Levin v. Blair
| Citation | 17 F.2d 151 |
| Decision Date | 21 January 1927 |
| Docket Number | No. M-56.,M-56. |
| Parties | LEVIN v. BLAIR et al. |
| Court | U.S. District Court — Western District of Pennsylvania |
Benjamin M. Golder, of Philadelphia, Pa., for plaintiff.
George W. Coles, U. S. Atty., of Philadelphia, Pa., for defendants.
There are several features of this cause which call for comment:
1. Procedure.
The practice heretofore prevailing has not been uniform, and the views entertained of what it should be have been somewhat discordant. As soon as one point is settled, another arises, and those which have been settled become unsettled, or the established practice disregarded. We take this case in its procedural features as typical of a large class of search warrant cases.
On January 14, 1927, a search warrant issued to search the brewery premises of the petitioner, known as the Fisher Brewing Company, in Reading, for contraband beer, and beer and brewery supplies and utensils were seized. There is no averment beyond this, other than the detention of the property seized, and another averment to which we will later refer. We are now dealing with merely the procedural features.
On January 18, 1927, the present petition was filed, praying (1) that the search warrant be quashed and the return set aside; (2) that the property seized be directed to be returned; and (3) that the respondents "be precluded from using in evidence any of the property so seized."
The practice is now settled, so far as concerns this court, that under section 25 of the National Prohibition Act (Comp. St. § 10138½m) and the pertinent provisions of the Espionage Act (Comp. St. § 10514a et seq.) in cases in which no action has been taken by libel and attachment, or otherwise, after a seizure under a search warrant, the party averring an injury, thereby having the right to a remedy, may proceed by way of petition and answer. To this proceeding the prohibition director and the district attorney should be made respondents, and if the search warrant be quashed, or the execution or return be set aside, the court may order the return of the property seized; but there should be an additional order prayed for that the district attorney proceed by libel or other action within a prescribed time, in default of which the property may be ordered returned upon the petitioner establishing his ownership. We will treat this petition as so praying, and dispose of it in accordance with this mode of practice.
2. Real Estate.
The additional averment to which we have referred is that the prohibition authorities had made use of this search warrant as an authority to seize and hold possession of the real estate premises. Search warrants have nothing to do with real estate, beyond a search of it, and the officers have no right of possession, or to remain on the premises for a longer time than is reasonably necessary to execute the writ. This was flatly ruled in an opinion by Judge McKeehan. Mellet & Nichter v. U. S. (D. C.) 296 F. 765. A decree may be submitted ordering them to withdraw.
3. Search Warrant.
The final question is one relating to the regularity of the search warrant. The Constitution of the United States provides, and the Espionage Act, of course, follows it, that no search warrant can issue, except upon probable cause. The question of the existence of probable cause must be judicially determined, and the Espionage Act puts the responsibility upon the judge or commissioner who issues the warrant. This means that he must take it upon his conscience to make this finding, and he should not issue a warrant, unless he is satisfied of the existence of probable cause. This duty is of grave and great importance, because through its faithful performance alone can the citizen be assured of a right so precious, and the preservation of which is of such concern, that it was deemed worthy of being made the subject of one of the amendments upon the incorporation of which in the Constitution its very acceptance by the people of the United States depended. It has been repeatedly...
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United States v. Rundle
...refer to search warrants, but the one here referred to appears to be the only one under which evidence was secured. 3 See Levin v. Blair, 17 F.2d 151 (E.D. Pa.1927), Dickinson, 4 The Fourth Amendment of the Federal Constitution provides: "The right of the people to be secure in their person......
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U.S. v. Gagnon
...fruits of the search secured, the authority under the warrant expires and further governmental intrusion must cease. See Levin v. Blair, 17 F.2d 151 (E.D.Pa.1927); Mellet & Nichter Brewing Co. v. United States, 296 F. 765, Nevertheless, we conclude that exigent circumstances in this case pr......
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...than was reasonably necessary to make a search and remove such personal property as they were authorized to seize"); Levin v. Blair, 17 F.2d 151, 152 (E.D.Pa.1927) ("officers have no right of possession, or to remain on the premises for a longer time than is reasonably necessary to execute ......
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State v. Rangel
...imports verity. State v. Allen, 9 Ariz.App. 196, 450 P.2d 708 (1969); Morgan v. State,438 S.W.2d 565 (Tex.Cr.App.1968); Levin v. Blair, 17 F.2d 151 (E.D.Pa.1927). Had the search been warrantless, then the burden would be on the state. People v. Bock Leung Chew, 142 Cal.App.2d 400, 298 P.2d ......