BUFFINGTON, Circuit Judge.
This .case involves the legality of a seizure under search warrant of 24 cases and 10 quart bottles of liquors on the premises of one Queek, at 705 Amity street, in the borough of Homestead, Pa. As the officers making the seizure were guilty of no improper conduct in making it, the question whether the search was a reasonable one depends on the warrant under which they acted. Queek having died, his executor petitioned the court below to adjudge the warrant void and the seizure illegal. On hearing, the petition was granted, the.court filing an opinion, in which, inter alia, it held:
“It will thus clearly appear that the existence of probable cause is a judicial conclusion, to be found by the commissioner or judicial .officer to whom application for the warrant is made. It is a vital and jurisdictional fact and without such finding no search warrant can lawfully issue. The finding of probable cause should be based, not on the opinion or belief of a witness or witnesses, but on facts set forth in the affidavit from which the existence of probable cause may be fairly inferred. Otherwise, the conclusion would be that of the witness, and not of the judicial officer, in whom alone the Constitution has vested the extraordinary power to issue search warrants, and who is thus legally charged with the duty of preventing' unreasonable searches and seizures. As the record does not show any finding of probable cause by the commissioner, we think .the warrant fatally defective, and therefore the seizure thereunder illegal.”
Thereafter this writ of error was taken out, and the contention is made that, on the face of the record as it came to this court, the commissioner issued the warrant in question illegally on the affidavit of Conner, a prohibition agent, who stated “that he had good reason to believe and does verily believe” that upon the premises of Queek (designated by street number) there is located and concealed a large quantity of liquor, etc.; that the information obtained by him (Conner) in relation to the sale of liquor by Queek was “obtained from affidavits made by William McClelland and Nelson Gibson.” It will also be- seen that the warrant issued by the commissioner embodied no statement or adjudication by the commissioner that he found probable cause for the issue thereof.
Turning now to the various documents found in the transcript of record, we note that Exhibit D,1 reprinted in the margin from the record, averred that McClelland, on June 26, 1920, at the Arcade Hotel, of which Queek was proprietor, situate at No. 705 Amity street, Homestead, bought whisky on such premises, and in the presence of Nelson Gibson kept a sample thereof in a designated and numbered No. 13 bottle. By a similar affidavit, Exhibit E,2 also reprinted in the margin from the record, we note that Gibson, on June 26, at the same hotel, of which Queek was proprietor, set forth that he also bought whisky on such premises in the presence of McClelland, and kept a sample thereof in a designated and numbered No 13S bottle. These affidavits were severally sworn to before notaries public by McClelland on June 30, and by Gibson on July 1, 1920, and on July 17, 1920, [79]*79J. W. Conner, a prohibition agent, appeared before Roger Knox, the United States commissioner, and made oath to an affidavit for a daytime search warrant,3 reprinted from the record in the margin, in which, as will be seen, after alleging that he has good reason to believe that “in and upon the premises of Harry P. Queek, at 705 Amity street, in the borough of Homestead, Pennsylvania, part of said premises being used as a saloon for the salé of intoxicating liquors, there has been and is now located and concealed a large amount of intoxicating liquor, to wit, whisky,” etc., the affidavit then states “that the information obtained by yonr affiant in relation to the sale of liquor by the said Harry P. Queek on the 26th day of June, A. D. 1920, was obtained from affidavits made by William McClelland and Nelson Gibson,” On tbe same day tbe commissioner issued a day search warrant, wherein was recited tbe appearance of Gibson, the prohibition agent, before the commissioner, his oath, and reduction to writing of the agent’s belief of whisky on the premises, athe grounds of his belief, viz. that “the information obtained by said J. W. Conner in relation to the sale of liquor by the said Harry P Queek was obtained by the said J. W. Conner, prohibition agent, from affidavits made by William McClelland and Nelson Gibson.” Upon this warrant a search was had and a return made that “upon examination of the above-named premises we found 24 eases of liquor, 10 quart bottles, on second floor in living room.”
