United States v. Syrek

• Decision Date: 14 June 1923
• Docket Number: 4388.
• Citation: 290 F. 820
• Parties: UNITED STATES v. SYREK.
• Court: U.S. District Court — District of Massachusetts

290 F. 820

UNITED STATES v. SYREK.

No. 4388.

United States District Court, D. Massachusetts.

June 14, 1923

Elihu D. Stone, Sp. Asst. U.S. Atty., of Boston, Mass.

David H. Keedy, of Amherst, Mass., and Brooks, Kirby, Keedy &amp Brooks, of Springfield, Mass., for defendant.

BREWSTER District Judge.

The defendant in the above-entitled proceeding moves that information obtained by a federal prohibition agent who searched her premises by virtue of a search warrant be excluded from evidence upon trial of the indictment returned against her, the defendant claiming that the search and the resulting seizure were made upon a warrant which was invalid in several particulars. If the search warrant is bad on any one of the several grounds set forth in defendant's motion, the evidence should be excluded, and it becomes unnecessary to consider all of the 12 different objections that have been raised to the warrant.

It is claimed that the search warrant was invalid because it authorized an entry into the defendant's premises and a search thereof at any time of day or night, without any supporting affidavit containing a positive statement that the property was on the person or in the place to be searched, as required by section 10 of title 11 of the Espionage Act (40 Stat. 228 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec 10496 1/4j)).

It appears from the records that the form of warrant used by the Commissioner contained alternative provisions respecting the search. It authorized the party to whom the warrant was issued to enter the premises 'in daytime only,' and 'at any time of the day or night'; the practice being to strike out one or the other of these alternative provisions. In the warrant in question neither of the provisions was stricken out, so that, if we give the warrant its full scope, it purported to authorize an entrance upon the defendant's premises at any time of the night or day. The affidavit upon which the warrant was issued fell far short of being positive that the property was in the place to be searched. On the affidavit, therefore, the Commissioner was not justified in issuing a warrant directing the officers to serve it at any time of the day or night.

But if we take the view that the warrant directed a search in daytime only, it was agreed that the search under the warrant was made December 22, 1922 at 5:15 o'clock p.m. The search, therefore, was in the nighttime, as defined in the federal courts. United States v. Boston & Maine Railroad (C.C.A.) 269 F. 89; United States v. Southern Pacific Railroad (D.C.) 157 F. 459. The search and seizure, therefore, were invalid, and the defendant's motion excluding evidence should be allowed.

One objection leveled at the search warrant is of such importance that it may be well to consider it. It appears from the record that the warrant was issued 'to William J. Strout federal prohibition agent, and his deputies, or any or either of them.'

It is claimed by the defendant that there is no law of the United States which gives the Commissioner any power to issue a search warrant to a federal prohibition agent, and this for two reasons (a) That there is no such office known to the law as 'federal prohibition agent.'

(b) That the Commissioner may only issue a search warrant to 'a civil officer of the United States, duly authorized to enforce or assist in enforcing any law thereof, or to a person duly authorized by the President of the United States,' and that a prohibition agent is not a civil officer within the meaning of section 6 of the so-called Espionage Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 10496 1/4f).

The National Prohibition Act in section 38 of title 2 (41 Stat 319) provides that the Commissioner of Internal Revenue and the Attorney General of the United States may appoint and employ such assistants, experts, clerks, and other employees in the District of Columbia or elsewhere as they may deem necessary for the enforcement of the provisions of the act. By virtue of the authority conferred by this section, a large number of assistants have been appointed or employed by the Commissioner of Internal Revenue, or by the Attorney General, or both, and these assistants have, for administrative purposes, been designated 'federal prohibition agents.' Mr. Strout, named in the search warrant in question, was one of these federal prohibition agents, and was placed at the head of the group of agents assigned for duty in the Western district of Massachusetts. It was not made to appear in this case whether Mr. Strout received his appointment from the Commissioner of Internal Revenue, or the Attorney General, or whether, if appointed by the Commissioner of Internal Revenue the appointment was subject to the approval...