Thornton, D. L.

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Kentucky Law JournalVolume 21 | Issue 4 Article 91933Search and Seizure--Probable Cause for SearchWarrantD. L. ThorntonUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Constitutional Law Commons, and the Fourth Amendment CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationThornton, D. L. (1933) "Search and Seizure--Probable Cause for Search Warrant," Kentucky Law Journal: Vol. 21 : Iss. 4 , Article 9.Available at: https://uknowledge.uky.edu/klj/vol21/iss4/9STUDENT NOTESSEARCH AND SEIZUJi--POBABnLE CAUSE FOR SEARCH WAaINTr-Inorder to search a house for intoxicating liquor, two affidavits weremade before a commissioner. The first stated that, "on or about Octo-ber 14, 1931, he (affiant) went around and about the premises herein-after described and saw persons haul cans, commonly used in handlingwhiskey, and what appeared to be corn sugar up to and into the placeand saw the same car or truck haul similar cans, apparently heavilyloaded away from there and smelled odors and fumes of cooking mashcoming from the place, and he says there is a still and whiskey mashon the premises." The second merely asserted a belief that the state-ments in the first were true. A search warrant was immediately issuedand officers searching the prenrises seized a still and 350 gallons ofwhiskey, which were offered in evidence against defendant upon hisindictment for unlawful manufacture of whiskey and possession ofproperty designed for the unlawful manufacture of intoxicating liquors.Defendant was convicted by the District Court of the United States forthe Eastern District of Kentucky and this was affirmed by the UnitedStates Circuit Court of Appeals. The decision, however, was reversedby the United States Supreme Court in an opinion handed down No-vember 7, 1932. Held, the affidavits were insufficient to furnish probablecause for the issuance of a search warrant under the National Pro-hibition Act; Mr. Justice Stone and Mr. Justice Cardozo dissenting.Grau v. United States, 53 S. Ct. 38 (1932).The above case raises the much discussed problem of what con-stitutes probable cause sufficient for the issuance of a.search warrant.In Dumbra v. United States, 268 U. S. 435, 441, 45 S. Ct. 546, 69 L.Ed. 1032 (1925), the Supreme Court in defining probable causesaid, "if the apparent facts set out in the affidavit are such thata reasonably discreet and prudent man would be led to believe thatthere was a commission of the offense charged, there is probable causejustifying the issuance of a warrant." Another definition is given inCarl v. Ayers, 8 Sickels 14, 17 (53 N. Y. 1873). "Probable causeis defined to be a reasonable ground of suspicion, supported by cir-cumstances sufficiently strong in themselves to warrant a cautiousman in is belief that the person accused is guilty of the offense withwhich he is charged."Probable cause is a question, much before the federal courts andalso the courts of those 19 states which follow the federal rulethat evidence obtained by the use of an invalid search warrantcannot be used in evidence to convict a defendant. Cornelius, Searchand Seizure (2d Ed.) page 36. In those states adopting a contra viewIt is naturally of less importance as the defendant is limited to an.action against the officer making the search.STUDENT NoTEsTo protect the people of this country from unreasonable searchand seizure, the 4th Amendment to the Constitution was included inthe so called "Bill of Rights." This provided, "No warant shall issuebut upon probable cause supported on oath or affirmation and par-ticularly describing the place to be searched and the person or thingsto be seized." The Supreme Court has decided in Barron v. Baltimore,7 Peters 243, 8 L. Ed. 672 (1833), that this is binding only on thefederal government. Most states have provided similar protection byconstitutional provisions or statutes. Section 10 of the Constitution ofKentucky provides, "The people shall be secure in their persons,houses, papers and possessions, from unreasonable search and seizure;and no warrant shall issue to search any place, or seize any personor thing, without describing them as nearly as may be, nor withoutprobable cause supported by oath or affirmation."Disregarding for the moment the Internal Revenue and NationalProhibition Statutes, let us examine the affidavits in Gran v. UnitedStates, supra, in the light of these provisions and the previously de-cided cases.A search warrant carries with it a presumption that it is pre-ceded by a proper affidavit, placing the burden of proof on the one whodesires to show otherwise. When contested, however, it has been fre-quently held that the warrant is invalid unless the affidavit statedfacts sufficient to create in the mind of the issuing officer probablecause to believe there had been a violation of the law. Abraham v.Commonwealth, 202 Ky. 491, 260 S. W 18 (1924). IU is not sufficientthat affiant stated he had information and reasonable cause to believeor did believe the facts alleged. United States v. K6lih, 272 Fed. 484(1921). The weight of authority is that an affidavit for a search war-rant is insufficient if made on information and belief (18 R. C. L. 36),though the opposite conclusion has also been reached. 24 R. C. L. 708.Kentucky generally follows the former rule. It is stated however inGoode v. Commonwealth, 199 Ky. 755, 252 S. W 105 (1923), that it isnot necessary that affiant state facts within his personal knowledge towhich he would be permitted to testify at the trial of the person ac-cused, but only facts and circumstances which will enable the officerissuing the warrant to determine whether there is probable cause. Thesecond affidavit, which merely asserted a belief that the statements inthe first were true, was clearly insufficient as stated by the court.The affidavit as well as reciting facts must show a present existingcause for search by showing that conditions are reasonably coexistentwith the issuance of the warrant, or at least use the present tense.Ruptnskt v. United States, 4 F (2d) 17 (1925), Bentley, et al. v. Com-monwealth, 239 Ky. 122, 38 S. W. (2d) 963 (1931). Here the first affi-davit definitely gave the date when the information was obtained andthe warrant was issued immediately.Are the facts stated in the affidavit sufficient to create in the mindof the commissioner probable cause for issuing a warrant? The affi-davit stated that affiant saw large