Kirkley v. United States
| Citation | 283 F. 34 |
| Decision Date | 20 July 1922 |
| Docket Number | 1954. |
| Parties | KIRKLEY v. UNITED STATES. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
C. T. Graydon, of Columbia, S.C., for plaintiff in error.
G. L. B. Rivers, Asst. U.S. Atty., of Charleston, S.C. (Francis H. Weston, U.S. Atty., of Columbia, S.C., on the brief), for the United States.
Before KNAPP, WOODS, and WADDILL, Circuit Judges.
The defendant, Charlie Kirkley, was convicted of having in his possession and transporting intoxicating liquor, and of having in his possession property used in the manufacture of intoxicating liquor. The evidence against him was the finding of a bottle of whisky in his house and a still about 400 yards off by the sheriff of Chesterfield county, in the execution of a search warrant issued by a magistrate. The warrant was not produced, but the evidence tended to show that the affidavit on which it was issued did not set forth 'the sources of information, the facts and grounds of belief, upon which the affiant bases his belief,' as seems to be required by the South Carolina statute (Cr. Code 1912, Sec. 836).
Assuming the invalidity of the search warrant under which the sheriff found the whisky and still, we think the District Court was nevertheless right in refusing to strike out the evidence and in refusing to direct a verdict of acquittal. The Fourth Amendment of the Constitution of the United States does not protect a citizen from unreasonable searches, except those made or participated in by federal officers or under federal process. The case is controlled by the case of Kanellos v. United States (C.C.A.) 282 F. 461, herewith filed.
Affirmed.
WADDILL, Circuit Judge. I dissent, for the reasons given in dissenting opinion this day filed in the case of Kanellos v. United States.
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Park v. United States, 1646.
... ... seized and the testimony given by the witness would have been ... competent on the trial of the defendant in this court, even ... though the state or city officers, in making the seizure, ... acted without a search warrant or without due process of law ... ( Kirkley v. United States (C.C.A.) ... [294 F. 780] ... 283 F. 34; Kanellos v. United States (C.C.A.) 282 F ... 461; Burdeau v. McDowell, 256 U.S. 465, 41 Sup.Ct ... 574, 65 L.Ed. 1048, 13 A.L.R. 1159); or (2) that the seizure ... was made by the state or city officers with the aid and ... ...
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... ... 2 ... The 4th and 5th amendments to the constitution of the United ... States, containing similar provisions, have no application to ... the use of such evidence ... States v. Rogers, D.C., 53 F.2d 874; Kirkley v ... United States, 4 Cir., 283 F. 34; Timonen v. United ... States, 6 Cir., 286 F. 935; ... ...
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... ... The Circuit Court of Appeals in the Fourth Circuit has held ... that the Fourth Amendment does not protect a citizen from ... unreasonable searches except those made or participated in by ... federal officers or under federal process. Kanellos v ... United States, 282 F. 461; Kirkley v. United States ... (C.C.A.) 283 F. 34. And a like doctrine is asserted by ... the Circuit Court of Appeals in the Eighth Circuit in ... Youngblood v. United States, 266 F. 795. See, also, ... United States v. Burnside (D.C.) 273 F. 603. In the ... instant case the search was made by ... ...
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