1. The provisions of the Fourth Amendment relative to search
warrants, and of legislation regulating that process, should be
liberally construed in favor of the individual. P.
287 U. S.
210.
2. Under § 25 of the National Prohibition Act and the provisions
of the Act of June 15, 1917 (Espionage Act), to which that section
refers, a warrant to search for intoxicating liquor becomes void at
the expiration of ten days from the date of its issuance, and
cannot then be revived by the magistrate merely by redating and
reissuing it solely on the basis of the affidavit upon which it was
issued originally. Pp.
287 U. S. 210
et seq.
3. The issue of a new warrant is a new proceeding, and must be
supported by proof that probable cause then exists. P.
287 U. S.
211.
54 F.2d 1083 reversed.
Certiorari, 286 U.S. 539, to review the affirmance of a judgment
on conviction under the Prohibition Act. Evidence seized under a
search warrant was used against the defendant at the trial after a
petition for its return to him, on the ground that the search was
illegal, had been made and overruled.
Page 287 U. S. 208
MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.
The petitioner was charged with violating the National
Prohibition Act by possessing and selling intoxicating liquor at
the Bouckville Hotel. The District Court denied his request to
restrain the use of evidence procured by federal officers while
searching the hotel under a warrant alleged to be invalid. This
evidence was introduced at the trial over his objection. He was
found guilty, and the judgment against him was affirmed by the
Circuit Court of Appeals. 54 F.2d 1083. This Court granted
certiorari. The only question presented is as to the validity of
the warrant.
Subject to petitioner's contention, the parties entered into a
stipulation of facts which, so far as pertinent to the question, is
as follows:
"That, on or about the sixth day of July, 1926, William Arthur,
United States Commissioner at Rome, New York, issued a search
warrant based upon an affidavit introduced in evidence in this
case, of C. G. Dodd, in which Dodd swore that he made a purchase of
beer of the defendant; that, on the twenty-seventh day of July,
1926, the said search warrant not having been executed in the
interim and ten days from the date of the search warrant having
expired, the search warrant was taken by the prohibition agents to
whom it was directed back to the commissioner, and by him or by
someone in his office under his direction and control, the date of
the search warrant was changed from July sixth to July
twenty-seventh, 1926, and thus reissued; that, acting under the
color of such search warrant,"
the search in question was made.
Page 287 U. S. 209
The record also contains a certificate by the United States
Commissioner, under date of December 20, 1926, as follows:
"I hereby certify that the complaint or affidavit, upon which
the search warrant was issued in the above entitled matter was made
before me on the 6th day of July, 1926. That the search warrant was
issued on or about said 6th day of July, 1926, but was not executed
within the ten days prescribed by statute, and was returned to me
by Albert Vandiver, Prohibition Agent in Charge of the Syracuse
office, requesting that same be reissued or redated, and my docket
book shows that same was reissued on the 27th day of July, 1926,
and mailed back to said Vandiver."
The National Prohibition Act, § 25, 41 Stat. 305, 315, U.S.C.
Tit. 27, § 39, authorizes the issue of warrants to search for
intoxicating liquors as provided in Title XI of the Act of June 15,
1917, 40 Stat. 228.
* Section 11 of
the last-mentioned Act has the following requirement:
Page 287 U. S. 210
"Sec. 11. A search warrant must be executed and returned to the
judge or commissioner who issued it within ten days after its date;
after the expiration of this time the warrant, unless executed, is
void."
As the original warrant was issued on July 6th and was not
executed within ten days, it became void under this explicit
provision. But the Government contends that the warrant could be
redated and reissued, and that, in this form, it should be regarded
as a new warrant under which the search could lawfully be made.
With this argument we cannot agree. The proceeding by search
warrant is a drastic one. Its abuse led to the adoption of the
Fourth Amendment, and this, together with legislation regulating
the process, should be liberally construed in favor of the
individual.
Boyd v. United States, 116 U.
S. 616,
116 U. S. 635;
Byars v. United States, 273 U. S. 28,
273 U. S. 32;
Marron v. United States, 275 U. S. 192,
275 U. S.
196-197;
United States v. Lefkowitz,
285 U. S. 452,
285 U. S. 464.
The statute requires that the judge or commissioner issuing a
search warrant for intoxicating liquors must be satisfied "of the
existence of the grounds of the application or that there is
probable cause to believe their existence." Act of June 15, 1917,
Tit. XI, § 6. He must take proof to that end.
Id., §§ 4,
5. The warrant must state "the particular grounds or probable cause
for its issue and the names of the persons whose affidavits have
been taken in support thereof."
