United States v. McBride

• Decision Date: 01 February 1922
• Citation: 287 F. 214
• Parties: UNITED STATES v. McBRIDE.
• Court: U.S. District Court — Southern District of Alabama

287 F. 214

UNITED STATES v. McBRIDE.

United States District Court, S.D. Alabama.

February 1, 1922

Alex. D. Pitts, Dist. Atty., of Selma, Ala., for the United States.

J. N McAleer and Harry T. Smith, both of Mobile, Ala., for defendant.

ERVIN District Judge.

In this case defendant, having been convicted, now makes a motion to set aside the verdict and judgment.

The point pressed upon me in favor of setting aside the verdict is that the court permitted the witnesses to testify as to what they found upon McBride's premises when the search was made thereon without a search warrant having been first secured authorizing them to search such premises. The testimony showed without dispute that McBride did not reside at the place where the search was made; it further showed that the witnesses went upon the premises owned by McBride where he kept a stable, without having first obtained a search warrant; that while on the premises they smelled the odor of liquor in the process of being distilled; that they recognized the odor, and they began a search of the stable where they found a trapdoor leading into a cellar, and upon opening the trapdoor and going into the cellar they found a still in full operation; that the trapdoor which led into the cellar was in one of the horse stalls and covered by straw.

The point is made that, as the witnesses had no search warrant they could not testify to what they learned while upon the McBride premises, and I am cited the case of Holmes v. U.S., 275 F. 49. In this opinion the Circuit Court of Appeals of the Fourth Circuit does hold that facts learned by officers in a raid upon the premises of the defendant could not be testified to, where the raid was made without a search warrant, and the court relies upon the cases of Amos v. United States, 255 U.S. 313, 41 Sup.Ct. 266, 65 L.Ed. 654, and Gouled v. United States, 255 U.S. 298, 41 Sup.Ct. 261, 65 L.Ed. 647, decided by the Supreme Court. An examination of these cases will show that the Supreme Court does not pass upon the question ruled in the lower court in any of these cases. What the Supreme Court did pass upon was that papers and other effects unreasonably seized without a search warrant should be returned to the person from whom seized, and should not be permitted to be used in the prosecution against him.

It occurs to me that the court in the Holmes Case has not only overlooked the question the Supreme Court passed upon, but has also overlooked the language of the Constitution in reference to the question. The Fourth Amendment of the Constitution reads 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.'

This is all the language contained therein which bears upon the question.

It is true that the Constitution is conclusive as far as it goes, but it is also true that the language of the Constitution cannot be extended to include something which it has not expressed, either directly or by necessary implication.

'The government, then, of the United States, can claim no powers which are not granted to it by the Constitution, and the powers actually granted, must be such as are expressly given, or given by necessary implication. On the other hand, this instrument, like every other grant, is to have a reasonable construction, according to the import of its terms; and where a power is expressly given in general terms, it is not to be restrained to particular cases, unless that construction grow out of the context, expressly or by necessary implication. The words are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged. ' Martin v. Hunter, 1 Wheat. 326, 4 L.Ed. 97.

When the Constitution says the people shall be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, it does not mean to say that the lands of a person shall not be searched, nor that the premises of a person shall not be searched, because we all know that there is a very great difference between one's house and one's lands or premises, and the word 'house' does not include lands or premises. We therefore see that the framers of the Constitution used a restricted word, the word 'house,' in guaranteeing against unreasonable searches. I take it there is nowhere any provision against an officer searching one's lands or premises without having a warrant authorizing him to do so.

The facts in the Holmes Case show that the cans discovered by the officers were nearly all outside of the house, but on the premises of Holmes. In fact the case states:

'One of the men went into the house and brought out another can, similar to the one found in the yard.'

This can brought out by one of the men was the only thing found in the defendant's house, and if the ordinary meaning of the words used by the Constitution is to be given, then there is no guaranty in the Constitution even against unreasonable searching of one's premises.

The constitutional inhibition is against 'unreasonable search and seizure.' This word 'unreasonable' was put in there in full knowledge of its meaning. There is no guaranty against searching and seizing, nor against searching without a warrant. The question as to whether a search is unreasonable does not depend altogether on whether a warrant was held by the officer. Even if the officer making the search held a warrant and made the search thereunder, it may still be unreasonable, either because the warrant purports to authorize him to seize things or papers it had no right to do, or because the officer seized things or papers the warrant did not authorize him to seize.

If, however, the search was not prohibited as unreasonable, it does not matter whether or not the officers had a warrant. The Constitution does not forbid searching without a warrant. It forbids only unreasonable searches and seizures. The question is not whether the officer had a search warrant; it is whether the search was unreasonable.

The necessity of a warrant before the search is because...