Simmons v. United States

• Decision Date: 21 February 1927
• Docket Number: No. 7479.,7479.
• Parties: SIMMONS v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

18 F.2d 85 (1927)

SIMMONS v. UNITED STATES.

No. 7479.

Circuit Court of Appeals, Eighth Circuit.

February 21, 1927.

John T. Harley, of Tulsa, Okl. (J. Hugh Nolen, of Okemah, Okl., on the brief), for plaintiff in error.

John M. Goldesberry, U. S. Atty., of Tulsa, Okl. (W. B. Blair, Asst. U. S. Atty., of Tulsa, Okl., on the brief), for the United States.

Before LEWIS and KENYON, Circuit Judges, and TRIEBER, District Judge.

KENYON, Circuit Judge.

Plaintiff in error was convicted in the District Court of the United States for the Northern District of Oklahoma, for wrongfully and unlawfully having in his possession two gallons of corn whisky. Prior to the trial plaintiff in error filed a motion to quash the indictment and to suppress evidence illegally obtained, claiming that the evidence submitted to the grand jury was obtained by federal officers and persons acting with them in the search of defendant's home under the authority of a search warrant issued by the county court of Okfuskee county, Oklahoma, upon the authority of a "certain affidavit made by said federal officer upon information and belief." It was asserted in said motion that the affidavit did not state facts sufficient, or any facts, upon which to base probable cause for the issuance of said search warrant, and that the same was void, and it was asked that said indictment be quashed and the evidence obtained upon the search suppressed. The motion to quash the indictment and to suppress the evidence was overruled.

Plaintiff in error presents two questions, viz.: (1) That the trial court was without jurisdiction to try said cause, for the reason that the indictment shows upon its face that it was presented by a grand jury empaneled, sworn and charged in the District Court of Oklahoma; (2) that the evidence, viz. the intoxicating liquor alleged to have been unlawfully possessed was obtained by a search of defendant's home under pretended authority of an invalid search warrant, and that the motion to suppress such evidence should have been sustained and a verdict of not guilty directed.

The first question presented is rather trivial. A mere reference to the indictment shows that it is captioned: "United States of America, Northern District of Oklahoma — ss. No. 742. In the District Court of the United States in and for the Northern District of Oklahoma, at the Regular January, A. D. 1926, Term Thereof, Sitting at Tulsa, Oklahoma." The indictment further states: "The grand jurors of the United States of America duly impaneled, sworn, and charged in the District Court of Oklahoma, to inquire into and due presentment make of all offenses against the laws of the United States of America." It is perfectly apparent, considering the entire indictment, that the "District Court," as there used, means the District Court of the United States, and not the District Court of Oklahoma. If error at all, it was a mere clerical error in not inserting "United States" instead of "Oklahoma," but unquestionably plaintiff in error was in no wise prejudiced thereby. He had no difficulty in understanding from the entire indictment that it was one in the United States District Court for the Northern District of Oklahoma. It was so indorsed by the foreman of the grand jury, and so filed by the clerk of the United States District Court.

Title 13, c. 18, § 1025, of the United States Revised Statutes (Comp. St. § 1691), reads as follows: "No indictment found and presented by a grand jury in any district or circuit or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant." The question does not merit the consideration which we have here given it.

The second proposition urged by plaintiff in error is of importance. The search of the residence of a person is a serious matter, and the proceedings therefor must strictly conform with law, and not violate the Constitution of the United States. The government insists that the question was not properly or in good faith raised; that plaintiff in error introduced no evidence that he claimed the place searched as his private dwelling.

The guaranty of the Fourth Amendment to the Constitution is a personal right or privilege, to be claimed by the party subject to the alleged unreasonable search, as pointed out by this court in Graham v. United States, 15 F.(2d) 740 (opinion filed October 30, 1926). The motion here to suppress the evidence refers particularly to that submitted to the grand jury, but the motion does insist that the evidence was secured by a search of defendant's home, and closes with the prayer that the "indictment be quashed and the evidence obtained upon such search be suppressed." There were objections made raising the question at the time of the introduction of the evidence obtained in the search. We think, while the question is perhaps not as precisely and directly raised as it should be, that nevertheless the record shows a claim of the privilege by plaintiff in error's counsel.

