1. A judgment upholding a search warrant on a petition to vacate
it is
res judicata as to the competency of the person to
whom the warrant was directed and as to probable cause for its
issuance, so that the petitioner cannot subsequently raise the
question in a criminal proceeding against him by objecting to
evidence of seizure under the warrant. P.
267 U. S.
507.
2. Section 6 of Title XI of the Espionage Act, adopted in the
Prohibition Act (Title II, § 25), authorizes a search warrant to be
issued "to a civil officer of the United States duly authorized to
enforce or assist in enforcing any law thereof,"
held,
that this is not meant to be confined to officers of the United
States in the limited Constitutional sense, but includes a general
prohibition agent appointed by the Commissioner of Internal
Revenue. P.
267 U. S.
507.
3. In a prosecution for illegal possession of intoxicating
liquor, in which the results of a seizure under a search warrant
are offered against the defendant, the court, in deciding upon the
competency of the evidence, determines whether under the facts and
law there was probable cause for the warrant, and this question is
not for the jury. P.
267 U. S.
510.
Affirmed.
Page 267 U. S. 506
Error to a sentence under the National Prohibition Act.
See
also the case preceding,
ante, p.
267 U. S. 498.
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
This is a direct writ of error under § 238 of the Judicial Code
to a conviction in the district court of John F. Steele on an
information in the district court for unlawfully, willfully, and
knowingly possessing a quantity of intoxicating liquor in violation
of the National Prohibition Act. The prosecution grew out of the
seizure of whisky and gin upon a search warrant at 611 West
Forty-Sixth street, New York City, the validity of which we have
had occasion to examine in the case just preceding. The question
here is as to the competency of the evidence of seizure under the
search warrant which we there found sufficient. In addition to the
grounds urged in the last case, the validity of seizure is attacked
because the search warrant was issued to a general prohibition
agent when, under § 6 of Title XI of the Espionage Act of June 15,
1917. c. 30, 40 Stat. 217, 228, such a warrant must be issued "to a
civil officer of the United States duly authorized to enforce or
assist in enforcing any law thereof."
The argument is that the prohibition agent is appointed by the
Commissioner of Internal Revenue, and therefore is only an employee
and not a civil officer of the government in the constitutional
sense, because such an officer under Article II, § 2, of the
Constitution
Page 267 U. S. 507
can only be appointed either by the President and the Senate,
the President alone, the courts of law, or the heads of
departments.
It should first be said that Steele is not in a position to
raise this question. He might have raised it in the preceding case,
but he did not do so, and did not assign error on account of it in
his appeal to this Court. The refusal to vacate the search warrant
and to return the liquor seized was a final decree. The question is
therefore
res judicata as against him.
But, even if this were not so, we do not think the objection
well taken. We think that the expression "civil officer of the
United States duly authorized to enforce or assist in enforcing any
law thereof," as used in the Espionage Act, does not mean an
officer in the constitutional sense, that Congress in incorporating
the provision in § 26, Title II, of the National Prohibition Act
did not so construe it, and had no intention thus to limit persons
authorized to receive and serve search warrants. It is quite true
that the words "officer of the United States," when employed in the
statutes of the United States, is to be taken usually to have the
limited constitutional meaning.
Burnap v. United States,
252 U. S. 512;
United States v. Mouat, 124 U. S. 303;
United States v. Smith, 124 U. S. 525. But
we find that this Court, in consideration of the context, has
sometimes given it an enlarged meaning, and has found it to include
others than those appointed by the President, heads of departments,
and courts.
United States v Hendee, 124 U.
S. 309. The emphasis of the words of description in the
Espionage Act is really on the limitations that the person
designated shall be a civil and not a military agent of the
government, and shall be one "duly authorized to enforce or assist
in enforcing any law of the United States." It is not to be
supposed that Congress wished to exclude from those empowered to
receive and execute
Page 267 U. S. 508
search warrants persons usually called officers who are in their
duties most widely employed to enforce or assist in enforcing laws.
Thus, deputy marshals of the United States are appointed by the
United States marshal under whom they serve (§ 780, Revised
Statutes), and he and his deputies have in each state the same
power in executing the laws of the United States as the sheriffs
and their deputies in such state in executing the laws thereof. The
deputy marshal is not in the constitutional sense an officer of the
United States, and yet marshals and deputy marshals are the persons
chiefly charged with the enforcement of the peace of the United
States, as that is embraced in the enforcement of federal law.
In re Neagle, 135 U. S. 1,
135 U. S. 68-69.
A deputy marshal is engaged in serving all sorts of writs, and is
called upon to exercise great responsibility and discretion in the
service of some of them, in dealing with the person and property of
individuals, and in the preservation of their constitutional
rights. The same thing may be said of deputy collectors of customs.
