United States v. Harnich

• Decision Date: 20 December 1922
• Docket Number: 2617,2677.
• Citation: 289 F. 256
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES v. HARNICH, and three other cases.

289 F. 256

UNITED STATES v. HARNICH, and three other cases.

Nos. 2617, 2677.

United States District Court, D. Connecticut.

December 20, 1922

George H. Cohen, Asst. Dist. Atty., of Hartford, Conn.

George R. Guilfoile, of Waterbury, Conn., for defendant Russell.

Maurice Gruskay, of Waterbury, Conn., for defendant Harnich.

Thomas E. Troland, of New London, Conn., for defendant Perratti.

Edward W. Lynch, of New Haven, Conn., for defendant Le Pack.

THOMAS District Judge.

In each of the above entitled cases, the defendant has filed and argued a motion for the return of the property seized, on the ground that the search warrant issued by the commissioner in each case was illegal, in that the facts were not properly set forth by the officer making the affidavit. The question presented by the motion in each case involves a consideration of the Fourth and Fifth Amendments to the Constitution, Act June 15, 1917, title 2 (Comp. St. 1918, Comp. St. Ann. Supp 1919, Secs. 10496 1/4a-10496 1/4v) and the numerous cases already decided, with reference to the essential facts which must necessarily be alleged and sworn to upon which a valid search warrant may be issued.

The Fourth Amendment to the Constitution provides that:

'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 is here pertinent, provides:

'No persons * * * shall be compelled in any criminal case to be a witness against himself.'

Section 25 of title 2 of the National Prohibition Act (41 Stat. 315) provides:

'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.' Following the Constitution, Congress has provided for the issuance of search warrants. Section 10496 1/4c of the Compiled Statutes, Ann. Supp. 1919, contains the following:

'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.'

Section 10496 1/4d also provides:

'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.'

Section 10496 1/4e then provides:

'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.'

In view of these provisions of the Constitution and the statutes, the wonder is that there can be any question about the procedure necessary to obtain a valid search warrant. How can it be otherwise than that the judge or commissioner must first be supplied with an affidavit which sets out the facts upon which the informing officer desires to secure a search warrant, and upon which facts the judge or commissioner may satisfactorily conclude that the law is being violated. If the facts sworn to by the informing officer justify the conclusion that the National Prohibition Act is being violated, then the search warrant is issued and the officer protected in the discharge of his duty when he executes the warrant. If, on the other hand, the facts set forth in the affidavit do not satisfy the judge or commissioner that there has been a violation of the law, the search warrant does not issue.

But an examination of the cases shows clearly that the courts of last resort have held that the setting forth of the facts in the affidavit is a necessary and indispensable prerequisite to the issuance of a valid search warrant. Judge Baker, speaking for the Circuit Court of Appeals for the Seventh Circuit in Veeder v. United States, 252 F. 414, at page 418, 164 C.C.A. 338, 342, discusses the subject and his opinion is emphatic and illuminating. He said:

'A brief statement of the applicable principles of law will suffice, for they are so well settled, so obvious from a reading of the constitutional and statutory provisions in question, so founded in the instinctive sense of natural justice, that no elaboration of the grounds therefor is needed.'

Thus it appears that the learned judge was so impressed with the justice of the defendant's claim that no elaboration of the proposition seemed necessary. But he continues and says:

'No search warrant shall be issued unless the judge has first been furnished with facts under oath-- not suspicions, beliefs, or surmises, but facts--which, when the law is properly applied to them, tend to establish the necessary legal conclusion or facts which, when the law is properly applied to them, tend to establish probable cause for believing that the legal conclusion is right. The inviolability of the accused's home is to be determined by the facts, not by rumor, suspicion, or guesswork. If the facts afford the legal basis for the search warrant, the accused must take the consequences. But equally there must be consequences for the accuser to face.

If the sworn accusation is based on fiction, the accuser must take the chance of punishment for perjury. Hence the necessity of a sworn statement of facts, because one cannot be convicted of perjury for having a belief, though the belief be utterly unfounded in fact and law. The finding of the legal conclusion or of probable cause from the exhibited facts is a judicial function, and it cannot be delegated by the judge to the accuser.'

These general principles of law are so sound that the citation of further authority ought not to be necessary, but reference is made to U.S. v. Kelih (D.C.) 272 F. 484, and particularly to page 488, where Judge FitzHenry reiterates the same propositions of law expounded by Judge Baker in the Veeder Case.

Further and instructive rules are laid down by Judge Dooling in U.S. v. Mitchell et al. (D.C.) 274 F. 128, which doubtless will aid officers and commissioners respecting affidavits and search warrants issued upon the affidavits. In this case Judge Dooling said (page 130):

'The National Prohibition Act further provides that 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 is in part used for some business purpose. It should not be difficult to keep within these provisions. If in the attempted enforcement of the prohibition law a search warrant is applied for, the first inquiry of the judge or commissioner should be as to the character of the place to be searched. If it be a private dwelling, then the inquiry should be: 'What evidence have you that this place is being used for the unlawful sale of

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