United States v. Olmstead

• Decision Date: 21 September 1925
• Docket Number: No. 9165.,9165.
• Court: U.S. District Court — Western District of Washington
• Parties: UNITED STATES v. OLMSTEAD et al.

7 F.2d 760 (1925)

UNITED STATES v. OLMSTEAD et al.

No. 9165.

District Court, W. D. Washington, N. D.

September 21, 1925.

COPYRIGHT MATERIAL OMITTED

Thomas P. Revelle, U. S. Atty., and C. T. McKinney, Asst. U. S. Atty., both of Seattle, Wash.

J. L. Finch, of Seattle, Wash., for defendants.

NETERER, District Judge (after stating the facts as above).

A submission to search or arrest will not impair the constitutional right (U. S. v. Slusser D. C. 270 F. 819; Youman v. Commonwealth, 189 Ky. 152, 224 S. W. 864, 13 A. L. R. 1303; Amos v. U. S., 255 U. S. 313, 41 S. Ct. 266, 65 L. Ed. 654), and courts will not consider the constitutional rights waived by not contesting by force the assumed right of official conduct, nor can a search unlawful at inception, become lawful by what has been found (Veeder v. U. S., 252 F. 414, 164 C. C. A. 338; U. S. v. Slusser, supra; Garske v. U. S. C. C. A. 1 F.2d 620). The Fourth Amendment insures the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizure, and no warrant 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 maxim that every man's house is his castle has always been given high value, and no man's house can be forcibly entered and his papers and effects seized without warrant of law, and this procedure is made applicable to letters and sealed packages in the United States mail in Ex Parte Jackson, 96 U. S. 727 at page 733, 24 L. Ed. 877. "Such matter could only be opened and examined upon warrants issued on oath or affirmation particularly describing the things to be seized." See, also, Weeks v. U. S., 232 U. S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Boyd v. U. S., 116 U. S. 746, 6 S. Ct. 524, 29 L. Ed. 746. Section 7, art. 1, State Constitution, has no application.

The finding of probable cause is a judicial function. Veeder v. U. S., supra. Section 25, tit. 2, National Prohibition Act (Comp. St. Ann. Supp. 1923, ß 10138Om), expressly authorizes the seizure upon search warrant issued under the provisions of Espionage Act, tit. 11 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, ßß 10496ºa-10496ºv), but expressly limits the right to search a dwelling house occupied as such when used for the unlawful sale of intoxicating liquor, or used in part for business, such as a store, shop, saloon, restaurant, hotel, or boarding house. The application and affidavit for search warrant show probable cause of sale of liquor. The grounds were not controverted. Section 10496ºo, Comp St. 1918, Comp. St. Ann. Supp. 1919. See U. S. ex rel. Finch v. Elliott (D. C.) 3 F.(2d) 496, affirmed 5 F.(2d) 292.

The agent "heard orders given and taken for sale of intoxicating liquor from said premises," "heard one of said above occupants state that they had intoxicating liquor on said premises for sale," "heard Elsie Olmstead state there was intoxicating liquor on said premises," "heard Roy Olmstead state that he had papers and documents relating to the sale and possession of intoxicating liquor on said premises," and states "that on recent and numerous prior occasions, and particularly within the last 30 days he has seen persons enter said premises sober and emerge intoxicated, has seen large number of automobiles come to said premises and leave at late hours at night; that he has recognized some of the persons entering and leaving said premises as well-known dealers in intoxicating liquor in Seattle; that he has within the past 30 days heard orders given and taken at said premises for the sale of intoxicating liquor. * * *"

These statements appear to come well within the Fourth Amendment and within the holding of the Supreme Court in Hester v. U. S., 265 U. S. 57, 44 S. Ct. 445, 68 L. Ed. 898; Steele v. U. S., 45 S. Ct. 414, 69 L. Ed. 757 (April 13, 1925). See, also, U. S. v. Lepper (D. C.) 288 F. 136.

The serious question before the court is the assertion that the defendants' rights under the Fifth Amendment have been violated in that "no person * * * shall be compelled in any criminal case to be a witness against himself." In neither of the applications for search warrant or the supporting affidavits are any papers, documents, or instruments of any character described. The application must describe with reasonable particularity the thing for which the search is to be made. Search was sought because of a violation of the National Prohibition Act, primarily for intoxicating liquor, a misdemeanor. None being found, the papers and documents were seized and are now sought to be used against the defendants on a felony charge, conspiracy. This may not be done. The Adams Case¹ does not sustain the contention. In that case the search warrant was to find the gambling paraphernalia ‚Äî policy slips ‚Äî a felony...