United States v. Clark

Decision Date25 April 1924
Citation298 F. 533
PartiesUNITED STATES v. CLARK. SAME v. HAMEL.
CourtU.S. District Court — Southern District of Alabama

C. W Thompkins, of Mobile, Ala., for defendants.

Joseph W. John, Acting U.S. Atty., of Mobile, Ala.

ERVIN District Judge.

These matters coming on to be heard on motions made in each of the cases to quash the search warrants and to forbid the use in evidence of the liquors seized by the officers under the warrants, and to further forbid the officers from testifying to what they saw while executing the warrants, because in one instance the officer failed to make a sufficient and proper return on the original warrant of his doings, and in the other case because the officer who executed the search warrant seized a large number of half pint bottles of whisky, and at the time of seizure destroyed all of the whisky, except two half pints, which he preserved for evidential purposes.

I am cited to two cases, one to each f these propositions. The first is Murby v. U.S. (C.C.A.) 293 F. 849, where the court, on page 852, says:

'While in this warrant, supra, there is no express direction to the officer to give (or leave) such copy and receipt (plainly the better practice, Giles v. United States (C.C.A.) 284 F. 208, 215), there is a direction to the officer 'to do and report concerning the same as the law directs.' This direction was enough, but the return does not 'report' that the officer did 'as the law directs.' If, in fact, this provision (section 12) was complied with, the return should have shown it-- affirmatively. If it was not complied with, the search warrant proceedings were void, and the evidence obtained thereby inadmissible. Pain v. Farr, 118 Mass. 74; Kent v. Willey, 11 Gray (Mass.) 368, 373; Gibson v. Homes, 78 Vt. 110, 121, 62 A. 11, 4 L.R.A. (N.S.) 451; Turner v. Lowry, 2 Aik. 72, 75; Tubbs v. Turkey, 3 Cush. 438, 440, 50 Am.Dec. 744 Nowhere in this record is there anything to indicate compliance with this essential requirement of the statute. The presumption from the omission in the return is that it was not complied with. Besides, at the trial, although seasonable objection was made that the record failed to show compliance with section 12-- no motion was made to amend the return in this respect. U.S. v. Kraus, 270 F. 578; Rose v. U.S., 274 F. 245. The result is that the District Court erred in admitting evidence of proceedings under the search warrant and concerning the liquor and containers seized.'

It occurs to me that the court was wrong in holding that the failure of the officer to make the return as required by the Espionage Act made the whole proceeding under the warrant void. It seems to me that, where a perfectly valid warrant is issued and a search is made under it, by which evidence is obtained showing a violation of the law by the defendant, that the proceedings should not be defeated by the fact that the officer fails to perform some subsequent duty required of him by the act; in other words, that where all the essential prerequisites to the issuance of the warrant had been complied with and a proper warrant had been issued, and the officer makes a proper levy under that warrant, whatever is required thereafter to be done is merely directory, and that the failure to perform these directed duties cannot affect the prior valid issue and levy of a warrant by the officer. If a proper warrant was issued and served, how could the failure of the officer thereafter to do something which the act required him to do react upon those legal things which he had already done under the warrant and make them void?

The act does not in terms say that the failure of the officer to make a proper return shall invalidate all his previous acts, and in the absence of such provision in the act, it seems to me clearly wrong to hold that, because of the failure of the officer to perform this directed duty, the previous legal acts done by him were rendered illegal and void. In fact, the last words quoted seem to me wholly inconsistent with the rulings of the court, for, if the officer would have the right to amend his return, so as...

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12 cases
  • State v. Matthews
    • United States
    • West Virginia Supreme Court
    • February 18, 1936
    ...make his return cannot deprive the search of validity under the other warrant. Moore v. Commonwealth, 206 Ky. 779, 268 S.W. 563; U.S. v. Clark (D.C.) 298 F. 533; v. Noble, 96 W.Va. 432, 123 S.E. 237. The judgment of the circuit court is accordingly affirmed. Affirmed. KENNA, Judge (dissenti......
  • Martin v. United States
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • October 10, 1938
    ...47 S.Ct. 259, 71 L.Ed. 556; Giacolone v. United States, 9 Cir., 13 F.2d 108; Hurley v. United States, 1 Cir., 300 F. 75; United States v. Clark, D. C., 298 F. 533; United States v. Gaitan, D. C., 4 F.2d 848; United States v. Kaplan, D. C., 286 F. Error is assigned upon the refusal of the co......
  • Guire v. United States
    • United States
    • U.S. Supreme Court
    • January 3, 1927
    ...United States v. Cooper, supra); Giacolone v. United States (C. C. A.) 13 F.(2d) 108; In re Quirk (D. C.) 1 F.(2d) 484; United States v. Clark (D. C.) 298 F. 533; People v. Schregardus, 226 Mich. 279, 197 N. W. That the destruction of the liquor by the officers was in itself an illegal and ......
  • State v. Hunt
    • United States
    • Missouri Supreme Court
    • May 11, 1970
    ...5), do not appear to have been followed. See United States v. Greene, D.C., D.C., 141 F.Supp. 856, 858(1, 2); United States v. Clark, D.C., S.D., Ala., 298 F. 533, 534(1); Giacolone v. United States, 9th Cir., 13 F.2d 108, 109(3). Cases in other state appellate courts hold that failure to c......
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