United States v. Napela

• Decision Date: 30 September 1928
• Parties: UNITED STATES v. NAPELA.
• Court: U.S. District Court — Northern District of New York

28 F.2d 898 (1928)

UNITED STATES v. NAPELA.

District Court, N. D. New York.

September, 1928.

Oliver D. Burden, U. S. Atty., and Dean P. Taylor, Asst. U. S. Atty., both of Syracuse, N. Y.

Irving K. Baxter, of Utica, N. Y., for defendant.

COOPER, District Judge.

The defendant seeks to review the action of United States Commissioner Hampton, of Utica, N. Y., in denying defendant's application to controvert the grounds on which the search warrant was issued under which intoxicating liquors were seized from the defendant's possession.

Upon affidavit laid before the commissioner he issued the search warrant in question. The return shows that, upon its execution by prohibition agents, certain intoxicating liquors were taken from defendant's custody or possession. Upon defendant's arrest, charged with unlawful possession of intoxicating liquors under the National Prohibition Law, he waived examination before the commissioner and gave bail to appear in the District Court to answer the charge. Subsequently, and before any information was lodged against him in the District Court, the defendant appeared by counsel before the commissioner and sought to controvert the grounds on which the search warrant was issued; in other words, to quash the search warrant.

The commissioner denied his application, on the ground that, the defendant having waived examination and been held to await the action of the court, the commissioner no longer had jurisdiction to entertain such proceedings. The defendant asks the court to review this decision of the commissioner and to direct him to entertain such proceedings.

The National Prohibition Law provides in title 2, § 25 (27 USCA § 39):

"A search warrant may issue as provided in sections 611 to 631, and 633 of title 18, and such liquor, the containers thereof, and such property so seized shall be subject to such disposition as the Court may make thereof. If it is found that such liquor or property was so unlawfully held or possessed, or had been so unlawfully used, the liquor, and all property designed for the unlawful manufacture of liquor, shall be destroyed, unless the Court shall otherwise order. * * * The property seized on any such warrant shall not be taken from the officer seizing the same on any writ of replevin or other like process."

Section 611 of title 18 USCA (the Espionage Act as enacted in 1917) provides for the issuance of the search warrant by a United States District Judge, a United States commissioner, or a state magistrate. Sections 611 to 624 regulate the service, issue, execution, and return of the search warrant, the making and service of the inventory of the articles seized thereunder, etc. Sections 625 and 626, the sections particularly involved in this proceeding, are as follows:

"625 — Taking Testimony. If the grounds on which the warrant was issued be controverted, the judge or commissioner must proceed to take testimony in relation thereto, and the testimony of each witness must be reduced to writing and subscribed by each witness.

"626 — Restoration of Property Taken; Retention of Custody of Property by Officer or Other Disposition. If it appears that the property or paper taken is not the same as that described in the warrant or that there is no probable cause for believing the existence of the grounds on which the warrant was issued, the judge or commissioner must cause it to be restored to the person from whom it was taken; but if it appears that the property or paper taken is the same as that described in the warrant and that there is probable cause for believing the existence of the grounds on which the warrant was issued, then the judge or commissioner shall order the same retained in the custody of the person seizing it or be otherwise disposed of according to law."

A brief reference to the character of the office of United States commissioner may be helpful. The general authority of the commissioner is set forth in Revised Statutes, § 727 (section 270 of the Judicial Code; section 392, title 28 of the United States Code Annotated). The collation of the statutes relating to the various functions of the commissioners may be found in the note to U. S. v. Hom Hing (D. C.) 48 F. 635. There it appears that the powers of the United States commissioner are in most respects the same in federal matters and offenses as are the powers of the justices of the peace in the state in felony offenses against the laws of the state. The commissioner is not a judge or a court, and does not hold court. Todd v. U. S., 158 U. S. 278, 15 S. Ct. 889, 39 L. Ed. 982; U. S. v. Tom Wah (D. C.) 160 F. 207; U. S. v. Jones (D. C.) 230 F. 262, 264. The commissioner is "an adjunct of the court, possessing independent, though subordinate, judicial powers of his own." Grin v. Shine, 187 U. S. 187, 23 S. Ct. 101, 47 L. Ed. 130. The commissioner is a "quasi judicial officer." Chin Bak Kan v. U. S., 186 U. S. 193, 22 S. Ct. 891, 46 L. Ed. 1121; Ocampo v. U. S., 234 U. S. 91, 34 S. Ct. 712, 58 L. Ed. 1231.