Was the warrant thus issued and properly served a legal justification of the search, or did it violate that constitutional provision, which provides that “the right of the people to be secured against unreasonable searches and seizures shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the persons and things to he seized”? We cannot adopt this latter contention. The inhibition is not against every search and seizure, but against unreasonableness, and what constitutes the basis and warrant for reasonable searches and seizures is defined, namely, first, the existence of a fact, and that fact is probable canse; and, secondly, the evidence of that fact, namely, an “oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.” The foundation of a reasonable search and seizure, as constitutionally defined, is the existence of probable cause, and the Constitution does not provide that a finding of probable cause by a magistrate is either a foundation for warrant issue, will justify the warrant where the fact of probable cause does not exist, or that such finding of probable cause by the magistrate is necessary It is “particularly describing the place to be searched and the persons or things to be seized” which the Constitution requires should he evidenced by affidavit, and when the affidavit measures up to this constitutional requirement then a warrant may lawfully issue. If the affidavit does not meet the requirements which the Constitution requires before warrant issue, no assertion or statement by the magistrate in the warrant that he found probable cause would legalize the warrant. It is the exist[80]*80ence of probable cause, and not tbe finding by tbe magistrate, that makes warrant issue legal, and, as tbe existence of. probable cause must be disclosed by the affidavit, the question before the commissioner, the court below, and this court is: Do the affidavits in question show, probable cause?
We are of opinion they do. Two men had lately visited the hotel of Queek, had each bought and paid for whisky, and had each brought away separate samples, which they preserved. The premises were described, the street "number given, and the date and hour of purchase specified. These were facts, not inferences, and showud probable cause for the issue of a search warrant, and in view, of them we think the petitioner failed to show the search of Queek’s premises and the taking of the liquor found upon them was an unreasonable search and seizure.
■ The court below, as we have seen, based its opinion on the fact that the warrant did not show that the commissioner did not state in the warrant that he found probable cause. We find no such requirement, either in the Constitution or in sections 3 and 4 of title 11 of the Act of June 15, 1917 (Comp.
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BUFFINGTON, Circuit Judge.
This .case involves the legality of a seizure under search warrant of 24 cases and 10 quart bottles of liquors on the premises of one Queek, at 705 Amity street, in the borough of Homestead, Pa. As the officers making the seizure were guilty of no improper conduct in making it, the question whether the search was a reasonable one depends on the warrant under which they acted. Queek having died, his executor petitioned the court below to adjudge the warrant void and the seizure illegal. On hearing, the petition was granted, the.court filing an opinion, in which, inter alia, it held:
“It will thus clearly appear that the existence of probable cause is a judicial conclusion, to be found by the commissioner or judicial .officer to whom application for the warrant is made. It is a vital and jurisdictional fact and without such finding no search warrant can lawfully issue. The finding of probable cause should be based, not on the opinion or belief of a witness or witnesses, but on facts set forth in the affidavit from which the existence of probable cause may be fairly inferred. Otherwise, the conclusion would be that of the witness, and not of the judicial officer, in whom alone the Constitution has vested the extraordinary power to issue search warrants, and who is thus legally charged with the duty of preventing' unreasonable searches and seizures. As the record does not show any finding of probable cause by the commissioner, we think .the warrant fatally defective, and therefore the seizure thereunder illegal.”
Thereafter this writ of error was taken out, and the contention is made that, on the face of the record as it came to this court, the commissioner issued the warrant in question illegally on the affidavit of Conner, a prohibition agent, who stated “that he had good reason to believe and does verily believe” that upon the premises of Queek (designated by street number) there is located and concealed a large quantity of liquor, etc.; that the information obtained by him (Conner) in relation to the sale of liquor by Queek was “obtained from affidavits made by William McClelland and Nelson Gibson.” It will also be- seen that the warrant issued by the commissioner embodied no statement or adjudication by the commissioner that he found probable cause for the issue thereof.
