Poldo v. United States

• Decision Date: 01 February 1932
• Docket Number: No. 6403.,6403.
• Citation: 55 F.2d 866
• Parties: POLDO v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

55 F.2d 866 (1932)

POLDO v. UNITED STATES.

No. 6403.

Circuit Court of Appeals, Ninth Circuit.

February 1, 1932.

Stanley Burke, of San Francisco, Cal., for appellant.

Geo. J. Hatfield, U. S. Atty., and Herman A. Van Der Zee, Asst. U. S. Atty., both of San Francisco, Cal.

Before WILBUR and SAWTELLE, Circuit Judges, and JAMES, District Judge.

SAWTELLE, Circuit Judge.

This appeal involves the single question of the legality of the arrest and search whereby certain evidence of the crime charged was secured by the arresting officers.

On April 18, 1930, two secret service officers observed the appellant, hereinafter referred to as defendant, enter a hardware store, carrying in his hand what appeared to be a metal disc with a piece of tin around it, "such a disc as is used in making the reeding or knurled edge on counterfeit silver dollars." Defendant was followed to a garage built in a dwelling house, and was observed to enter with the article mentioned.

On May 2, 1930, Philip E. Geauque, one of the secret service agents, made an affidavit setting forth the above facts. Reciting this affidavit and an oral examination of the affiant as its basis, a search warrant was issued authorizing the seizure of the alleged contraband in the garage, as described in the affidavit. The warrant was issued on the same day as that on which the affidavit was sworn out.

On the following morning, Agent Geauque, Charles B. Rich, another secret service officer, and George H. Richards, a police lieutenant, arrested Poldo in the garage. According to Geauque's testimony at the trial, the following search then took place: "The entrance way to the garage led us to a toilet, a small toilet, where part of the wall had been knocked out, and there was a door leading from the toilet into this garage, and that door was open. Another door led from the toilet into the interior of that part of the house, but that door was locked and Mr. Poldo opened that with a key which he had taken from his pocket. That door led into a vacant room that he was apparently using as a storeroom, with a lot of boxes and stuff in it, and there was another door that led to the rear, which he tried to open with a key, but was apparently unsuccessful in his efforts, because finally Lieutenant Richards asked him if he was using the right key and it developed he was not using the right key, but that the right key was on a ring which he took from his pocket, and Lieutenant Richards found it and opened the door which led into a kitchen where there was a sink and a gas stove and a table and some chairs, and also into another room, apparently a bed room, with a bed and two chairs in it. * * *"

It thus appears that the search of the garage failed to disclose the metal disc, if such it was, and that the search was extended to defendant's private residence. Therein was found a mold of the metal disc and other contraband.

On cross-examination, Agent Geauque, referring to his observation of the defendant on April 18, 1930, while the latter was carrying the suspicious disc, said: "I saw the defendant carrying a piece of apparatus — it looked like a metal disc."

Agent Arch A. Strange, the other secret service officer who was with Geauque when the defendant was being observed on April 18, 1930, thus described the disc, on direct examination: "Agent Geauque and myself saw Poldo enter store and in his hand he had what appeared to be a metal disc with a piece of tin about one inch wide around it * * * the disc might be a mold frame or metal mold — at that time I was not close enough to see it, just exactly what it was — I have seen metal molds, it was the shape of one — I have not seen all of it since that time, only pieces that might have been part of the part around the edge of it. * * *" (Italics our own.)

On cross-examination, Strange said: "The metal disc could be used for making counterfeit plaster molds, — I refer to the entire piece of apparatus — it could be used as a frame, but I didn't see the disc close enough to tell exactly what it was at that time — since then we have found what I believe to be a mold in plaster of the disc I saw — I could not say it was what is known as a knurling collar — I could not say what the piece of apparatus was — after Poldo left the hardware store I entered — Agent Geauque remained in the automobile — Poldo, as he was entering the store, was as close as possibly ten feet to me — I could not tell what piece of apparatus he possessed." (Italics our own.)

Agent Geauque, who, it will be remembered, made the affidavit upon which the search warrant was based, remained in the automobile while Poldo was leaving the store, according to Strange's testimony, and therefore may be presumed to have been farther from the defendant than was Strange, who passed Poldo as the latter was leaving the hardware store. Yet, in his affidavit, Geauque swore positively that the disc was a knurling collar. At the trial, however, Geauque, like Strange, was not so sure:

"He carried round metal apparatus of some sort in his right hand — it was of the general character or appearance of counterfeiting apparatus. * * *

"I saw the defendant carrying a piece of apparatus — it looked like a metal disc."

The defendant offered no testimony, and was found guilty of making and possessing a plaster mold for the coining of counterfeit silver dollars. From a judgment of conviction, he appeals.

The affidavit of Geauque does not disclose the date on which his observations were made. Time of the affidavit's observations, which are set forth as constituting probable cause that a crime has been committed, is of the essence of the affidavit. Dandrea v. United States (C. C. A. 8) 7 F.(2d) 861, 864. In Kohler v. United States (C. C. A.) 9 F.(2d) 23, 25, this court said: "In this matter the commissioner was not called as a witness, nor was any record of his official acts produced; so that, except for the testimony of Donnelly that before he issued the warrant the commissioner considered the affidavits of the women, there is nothing whatever to negative the statement in the warrant itself that from the examination and facts set out in the affidavit of Donnelly he was satisfied of the existence of the grounds of and upon which the application was based, and that there was probable cause. The defects in Donnelly's affidavit are glaring. The spaces for the day and the month are not filled in. * * *" (Italics our own.)

In Staker v. United States (C. C. A. 6) 5 F.(2d) 312, 314, the court used the following emphatic language:

"Furthermore, although in fact the affidavit was made immediately after the facts were discovered, the affidavit itself is silent as to the time element. So far as the affidavit shows, the officer might have smelled the fumes months before the affidavit was made. See Rupinski v. United States, 4 F.(2d) 17 (C. C. A. 6), February 4, 1925." (Italics our own.)

See, also, United States v. Baumert et al. (D. C.) 179 F. 735, 740; United States v. Casino (D. C.) 286 F. 976, 978; Lawson et al. v. United States (C. C. A. 7) 9 F.(2d) 746, 748; Siden v. United States (C. C. A.) 9 F.(2d) 241, 243; Blakemore on Prohibition, § 835.

Nor does the statement in the warrant in the instant case, to the effect that the commissioner examined the affiant orally cure the lack of time specification in the affidavit itself.

The authorities are clear that the affidavit must be self-sufficient, and cannot be bolstered up by oral testimony. In United States v. Casino, supra, Judge Learned Hand said: "For a similar reason it is not material that the other evidence is absent, which was before the commissioner and which may have induced him to deny quashal of the warrant. While under section 16 he must decide after hearing whether on all the facts there were reasonable grounds for the warrant, that does not dispense with the necessity for allegations in the affidavits themselves, which, if true, show a self-subsisting ground for the issuance of the warrant. * * * In this respect the affidavits are like pleadings. Other corroborative evidence, no doubt, is admissible for the United States, but the original allegations must in the end be supported. Hence, if those allegations on their face be inadequate, the warrant can by no possibility be legal." (Italics our own.)

See, also, Blakemore on Prohibition, § 825....