In determining the existence of probable cause, he exercises a discretion judicial in its nature. Veeder v. U. S. (C. C. A.) 252 F. 414; U. S. v. Elliott (C. C. A.) 5 F.(2d) 292. He undoubtedly exercises like discretion, judicial in its nature, when he entertains a proceeding to controvert the ground on which the search warrant was granted, and decides whether or not there is probable cause for believing the existence of the ground on which the search warrant was issued. But at both times, and at all times, his power is granted by sections 625 and 626 of title 18, and limited by title 2, § 25, of the Prohibition Law. He has no inherent or common-law power with reference to issuing or quashing search warrants. U. S. v. Jones (D. C.) 230 F. 262, 265, supra.

It must be kept in mind that ordinarily the function of the commissioner, like that of the justice of the peace, in a felony case, is confined to the case in its preliminary stages. Both alike are committing magistrates, or officers having to do with the defendant only between the time of his arrest and the time of the transfer of the case to the trial court. Todd v. U. S., 158 U. S. 278, 283, 15 S. Ct. 889, 39 L. Ed. 982; Collins v. Miller, 252 U. S. 364, 369, 40 S. Ct. 347, 64 L. Ed. 616.

The power of the commissioner to issue a search warrant lies, also, in the preliminary stage. After the formalities of title 18 relating to the execution, return, etc., of the search warrant, have been complied with, the commissioner has no power or function of any kind, except under sections 625 and 626, unless the defendant is brought before him for preliminary examination on a criminal charge arising from the possession of the things seized under the search warrant. When the defendant thus charged has been held after examination to await the action of the court, or has waived examination and been so held, the commissioner, like the justice of the peace in a felony case, has no further power or authority in the matter, unless sections 625 and 626 expressly so provide. There is no express provision in either section continuing the power of the commissioner beyond the preliminary stage in such case, and nothing therein contained from which such inference may be reasonably drawn.

All the sections contained in title 18 of the United States Criminal Code, relating to the issue of a search warrant by the commissioner, including, of course, sections 625 and 626, seem to be in harmony only if the power granted to the commissioner to inquire, after its execution, into probable cause for the issue of the search warrant, be construed as relating to the preliminary stages of the criminal prosecution, whenever there is such criminal prosecution. Not only is this so when the function of the commissioner in its historical aspect is considered, but this is the reasonable, if not necessary, inference from section 627, which relates to the prompt filing of the search warrant and records with the clerk of the court having jurisdiction to inquire into the offense in respect to which the warrant was issued. U. S. v. Ephraim (D. C.) 8 F.(2d) 512.

It is apparent from sections 625 and 626 that their purpose, apart from the later limitations of the Prohibition Law, is to give persons from whom things are seized under a search warrant prompt remedies in the preliminary stages, viz.: (1) The return of the articles seized, if they were not the things described in the warrant, or if there was no probable cause for the issuance of the search warrant; and (2) a determination by the commissioner that the things seized were not intended to be seized, or were not lawfully seized, and that, therefore, no evidence thereof can be offered by the government on the examination of the defendant before him, or any other commissioner before whom the case may be brought, on the criminal charge, if any, based on the possession of the seized articles. The first is expressly stated, and the second is a necessary consequence of the first.

If the powers granted in sections 625 and 626 were not given to the commissioner who issued the search warrant, the accused could not have the return of property, either that not intended to be seized, or that unlawfully seized, or a determination by the commissioner, on the examination by him or by any other commissioner before whom the defendant may be taken, whether the seized articles were competent or incompetent evidence against him.

True, application may be made to the court, as hereinafter shown, and the court can determine the legality of the seizure and the competence of the seized articles as evidence for the trial of the accused; but this may be done only when a court is in session, and, in the meantime, the accused might unjustly languish in jail, awaiting a term of the court, because of the inability of the defendant to furnish bail or inability to have the evidence against him on the examination before the commissioner...