Id., § 6. While the
statute does not fix the time within which proof of probable cause
must be taken by the judge or commissioner, it is manifest that the
proof must be of facts so closely related to the time of the issue
of the warrant as to justify a finding of probable cause at that
time. Whether the proof meets this test
Page 287 U. S. 211
must be determined by the circumstances of each case. It is in
the light of the requirement that probable cause must properly
appear when the warrant issues that we must read the provision
which, in explicit terms, makes a warrant void unless executed
within ten days after its date. That period marks the permitted
duration of the proceeding in which the warrant is issued. There is
no provision which authorizes the commissioner to extend its life
or to revive it.
The issue of a second warrant is essentially a new proceeding,
which must have adequate support. The fact that it is a second
warrant gives the commissioner no privilege to dispense with the
statutory conditions. These cannot be escaped by describing the
action as a reissue. If the warrant is the old one, sought to be
revived, the proceeding is a nullity, and if it is a new warrant,
the commissioner must act accordingly. The statute in terms
requires him, before issuing the warrant, to take proof of probable
cause. This he must do by examining on oath the complainant and his
witness and requiring their affidavits or depositions. The proof
supplied must have appropriate relation to the application for the
new warrant, and must speak as of the time of the issue of that
warrant. The commissioner has no authority to rely on affidavits
which have sole relation to a different time and have not been
brought down to date or supplemented so that they can be deemed to
disclose grounds existing when the new warrant is issued. The new
warrant must rest upon a proper finding and statement by the
commissioner that probable cause then exists. That determination,
as of that time, cannot be left to mere inference or conjecture.
The purpose of the statute would be thwarted if, by the simple
expedient of redating, without more, the time for the execution of
a warrant could be extended.
Page 287 U. S. 212
Applying these principles to the instant case, the warrant
cannot be sustained. The proceeding for the warrant issued on July
sixth had terminated, and that warrant was dead. On the new
application of July twenty-seventh, the commissioner took no proof
to show that probable cause then existed, and he made no finding of
probable cause at that time. It is impossible by any process of
reasoning to obscure or alter what he actually did. He simply
changed the date of the old warrant, and it was "thus reissued."
Such action was unauthorized.
Judgment reversed.
MR. JUSTICE STONE and MR. JUSTICE CARDOZO think that the
Commissioner, by redating the warrant, in effect issued a new
warrant, which was adequately supported by facts disclosed in the
affidavit, then before him, on which the first warrant had been
issued.
* The following are among the provisions of the Act of June 15,
1917, Tit. XI, 40 Stat. 228:
"Sec. 3. A search warrant cannot be issued but upon probable
cause, supported by affidavit, naming or describing the person and
particularly describing the property and the place to be
searched."
"Sec. 4. The judge or commissioner must, before issuing the
warrant, examine on oath the complainant and any witness he may
produce, and require their affidavits or take their depositions in
writing and cause them to be subscribed by the parties making
them."
"Sec. 5. The affidavits or depositions must set forth the facts
tending to establish the grounds of the application or probable
cause for believing that they exist."
"Sec. 6. If the judge or commissioner is thereupon satisfied of
the existence of the grounds of the application or that there is
probable cause to believe their existence, he must issue a search
warrant signed by him with his name of office, to a civil officer
of the United States duly authorized to enforce or assist in
enforcing any law thereof, or to a person so duly authorized by the
President of the United States, stating the particular grounds or
probable cause for its issue and the names of the persons whose
affidavits have been taken in support thereof, and commanding him
forthwith to search the person or place named, for the property
specified, and to bring it before the judge or commissioner."
Separate opinion of MR. JUSTICE McREYNOLDS.
I concur in the conclusion that the judgment below should be
reversed.
An information charged that Petitioner Sgro had violated the
National Prohibition Act by keeping intoxicating liquor at an
hotel. In due time and manner, he unsuccessfully asked the District
Court to prohibit the use of all evidence procured by federal
officers while searching the hotel under color of a warrant alleged
to be invalid. At the trial, this evidence was introduced over his
objection. A verdict of guilty followed; judgment thereon was
affirmed by the Circuit Court of Appeals. If the challenged search
warrant was invalid, this judgment must be reversed.
By stipulation it appears:
"That on or about the sixth day of July, 1926, William Arthur,
United States Commissioner at Rome, New York, issued a search
warrant based upon an affidavit introduced in evidence in this
case, of C. G. Dodd, in which Dodd
Page 287 U. S. 213
swore that he made a purchase of beer of the defendant; that, on
the twenty-seventh day of July, 1926, the said search warrant not
having been executed in the interim and ten days from the date of
the search warrant having expired, the search warrant was taken by
the prohibition agents to whom it was directed back to the
commissioner and, by him, or by someone in his office under his
direction and control, the date of the search warrant was changed
from July sixth to July twenty-seventh, 1926, and thus reissued;
that, acting under the color of such search warrant, Prohibition
Agents Henry E. March, Bernard J. Dwyer, and B. G. Silvermail went
to the premises described in the search warrant, namely the
Bouckville Hotel, of which the defendant is the proprietor at
Bouckville, New York, in the Northern District of New York, and
there, the defendant being present, searched the premises and found
one pint of gin, a pint of beer in the bar room of the said
premises, and also found in the cellar of said premises under said
bar room three and a half barrels of liquid. . . ."
