Marron v. United States, 185

• Citation: 275 U.S. 192,72 L.Ed. 231,48 S.Ct. 74
• Decision Date: 21 November 1927
• Docket Number: No. 185,185
• Parties: MARRON v. UNITED STATES. *
• Court: United States Supreme Court

275 U.S. 192

48 S.Ct. 74

72 L.Ed. 231

MARRON

v UNITED STATES.^*

No. 185.

Argued Oct. 12, 1927.

Decided Nov. 21, 1927.

Messrs. Hugh L. Smith, and Benjamin L. McKinley, both of San Francisco, Cal., for petitioner.

The Attorney General and Mrs. Mabel Walker Willebrandt, Asst. Atty. Gen., for the United States.

Mr. Justice BUTLER delivered the opinion of the Court.

October 17, 1924, the above-named petitioner, one Birdsall, and five others were indicted in the Southern division of the Northern district of California. It was charged that they conspired to commit various offenses against the National Prohibition Act, including the maintenance of a nuisance at 1249 Polk street, San Francisco. Section 37, Criminal Code (U. S. C. tit. 18, § 88 (18 USCA § 88)). One defendant was never apprehended; one was acquitted; the rest were found guilty. Of these, Marron, Birdsall, and two others obtained review in the Circuit Court of Appeals. The judgment was affirmed as to all except petitioner. He secured reversal and a new trial. 8 F.(2d) 251. He was again found guilty, and the conviction was affirmed, 18 F.(2d) 218.

Petitioner insists that a ledger and certain bills were obtained through an illegal search and seizure and put in evidence against him, in violation of the Fourth and Fifth Amendments. The question arose at the first trial. The Circuit Court of Appeals held that the book and papers were lawfully seized and admissible. When the second conviction was before it, that court held the earlier decision governed the trial, established the law of the case, and foreclosed further consideration.

For some time prior to October 1, 1924, petitioner was the lessee of the entire second floor of 1249 Polk street. On that day a prohibition agent obtained from a United States commissioner a warrant for the search of that place, particularly describing the things to be seized-intoxicating liquors and articles for their manufacture. The next day, four prohibition agents went to the place and secured admission by causing the doorbell to be rung. There were six or seven rooms, containing slot machines an ice box, tables, chairs, and a cash register. The evidence shows that the place was used for retailing and drinking intoxicating liquors. About a dozen men and women were there, and some of them were being furnished intoxicating liquors. The petitioner was not there; Birdsall was in charge. The agents handed him the warrant and put him under arrest. They searched for and found large quantities of liquor, some of which were in a closet. While in the closet, they noticed a ledger showing inventories of liquors, receipts, expenses, including gifts to police officers, and other things relating to the business. And they found, beside the cash register, a number of bills against petitioner for gas, electric light, water, and telephone service furnished on the premises. They seized the ledger and bills. The return made on the search warrant showed only the seizure of the intoxicating liquors. It did not show the discovery or seizure of the ledger or bills. After indictment and before trial, petitioner applied to the court for the return of the ledger and bills and to suppress evidence concerning them. The application was denied. At the trial there was evidence to show that petitioner made most of the entries in the ledger and that he was concerned as proprietor or partner in carrying on the business of selling intoxicating liquors.

It has long been settled that the Fifth Amendment protects every person against incrimination by the use of evidence obtained through search or seizure made in violation of his rights under the Fourth Amendment. Agnello v. United States, 269 U. S. 20, 34, and cases cited, 46 S. Ct. 4, 70 L. Ed. 145.

The petitioner insists that because the ledger and bills were not described in the warrant and as he was not arrested with them on his person, their seizure violated the Fourth Amendment. The United States contends that the seizure may be justified either as an incident to the execution of the search warrant, or as an incident to the right of search arising from the arrest of Birdsall while in charge of the saloon. Both questions are presented. Lower courts have expressed divers views in respect of searches in similar cases. The brief for the government states that the facts of this case present one of the most frequent causes of appeals in current cases. And for these reasons we deal with both contentions.

1. The Fourth Amendment declares that the right to be secure against unreasonable searches shall not be violated, and it further declares that:

'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.'

General searches have long been deemed to violate fundamental rights. It is plain that the amendment forbids them. In Boyd v. United States, 116 U. S. 616, page 624, 6 S. Ct. 524, 529 (29 L. Ed. 746), Mr. Justice Bradley, writing for the court, said:

'In order to ascertain the nature of the proceedings intended by the Fourth Amendment to the Constitution under the terms 'unreasonable searches and seizures,' it is only necessary to recall the contemporary or then recent history of the controversies on the subject, both in this country and in England. The practice had obtained in the colonies of issuing writs of assistance to the revenue officers, empowering them, in this discretion, to search suspected places for smuggled goods, which James Otis pronounced 'the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book,' since they placed 'the liberty of every man in the hands of every petty officer."

And in Weeks v. United States, 232 U. S. 383, page 391, 34 S. Ct. 341, 344 (58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177) Mr. Justice Day, writing for the court, said:

'The effect of the 4th Amendment is to put the courts of the United States and federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers, and effects, against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all intrusted under our federal system with the enforcement of the laws. The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures and enforced confessions * * * should find no sanction in the judgments of the courts, which are charged at all times with the support of the Constitution, and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.'

The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.

And the Congress in enacting the laws governing the issue and execution of this search warrant was diligent to limit seizures to things particularly described. Section 39 of title 27, U. S. C. (27 USCA § 39), provides that such warrant may issue as provided in title 18, §§ 611 to 631 and § 633 (18 USCA §§ 611-631, 633).¹ Section 613 provides that a search warrant cannot be issued but upon probable cause supported by affidavit naming or describing the person and particularly describing property and place to be searched. Section 622 requires the officer executing the warrant to give to the person in whose possession the property taken was found a receipt specifying it in detail. Section 623 requires him forthwith to return the warrant to the judge or commissioner with a verified inventory and detailed account of the property taken. Section 624 gives the person from whom the property is taken a right to have a copy of the inventory. Section 626 provides that, if it appears that the property or paper taken is not the same as that described in the warrant, the judge or commissioner must cause it to be returned to the person from whom it was taken. And section 631 provides for punishment of an officer who willfully exceeds his authority in executing a search warrant.

The government relies on Adams v....