The crucial question here is the nature of the evidence to show probable cause for the issuance of the search warrant. While it was issued by state authority, it must meet the requirements of federal law. Singleton v. United States (C. C. A.) 290 F. 130. Section 25, tit. 2, of the National Prohibition Act (U. S. Comp. Stat. of 1916, Anno. 1923 Supp. vol. 4, § 10138½m), is as follows:

"It shall be unlawful to have or possess any liquor or property designed for the manufacture of liquor intended for use in violating this title or which has been so used, and no property rights shall exist in any such liquor or property. A search warrant may issue as provided in title XI of public law numbered 24 of the Sixty-Fifth Congress, approved June 15, 1917, and such liquor, the containers thereof, and such property so seized shall be subject to such disposition as the court may make thereof. If it is found that such liquor or property was so unlawfully held or possessed, or had been so unlawfully used, the liquor, and all property designed for the unlawful manufacture of liquor shall be destroyed, unless the court shall otherwise order. No search warrant shall issue to search any private dwelling occupied as such unless it is being used for the unlawful sale of intoxicating liquor, or unless it is in part used for some business purpose such as a store, shop, saloon, restaurant, hotel, or boarding house. The term `private dwelling' shall be construed to include the room or rooms used and occupied not transiently but solely as a residence in an apartment house, hotel, or boarding house. The property seized on any such warrant shall not be taken from the officer seizing the same on any writ of replevin or other like process." 41 Stat. 315.

Title 11 of the Act of June 15, 1917, commonly known as the Espionage Act (40 Stat. 228), provides:

"Sec. 3. A search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person and particularly describing the property and the place to be searched.

"Sec. 4. The judge or commissioner must, before issuing the warrant, examine on oath the complainant and any witness he may produce, and require their affidavits or take their depositions in writing and cause them to be subscribed by the parties making them.

"Sec. 5. The affidavits or depositions must set forth the facts tending to establish the grounds of the application or probable cause for believing that they exist." Comp. St. §§ 10496¼c-10496¼e.

The statutes with relation to the issuance of search warrants must be read in the light of Amendment 4 of the Constitution: "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." Probably no question in our jurisprudence has received more attention in the courts than the scope and effect of the Fourth Amendment to the Constitution. It would be a work of superrogation to review even a part of the cases. Some rather recent cases in this court where the subject is dealt with are Garske v. United States (C. C. A.) 1 F.(2d) 620; Peru v. United States (C. C. A.) 4 F.(2d) 881; Wagner v. United States (C. C. A.) 8 F.(2d) 581; Brock v. United States (C. C. A.) 12 F.(2d) 370.

It is well established by the authorities that the affidavit for a search warrant must affirm facts, and not merely express beliefs or suspicions, and that these facts must be made by one having personal knowledge. A mere belief of the affiant is not sufficient basis for the warrant. It is not necessary that the evidence submitted be sufficient to convict, yet it must be such as would be admissible before a jury. On these various propositions see Ripper v. United States (C. C. A.) 178 F. 24; Flagg v. United States (C. C. A.) 233 F. 481; Veeder v. United States (C. C. A.) 252 F. 414; United States v. Ray & Schultz (D. C.) 275 F. 1004; Queck v. Hawker (D. C.) 282 F. 942; Giles v. United States (C. C. A.) 284 F. 208; United States v. Kaplan (D. C.) 286 F. 963; Wagner v. United States (C. C. A.) 8 F.(2d) 581; Boyd v. United States, 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed. 746; Gouled v. United States, 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647; Agnello et al. v. United States, 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145; Byars v. United States, 47 S. Ct. 248, 71 L. Ed....