The Fourth Amendment provides:
"The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, 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."
The National Prohibition Act, Tit. 2, § 25, 41 Stat. 305, 315,
authorizes the issuance of warrants to search for intoxicating
liquors under the circumstances specified by Title XI, Public Laws
No. 24, 65th Congress (Espionage Act), approved June 15, 1917, 40
Stat. 228. The following are among the provisions of the latter
Act:
"Sec. 2. A search warrant may be issued under this chapter upon
either of the following grounds: "
Page 287 U. S. 214
"
* * * *"
"3. When the property, or any paper, is possessed, controlled,
or used in violation of section twenty-two of this title, in which
case it may be taken on the warrant from the person violating said
section, or from any person in whose possession it may be, or from
any house or other place in which it is concealed."
"Sec. 3. A search warrant cannot be issued but upon probable
cause, supported by affidavit, naming or describing the person and
particularly describing the property and the place to be
searched."
"Sec. 4. The judge or commissioner must, before issuing the
warrant, examine on oath the complainant and any witness he may
produce, and require their affidavits or take their depositions in
writing and cause them to be subscribed by the parties making
them."
"Sec. 5. The affidavits or depositions must set forth the facts
tending to establish the grounds of the application or probable
cause for believing that they exist."
"Sec. 6. If the judge or commissioner is thereupon satisfied of
the existence of the grounds of the application or that there is
probable cause to believe their existence, he must issue a search
warrant, signed by him with his name of office, to a civil officer
of the United States duly authorized to enforce or assist in
enforcing any law thereof, or to a person so duly authorized by the
President of the United States, stating the particular grounds or
probable cause for its issue and the names of the persons whose
affidavits have been taken in support thereof, and commanding him
forthwith to search the person or place named, for the property
specified, and to bring it before the judge or commissioner."
"
* * * *"
"Sec. 11. A search warrant must be executed and returned to the
judge or commissioner who issued it within ten days after its date;
after the expiration of this time, the warrant, unless executed, is
void. "
Page 287 U. S. 215
Counsel for the United States submit that, while, under the
Espionage Act (§ 11), a search warrant not executed within ten days
becomes invalid, the statute does not inhibit utilization of an
outlawed warrant as a mere form or blank when preparing a new one
based upon the original affidavit; that here, the act of the
Commissioner in changing the date upon the July 6th warrant and
then reissuing it under date of July 27th was, to all intents and
purposes, the issuing of an entirely new and valid warrant
supported by the Dodd affidavit of July 6th. This argument is
pertinent, and should be answered.
It fairly may be assumed that the Commissioner who issued the
warrant on July 27th relied upon the original (July 6th) affidavit
which remained before him, and, if this was permissible, the new
warrant, of course, was good -- just as good as if no earlier one
had been issued upon the same affidavit. But if the original
affidavit had become stale by the passage of time, then the new
warrant lacked adequate support, and was invalid. Manifestly it is
important that there should be some definite rule by which to
determine when such an affidavit is impotent; otherwise, the matter
is left at large, dependent upon varying views of
reasonableness.
The proceeding by search warrant is a drastic one. Its abuse led
to the adoption of the Fourth Amendment, and this, together with
legislation regulating such process, should be liberally construed
in favor of the individual.
Boyd v. United States,
116 U. S. 616,
116 U. S. 635;
Adams v. New York, 192 U. S. 585;
Byars v. United States, 273 U. S. 28;
Marron v. United States, 275 U. S. 192,
275 U. S.
196-197.
The statutes require that a warrant to search for intoxicating
liquors shall rest upon duly established probable cause to believe
that, at the time it issues, the liquor is unlawfully possessed.
The supporting affidavit must relate
Page 287 U. S. 216
to facts which tend to show an unlawful situation actually or
probably existing at the moment. Section 11, Tit. XI, Espionage
Act, declares that, after ten days, a warrant not fully executed
shall be void. That is the prescribed period during which the
circumstances existing when it issued can be supposed to
continue.
Considering the whole statute, and especially the evident
purpose of Congress to protect against unnecessary delays and
uncertainties, I think no search warrant should issue upon an
affidavit more than ten days old. After attaining that age,
statements therein cannot properly indicate presently existing
conditions. In practice the contrary view would permit results
which the prescribed ten days' limitation was intended to prevent.
The disclosed unlawful situation is not presumed to continue more
than ten days after a warrant issues, and it seems entirely
reasonable to conclude that Congress did not intend to sanction a
less rigid limitation upon the supporting affidavit.
It follows that the Commissioner's warrant of July 27th was
invalid, even if it be assumed that he then actually relied upon
the original supporting affidavit dated three weeks earlier.