Giles v. United States, 1568.

• Decision Date: 28 October 1922
• Docket Number: 1568.
• Citation: 284 F. 208
• Parties: GILES v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

284 F. 208

GILES v. UNITED STATES.

No. 1568.

United States Court of Appeals, First Circuit.

October 28, 1922

Leo A Rogers, of Boston, Mass. (Nathaniel E. Martin and J. Edward Flynn, both of Concord, N.H., and Gallagher, Rogers & Shea of Boston, Mass., on the brief), for plaintiff in error.

Raymond U. Smith, U.S. Atty., of Concord, N.H.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

ANDERSON Circuit Judge.

In the New Hampshire district Giles was indicted for a violation of the National Prohibition Act, by unlawfully having in his possession at Concord, N.H., two quarts of alcohol fit for beverage purposes. Pursuing the procedure approved in Weeks v. United States, 232 U.S. 383, 34 Sup.Ct 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177 he seasonably filed motions to quash the indictment, alleging that it was founded solely upon evidence obtained by unlawful search and seizure, and for a return of the property so seized. These motions were denied and exceptions duly saved. Just before the trial these motions were renewed, with like result. There is no merit in the government's contention that the defendant's failure again to object to the admission of the seized property as evidence against him amounted to a waiver of his rights. There was no occasion for the defendant's counsel, by repetition, to harass the court that had already ruled and saved the defendant's rights.

At the trial it was undisputed that the federal prohibition agent had seized in the defendant's drug store on August 8, 1921, a quantity of diluted alcohol, which the government contended fell within the definition of intoxicating liquor. Giles admitted that the liquor was there found, but contended that it was so medicated as to be unfit for beverage purposes, and that therefore his possession thereof after the expiration, on July 3, 1920, of the permit issued to him under section 6 of the National Prohibition Act (41 Stat. 305), did not violate the law. The issue of fact thus raised was determined by the jury against the defendant, and he was convicted.

It is plain enough from the entire record that the government's chief, probably sole, reliance for evidence against the defendant, both before the grand jury and before the petit jury, was the liquor seized, kept, and used as evidence, after the defendant's repeated motions for its return. Without this liquor thus seized there was, so far as appears, no case against the defendant.

The crucial questions now raised, therefore, grow out of the basis, contents and use of the search warrant. This is the first case involving the use of search warrants that has come up to this court since the passage of the National Prohibition Act, and, indeed, since the passage of the Espionage Act, in title 11 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Secs. 10212i, 10496 1/4a-10496 1/4v), of which are found detailed provisions as to search warrants. National prohibition has obviously greatly enlarged the field for the possible use of search warrants. There ought not to be in the different districts of the circuit the wide and conflicting differences in search warrant proceedings, now existing. The questions presented have therefore been carefully considered, in the light of many authorities, in addition to those cited by learned counsel. But these authorities are more interesting historically than important in the present case. The questions now before us are plainly covered by the federal statutes and by recent decisions of the Supreme Court.

Section 25 of the National Prohibition Act is as follows:

'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 property. 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. If it is found that such liquor or property was so unlawfully held or possessed, or had been so unlawfully used, the liquor, and all property designed for the unlawful manufacture of liquor, shall be destroyed, unless the court shall otherwise order. No search warrant shall issue to search any private dwelling occupied as such unless it is being used for the unlawful sale of intoxicating liquor, or unless it is in part used for some business purpose such as a store, shop, saloon, restaurant, hotel, or boarding house. The term 'private dwelling' shall be construed to include the room or rooms used and occupied not transiently but solely as a residence in an apartment house, hotel, or boarding house. The property seized on any such warrant shall not be taken from the officer seizing the same on any writ of replevin or other like process.'

The main purpose of this section is to put intoxicating liquor, illegally possessed, and property designed for unlawful manufacture thereof, into the same category as gambling implements, counterfeit money, obscene literature, and other forms of outlawed articles. Search warrants are an appropriate and long-used means of governmental seizure for destruction of such outlawed articles.

Turning now to title 11 of the Espionage Act, 40 Stat. 228, we find detailed provisions as to the issuance and use of search warrants, modelled on the New York Criminal Code, Sec. 791 et seq. The provisions most important and pertinent to the present case are as follows:

'Section 1. A search warrant authorized by this title may be issued by a judge of a United States District Court, or by a judge of a state or territorial court of record, or by a United States commissioner for the district wherein the property sought is located.

'Sec. 2. A search warrant may be issued under this title upon either of the following grounds:

'1. When the property was stolen or embezzled in violation of a law of the United States; in which case it may be taken on the warrant from any house or other place in which it is concealed, or from the possession of the person by whom it was stolen or embezzled, or from any person in whose possession it may be.

'2. When the property was used as the means of committing a felony; in which case it may be taken on the warrant from any house or other place in which it is concealed, or from the possession of the person by whom it was used in the commission of the offense, or from any person in whose possession it may be.

'3. When the property, or any paper, is possessed, controlled, or used in violation of section 22 of this title; in which case it may be taken on the warrant from the person violating said section, or from any person in whose possession it may be, or from any house or other place in which it is concealed.'

(Section 22, supra, deals with papers used in violation of international obligations and has no present application.)

'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.

'Sec. 4. The judge or commissioner must, before issuing the warrant, examine on oath the complainant and any witness he may produce, and require their affidavits or take their depositions in writing and cause them to be subscribed by the parties making them.

'Sec. 5. The affidavits or depositions must set forth the facts tending to establish the grounds of the application or probable cause for believing that they exist.

'Sec. 6. If the judge or commissioner is thereupon satisfied of the existence of the grounds of the application or that there is probable cause to believe their existence, he must issue a search warrant, signed by him with his name of office, 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, stating the particular grounds or probable cause for its issue and the names of the persons whose affidavits have been taken in support thereof, and commanding him forthwith to search the person or place named, for the property specified, and to bring it before the judge or commissioner.

'Sec. 7. A search warrant may in all cases be served by any of the officers mentioned in its direction, but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution.

'Sec. 8. The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute the warrant, if, after notice of his authority and purpose, he is refused admittance.

'Sec. 9. He may break open any outer or inner door or window of a house for the purpose of liberating a person who, having entered to aid him in the execution of the warrant, is detained therein, or when necessary for his own liberation.

'Sec. 10. 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.

'Sec. 11. A search warrant must be executed and returned to the judge or commissioner who issued it within ten days after its date; after the expiration of this time the warrant, unless executed, is void.

'Sec 12. When the officer takes property under the warrant, he must give a copy of the warrant together with a receipt for the property taken (specifying it in detail) to the person from whom it was taken by him, or in whose...