The opinion of the court was delivered by: FORMAN
On October 3, 1944, an investigator of the Office of Price Administration appeared before a United States Commissioner and applied for a warrant to search the dwelling of Charles Pollack, the defendant, at 104 South Sussex Street, in the City of Gloucester, Camden County, N.J. In his affidavit he stated that the facts tending to establish the grounds of his application and his probable cause for believing that such facts existed, were as follows: 'Charles Pollack who occupied premises listed above transferred counterfeit gasoline ration coupons on the said premises on September 29, 1944 and is to make a transfer of gasoline ration coupons tonight at his premises between 8:00 and 8:30 p.m.'
He also produced before the commissioner an informer who had made an affidavit describing in detail a transaction with the defendant in which he had purchased gasoline ration stamps from the defendant, at his home, on September 29, 1944. This affidavit was subscribed before the investigator on September 30, 1944. Another affidavit was made by the informer in which he described telephonic arrangements he had made with the defendant on October 2, 1944, to consummate another and larger purchase of ration stamps and coupons at the home of the defendant between eight and eight-thirty of the evening of October 3, 1944. This affidavit was likewise subscribed before the investigator on October 3, 1944. The informant and the two affidavits were presented to the United States Commissioner who inquired of the informer whether the affidavits were true. The informer replied affirmatively. He was not sworn by the commissioner. In issuing the warrant the commissioner recited that it was based upon the affidavit of the investigator.
Arrangements were then made by the investigator to have the informer in the house at the appointed time. It was also arranged that a raiding party consisting of the investigator, three similar government agents, and two deputy United States Marshals, armed with the search warrant as well as the warrant for the arrest of the defendant, should enter the house at a time sufficiently subsequent to the informer's entry to give him opportunity to completely consummate the transaction with the defendant.
At the appointed time a Deputy United States Marshal rang the bell of the house. It was answered by the defendant's wife. The deputy marshal asked for the defendant and Mrs. Pollack inquired who he was. He replied that they would discuss that later, and accompanied by his fellow deputy marshal and the four agents of the Office of Price Administration, proceeded directly through the vestibule, living room and dining room of the house into the kitchen, the back door of which was open. Seated at the kitchen table was the informer and before him on the table was a packet of gasoline ration coupons. The defendant retreated through the kitchen door as the officers entered the front of the house but reappeared in the kitchen a moment or two later. The deputy marshal made known to him his official capacity and that he had a warrant to search the premises, a copy of which he handed to him to read.
Under the supervision of the deputy marshal, and with his assistance, his companions then commenced the search of the premises, during the course of which the defendant interrupted them with the statement: 'There is no use going any further. Here are the stamps.' Simultaneously he handed the searchers a bundle of gasoline ration stamps and the search was discontinued.
The defendant was questioned as to where he had gone when the officers entered the house and he finally admitted that he had taken other stamps and deposited them in the yard of the adjoining house. He went with some of the officers and retrieved them. The officers retained possession of the three sets of stamps, those taken from the kitchen table, those delivered by the defendant in the house, and those recovered in the yard of the adjoining house.
On November 30, 1944, the defendant was indicted on four counts. The first charged him with possessing, on or about September 29, 1944, gasoline coupons purportedly representing 201 gallons of gasoline, which he knew and had reason to believe were counterfeit, contrary to the provisions of Sec. 2.5 of Ration Order No. 8, as issued by the Office of Price Administration and the statute of the United States in such case made and provided. The second charged him, on or about September 29, 1944, with the illegal transfer of 201 such coupons to John L. Reader. The third count is similar to the first except that it charges the possession of coupons purportedly representing 13,125 gallons of gasoline on or about October 3, 1944. The fourth charges him with illegal possession of a number of fuel oil ration coupons purportedly representing 26,600 gallons.
The defendant seasonably moved before the court that the evidence, consisting of gasoline and fuel oil ration stamps and his written statement obtained by the government officers at his home on the night of October 3, 1944, should be suppressed on the grounds, among others, that the warrant for the search of the premises was illegally issued upon an insufficient affidavit and without probable cause.
In answer thereto the government submitted, among other arguments, that the warrant for the search of the premises 'could' have been issued under the provisions of the statute which authorizes search warrants for suspected counterfeits. This statute is directed to any place in which there shall appear probable cause to believe that the manufacture or concealment is being carried on of counterfeit money, coins, or obligations of the United States, or any foreign government, or any bank, as specified therein, or dies, hubs, molds, plates and other things used for the manufacture of the foregoing counterfeits. 18 U.S.C.A. § 287.
It cited the case of Sparks v. United States, 6 Cir., 90 F.2d 61, in apposition to the case at bar. In the Sparks case a search warrant had issued under this statute on an allegation that the defendant had concealed counterfeit molds in a straw tick in the back room of his house. The search warrant was attacked for inadequacy of a basic showing of probable cause. The court made the following comment: 'The gist of the contention as to the validity or invalidity of the warrant lies in the fact that it was based upon an affidavit executed upon information and belief. The affidavit, in its material portions, reads as follows: 'That affiant is informed by a reliable citizen that he the informer was in the presence of Ed Sparks, and while there Ed Sparks stated that he had counterfeit molds in his house, in back room, in straw tick and nobody could find them. Said house being a 1 story boxed house on John Harrison farm in Monroe County, Tenn.' The warrant was not accompanied by an affidavit executed by the informant. However, the United States Commissioner, called as a witness, testified at the trial that both the affiant, Vaughn, and the informant, Fortner, were present when the commissioner issued the search warrant, and the informant testified under oath that Ed Sparks had told him that he had these counterfeit molds in a bedtick at him home.' 90 F.2d at page 63. (Italics supplied.)
The court held the search warrant valid on the theory that competent, oral, sworn testimony before the commissioner could be the basis of the finding of essential probable cause for the issuance of a search warrant as authorized under this specific statutory provision.
Two features distinguish the Sparks case from our case. The first is that it dealt with the counterfeit, or its accessory (the mold), which was the subject matter of the authorizing legislation. In our case the alleged counterfeit was of a rationing stamp or coupon not contemplated by the Congress when it passed the statute in question in 1907.
The second distinguishing feature is the fact that in the Sparks case, the informer was sworn by the commissioner, ...