United States v. Bookbinder

• Decision Date: 11 February 1922
• Docket Number: 1921.,78 June Sess.
• Citation: 278 F. 216
• Parties: UNITED STATES v. BOOKBINDER.
• Court: U.S. District Court — Eastern District of Pennsylvania

278 F. 216

UNITED STATES v. BOOKBINDER.

No. 78 June Sess., 1921.

United States District Court, E.D. Pennsylvania.

February 11, 1922

T. Henry Walnut, Asst. U.S. Atty., and George W. Coles, U.S Atty., both of Philadelphia, Pa.

J Washington Logue, of Philadelphia, Pa., for defendant.

DICKINSON District Judge.

Some questions were raised respecting the formalities attending the presentation of what we regard to be the substantial question before us. These formalities we will ignore, in order to get directly to this real question. It may be best presented by following the mode of presentation adopted by counsel for defendant. This is to view it from the standpoint of the purpose of counsel for defendant in raising the question.

The defendant is under indictment. It is allowable to anticipate the trial situation as it will or at least may arise. Intoxicating liquors were seized by the authority of the search warrant in question. These liquors are now in the custody of, or under the control of, the district attorney. They will, or at least may, be produced in evidence against the defendant. If the seizure of them was lawful, no objection to the admission of the evidence could be sustained. If, on the other hand, they were seized in violation of the defendant's constitutional rights, the trial court, in upholding these rights, would not permit any evidentiary use to be made of what had thus been unlawfully seized. A consequence is that the court could not determine the course of its action without first finding whether the seizure was lawful or unlawful. The purpose of this motion is to have this preliminary question determined in advance of trial. We see nothing in this which runs counter to any principles of either procedural or substantive law, and we do see in it much practical value. This view persuades us to meet the question now.

It is admitted, as it must be, that this defendant is within the protection of the constitutional principles voiced in the Fourth Amendment to the Constitution of the United States. The right invoked is the right of every one to be secure in his person and effects against unreasonable searches and seizures. The plain duty of every court is to obey the plain command of the law that this right shall be kept inviolate. The fact, even though it be a fact which stares the court in the face, that the effect of according this right to a particular individual may be that he will go unwhipped of justice, plays no part in determining the action of the court. If exemption from search, and from arrest of his person, and from the seizure of anything of which he is in possession, is his right, it must be accorded to him; and if that right has been violated, the defendant must be saved from the consequences.

This brings us to the main question of whether there has been shown in this case to have been any violation of the rights of this defendant. Property in his possession has been seized. This is nothing, or at least nothing more than a step toward the finding which must be made. No person is exempt from arrest or accompanying searches and seizures. His sole right to protection is against unreasonable searches and seizures. As a means of assuring to him this right of protection, no warrant can lawfully issue, otherwise than in accordance with the provisions of the Fourth Amendment. In the instant case a warrant did issue. The question then narrows itself to the one of whether the warrant issued 'upon probable cause.'

One of the averments of fact which figure in this cause is that the liquors in question were smuggled into this country in defiance of the laws regulating importations. The warrant which issued and the affidavit which supported it followed the provisions of the acts of Congress governing seizures of smuggled property. Comp. St. Sec. 5769. These acts contemplate that warrants may issue upon the affidavit of one charged with the duty of preventing smuggling, but who has no other personal knowledge of the illegal transaction other than what has come to him upon information and belief. This backed by an averment that the affiant believes just grounds of suspicion to exist, justifies the issuance of a warrant. The seizure without a warrant by a peace officer who saw a larceny committed, and who arrested and searched the thief in order to make the seizure, could scarcely be called unreasonable. The practice of seizing smuggled goods, which had been followed for many years, and with which our people were very familiar, could likewise scarcely be called unreasonable. We are, however, dealing with the case of the issue of a warrant, and, as it can only issue upon probable cause, we are brought directly back to this point. The law which was followed in this case became a law at the...