Turning now to the various documents found in the transcript of record, we note that Exhibit D,1 reprinted in the margin from the record, averred that McClelland, on June 26, 1920, at the Arcade Hotel, of which Queek was proprietor, situate at No. 705 Amity street, Homestead, bought whisky on such premises, and in the presence of Nelson Gibson kept a sample thereof in a designated and numbered No. 13 bottle. By a similar affidavit, Exhibit E,2 also reprinted in the margin from the record, we note that Gibson, on June 26, at the same hotel, of which Queek was proprietor, set forth that he also bought whisky on such premises in the presence of McClelland, and kept a sample thereof in a designated and numbered No 13S bottle. These affidavits were severally sworn to before notaries public by McClelland on June 30, and by Gibson on July 1, 1920, and on July 17, 1920, [79]*79J. W. Conner, a prohibition agent, appeared before Roger Knox, the United States commissioner, and made oath to an affidavit for a daytime search warrant,3 reprinted from the record in the margin, in which, as will be seen, after alleging that he has good reason to believe that “in and upon the premises of Harry P. Queek, at 705 Amity street, in the borough of Homestead, Pennsylvania, part of said premises being used as a saloon for the salé of intoxicating liquors, there has been and is now located and concealed a large amount of intoxicating liquor, to wit, whisky,” etc., the affidavit then states “that the information obtained by yonr affiant in relation to the sale of liquor by the said Harry P. Queek on the 26th day of June, A. D. 1920, was obtained from affidavits made by William McClelland and Nelson Gibson,” On tbe same day tbe commissioner issued a day search warrant, wherein was recited tbe appearance of Gibson, the prohibition agent, before the commissioner, his oath, and reduction to writing of the agent’s belief of whisky on the premises, athe grounds of his belief, viz. that “the information obtained by said J. W. Conner in relation to the sale of liquor by the said Harry P Queek was obtained by the said J. W. Conner, prohibition agent, from affidavits made by William McClelland and Nelson Gibson.” Upon this warrant a search was had and a return made that “upon examination of the above-named premises we found 24 eases of liquor, 10 quart bottles, on second floor in living room.”
Was the warrant thus issued and properly served a legal justification of the search, or did it violate that constitutional provision, which provides that “the right of the people to be secured against unreasonable searches and seizures shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the persons and things to he seized”? We cannot adopt this latter contention. The inhibition is not against every search and seizure, but against unreasonableness, and what constitutes the basis and warrant for reasonable searches and seizures is defined, namely, first, the existence of a fact, and that fact is probable canse; and, secondly, the evidence of that fact, namely, an “oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.” The foundation of a reasonable search and seizure, as constitutionally defined, is the existence of probable cause, and the Constitution does not provide that a finding of probable cause by a magistrate is either a foundation for warrant issue, will justify the warrant where the fact of probable cause does not exist, or that such finding of probable cause by the magistrate is necessary It is “particularly describing the place to be searched and the persons or things to be seized” which the Constitution requires should he evidenced by affidavit, and when the affidavit measures up to this constitutional requirement then a warrant may lawfully issue. If the affidavit does not meet the requirements which the Constitution requires before warrant issue, no assertion or statement by the magistrate in the warrant that he found probable cause would legalize the warrant. It is the exist[80]*80ence of probable cause, and not tbe finding by tbe magistrate, that makes warrant issue legal, and, as tbe existence of. probable cause must be disclosed by the affidavit, the question before the commissioner, the court below, and this court is: Do the affidavits in question show, probable cause?
We are of opinion they do. Two men had lately visited the hotel of Queek, had each bought and paid for whisky, and had each brought away separate samples, which they preserved. The premises were described, the street "number given, and the date and hour of purchase specified. These were facts, not inferences, and showud probable cause for the issue of a search warrant, and in view, of them we think the petitioner failed to show the search of Queek’s premises and the taking of the liquor found upon them was an unreasonable search and seizure.
■ The court below, as we have seen, based its opinion on the fact that the warrant did not show that the commissioner did not state in the warrant that he found probable cause. We find no such requirement, either in the Constitution or in sections 3 and 4 of title 11 of the Act of June 15, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ Í0496%e, 10496:{4d), which provide:
Section 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.”
Section 4: “The judge or commissioner must, béfore 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.”
..We may further state that, while it was suggested at the argument that there was nothing to show that the affidavits of Mc-Clelland and Gibson were produced before the commissioner, we may add that, apart from, the affidavits themselves being in the printed record, and the reference to them, both in the affidavit of Conner t.aken before the commissioner and in the warrant itself, the court at bar inquired of counsel as to the facts, and later on was furnished with information that Gibson’s and McClelland’s affidavits had been before the commissioner when he issued the warrant, and before the court when it passed on its legality.
Being of opinion, then, that the record papers before the commissioner, and the court showed -probable cause for the issue' of the warrant, the decree below, holding i« invalid, is reversed, and the cause is remanded, with directions to dismiss the petition.
WOOLLEY, Circuit Judge, dissents.