Opinion
No. 856-C.
March 14, 1923.
Guy B. Erwin, U.S. Atty., of Fairbanks, and L.R. Gillette, U.S. Atty., of Twisp, Wash.
T.A. Marquam, of Fairbanks, for defendant.
Under this state of facts the court is required to decide whether the search and seizure made by the prosecuting witnesses, Webster and Seneff, was lawful to the extent that the evidence they obtained by the search might be used in evidence against the defendant.
The three counts of the indictment charge the defendant, first, with possession of alcoholic liquors; secondly, with the crime of having in his possession property designed for use and being used by him in the unlawful manufacture of alcoholic liquors; and, third, for the crime of manufacturing alcoholic liquors for beverage purposes. They are all based upon these transactions that have been outlined in the statement that I have heretofore made. The first is alleged to have been committed on the 17th of July, the second on the 19th, and the third on the 19th.
The counts are drawn under the National Prohibition Act, which contains this provision with reference to residences: The latter part of section 25 of title 2 of the National Prohibition Act, or Volstead Act (27 USCA § 39), says:
"No search warrant shall issue to search any private dwelling occupied as such, unless it is being used for the unlawful sale of intoxicating liquor, or unless it is in part used for some business purpose such as a store, shop, saloon, restaurant, hotel or boarding house. The term `private dwelling' shall be construed to include the room or rooms used and occupied, not transiently, but solely as a residence in an apartment house, hotel, or boarding house."
Then in the latter part of section 33 (27 USCA § 50), after stating that the possession of liquors after February 1, 1920, by any person not legally permitted under this title to "possess liquor shall be prima facie evidence that such liquor is kept for the purpose of being sold, bartered, exchanged, given away, furnished, or otherwise disposed of in violation of the provisions of this title," it says:
"But it shall not be unlawful to possess liquors in one's private dwelling while the same is occupied and used by him as his dwelling only and such liquor need not be reported, provided such liquors are for use only for the personal consumption of the owner thereof and his family residing in such dwelling and of his bona fide guests when entertained by him therein."
Now it is conceded here by the government, both in the opening statement of the government and in the testimony, that this particular cabin into which the officers first entered was his dwelling. And according to the section of the statute that I first read it says:
"No search warrant shall issue to search any * * * dwelling * * * unless it is being used for the unlawful sale of * * * liquor."
So it is clear that no search could be made of this cabin under a search warrant, because it is not contended that this particular cabin which the defendant occupied was being used for the unlawful sale of liquor. He is not charged in any of the counts of the indictment with the sale of liquor. And if a search warrant could not be legally issued against this cabin it is clear that a search of that particular cabin by the officers without a search warrant would be illegal, and therefore the testimony concerning anything about the cabin, or in the close neighborhood thereof, such as a jar found outside, which smelled as though it had contained liquor recently — any evidence of that kind would have to be stricken on that ground. Nor should any search have been made of the entire premises under the circumstances in the case by the officers on the 17th of July, 1922, without a search warrant.
The only evidence as to why they made a search of that particular property at that time was based upon rumors that they heard from some unknown sources, and it has been held so often by courts of last resort that a search warrant cannot be lawfully issued, based upon rumors, but it must be upon actual knowledge, and it therefore appears clear that the search of the property under those circumstances — that is to say, of any part of the property — would be unlawful and illegal.
The defendant contends that the buildings on the property are so close to the cabin as to constitute an entire residence, but I am not going to take that position. I take the position that no search could be made by the witnesses who have testified, at that time, of this property, when it was initiated and started and commenced and carried on merely upon unfounded, perhaps, rumors that they heard from people that a still was being conducted on the property. The law does not contemplate that deputy marshals or enforcement officers shall trespass upon people's property in the guise of enforcing the prohibition laws, either of the National Prohibition Act or the Bone Dry Act (48 USCA §§ 261-291 [U.S. Comp. St. §§ 3643b-3643r]) applicable to Alaska. There is provision made in both acts how search warrants may be issued for the search of property which is being used for the commission of a crime, and the courts, as I have said, unanimously hold that no search warrant could be issued where it is not based upon actual knowledge of the party making application therefor. It places upon the judicial officers a judicial duty that they, the judicial officers, shall determine when a search warrant shall issue, and it does not leave it to the discretion of a deputy marshal to determine that for themselves, or any other enforcement officer.
Now the government contends that the search was made by these men at that time with the consent of the defendant; that is to say, when the officers arrived there and Seneff accused the defendant of conducting a still on the premises, that the defendant said that he could make a search of it if he wanted to, or that both of them could. The witness Webster, however, says that in searching the premises he acted upon the authority conferred upon him by the commissioner before he started from Tanana, in giving him the blank search warrant hereinbefore referred to, and stating to him that was all the authority he needed. However, Seneff does not say he acted upon that theory or with the same purpose as Webster. He says that he searched the premises because the defendant gave him permission; otherwise, he would not have searched it.
In another part of his testimony he states that his method of investigation is that he goes to the person who is supposed to be violating the liquor laws, and talks to him and then investigates, looks over the property, so that it is hard to reconcile his testimony that he merely searched this property on the invitation of the defendant, when he says in another portion of his testimony that his usual practice is, in making an investigation, to talk with the person accused and then look over the property.
However, the court finds that the defendant did not invite either Seneff or Webster to search the property in question. On the contrary, all that the defendant did was to state that, as far as he was concerned, the deputies could search the property. That cannot be construed to be a permission on his part, when he is confronted with two law enforcers, two officers of the law, and charged, without notice and under the circumstances in this case, with being a law violator. If it was anything, it was a mere acquiescence on his part, founded upon the belief that the officers who were then present on his premises, without invitation or without any warrant, were going to search the property anyway, and it can be in no sense construed to be a consent on his part, which amounts to a waiver of his constitutional rights.
In order for a man to legally waive his rights, or his constitutional rights, or legal rights, the testimony must show at least that he has knowledge of his rights, and that he intends to relinquish them before it can be said that he waived his constitutional rights, and there is no testimony of that kind in this case. The court does not know whether the defendant knows anything about his constitutional rights; there has been no testimony introduced on that subject.
So that under the circumstances, without further discussion, I am going to call the attention of the officers in connection with this case to another section of this Code before I get through.
Now an act supplemental to the National Prohibition Act was passed on November 23, 1921. Section 6 of that act says:
"That any officer, agent, or employee of the United States engaged in the enforcement of this act, or the National Prohibition Act, or any other law of the United States, who shall search any private dwelling as defined in the National Prohibition Act, and occupied as such dwelling, without a warrant directing such search, or who while so engaged shall without a search warrant maliciously and without reasonable cause search any other building or property, shall be guilty of a misdemeanor and upon conviction thereof shall be fined for a first offense not more than $1,000, and for a subsequent offense not more than $1,000 or imprisoned not more than one year, or both such fine and imprisonment." 18 USCA § 53.
Officers ought to take notice of all the laws on this subject, and inform themselves as to the legal manner in which they should enforce them.
I have tried heretofore, in the opinion which has been cited by counsel for defendant, to state what I considered the law upon the matter of searching dwellings, but it appears that no notice has been taken of it by the officers.
I hold that the search and seizure made in this case on both dates was a violation of the constitutional rights of the defendant. If such things were permitted, it would be subversive of the principles of free government. I will ask the jury to return a verdict of not guilty on all counts as requested.