United States v. Michalski

• Court: United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
• Citation: 265 F. 839
• Docket Number: 194.
• Parties: UNITED STATES v. MICHALSKI.
• Decision Date: 01 January 1919

265 F. 839

UNITED STATES v. MICHALSKI.

No. 194.

United States District Court, W.D. Pennsylvania.

November Term, 1919

ORR District Judge.

The United States attorney for this district has presented an information and has asked that this court issue a bench warrant for the apprehension of the defendant. The United States attorney bases the information entirely upon an affidavit made by H. H. Moltz, federal prohibition agent which is attached to and made part of the information presented. The affidavit supporting the information is made upon 'knowledge, information, and belief' that Frank Michalski willfully and unlawfully sold certain drinks of whisky to two different persons, in violation of the provisions of title 2 of the National Prohibition Act (Act Oct. 28, 1919, c. 85, 41 Stat. 305).

The court has refused to order the arrest of the defendant because of the insufficiency of the information with its supporting affidavit. They do not meet the requirements of the Constitution of the United States, which, by its Fourth Amendment--

'declares 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, * * * describing the place to be searched, and the persons to be seized.' It is plain from this fundamental enunciation, as well as from the books of authority on criminal matters in the common law, that the probable cause referred to, and which must be supported by oath or affirmation, must be submitted to the committing magistrate himself, and not merely to an official accuser, so that he, the magistrate, may exercise his own judgment on the sufficiency of the ground shown for believing the accused person guilty; and this ground must amount to a probable cause of belief or suspicion of the party's guilt. In other words, the magistrate ought to have before him the oath of the real accuser, presented either in the form of an affidavit, or taken down by himself by personal examination exhibiting the facts on which the charge is based and on which the belief or suspicion of guilt is founded. The magistrate can then judge for himself, and not trust to the judgment of another, whether sufficient and probable cause exists for issuing a warrant. It is possible that by exercising this degree of caution some guilty persons may escape public prosecution, but it is better that some guilty ones should escape than that many innocent persons should be subjected to the expense and disgrace attendant upon being arrested upon a criminal charge, and this was undoubtedly the beneficent reason upon which the constitutional provision referred to was founded.'

The foregoing language is that of Justice Bradley of the Supreme Court, who was then sitting in the Circuit Court for the Northern District of Georgia, and is found in Re Rule of Court, 3 Woods, 502, Fed.Cas.No. 12,126. In view of the considerations thus expressed by him, that court adopted this rule for the guidance of the commissioners of the court in the matter of issuing warrants of arrest against persons charged with crime:

'No warrant shall be issued by any commissioner of this court for the seizure or arrest of any person charged with a crime or offense against the laws of the United States upon mere belief, or suspicion of the person making such charge; but only upon probable cause, supported by oath or affirmation of such person, in which shall be stated the facts within his own knowledge constituting the grounds for such a belief or suspicion.'

The propriety of conformity to the requirements of that rule is apparent. When we consider that when a warrant issues in pursuance of an affidavit based on information and belief and the sources of information do not appear, the person arrested is without opportunity to invoke the law either against the person making the affidavit, because of perjury, or against the person furnishing the...