United States v. Deloic

2 F.2d 377, 1924 U.S. Dist. LEXIS 1143

Opinion

NETERER, District Judge

(after stating the facts as above). A court commissioner is the creature of the court, and in the matter of issuance of a search warrant his act is not the act of a court of the United States, being only “quasi judicial,” and the court of which he is an officer may review the proceeding. Todd v. U. S., 158 U. S. 278, 15 S. Ct. 889, 39 L. Ed. 982; U. S. v. Casino (D. C.) 286 F. 976.

Section 25, title 2, N P. A. (Comp. St. Ann. Supp. 1923, § 10138½m), specifically provides that a search warrant shall not issue for the search of a private dwelling unless liquor is unlawfully sold therein. It is clear that in this case there was no evidence of unlawful sale. The general statement of manufacturing, possessing, transporting, and selling intoxicating liquor could not, under the circumstances, have any probative effect, in view of the specific statement; “Affiant has seen automobiles call at said premises and take from same packages which, from their shape, contour, and size, resembled containers holding intoxicating liquor.” By the doctrine of ejusdem generis the specific acts should control the general words or phrases. The statement of sale clearly was merely a conclusion of the affiant, and, in view of the further testimony on the preliminary hearing that there was no evidence of sale, there could be no finding or adjudication on the part of the commissioner that would bring the ease within the provisions of the law. See, also, eases cited in margin.¹

The motion to suppress is granted.

Footnotes

1

U. S. v. Rykowski (D. C.) 267 F. 866; U. S. v. Ray (D. C.) 275 F. 1004; Veeder v. U. S., 252 F. 414, 164 C. C. A. 338; U. S. v. Kelih (D. C.) 272 F. 488; U. S. v. Kaplan (D. C.) 286 F. 963; Giles v. U. S. (C. C. A.) 284 F. 208; U. S. v. Lai Chow (D. C.) 298 F. 652; Boyd v. U. S., 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed. 746; Jozwich v. U. R (C. C. A.) 288 F. 831; U. S. v. Mitchell (D. C.) 274 F. 128; Voorhies v. U S. (C. C. A.) 299 F. 275; Silverthorn Lbr. Co. v. U. S., 251. U. S. 385, 40 S. Ct. 182; 04 L. Ed. 319; Gouled v. U. S., 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647; Berry v. U. S. (C. C. A.) 275 F. 680.