United States v. Kaplan

• Decision Date: 15 February 1923
• Parties: UNITED STATES v. KAPLAN and other defendants named at the foot of the opinion.
• Court: U.S. District Court — Southern District of Georgia

286 F. 963

UNITED STATES

v.

KAPLAN and other defendants named at the foot of the opinion.

United States District Court, S.D. Georgia.

February 15, 1923

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Shelby Myrick, of Savannah, Ga., for defendants.

BARRETT District Judge.

The above cases embrace a number of questions in connection with search and seizure under the Prohibition Act, and, while the facts are not identical in any two cases, the same principle will control two or more, and the general principles applicable are nearly related. It seems best therefore to discuss the principles involved, and then to determine each case by the application of such principles.

From of Search Warrant.

1. Applying the provisions of the Fourth Amendment to the Constitution of the United States and those of the Espionage Act (40 Stat. 228, tit. 11 (Comp. St. 1918, Comp. St. Ann Supp. 1919, Secs. 10496 1/4a-10496 1/4v)), pertinent thereto, which control under the Prohibition Act (title 2, Sec. 25, National Prohibition Act, 41 Stat. 305), every search warrant should accord with the following:

The warrant should be full and complete in itself. It should contain the name or description of the person whose premises are to be searched, a particular description of the property to be sought and of the place to be searched, should state the particular ground or probable cause for its issue, and the names of the persons whose affidavits (or depositions) have been taken in support thereof, that is, those who prove the particular grounds or probable cause; should direct that it be served in the daytime, unless the affidavits (or depositions) are positive that the property is on the person or in the place to be searched, in which case the warrant may contain a direction that it be served at any time of the day or night; should direct that it be executed and returned to the judge or commissioner who issued it within 10 days after its date. The officer who takes the property under the warrant must give a copy of the warrant, together with a receipt for the property taken (specifying it in detail), to the person from whom it was taken by him or in whose possession it was found, or in the absence of any person he must leave a copy of the warrant and the receipt in the place where he found the property. The officer must forthwith return the warrant to the judge or commissioner and deliver to him an inventory of the property taken, made publicly or in the presence of the person from whom it was taken, and of the applicant for the warrant, if they are present, verified by the affidavit of the officer at the foot of the inventory and taken before the judge or commissioner at the time, to the following effect:

'I, R.S., the officer by whom this warrant was executed, do swear that the above inventory contains a true and detailed account of all the property taken by me on the warrant.'

It is believed that all of the foregoing requirements are demanded by the Constitution or the statute, and that failure to observe any of them is bad practice. But such failure is not in every instance fatal, and statement will be made of what is essential and what is merely directory.

Any discussion here of the history of the Fourth Amendment, and of its imperative importance in the maintenance of our liberties, would be presumptuous and superfluous, in view of the opinions of the Supreme Court of the United States in the cases of Boyd v. United States, 116 U.S. 616, 6 Sup.Ct. 524, 29 L.Ed. 746, Weeks v. United States, 232 U.S. 383, 34 Sup.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177, Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 Sup.Ct. 182, 64 L.Ed. 319, and Gouled v. United States, 255 U.S. 298, 41 Sup.Ct. 261, 65 L.Ed. 647. Suffice it to say that those officers or laymen who believe that this great right-- this essential of liberty-- should be invaded and impaired rather than have a violator of any statute escape had best read and ponder what our Supreme Court has said.

The Fourth Amendment to the Constitution of the United States is as follows:

'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 provisions of the Espionage Act (40 Stat. 228; U.S. Compiled Stat. 1918, 1919 Supp.p. 2396), pertinent to searches and seizures, are:

'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.

'Sec. 6. If the judge or commissioner is thereupon satisfied of the existence of the grounds of the application or that there is probable cause to believe their existence, he must issue a search warrant, signed by him with his name of office, to a civil officer of the United States duly authorized to enforce or assist in enforcing any law thereof, or to a person so duly authorized by the President of the United States, stating the particular grounds or probable cause for its issue and the names of the persons whose affidavits have been taken in support thereof, and commanding him forthwith to search the person or place named, for the property specified, and to bring it before the judge or commissioner.

'Sec. 7. A search warrant may in all cases be served by any of the officers mentioned in its direction, but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution.

'Sec. 8. The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute the warrant, if, after notice of his authority and purpose, he is refused admittance.

'Sec. 9. He may break open any outer or inner door or window of a house for the purpose of liberating a person who, having entered to aid him in the execution of the warrant, is detained therein, or when necessary for his own liberation.

'Sec. 10. The judge or commissioner must insert a direction in the warrant that it be served in the daytime, unless the affidavits are positive that the property is on the person or in the place to be searched, in which case he may insert a direction that it be served at any time of the day or night.

'Sec. 11. A search warrant must be executed and returned to the judge or commissioner who issued it within ten days after its date; after the expiration of this time the warrant, unless executed, is void.

'Sec. 12. When the officer takes property under the warrant, he must give a copy of the warrant together with a receipt for the property taken (specifying it in detail) to the person from whom it was taken by him, or in whose possession it was found; or, in the absence of any person, he must leave it in the place where he found the property.

'Sec. 13. The officer must forthwith return the warrant to the judge or commissioner and deliver to him a written inventory of the property taken, made publicly or in the presence of the person from whose possession it was taken, and of the applicant for the warrant, if they are present, verified by the affidavit of the officer at the foot of the inventory and taken before the judge or commissioner at the time, to the following effect: 'I, R.S., the officer by whom this warrant was executed, do swear that the above inventory contains a true and detailed account of all the property taken by me on the warrant."

'The warrant should be full and complete in itself,' both as to essentials and as to directions; the first because essential, and the second in order that the officer serving the paper shall not have the excuse of ignorance as to his duty, and that the accused may promptly know what is the accusation against him, upon what it is based and what the officer should do.

'Name or description of the person whose premises are to be searched, a particular description of the property to be sought and of the place to be searched. ' These requirements are so obvious as to be undisputed. The question arises only as to compliance.

If the name of the person be known, it should be so stated, but, if not possible, a description of him should be given. If, however, the property sought is not in the possession of any one so far as can be ascertained, this should not prevent search and seizure, and it is permissible to recite that the owner of the premises or property is unknown. United States v. Borkowski (D.C.) 268 F. 408. If at the time of search and seizure the property be not in the possession of the party complaining, he will not be heard to object. His right of privacy will not have been invaded. Haywood et al. v. United States, 268 F. 795 (C.C.A. seventh Cir.).

'Should state the particular grounds or probable cause for its issue and the names of the persons whose affidavits (or depositions) have been taken in support thereof; that is those who prove the particular grounds or probable cause. ' There seems to be no question as to the explicitness of the requirement that before the issuance of a warrant there must be proof by affidavits or depositions of...