United States v. O'Conner

• Citation: 294 F. 584
• Court: U.S. District Court — Southern District of Alabama
• Decision Date: 02 January 1924
• Parties: UNITED STATES v. O'CONNER. SAME v. CHRISMAN.

294 F. 584

UNITED STATES v. O'CONNER.

SAME v. CHRISMAN.

United States District Court, S.D. Alabama.

January 2, 1924

Aubrey Boyles, U.S. Atty., of Mobile, Ala., for the United States.

Inge &amp Bates, of Mobile, Ala., for defendant O'Conner.

Jere Austill, of Mobile, Ala., for defendant Chrisman.

ERVIN District Judge.

In each of these cases the motion to quash the search warrant raises the question of the authority of a prohibition agent, duly appointed by the Commissioner of Internal Revenue, to execute a search warrant. The question is not a new one. The following courts have upheld the authority: U.S. v Daison (D.C.) 288 F. 199, and U.S. v. Keller (D.C.) 288 F 204, both opinions by Judge Tuttle; U.S. v. Syrek (D.C.) 290 F. 820.

I should not feel that it is necessary to write on this subject, but for the recent able opinion of Judge Woodrough in U.S. v. Musgrave (D.C.) 293 F. 203. This opinion, when reduced to its final analysis, denies to Congress the power to authorize search warrants to be executed by any one except officers appointed under the express provisions of section 2, article 2, of the Constitution, reading as follows:

'But the Congress may be law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.'

I do not think there is any special constitutional sacredness as to the execution of search warrants. The Constitution does provide that there shall be no unseasonable searches of the persons, houses, papers, and effects of the people, but there is no limitation that I am aware of as to the persons by whom the searches shall be made, nor any limitation on the congressional power to authorize such searches by such persons or officers as the Congress may declare.

If the Congress has such power, then the question is whether the words used by Congress in the National Prohibition Act (Comp. St. Ann. Supp. 1923, Sec. 10138 1/4 et seq.) confers such power on the Commissioner of Internal Revenue and his assistants. The provisions are:

'Sec. 2. The Commissioner of Internal Revenue, his assistants, agents, and inspectors, shall investigate and report violations of the War Prohibition Act to the United States attorney. * * * And such Commissioner of Internal Revenue, his assistants, agents, and inspectors may swear out warrants before United States commissioners or other officers or courts,' etc.

Did not Congress intend the officer who could swear out warrants might also execute them? Title 1, Sec. 5, reads:

'The Commissioner of Internal Revenue, his assistants, agents, and inspectors, and all other officers of the United States whose duty it is to enforce criminal laws, shall have all the power for the enforcement of the War Prohibition Act or any provisions thereof which is conferred by law for the enforcement of existing laws relating to the manufacture or sale of intoxicating liquors under the laws of the United States.'

Title 2, Sec. 1, subd. 7, reads:

'Any act authorized to be done by the Commissioner may be performed by any assistant or agent designated by him for that purpose.'

Title 2, Sec. 26, reads:

'When the Commissioner, his assistants, inspectors, or any officer of the law shall discover any person in the act of transporting in violation of the law, intoxicating liquors in any wagon, buggy, automobile, water or air craft, or other vehicle, it shall be his duty to seize any and all intoxicating liquors found therein being transported contrary to law.'

If the Commissioner and his assistants may seize liquor and the vehicle in which it is being transported, and may arrest the offender and prosecute him, why may not he execute a search warrant? Are the liberties of the people any more encroached on in executing a search warrant than in arresting an offender and seizing property of such offender?

Section 28 reads:

'The Commissioner, his assistants, agents, and inspectors, and all other officers of the United States, whose duty it is...