched for and seized particularly described; and (4) that if a place is to be searched, the place shall be particularly described as well as the thing there to be searched for and seized. Neither the statute nor the provisions of the Constitution undertake to state how or in what manner the place to be searched shall be particularly described, but it is evident that the description must be such as to enable the officer readily to find it.

Sections 6 and 10, title 11, of the Espionage Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Secs. 10496 1/4f, 10496 1/4j) give support to this construction. Section 6 requires the judge or commissioner issuing a search warrant to a civil officer to insert therein a direction 'commanding him forthwith to search the person or place named, for the property specified, and to bring it before the judge or commissioner,' and section 10 speaks of 'property * * * on the person or in the place to be searched. ' In this case the search warrant was not to search a person, but to search a place. There can be no question but that the place to be searched was particularly described in the warrant, and we are of the opinion that, as the statute does not require the name of the owner or occupant of the premises to be stated in the warrant, the place to be searched being otherwise particularly described, the first four grounds of objection cannot be sustained. See, on this question, Metcalf v. Weed, 66 N.H. 176, 19 A. 1091; State v. Moore, 125 Iowa, 749, 101 N.W. 732; McSherry v. Heimer, 132 Minn. 260, 156 N.W. 130; United States v. Borkowski (D.C.) 268 F. 408; United States v. Friedman (D.C.) 267 F. 856; Petition of Barber (D.C.) 281 F. 550; United States v. Camarota (D.C.) 278 F. 388.

In some states there are statutes regulating search warrants, which also require that the name of the owner of the premises be stated if known, and if not known stated as unknown. And where such requirements are provided they undoubtedly must be complied with. But section 3 contains no such requirement.

The warrant in this case was directed to the 'United States marshal for the district of Rhode Island, or any of his deputies, or any federal prohibition agent, or any civil officer of the United States, duly authorized to enforce any law thereof.'

The fifth objection is that the warrant was not directed to a particular officer by name. In support of this objection the defendant relies on section 6, wherein the judge or commissioner is required to issue the search warrant 'to a civil officer of the United States duly authorized to enforce or assist in enforcing any law thereof, or to a person so duly authorized by the President of the United States,' as though it required that the warrant be issued to a particular officer by name. But we do not think section 6 should be so...