United States v. Mitchell

• Decision Date: 01 July 1921
• Docket Number: 9276.
• Citation: 274 F. 128
• Parties: UNITED STATES v. MITCHELL et al.
• Court: U.S. District Court — Northern District of California

274 F. 128

UNITED STATES v. MITCHELL et al.

No. 9276.

United States District Court, N.D. California.

July 1, 1921

Frank M. Silva, U.S. Atty., and Ben. F. Geis, Asst. U.S. Atty both of San Francisco, Cal.

Chauncey Tramutolo, of San Francisco, Cal., for defendants.

DOOLING District Judge.

The defendant Mitchell was apparently violating the Prohibition Law (41 Stat. 305) by selling intoxicating liquor at his place of business, 211 Kearny street, San Francisco. The enforcement officers searched these premises by virtue of a search warrant and found there certain liquor. They also purchased liquor there. Thereupon they applied for a search warrant to search the residence of defendant at 880 Bush street. This is an apartment house, in which defendant occupies with his family apartment No. 4. It does not seem that the officers would have had any difficulty in ascertaining the number of the apartment occupied by defendant before they applied for a search warrant. The search warrant applied for and issued was one authorizing a search of 880 Bush street-- entire premises, outhouses sheds, lockers, safes, closets, attic, basement, etc. It may be said, in passing, that no information was laid before the commissioner to show that the premises were being used for the unlawful sale of intoxicating liquor and it is not claimed that they were directly; the theory being that the liquor was transported from 880 Bush street to 211 Kearny street and there sold, though no evidence was offered to show even this. Armed with the all-covering warrant above described, the officers went to the premises, and, finding that it was an apartment house in which a number of families resided, had the grace to hesitate in its execution. They telephoned to the commissioner, and received permission over the phone to insert in the warrant the words, 'By order of Com. Krull, this to specify Apt. 4, especially. ' With warrant bearing this long-range amendment they then proceeded, over the protests of defendant's attorney, to search apartment 4, and, finding therein a quantity of liquor, seized it all, sealed some of it, and took one barrel, containing three or four gallons, away. Subsequently another warrant was issued, upon which they assumed again to seize the same liquor. The defendant now moves for a return of the liquor so seized.

Much confusion seems to exist among the enforcement officers concerning the necessity for search warrants and their use. The confusion arises generally, in my opinion, because they are not willing to be bound by the limitations of the Constitution or the law. In pursuing liquor, recently made an outlaw by the Eighteenth Amendment to the Constitution, they are, in their zeal, inclined to disregard other provisions of the same document equally sacred and far more important to the rights of the people. The language of the Fourth Amendment to the Constitution 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 protection thus afforded to the people can only be insured by the courts. It is far more important that the right to be secure in their persons, houses, and effects be zealously guarded than that a few individuals be convicted of violating the prohibition or any other law. It is one of the most sacred rights that the Constitution guarantees, and officers sworn to defend ...