United States v. Stewart, 14321.

• Decision Date: 12 August 1948
• Docket Number: No. 14321.,14321.
• Citation: 79 F. Supp. 313
• Parties: UNITED STATES v. STEWART.
• Court: U.S. District Court — Western District of Pennsylvania

79 F. Supp. 313

UNITED STATES v. STEWART.

No. 14321.

District Court, E. D. Pennsylvania.

August 12, 1948.

Charles P. Mirarchi, Asst. U. S. Atty., and Gerald A. Gleeson, U. S. Atty., both of Philadelphia, Pa., for plaintiff.

Jesse N. Goldstein, of Philadelphia, Pa., for defendant.

No. 14321, Sept. Term, 1947.

GANEY, District Judge.

The defendant was indicted for possessing distilled spirits in eight one-gallon containers without stamps affixed thereto as required by the Liquor Taxing Act¹ of 1934. He has filed a motion under Federal Rules of Criminal Procedure, rule 41(e), 18 U.S.C.A. following section 687, for an order suppressing as evidence the eight one-gallon containers.

On August 5, 1947, a search warrant, by authority of which the containers were seized, was issued by the United States Commissioner on an affidavit of an agent of the Alcohol Tax Unit. The affidavit, after stating that the agent personally appeared and was duly sworn before the Commissioner, set forth: "That he has good reason to believe and does believe that in and upon certain premises within the Eastern² District of Pennsylvania, to wit, the premises known as: 940 N. Warnock Street, Philadelphia, Pa. and particularly described as follows: A 3 story brick house with blue and white stripe awnings there have been and are now located and concealed certain property used as the means of committing a felony in violation of the Statutes of the United States, to wit: A quantity of nontaxpaid distilled spirits.

"That the facts tending to establish the grounds of this application and the probable cause of affiants believing that such facts exist, are as follows:

"On July 30, 1947, about 11:15 am, I gave a colored man known to me as `James Williams' an empty bottle (1 pint) and a dollar bill and after searching him and finding he had no other money or bottle on his person, Investigators Malloy and I followed him and watched him enter the above premises.

"In a few minutes he came out and Investigator Malloy and I followed him north on Warnock Street, and east on Girard Avenue where we searched him and found he had no money but did have a pint bottle of white untaxed whiskey. The bottle of whiskey was retained as evidence.

"Wherefore, your affiant prays that a Search Warrant may issue authorizing a search of the aforesaid premises in the manner provided by law."

In connection with the above sworn statement, the agent submitted an affidavit, reprinted in the foot note,³ signed by James Williams, who did not appear before the Commissioner. Both affidavits were filed with the record of the proceedings before the Commissioner and transmitted to this court.

F.R.C.P. 41(c), relating to search and seizure, as far as is material here, provides: "A warrant shall issue only on affidavit sworn to before the judge or commissioner and establishing the grounds for issuing the warrant. If the judge or commissioner is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person or place to be searched. * * * It shall state the grounds or probable cause for its issuance and the names of the persons whose affidavits have been taken in support thereof. It shall command the officer to search forthwith the person or place named for the property specified. * * *" This rule is merely a codification of the law as it existed prior to the effective date of the new criminal rules. The government concedes that the Williams affidavit could establish no grounds for the issuance of the warrant.

In assuming that the agent's affidavit is legally sufficient, the defendant asserts that since it can not be determined what weight the commissioner gave to either affidavit, the warrant can not be sustained. There appears to be some authority to the effect that as long as the statements in the affidavit of the applicant appearing before the commissioner set forth grounds from which probable cause for the existence of the object to be seized is a reasonable conclusion, the fact that the affidavit of a person not appearing before the commissioner is also considered by him will not vitiate the issuance of the warrant. See Hawker v. Queck, 3 Cir., 1 F.2d 77, 80; Herter v. United States, 9 Cir., 33 F.2d 402, 65 A.L.R. 1240; Schroder v....