United States v. Snyder

• Decision Date: 28 January 1922
• Parties: UNITED STATES v. SNYDER.
• Court: U.S. Court of Appeals — Fourth Circuit

278 F. 650

UNITED STATES v. SNYDER.

United States District Court, N.D. West Virginia.

January 28, 1922

T. A Brown, U.S. Atty., of Parkersburg, W. Va., and Charles J Schuck, Sp. Asst. U.S. Atty., of Wheeling, W. Va.

John B Wilson and Fred L. Maury, both of Wheeling, W. Va., for defendant.

BAKER District Judge.

On the 10th day of January, 1922, T. A. Brown, United States district attorney for the Northern district of West Virginia filed information against George Snyder, of Wheeling, Ohio county, W. Va., charging that he did unlawfully and knowingly possess, for beverage purposes, a large quantity, to wit, four pints, of intoxicating liquor, commonly called whisky, the same containing more than one-half of 1 per cent. of alcohol by volume, and being then and there fit for beverage purposes, and a further description of the kind and quantity whereof is to the United States attorney unknown, contrary to the act passed on the 28th day of October, 1919, commonly known as 'National Prohibition Act,' and against the peace and dignity of the United States of America.

On the 12th day of January, 1922, Fred L. Maury and John B. Wilson, attorneys for George Snyder, filed in this court their petition, alleging that on the 5th day of November, 1921, two certain state policemen and Thomas Arrington, a federal prohibition officer, went to a certain place of business, located on the northwest corner of Market and Eleventh streets in the city of Wheeling, Ohio county, W. Va., the two persons represented to be state officers being possessed with a state warrant for the searching of said premises and one John Doe; that the defendant, George Snyder, was standing on the sidewalk outside of said building to be searched, and was not an owner of, nor had any interest in, said building, or any business conducted therein; that said two state policemen entered said building with their alleged search warrant. There is no search warrant or copy thereof filed with said petition. Petition prays that United States be not allowed to use any of the evidence whatever obtained under the alleged illegal search warrant against the defendant George Snyder.

On the 12th day of January, 1922, T. A. Brown, United States attorney, filed answer to said petition, and denies every material allegation therein contained. On the 21st day of January, 1922, evidence was taken in open court, before the court, upon said petition and answer. The facts as developed show:

That on or about the 5th day of November, 1921, State Policemen Harry Burr and Corporal Kemper had sworn out a state search warrant for a certain place of business located on the northwest corner of Market and Eleventh streets, in Wheeling, Ohio county, W. Va., but show nothing as to a warrant for one 'John Doe.' That shortly before 2 o'clock of that day, state police telephoned Federal Officer Arrington to meet them at Seventh and Market streets at 2 o'clock, not saying what they wanted. At 2 o'clock Arrington met said state policemen and got on the rear of the motorcycle behind one of the police. After they had started, one of the state police told Arrington they were going to search 1061 Market street. Thereupon Federal Prohibition Officer Arrington responded, 'Help yourselves; I am not going to take any part in the raid,' in which determination the state police acquiesced. When the state police stopped near the property to be searched, Arrington left them, walking on up street. Turning the corner commonly known as 'Market Square,' Federal Prohibition Officer Arrington observed defendant, George Snyder, standing on the pavement just a few feet above the corner, with his overcoat on and his hands in his pants pockets. As Arrington approached the defendant Snyder, he observed his pockets very much bulged out and the neck of a bottle protruding from one of his pockets. Walking up to the defendant, he lifted the bottle half way out of his pocket, observing it to be whisky, placed the bottle back in defendant's pocket, placed him under arrest, took him in an adjoining building, removed the bottle previously observed, and upon further search found three other pints of whisky on his person. Thereupon Federal Prohibition Officer Arrington took defendant before United States Commissioner John Conrad and swore out the warrant upon which the information in question is based.

Testimony shows clearly that Federal Prohibition Officer Arrington had nothing to do with the swearing out of the alleged state warrant by state policemen or making the alleged raid thereunder. Neither did he assent to the state policemen making the raid or participate in any manner therein. It further shows that Arrington, leaving the state officers and walking on up street and around the corner, was not directed or requested by or under any instructions from either of the state policemen. Neither were the state policemen acting under any instructions from Arrington in any of their actions in connection with the proceeding.

The state search warrant in question, or any proceedings thereunder, is in no wise before the court in this proceeding, as the warrant is not presented and no claim made that Arrington made his arrest and seizure thereunder. It is insisted that the arrest of the defendant, Snyder, by Federal Prohibition Officer Arrington, after seeing the bottle of liquor protruding from his pocket, and the search made pursuant thereto, is unconstitutional, and in conflict with the Fourth Amendment to the Constitution. This amendment reads as follows:

'The right of people to be secure in their persons, houses, papers, and effects, against unreasonable search 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.'

This provision of the Constitution should be construed in the light of, and in conformity with, principles of the common law, with which the framers of the Constitution were familiar. The amendment contains two separate and distinct prohibitions, to wit: First, it prohibits unreasonable searches and seizures; and second, it prohibits the issuance of warrants, except upon probable cause shown, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

There is, in the amendment, no prohibition against search or seizure without a warrant. Such a prohibition would have been subversive of the common law and fatal to the safety of human life and the repression of crime. The second prohibition in the amendment was aimed against general search warrants as had then been in vogue for many years prior to the noted Wilkes Case in 1776, when the validity of such warrants was questioned and brought to issue in the Court of King's Bench. That court held such warrants to be illegal and contrary to the principles of the English Constitution. Pomeroy, in his introduction to Constitutional Law, clearly states the case in the following language:

'This clause of the Constitution was particularly aimed at what were known in the English law as general warrants. These general warrants were used more especially in the case of political offenses, and were issued by the government, directing the officers to search all suspected places and seize all suspected persons, without describing any place or person. The execution of the warrant was left to the caprice of the individual who had it in charge. Although these warrants were so plainly contrary to the spirit of the English common law, and destructive of individual rights, and liable to become instruments of tyranny in the hands of an unscrupulous official, they continued in use down to a time immediately prior to the American Revolution. The practice was finally declared illegal by the Court of King's Bench during the presidency of Lord Mansfield, in the case of Mooney v. Leach. The case arose on a warrant issued by one of the Secretaries of State, requiring the officers to make diligent search for the authors and publishers of a certain seditious libel, and they, or any of them, being found, to apprehend and seize, together with their papers. ' Pomeroy's Constitutional Law, p. 158, Sec. 241.

The Fourth Amendment to the Constitution contains no prohibition against arrest, search, or seizure without a warrant. That was left under the rules of common law. The amendment provides not that no arrest, search, or seizure should be made without a warrant, but prescribes that there shall be no unreasonable search and seizure; in other words, that the people shall be secure in their persons, houses, papers, and effects against unreasonable searches and seizures; not against all searches and seizures, but simply against unreasonable searches and seizures. And this brings us to the question: In what cases may arrests, searches, and seizures be made without a warrant, under the principles of the common law and statutory law prevailing in this country?

It was the rule of the common law, at the time of the adoption of the Constitution, and it has been the rule of the common law of this country, and of most of the statutory law, that a peace officer-- an officer charged with the enforcement of the law-- may arrest a criminal when caught in the act of committing a crime, and when thus arrested he may search him for evidence pertaining to the crime, and, as a general rule, retain such evidence for the use of the court in the prosecution or trial of the case; and this applies to all criminal cases, misdemeanors, as well as felonies.

In support of this statement I quote, among other cases, the following authorities, which are directly in point. I quote the following from...