United States v. Wroblewski, 6860.

• Decision Date: 30 June 1939
• Docket Number: No. 6860.,6860.
• Parties: UNITED STATES v. WROBLEWSKI et al.
• Court: U.S. Court of Appeals — Seventh Circuit

105 F.2d 444 (1939)

UNITED STATES v. WROBLEWSKI et al.

No. 6860.

Circuit Court of Appeals, Seventh Circuit.

June 30, 1939.

Alfred E. Roth, of Chicago, Ill., for appellants.

James R. Fleming, U. S. Atty., of Ft. Wayne, Ind., and Luther M. Swygert, of South Bend, Ind., and Alexander M. Campbell, Asst. U. S. Attys., of Ft. Wayne, Ind., Elbert H. Lovd and Joseph H. Collier, both of Chicago, Ill., Attys. U. S. Treasury Department, for appellee.

Before EVANS, SPARKS, and TREANOR, Circuit Judges.

TREANOR, Circuit Judge.

Defendants were prosecuted under an indictment charging a conspiracy to violate the Internal Revenue Laws of the United States. The jury returned a verdict of guilty and from the judgment of the court thereon defendants have prosecuted this appeal. The case of defendants on appeal may be summarized as follows:

(1) The trial court erred in overruling the petitions of defendants to vacate and quash a search warrant and to suppress the use of evidence obtained under authority of the search warrant.

(2) The trial court erred in permitting prejudicial cross-examination of the defendant Edward Wroblewski.

(3) The trial court erred in overruling defendants' motion for a directed verdict of not guilty.

(4) The trial court erred in overruling the defendants' motion to declare a mistrial and withdraw the case from the consideration of the jury, the motion being predicated upon the remarks of the assistant United States Attorney in his closing argument.

The first alleged error is based on the proposition that the affidavit for a search warrant must particularly describe the things to be seized. It is not contended that the search warrant did not describe particularly the things to be seized, but it is insisted that since the affidavit failed to specifically describe the property to be seized, the search was an unlawful search in violation of the Fourth Amendment to the United States Constitution, U.S.C.A. It is the contention of the plaintiff, United States of America, that the Fourth Amendment does not require the affidavit to set out a particular description of the things to be seized, and that the search and seizure is legal if the facts stated in the affidavit show probable cause and if the place to be searched and the things to be seized are described particularly in the warrant.

The Fourth Amendment safeguards generally the right of the people against any unreasonable search and seizure, and specifically prohibits the issuance of a warrant except upon the conditions set out in the amendment. It is these conditions, or limitations, with which we are concerned. The pertinent language is as follows: "* * * 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."

It is clear from the foregoing language that no warrant can issue lawfully in the absence of a showing of probable cause "supported by Oath or affirmation." But defendants urge that the statement of "probable cause, supported by Oath or affirmation" must also contain a particular description of the place to be searched and the things to be seized; while the plaintiff urges that the language "and particularly describing the place to be searched, and the persons or things to be seized," states a requirement for the form and substance of the search warrant. We agree with the construction of the plaintiff. "Probable cause," as used in the Fourth Amendment, fixes a legal standard and does not relate to verbal expression. It connotes a legal conclusion to be drawn from a statement of, or the existence of, facts. A showing of the existence of probable cause is an unqualified condition precedent to the issuance of a warrant to search and seize, but the warrant itself constitutes the lawful authority for the search and seizure. In the instant case the statement of facts, supported by oath, clearly supports the conclusion that certain property is being used on designated premises for the purpose of committing the felony denounced by "The statutes of the United States, to wit: Title 26 U.S.C.A." This constitutes "probable cause" for the issuance of a warrant to seize property which is being used in the perpetration of the felony. But as a further requirement for the issuance of a lawful warrant the warrant must particularly describe the premises and the "things to be seized."

As a practical matter the statement of facts, which discloses "probable cause," necessarily will describe, or designate, to some extent the premises to be searched and the things to be seized. But this is material only as an element of the showing of probable cause. In a case such as the instant one it would be difficult to imagine a showing of probable cause for the issuance of a warrant without a designation and description of the premises and some indication of the things to be seized, and that undoubtedly would be true generally. The scope of the showing of probable cause limits the scope of the search and seizure, but in any event particularity of description is not required as a separate particular in the statement of facts relied upon to show probable cause. Particularity of description in the warrant is necessary in order to identify the place to be searched and the things to be seized. It both defines and limits the scope of the search and seizure and by its particularity of description protects individuals from unreasonable search and seizure. The requirement of particularity of description in the warrant outlaws the vicious practice of using warrants for general search and seizure.

In the instant case there is no contention that there was a failure to show probable cause by reason of inadequate description of premises or property to be seized; and in our opinion the validity of the search warrant did not depend upon the inclusion in the showing of probable cause of a statement particularly describing the premises to be searched and the things to be seized as a separate item.

We construe the language of the Fourth Amendment to mean that no warrant shall issue (1) unless there is a showing of probable cause supported by oath or affirmation, and (2) unless the warrant particularly describes the place to be searched and the things to be seized.

Furthermore, we are of the opinion that the affidavit describes the premises to be searched and the things to be seized with sufficient particularity to satisfy the constitutional requirement. The description of the premises is in detail and the evidentiary facts stated in the affidavit clearly disclose that the "things to be seized" consist of property which is being used to commit a felony, such property being a still, alcohol, and five gallon cans used as containers of alcohol.

We are of the opinion that the District Court did not commit prejudicial error in overruling the motion of defendant Edward Wroblewski to strike out and withdraw from the consideration of the jury certain portions of his cross-examination. The apparent object of the cross-examination was to impeach the credibility of the defendant by disclosing a prior violation of law. Defendant concedes that it was proper for purposes of impeachment to ask the defendant whether he had been convicted of a prior offense. The following questions were asked and answered without objection by defendant:

"Q. Were you ever in the liquor business before it was legal to handle it? A. Before? Yes, I was once.

"Q. Were you caught? A. Yes.

"Q. When? A. I don't remember.

"Q. Do you remember the year? A. No, I don't."

The foregoing was followed by the question "What sentence did you receive?" Thereupon counsel for defendant interposed the following: "I move that it be stricken, that the jury be instructed it is of no force and effect." In the course of the ensuing colloquy defendants' attorney stated that "If they intend to impeach his credibility, ask him when he was convicted." The colloquy continued thus:

"The Court: They have asked him if he was convicted. He said yes, but he does not remember what date. Now they are asking him —

"Mr. Roth: Was it prior to repeal? Let's ask the date.

"The Court: He has already asked the date. He said he did not know.

"The Witness: Maybe 1927 or 1926, I don't recall the year; prohibition.

"Mr. Roth: I move that this matter be stricken and withdrawn from the consideration of the jury, and that they be instructed to disregard it. It is highly prejudicial.

"The Court: I will overrule your motion and give you an exception."

Apparently defendants' objection was to the question "What sentence did you receive"; but that question and the preceding questions and answers, to which no objection was...