United States v. Kelly

• Citation: 277 F. 485
• Parties: UNITED STATES v. KELLY et al.
• Decision Date: 09 December 1921
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

277 F. 485

UNITED STATES v. KELLY et al.

United States District Court, E.D. North Carolina.

December 9, 1921

E. F Aydlett, U.S. Dist. Atty., of Elizabeth City, N.C.

A. A F. Seawell and E. L. Gavin, both of Sandford, N.C., and Jones & Jones, of Raleigh, N.C., for defendant C. J. Kelly.

CONNOR District Judge.

Before the case was called for trial or the jury was impaneled defendant C. J. Kelly moved the court to quash the search warrant issued by W. P. Batchelor, Esq., United States commissioner, for that, among other causes assigned, the affidavit upon which the warrant was issued does not conform to article 4, Amendments of the Constitution, and the provisions and requirements of chapter 30, tit. 11, Secs. 3 and 5, ratified June 15, 1917 (40 Stat. p. 228 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Secs. 10496 1/4c, 10496 1/4e)), in that:

First. That said affidavit does not particularly describe the property and the place to be searched as required by said act.

Second. That said affidavit does not set forth the facts tending to establish the grounds of the application or probable cause for believing that they exist as required by said act.

The affidavit of D. H. Graham, special agent, upon which the search warrant was issued, avers:

'That he has good reason to believe and does verily believe that evidence of the transportation of stolen automobiles in interstate commerce has been, and is, stored and concealed in certain farms and buildings thereon, being the premises of one C.J. (Big Curt) Kelly and being situate in the county of Lee, state of North Carolina, and district aforesaid, the said evidence consisting of certain automobiles to wit: (Giving a list of the property.)'

The warrant follows the recital in the affidavit, but does not find, as a fact, that probable cause for the belief of said Graham exists, etc.

Passing, for the present, the first ground assigned for the motion, the description of the place and property to be searched, and, proceeding to the consideration of the second ground, we find that the act provides:

That a search warrant authorized by the act may be issued by a judge of the United States District Court or United States commissioner.

That the grounds upon which it may be issued is 'when property has been stolen or embezzled in violation of the law of the United States, in which case it may be taken on the warrant, from any house or other place in which it is concealed or from the possession of the person by whom it was stolen or from any person in whose possession it may be.'

'When the property was used as the means of committing a felony,' etc. Section 2 (section 10496 1/4b).

Section 3 (section 10496 1/4c) provides that the 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 4 (section 10496 1/4d) provides that the commissioner must, before issuing the warrant, examine on oath the complainant and any witnesses 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 5 (section 10496 1/4e) provides that 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. ' Fed. Stat. Annotated Supplement 1918, p. 128.

It is uniformly held by the Supreme Court of the United States that the power, with its express limitations, conferred upon any officer of the government to issue a search warrant, is found in the Fourth Amendment to the Constitution, and that any statute prescribing the method in which such warrants may be issued must be read and construed in the light of and conform in all essential respects to the provisions of that article. Boyd v. U.S., 116 U.S. 616, Sup.Ct. 524, 29 L.Ed. 746, and other cases. This is fundamental.

The authors of the act of 1917 manifestly had this truth in view in framing its several provisions. Because of the recent date of the enactment, the statute has not been under discussion or construction by the Supreme Court of the United States, and but few cases in that respect are found in the reports of the Circuit and District Courts. In Veeder v. United States, 252 F. 414, 164 C.C.A. 338 (C.C.A. 7th Cir.), a motion was made, as here, to quash the search warrant upon similar grounds assigned in this motion. Circuit Judge Baker says:

'No search warrant shall be issued unless the judge (or commissioner) 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 in 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 (or commissioner) to the accuser (of affiant).'

In re Tri-State Coal & Coke Co. (D.C.W.D. Pa.) 253 F. 605, Judge Thompson, after citing cases in which the general principles are discussed, says:

'These cases all recognize, not only the binding force of this constitutional provision, but its high necessity to protect the sanctity of the home and the privacies of life; that this protection is so broad and ample that it embraces all persons, even those accused of crime; and that the duty of giving it full effect rests upon all intrusted under our federal system with the enforcement of the laws. * * *

'Under section 5, tit. 11, the affidavits * * * must set forth the facts tending to establish the grounds of the application or probable cause for believing that they exist.'

In State v. McDonald, 14 N.C. 468, Mr. Justice Daniel says that--

'Warrants to search for stolen goods are authorized by the principles of the common law. ' A search warrant in this state is to be granted only when a larceny is charged to have been committed. 'It is not to be granted without oath made before a justice (of the peace) that a felony has been committed, and that the party complaining has probable cause to suspect that the stolen goods are in such a place, and he should show his reasons for the suspicion.

* * * The justice * * * had jurisdiction to issue a warrant to search for stolen goods, and whether the facts set forth in the affidavit of the applicant * * * constituted a larceny of the goods was for his determination.'

In Veeder's Case, supra, the affidavit, as in this case made by the agent of the government, stated that 'he has good reason to believe and does * * *believe," etc. The criticism made by the judge of the affidavit applies with equal force here:

'He does not say why he believes. He gives no facts or circumstances to which the judge could apply the legal standard and decide that there was probable cause for the affiant's belief. There is nothing but the affiant's application of his own undisclosed notion of the law to an undisclosed state of facts. And under our system of government the accuser is not permitted to be also the judge. * * *

'We find that the Constitution and this statute forbid a search warrant unless the issuing magistrate shall first properly draw the legal conclusion from facts * * * presented to him under the oath of his accuser. And in the record now before us we find no such presentation of facts.'

In both cases cited the warrant was quashed for the reason that no facts were stated in the affidavit upon which the commissioner did or could have found the essential jurisdictional fact that probable cause existed for the belief of affiant as required by the statute.

In United States v. Premises, etc. (D.C. Mont.) 246 F. 185, an application for a warrant to search the premises, particularly described, of one Carl Pahl, upon an affidavit of a government officer stating 'that he has good reason to believe and does verily believe' that certain property, describing it, which has been unlawfully used to violate a federal statute, describing the offense which is made a felony, etc.

In denying the application, the District Judge says:

'Mere belief and suspicion are not enough; 'probable cause' within the meaning of the Constitution arising only from facts and circumstances sufficient to create in the minds of men of average prudence a reasonable belief that a crime has been committed, and that the guilty person or the instruments or fruits of crime are in certain premises. Then only can a warrant to search and seize issue. In the instant case there is no more than suspicion.'

The judge refused to issue the warrant. An examination of the textbooks on criminal procedure, both English and American, discloses no suggestion that, either at common law or under any statute, a search warrant may be issued upon an affidavit in which only the belief or suspicion of the affiant is given as the basis for the application.

Sir Mathew Hale, after...