Ripper v. United States

• Decision Date: 16 March 1910
• Docket Number: 2,868.
• Parties: RIPPER v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

178 F. 24

RIPPER v. UNITED STATES. ^[1]

No. 2,868.

United States Court of Appeals, Eighth Circuit.

March 16, 1910

Walter N. Davis and Henry M. Johnson (Horace L. Dyer, on the brief) for plaintiff in error.

Charles H. Daues, Asst. U.S. Atty. (Henry W. Blodgett, U.S. Atty., on the brief), for the United States.

Before HOOK and ADAMS, Circuit Judges, and CARLAND, District Judge.

HOOK Circuit Judge.

John A Ripper was convicted of violations of Act Aug. 2, 1886, c 840, 24 Stat. 209(U.S. Comp. St. 1901, p. 2228), commonly known as the 'Oleomargarine Act.' The indictment contained two counts. The sentence under the first was a fine of $50 and imprisonment for six months, and under the second a fine of $250 and imprisonment for six months. The terms of imprisonment were concurrent. By the first count, which was framed under section 13 of the act, the accused was charged with having in his possession an empty package which had theretofore contained colored oleomargarine, and had been emptied of its contents, the tax-paid revenue stamp upon which he had willfully neglected and refused to destroy.

Complaint is made that the court erred in admitting the testimony of revenue officers as to what they discovered in the house of the accused because they gained admission by means of a void search warrant.

Love, a revenue agent, made an affidavit before a United States commissioner that he had good reason to believe and did believe that the accused was unlawfully engaged in the business of manufacturing oleomargarine with intent to defraud the United States of a part of its revenue, and he prayed the issue of a search warrant authorizing him to enter and search the premises of the accused which were described, and if any materials used in coloring oleomargarine were found to seize them for trial. The commissioner thereupon issued a search warrant reciting the purport of the affidavit. The search was made by the revenue officers, and their testimony as to what they found was admitted over the objection of the accused. The objection made was that the constitutional rights of the accused under the fourth and fifth amendments to the Constitution were violated by the search and seizure, and, therefore the evidence so discovered was inadmissible. The fourth amendment provides:

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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.'

The fifth amendment, so far as relevant, is:

'Nor shall (any person) be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law.'

The affidavit on which the warrant was issued set forth no facts from which the existence of probable cause could be determined; nor did the warrant itself recite the existence of such cause. There was no recital in the warrant that the officer who issued it found or determined there was probable cause, further than the mere statement that some one had declared under oath that he had good reason to believe, and did believe, the accused was violating the law. It is true that section 3462, Rev. St. (U.S. Comp. St. 1901, p. 2283), authorizes a search warrant to be issued upon such an affidavit, but we think that all the requisites are not there expressed. This was also the view of the Attorney General in an opinion delivered June 19, 1903 (24 Ops. Attys. Gen. 685, 688). The oath in writing should state the facts from which the officer issuing the warrant may determine the existence of probable cause, or there should be a hearing by him with that purpose in view. The immunity guaranteed by the Constitution should not be lightly set aside by a mere general declaration of a nonjudicial officer that he has reason to believe and does believe, etc. The undisclosed reason may fall far short of probable cause. But though the search warrant may have been improvidently issued, it does not follow that the testimony of the revenue officers was inadmissible. The testimony itself, was relevant; there was no attempt, as in Boyd v. United States, 116 U.S. 616, 6 Sup.Ct. 524, 29 L.Ed. 746, to compel the accused to testify against himself or to produce his private papers or effects, and a court will not stop to try whether the knowledge of the officers who testify was gained by a trespass. Adams v. New York, 192 U.S. 585, 24 Sup.Ct. 372, 48 L.Ed. 575;

Hardesty v. United States, 91 C.C.A. 1, 164 F. 420; Hartman v. United States, 94 C.C.A. 124, 168 F. 30; United States v. Wilson (C.C.) 163 F. 338.

It is also urged that the first count of the indictment is fatally defective because it merely charges that the accused had in his possession an empty package which previously contained colored oleomargarine, and willfully neglected and refused to destroy the stamp thereon, whereas to constitute an offense under the statute the package must have been emptied of its tax-paid contents while in his possession. In other words, it is contended that mere possession of such a package and willful neglect or refusal to destroy the stamp is insufficient. We considered this question in Vermont v. United States (C.C.A.) 174 F. 792, and held there were four elements of an offense under the first clause of section 13 of the act: (1) The package must have had a stamp on it denoting the payment of a tax; (2) it must have been emptied of its tax-paid contents; (3) it must have been in that emptied condition in the possession of defendants, and (4) they must have willfully neglected or refused to destroy the stamp while the empty package was in their possession.

The section is as follows:

'Section 13. That whenever any stamped package containing oleomargarine is emptied, it shall be the duty of the person in whose hands the same is to destroy utterly the stamps thereon; and any person who wilfully neglects or refuses so to do shall for each such offense be fined not exceeding fifty dollars, and imprisoned not less than ten days nor more than six months. And any person who fraudulently gives away or accepts from another, or who sells, buys, or uses for packing oleomargarine, any such stamped package, shall for each such offense be fined not exceeding one hundred dollars and be imprisoned not more than one year. Any revenue officer may destroy any emptied oleomargarine...