Appeal from the District Court of the United States for the Western District of Pennsylvania; Nelson McVicar, Judge.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
This is an appeal from a decree of the District Court enjoining the appellants from manufacturing, selling, or storing intoxicating liquor on their lodge property for one year and closing it for the same period. The decree provided, however, that, at the end of three months from the date thereof, the premises might be opened and used in a lawful manner on condition that a bond be filed in the sum of $1,000.
On November 19, 1930, prohibition agents were admitted to the lodgerooms of the Fraternal Order of Eagles at New Kensington, Pa., on the representation that they were members in good standing of a distant lodge of the same order. This representation was entirely false. They were not members of any lodge of the Eagles. In order to make their false representations appear to be true and thus deceive the members of the lodge, they produced certain cards and receipts on which were written the names and signatures of bona fide members of distant lodges. These cards and receipts had been surreptitiously taken from the lodges without the consent or knowledge of any of the officers or members thereof. After the agents were admitted, they were served with drinks of intoxicating liquor for which they paid. They did not at this time make a physical search of the lodge unless what they could and did discover after they got in may be considered as such. Several days later, however, in their application for a search warrant, they used what they had been while in the lodge as constituting probable cause. A search warrant was issued, and they formally searched and seized liquor in the lodge. In due time a petition was filed to suppress this evidence. This was dismissed, and the evidence held admissible.
Thereafter, on January 20, 1931, the bill of complaint in this case was filed which sought an injunction under the provisions of section 22, title 2, of the National Prohibition Act (27 USCA § 34), against the premises visited and searched. An answer was filed, and at the hearing the evidence procured by means of the search and seizure was admitted over objection. The court found that the appellants maintained a nuisance at the lodge and accordingly entered the decree enjoining them and closing the lodge.
Several other lodges were entered under the same false representations and they likewise were closed and their officers enjoined. Appeals were taken, and, by stipulation, the decision in the case at bar is to control those cases.
There is no dispute as to the facts. Five questions of law have been raised, but it is necessary to discuss and decide only one of them: Did the evidence secured, as above stated, violate the Fourth Amendment to the Constitution of the United States?
In deciding this exact question, we are not concerned, in general with the illegal acquisition of testimony by tricks, artifice, fraud, or unethical methods; nor are we concerned with entry by prohibition agents, by like means, to such places as saloons, night clubs and speakeasies whose doors are open to all persons who desire to enter and purchase intoxicating liquor. We are concerned only with the search and seizure based on information secured through the deceptive entrance into the lodge. Was it an invasion of the indefeasible right of personal liberty and private property secured to the appellants by the Fourth Amendment?
A search made as the result of an entry by physical force is not necessary in order to violate the Fourth Amendment. That amendment was designed to protect the individual against the abuse of official authority. A search and seizure following an entry into the house or office of a person suspected of crime by means of fraud, stealth, social acquaintance, or under the guise of a business call are unreasonable and violate the Fourth Amendment. Weeks v. United States, 232 U.S. 38o, 34 S. Ct. 341, 58 L. Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177; Silverthorne Lumber Co., Inc. v. United States, 251 U.S. 385, 40 S. Ct. 182, 64 L. Ed. 319; Gouled v. United States, 255 U.S. 298, 41 S. Ct. 261, 65 L. Ed. 647; Amos v. United States, 255 U.S. 313, 41 S. Ct. 266, 65 L. Ed. 654.
The search and seizure in the instant case were based on the information secured through the entry gained by means of false representations. On this information alone they predicated probable cause when later applying for the search warrant, and the fact that a search warrant was thus obtained does not cure the effect of the previous deceptive entry. If the search and seizure had immediately followed this entry, under the principles laid down in the above cases they would unquestionably have violated the Fourth Amendment and set at naught the protection secured by it. The object of the entry was to discover as much as possible and to use what they could see as the basis of an application for a search warrant. When the agents first entered they searched with their eyes, and saw the very thing that they were looking for. This they had no right to see, and when illegally seen they had no right to use it as the probable cause to secure a search warrant. The government may not make an entry by means of false representations, search as fully as possible without arousing suspicion, and later make the fruit of that entry and search the basis of what otherwise might be a legal search and seizure. When it appropriates the benefits, it must bear the burdens, of its own illegal acts. The grafting of the original entry and illegal search upon the later search and seizure did not cure what was unlawful in the first entry and search, but, on the contrary, made the whole unlawful. This search and seizure growing out of the false entry was an invasion of the indefeasible right of the personal liberty and private property of the appellants and a violation of the Fourth Amendment. If the procedure of the agents in this case may be practiced by government officials, then no home in the land is safe, and the Fourth Amendment fails to accomplish its primary object in establishing the "right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures." Such practice would enable zealous government officials to do indirectly and by subterfuge what they may not do directly. It follows that the evidence thus secured should have been suppressed.
In the case of Legman v. United States (C.C.A.) 295 F. 474, 478, we said: "Unlawful and unconstitutional practices get their first footing by silent approaches and slight deviations, under extenuating circumstances, from legal modes of procedure. To obviate these, constitutional provisions for the security of person and property must be liberally construed. The great end for which men entered into society and became parts of the social organism was to make their person and property secure. The right to this security is preserved sacred and incommunicable in all instances, except when taken away or abridged by some public law for the good of the whole. Entick v. Carrington and Three Other King's Messengers, 19 Howell's State TRials, 1029; Boyd v. United States [116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746], supra. This right is so sacred and fundamental that it was determined to implant it in our institutions in the fullness of its integrity by making it a part of the Constitution, free from the possibility of future legislative change. Bram v. United States, 168 U.S. 532, 18 S. Ct. 183, 42 L. Ed. 568; Weeks v. United States [232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 65i, L.R.A. 1915B, 834, Ann.Cas. 1915C, 1177], supra. A man's home is regarded in American and English law as his castle, and not to be invaded under any general authority to search and seize his property. Cooley's Constitutional Limitations, pp. 425, 426; Lieber's Civil Liberty and Self-Government, 62. It is therefore the duty of courts to be watchful for stealthy encroachments against the constitutional rights of citizens (Boyd v. United States, supra), and this watchfulness applies to the administration of the National Prohibition Act, just as to any other law."
What we there said applies with equal force to this case, and the ...