Under § 2630, a collector of customs, with the approval of the
Secretary of the Treasury, may employ within his district such
number of proper persons as deputy collectors of customs as he
shall deem necessary, and such deputies are declared to be officers
of the customs, and the collector may exercise his powers and
perform his duties by deputy. And one of the chief functions of the
collector of customs and of the deputy collectors is the seizure of
goods which have not paid a tax, as seen by Chapter 10 of Title 34
of the Revised Statutes. Deputy collectors of internal revenue are
to be appointed by the collector of internal revenue. Section 3148,
R.S. He may appoint as many as he thinks proper. Each deputy is to
have the like authority which by law is vested in the collector
himself, and distraint and seizure in the assessment and collection
of taxes are authorized by Ch. 2, Title 35.
Page 267 U. S. 509
The National Prohibition Act, in Title I, § 5, reads:
"The Commissioner of Internal Revenue, his assistants, agents,
and inspectors, and
all other officers of the United
States whose duty it is to enforce criminal laws shall have
all the power for the enforcement of the War Prohibition Act or any
provisions thereof which is conferred by law for the enforcement of
existing laws relating to the manufacture or sale of intoxicating
liquors under the laws of the United States."
Title II, § 28 is:
"The Commissioner, his assistants, agents, and inspectors,
and all other officers of the United States whose duty it
is to enforce criminal laws, shall have all the power . . . in the
enforcement of this act or any provisions thereof which is
conferred by law for the enforcement of existing laws relating to
the manufacture or sale of intoxicating liquors under the law of
the United States."
Section 3462 of the Revised Statutes is one of the laws thus
referred to in the foregoing sections, and provides:
"That the several judges of the Circuit and district courts of
the United States, and commissioners of the Circuit Courts, may,
within their respective jurisdictions, issue a search warrant,
authorizing any internal revenue officer to search any premises
within the same, if such officer makes oath in writing that he has
reason to believe, and does believe, that a fraud upon the revenue
has been or is being committed upon or by the use of the said
premises."
Again, Title II, § 1, of the Prohibition Act, reads: "Any act
authorized to be done by the commissioner may be performed by any
assistant or agent designated by him for that purpose."
Again, title II, § 26, reads:
"When the commissioner, his assistants, inspectors, or any
officer of the law shall discover any person in the act of
transporting in violation of the law, intoxicating liquors
Page 267 U. S. 510
in any wagon, buggy, automobile, water or air craft, or other
vehicle, it shall be his duty to seize any and all intoxicating
liquors found therein being transported contrary to law."
The foregoing would seem to indicate that lawful seizures were
not to be confined to constitutional officers.
Again, in § 6 of the Act Supplemental to the National
Prohibition Act, 42 Stat. 223, it is provided 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 without a warrant directing such
search shall be guilty of a misdemeanor.
This justifies an inference that Congress expected searches to
be made with search warrants by officers, agents, or employees.
The question whether a prohibition agent has the power and right
to serve a search warrant as provided in the Espionage Act and § 25
of Title II of the National Prohibition Act has led to some
difference of opinion among the judges of the circuit courts of
appeal and also of the district courts, but the weight of authority
as indicated by the decisions is strongly in favor of the broader
construction which vests the power and duty to receive and serve a
search warrant in prohibition agents appointed by the Commissioner
of Internal Revenue.
Raine v. United States, 299 F. 407;
Keehn v. United States, 300 F. 493;
United States v.
American Brewing Co., 296 F. 772;
United States v.
O'Connor, 294 F. 584;
United States v. Syrek, 290
U.S. 820;
United States v. Keller, 288 F. 204.
The second question which is raised here by proper exception and
assignment is whether the defendant had the right to have submitted
to the jury the issue of fact
Page 267 U. S. 511
whether there was probable cause to issue the warrant, with
direction that, if the jury found that there was not probable
cause, it should ignore the evidence resulting from the seizure and
acquit the defendant. There are two answers to this assignment of
error. One has already been referred to, that the fact of the
existence of probable cause in the issue of the search warrant was
res judicata, made so by the judgment of the court in the
case preceding that the property could not be returned to Steele.
The second answer is that the question of the competency of the
evidence of the whisky by reason of the legality or otherwise of
its seizure was a question of fact and law, for the court and not
for the jury.
Gila Valley Ry Co. v. Hall, 232 U. S.
94,
232 U. S. 103;
Bartlett v. Smith, 11 M. & W. 483;
Doe dem.
Jenkins v. Davies, 10 Ad. & El. N.S. 314; 5 Wigmore,
Evidence (2d ed.) § 2550.
The judgment of the district court is affirmed.
Affirmed.