United States v. Kaplan

• Decision Date: 16 December 1926
• Docket Number: No. 6975.,6975.
• Citation: 16 F.2d 802
• Parties: UNITED STATES v. KAPLAN et al.
• Court: U.S. District Court — District of Massachusetts

16 F.2d 802 (1926)

UNITED STATES v. KAPLAN et al.

No. 6975.

District Court, D. Massachusetts.

December 16, 1926.

John V. Spalding, Asst. U. S. Atty., of Boston, Mass.

Daniel A. Shea, of Boston, Mass., for defendants.

BREWSTER, District Judge.

There is presented to this court before trial a motion to suppress evidence secured by federal prohibition agents, who searched defendants' premises and there seized a quantity of beer and distilled spirits, a still, and other property used in the manufacture of intoxicating liquors.

The search and seizure were made upon a federal search warrant, the validity of which is attacked on the sole ground that the warrant failed to describe with sufficient particularity the property to be searched for.

The warrant, in effect, directed the officer to search for and seize "certain intoxicating liquor, containers for the same, and property used in the manufacture of intoxicating liquor."

There is nothing in the affidavit incorporated in the search warrant, and upon which it was issued, which indicated the kind of intoxicating liquors or the character of the property, except that the affiant had detected odors of alcohol coming from the premises described in the writ and had seen barrels of mash on the platform thereof. There was nothing to suggest the quantity of intoxicating liquors believed to be on the premises.

The defendants contend that the warrant fails to comply with the requirements of the Fourth Amendment to the Constitution and of section 3 of title 11 of the Espionage Act (Act of June 15, 1917, 40 Stat. 228 Comp. St. § 10496¼c), in that it does not particularly describe the property to be seized.

We are dealing with a case where there is no attempt to describe any particular thing to be seized, but the direction to the officer in this respect comprehends all property which may be found which falls within any one of three classes of property, namely: (1) Intoxicating liquors; (2) containers therefor; (3) property designed for the manufacture of intoxicating liquors.

The question, therefore, is squarely presented, whether the Constitution or the acts of Congress require the magistrate to insert in the warrant a more particular description of the thing to be seized.

This question is more easily stated than answered. The early history of the right to search and seize under warrants would seem to indicate that something more was demanded than mere classification of the things to be seized. Respecting the common-law right of search and seizure for stolen goods, Lord Camden, in his famous decision in the case of Entick v. Carrington, 10 Howell St. Tr. 1029, made this observation:

"Searching for stolen goods crept into the law by imperceptible practice. * * * Observe, too, the caution with which the law proceeds in this singular case. There must be a full charge upon oath of a theft committed. The owner must swear that the goods are lodged in such a place. He must attend the execution of the warrant, to show them to the officer, who must see that they answer the description. * * *"

It is interesting to note how closely both federal and state governments, in their desire to secure the individual against the tyranny of unreasonable search and seizure, followed this ancient rule of the common law by requiring all processes for search and seizure to be issued only (1) on probable cause; (2) on oath; and (3) with particular description of the place to be searched and of the property to be seized. Fourth Amendment to the United States Constitution; Massachusetts Declaration of Rights, art. 14.

It has been intimated in the courts that the great statesmen who drafted and advocated these constitutional safeguards were not unmindful of Lord Camden's opinion which has been characterized as "one of the landmarks of English liberty." Mr. Justice Bradley in Boyd v. U. S., 116 U. S. 616, 626, 6 S. Ct. 524, 29 L. Ed. 746; Chief Justice Shaw in Fisher v. McGirr, 1 Gray (Mass.) 1, 29, 61 Am. Dec. 381.

The same safeguards have always been incorporated into congressional acts authorizing the issue of search warrants. Section 3, tit. 11, Act June 15, 1917 (40 Stat. 228 Comp. St. § 10496¼c).

While the courts in more than one instance have taken occasion to point to the importance of preserving in their full vigor these constitutional criteria for a reasonable search and seizure, it is possible to detect in judicial pronouncements a tendency to lessen the requirement of particularity both as to place to be searched and property to be seized. Especially is this trend noticeable in cases arising since the Eighteenth Amendment was adopted.

When we contemplate that a warrant commanding the seizure of "cases of whisky" is "quite specific enough," and authorized a seizure of not only "cases of whisky," but kegs, jugs, barrels, and bottles of whisky, cases of gin and of alcohol, and a corking machine (Steele v. U. S., 267 U. S. 498, 45 S. Ct. 414, 69 L. Ed. 757), it is apparent that we have drifted a long way from the earlier conception of what was necessary to identify the thing to be searched for and seized which obtained in Lord Camden's time. See, also, U. S. v. Old Dominion Warehouse, Inc. (C. C. A.) 10 F.(2d) 736.

The field within which the right to search and seize may be lawfully exercised has been extended by statute until now it has become a well-recognized instrument in the hands of the government to prevent violation of law, to gain possession of instruments of crime and other outlawed contraband, to possess property liable to forfeiture, and even to take possession of articles and things which it is unlawful for...