'The statute authorizing search warrants in such cases provides that' '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.' 40 Stat. 228 (18 U.S.C.A. § 614). The government concedes that under this provision a notary public has no authority to take the evidence, and that therefore Harrold's affidavit could not serve as the basis for the issuance of a warrant. Whether, in view of the fact that Brown's affidavit does not upon its face purport to explain the source of his knowledge or information, it could be held to constitute a sufficient showing, we need not decide, for it does not appear that the commissioner so treated it or gave it consideration. In referring only to the Harrold affidavit, by implication the warrant would seem to negative the assumption that the Brown affidavit was considered. We therefore feel constrained to hold that the warrant was void.' 36 F.2d at pages 316 and 317.
We hold that the government officers proceeded here, too, with an invalid search warrant.
We may now take up the government's contentions that it was justified in its seizure of this evidence on grounds exclusive of authority which it claimed by reason of search warrant. It asserts that since the marshal had a warrant for the arrest of the defendant he was legally authorized to search the premises, wherein he found the defendant, for instrumentalities of the crime. The fact is that the marshal testified that he made no use of the arrest warrant, he carried with him, until after the premises had been searched and the material had been seized.
The warrant for the arrest of the defendant had little more to command it than the search warrant. It was issued on the complaint of a government investigator based solely on hearsay information charging at most a violation of regulations which constitute not a felony but a misdemeanor. It was not used until the full force of the illegal invasion of defendant's home and privacy had completely spent itself. The arrest in the case was made as an incident to the search under the invalid warrant rather than was the search an incident to the arrest.
The government submits other justifications, as for instance, that the defendant voluntarily surrendered the material seized by the marshal, or pointed it out to the officers. Such action by the defendant was taken only after his house had been invaded by at least six government officers who proceeded to institute their search exclusively and entirely upon the authority of a warrant that was worthless for such purpose. No argument offered by the government has sustained the seizure or acquisition of evidence by it under the search warrant or warrant of arrest utilized in this case.
The worthless search warrant in the hands of these officers left them in the position of trespassing upon defendant's guaranteed right under the Fourth Amendment to the Constitution.
The courts are heavily burdened to construe this fundamental right liberally and to thwart illegal invasion thereof. In Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177, the following doctrine was enunciated: 'The effect of the 4th Amendment is to put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers, and effects, against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all entrusted under our Federal system with the enforcement of the laws. The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures and enforced confessions, the latter often obtained after subjecting accused persons to unwarranted practices destructive of rights secured by the Federal Constitution, should find no sanction in the judgments of the courts, which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.' 232 U.S.at pages 391 and 392, 34 S. Ct., at page 344, 58 L. Ed. 652, L.R.A. 1915B, 834, Ann.Cas. 1915C, 1177.
The defendant's motion to suppress the evidence the government officers seized on the occasion of their search of October 3, 1944, consisting of allegedly counterfeit gasoline and fuel oil stamps, and the written statement of the defendant, obtained from him as a result of such search, will be suppressed and an order to such effect should be entered.
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