1. An affidavit which merely asserts affiant's belief in the
truth of statements made in the affidavit of another, to which it
refers, is insufficient to support the issuance of a search
warrant. P.
287 U. S.
127.
2. An affidavit setting forth facts tending to show that the
dwelling described was used as a manufactory of intoxicating
liquors, but which states no facts from which a sale, on or off the
premises, necessarily is to be inferred, is insufficient to support
the issuance of a search warrant. National Prohibition Act, Title
II, § 25; Act of June 15, 1917, Title XI, § 6. P.
287 U. S.
128.
3. The guaranties of the Fourth Amendment are to be liberally
construed to prevent impairment of the protection extended.
Id.
4. Section 25 of Title II of the National Prohibition Act was
intended to preserve the citizen's right to immunity from
unreasonable search, and it should be construed so a to effect that
purpose. P.
287 U. S.
128.
5. The evidence upon which a search warrant is based must be
such as would be competent in a trial before a jury and would lead
a man of prudence and caution to believe that the offense was
committed. P.
287 U. S.
128.
56 F.2d 779 reversed.
Certiorari, 286 U.S. 539, to review a judgment affirming a
conviction for violation of the National Prohibition Act.
Page 287 U. S. 126
MR. JUSTICE ROBERTS delivered the opinion of the Court.
The petitioner was convicted under an indictment in two counts,
the first charging the unlawful manufacture of whisky, and the
second possession of property designed for the unlawful manufacture
of intoxicating liquors. [
Footnote
1] He complains that certain articles offered at the trial were
obtained by virtue of a void search warrant, and that the trial
court erred in overruling a motion to quash the process and to
suppress the evidence, and in admitting it at the trial. The
Circuit Court of Appeals overruled errors assigned to the District
Court's action and affirmed the judgment. [
Footnote 2]
The assertion is that the warrant is void for failure to observe
the statutory requirement that it state the "particular
Page 287 U. S. 127
grounds or probable cause" for issuance, and for the further
reason that it is based on affidavits which do not "set forth the
facts tending to establish the grounds of the application or
probable cause for believing that they exist." [
Footnote 3] We need not consider the alleged
defect of the warrant, as we think the objection to the affidavits
well taken, and the warrant consequently without lawful
foundation.
Two affidavits were made before the commissioner. One purported
to state the facts, the other merely asserted a belief that the
statements in the first were true, and is clearly insufficient.
Byars v. United States, 273 U. S. 28.
So far as material, the more detailed affidavit states that
"on or about October 14, 1931, he [affiant] went around and
about the premises hereinafter described and saw persons haul cans,
commonly used in handling whisky, and what appeared to be corn
sugar up to and into the place, and saw the same car or truck haul
similar cans, apparently heavily loaded, away from there, and
smelled odors and fumes of cooking mash coming from the place, and
he says there is a still and whisky mash on the premises."
Pursuant to the process issued, officers seized a still, its
appurtenances, and 350 gallons of whisky, and these were offered
and admitted in evidence at the trial.
Section 25 of Title II of the National Prohibition Act [
Footnote 4] provides:
"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
Page 287 U. S. 128
is in part used for some business purpose such as a store, shop,
saloon, restaurant, hotel, or boarding house."
The affidavit fails to state the place to be searched is not a
private dwelling, and the record affirmatively shows it was. At
most, the deposition charges the manufacture of whisky; no averment
of sale is made; indeed no facts are given from which sale, on or
off the premises described, necessarily is to be inferred. The
court below, however, held that the facts set forth warranted a
belief that the dwelling was being used as headquarters for the
merchandising of liquor. This was deemed a sufficient compliance
with the statutory permission for search of a dwelling if "used for
the unlawful sale of intoxicating liquor."
The broad construction of the act by the Court of Appeals unduly
narrows the guaranties of the Fourth Amendment, in consonance with
which the statute was passed. Those guaranties are to be liberally
construed to prevent impairment of the protection extended.
Boyd v. United States, 116 U. S. 616,
116 U. S. 635;
Gouled v. United States, 255 U. S. 298,
255 U. S. 304;
Go-Bart Co. v. United States, 282 U.
S. 344,
282 U. S. 357.
Congress intended, in adopting § 25 of Title II of the National
Prohibition Act, to preserve, not to encroach upon, the citizen's
right to be immune from unreasonable searches and seizures, and we
should so construe the legislation as to effect that purpose.
A search warrant may issue only upon evidence which would be
competent in the trial of the offense before a jury (
Giles v.
United States, 284 F. 208;
Wagner v. United States, 8
F.2d 581), and would lead a man of prudence and caution to believe
that the offense has been committed (
Steele v. United
States, 267 U. S. 498,
267 U. S.
504). Tested by these standards, the affidavit was
insufficient. While a dwelling used as a manufactory or
headquarters
Page 287 U. S. 129
for merchandising may well be, and doubtless often is, the place
of sale, its use for those purposes is not, alone, probable cause
for believing that actual sales are there made.
The process should have been quashed, and the articles seized
delivered to the petitioner. Their admission as evidence was error,
and the judgment must be reversed.
Reversed.
MR. JUSTICE STONE and MR. JUSTICE CARDOZO are of opinion that
the judgment should be affirmed.
[
Footnote 1]
These counts were based on U.S.Code, Tit. 27, §§ 12 and 39.
[
Footnote 2]
56 F.2d 779. Certiorari was granted to resolve a conflict of
decision with other circuits.
Cf. Giles v. United States,
284 F. 208;
Simmons v. United States, 18 F.2d 85.
[
Footnote 3]
Section 25 of Title II of the National Prohibition Act (U.S.C.,
Tit. 27, § 39) authorizes the issuance of a search warrant in
accordance with the terms of the Act of June 15, 1917 (U.S.C., Tit.
18, §§ 613-616). The matter quoted as to affidavits is contained in
§ 615, and that concerning warrants in § 616.
[
Footnote 4]
U.S.C., Tit. 27, § 39.