cans commonly used in handlingKENTUCKY LAW JOMWALwhiskey and corn sugar being brought to, and cans heavily loaded car-ried away from the place. Also that affiant -smelled the odor of cookingmash. Facts can only be ascertained through the senses and affiant-could only get his knowledge through his sense of sight, hearing, smell,taste or touch. In United States T. Kardos, 31 F. (2d) 204 (1928), anaffidavit was made to obtain a search warrant for a garage, the otherconditions being almost identical. The court found the affidavit suffi-cient as affiant said he was familar with the odor of mash and smelledsuch an odor coming from the garage. A different view was taken bythe court in United States v. A Certazn Distillery, 24 F. (2d) 557 (1928),where it was sought to search a dwelling house. The court thought itwas practically impossible to tell by the odor whether the cooking wasfor food or beverage purposes. Kentucky has upheld the so called"smell warrant" in Abraham v. Commonwealth, supra.The first affidavit contained the positive statements, "there is astill and whiskey mash on the premises." The courts have usuallyheld that a positive statement without the facts upon which it isbased is sufficient to constitute probable cause. Sutton v. United States,289 Fed. 488 (1923), Caudill and McLemore v. Commonwealth, 198 Ky695, 249 S. W 1005 (1923). By a positive statement affiant assumesresponsibility and may be sued thereon, but, if he merely says thathe believes, he thereby avoids responsibility. Neal v. Commonwealth,203 Ky. 353, 262 S. W 287 (1924).It is submitted that in Kentucky and all other states having pro-hibition enforcement legislation, the affidavit would have been suffi-cient to constitute probable cause for a search warrant.The basis of the decision in the case discussed is Section 25 ofTitle 2 of the National Prohibition Act (27 U. S. C. A., sec. 39). "Nowarrant shall issue to search any private dwelling occupied as suchunless it be used for the unlawful sale of intoxicating liquor, or unlessit is in part used for some business purpose such as a store, shop,saloon, restaurant, hotel or boarding house:' Nobridga v. United States,22 F (2d) 507 (1927), held that the operation of a still in a housewas not a business purpose uf which the words in the statute areillustrative. The Supreme Court in reversing followed this decision.The lower court had decided that the-affidavit stated facts sufficientto warrant tife belief that the dwelling was used as headquarters forthe merchandising of intoxicating liquor. The Supreme Court didnot think the affidavit furnished probable -cause to believe that actualsales were made on the premises and said that the guarantees in the4th Amendment must be liberally construed to 'prevent impairmentof the protection extended.In this decision which makes it almost impossible lor a federalofficer to 'search a dwelling where he knows intoxicating liquor isbeing manufactured in large quantities, has not 'the Supreme Courtgone far beyond protecting persons against 'unreasonable search andseizure? In 'sustaining its 'position the court cited Boyd v. UnitedStates, 116 U. S. 616, Z S. Ct. 524, 29 L. Ed. 746 (1886), and Gould v.STUDBXT NOTES 483United States, 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647 (1921). It isinteresting to note in reading these eases that after saying the con-stitutional provision should be -liberally construed, the first case drewa distinction between the search of a man's private papers for thepurpose of convicting -him of a crime and a search for contrabandgods "which rightfully belongs to the custody of the law." The second-ase added that the 4th Amendment permits search and seizure whenjustified by the interest of the public and when the lawful exercise,of police power renders possession of the goods sought unlawful andprovides for their seizure.In defense of the decision, which unquestionably resulted in thedefendant escaping the penalty for breaking the law, it might be arguedthat the responsibility lies with Congress and not with the court. Inthe section of the National Prohibition Act above quoted, Congressprovided that the search of a -rivate dwelling might be made onlywvhere it was used for the unlawful sale of intoxicating liquor. If theyhad intended manufacture and sale they should have so stated. The:Florida Statute which is otherwise similar to the federal act did insertthe word manufacture. Compiled Laws of Florida 1927, Section 8518.The writer, however, -prefers the view taken by the court in UnitedStates v. Berger, 22 F (2d) 867 (1927), that a dwelling that is usedfor the unlawful manufacture of liquor which is either sold there or isremoved from thence for sale, is subject to search. Here the statutewas interpreted to give the expression, "for the sale," a meaning equiv-alent to "in connection with the sale," under authority of Title 2,Section 3 of the National Prohibition Act (27 U. S. C. A., see. 12),which provides that "all the provisions of this shall be liberally con-strued to the end that the use of intoxicating liquor as a beverage maybe prevented."There must necessarily be a lack of uniformity in decisions whichmust rest on "what a reasonably discrete and prudent man" 'wouldthink. Many border line cases will depend on the attitude of the judgeor judicial officer. Just how much weight will be given to general sus-picion, hearsay, reputation of the defendant and judicial notice .of thecharacter of the neighborhood where the property to be searched 'islocated, will vary with the judge for "judges are human."1). L. THORNTOn.AGLENcy-THu F.AmiLr PuwosE DoornR i--In the recent case ofSteele v. Age's Admr, 223 Ry. 714, 26 S. W 2d) 563 (1930), a minorson, driving with his lathir's consent, had a collision in the familyautomobile. The boy was driving recklessly at the time, and theiac'hine was precipitated onto tfle sidewalk, where it struck andkilled the -plaintiff's intestate. The father, who maintained the auto-mobile for the general use and convenience of the family, 'Was heldliable. The court based its decision on 'the "family purpose doctrine,"which has been adoptea in Kentucky. ,Stowe v. Mrs, 147 'Ky. 386,144S. W '52 (1912); Willerv. Wect, 1'6 Ky. 552, '21q S. W ;904 1920),

Search and Seizure--Probable Cause for Search Warrant

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Search and Seizure--Probable Cause for Search Warrant

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