United States v. Rykowski

• Decision Date: 22 September 1920
• Docket Number: 31-33.
• Citation: 267 F. 866
• Parties: UNITED STATES v. RYKOWSKI. SAME v. KOZMAN. SAME v. KEYDOSZIUS.
• Court: U.S. District Court — Southern District of Ohio

267 F. 866

UNITED STATES v. RYKOWSKI. SAME v. KOZMAN. SAME v. KEYDOSZIUS.

Nos. 31-33.

United States District Court, S.D. Ohio, Eastern Division.

September 22, 1920

James R. Clark, U.S. Dist. Atty., and R. T. Dickerson and Thos. H Morrow, Asst. U.S. Dist. Attys., all of Cincinnati, Ohio.

Murphy Elliff & Leen, of Dayton, Ohio, for defendant Keydoszius.

SATER District Judge.

The affidavit on which a warrant was obtained on March 3 to search the premises of Rykowski is lost, but the warrant recites that the affiant has reason to believe and does believe that a fraud upon the revenue of the United States is being committed upon and by the use of certain premises for illicit making, keeping and storing of distilled spirits containing more than one-half of 1 per cent. of alcohol by volume 'and distilling apparatus,' 'being the premises of 2311 E. 1st, Dayton, O., John Doe. ' Another affidavit was issued on April 6, whose contents differ from those of the warrant of March 3 mainly in that the premises are said to be those of John Doe (Rykowski), 2311 East First street, in the city of Dayton. The search warrant follows the language of the affidavit. The return on the older warrant purports to have been made on April 6, and states that on making the search there were found a 'double still and condenser complete, but not set up or in operation, 50 gallons raisin mash fit for distillation, and six gallons finished product. ' The later warrant purports to have been returned April 8, and states that in pursuance of the search made there were found 'complete still, mash fit for distillation, six gallons finished product. ' Both warrants were marked filed by the United States commissioner on April 22. The search disclosed what I take to be the disassembled parts of a crude still. The evidence is conflicting as to whether the warrant was displayed and explained to Rykowski's wife-- he being absent at the time the search began, but returning before it was completed.

The affidavit for a warrant to search Kozman's place, made April 13, was also on belief that 'a fraud upon the revenue of the United States has been and is being committed upon and by the use of a certain still and contents for making distilled spirits, being the premises of William Kozmar, 123 Garfield St.,' in Dayton, Ohio. The warrant as to language does not differ from the affidavit. The return, purporting to have been made on April 14 and filed on May 20, states that there were found on Kozman's premises a double still complete, 4 full barrels of mash, 2 barrels containing raisins, and a small quantity of finished product. The search was made at a late hour at night at 123 North Garfield street, there being also a South Garfield street. The family had all retired. Without any pretext of having a warrant to search Kozman's barber shop at 1329 East Third street, the officers repaired there at a still later hour entered the premises, and made a search. Rykowski and Kozman have applied for a return of their property.

The affidavit for a search warrant in the Keydoszius case, made April 13, is also on belief that 'a fraud upon the revenue of the United States has been and is being committed upon and by the use of certain premises, for making, keeping, and storing of illicit spirits, mash, and materials for making spirits and distilling apparatus, being the premises of John Doe (Kardosi), corner of Troy and Dell streets,' in Dayton. My understanding is that the warrants (two having been issued) contain the same recitals in so far as the charge made against the defendant goes. He operated a soft drink parlor, in the rear of which was a residence occupied by his family. One squad of officers searched those premises, after reading the warrant to Keydoszius' wife. Keydoszius himself was absent, but when he came he protested vigorously against the search. There were found on the premises three barrels of raisin mash and two jugs containing raisin jack, and parts of what would seem to have been a still. While the search of such premises was in progress, another squad of officers searched other premises belonging to him. He was tried to a jury and convicted, and the case now stands on a motion for a new trial; his application for a return of the property seized having been previously overruled, on the theory that his wife's consent to the search was binding on him.

In the opinion heretofore filed in this court in the case of U.S. v. Borkowski et al., 268 F. 408, it was ruled that the form of affidavit and search warrant found in Swan's Treatise (21st Ed.) pp. 933, 934, and in Loveland's Forms of Fed. Pr. vol. 1, pp. 1088, 1089, should be followed. Attention was also drawn to Kercheval v. Allen, 220 F. 265, 135 C.C.A. 1, as to the form there used. In Ripper v. U.S., 178 F. 24, 101 C.C.A. 152, it is made clear what the contents of the affidavit and warrant must be; the language being as follows:

'The affidavit on which the warrant was issued set forth no facts from which the existence of probable cause could be determined; nor did the warrant itself recite the existence of such cause. There was no recital in the warrant that the officer who issued it found or determined there was probable cause, further than the mere statement that some one had declared under oath that he had good reason to believe, and did believe, the accused was violating the law. It is true that section 3462, Rev. St. (U.S. Comp. St. 1901, p. 2283), authorizes a search warrant to be issued upon such an affidavit, but we think that all the requisites are not there expressed. This was also the view of the Attorney General in an opinion delivered June 19, 1903 (24 Ops.Attys.Gen. 685, 688). The oath in writing should state the facts from which the officer issuing the warrant may determine the existence of probable cause, or there should be a hearing by him with that purpose in view. The immunity guaranteed by the Constitution should not be lightly set aside by a mere general declaration of a nonjudicial officer that he has reason to believe and does believe, etc. The undisclosed reason may fall far short of probable cause.'

In that case the testimony of the revenue officers was held admissible, notwithstanding the insufficiency of the affidavit and warrant, but there had been no application made for the return of any property prior to the trial of the case on its merits, nor had the cases of Weeks v. U.S., 232 U.S. 383, 34 Sup.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B 834, Ann. Cas. 1915C, 1177, and Silverthorne Lumber Co. v. U.S., 251 U.S. 385, 40 Sup.Ct. 182, 64 L.Ed. . . . (January 26, 1920) been decided. In Veeder v. U.S., 252 F. 414, 164 C.C.A. 338 (C.C.A. 7), the conditions upon which a search warrant may issue and the character thereof are thus stated, at page 418 of 252 F. (164 C.C.A. 342): 'One's person and property must be entitled, in an orderly democracy, to protection against both mob hysteria and the oppression of agents whom the people have chosen to represent them in the administration of laws which are required by the Constitution to operate upon all persons alike. One's home and place of business are not to be invaded forcibly and searched by the curious and suspicious; not even by a disinterested officer of the law, unless he is armed with a search warrant. No search warrant shall be issued unless the judge has first been furnished with facts under oath-- not suspicions, beliefs, or surmises-- but facts which, when the law is properly applied to them, tend to establish the necessary legal conclusion, or facts which, when the law is properly applied to them, tend to establish probable cause for believing that the...