DAWKINS, Jr., Chief Judge.
Invoking the Fourth Amendment to the Federal Constitution,
and Rule 41, Federal Rules of Criminal Procedure,
.
Henry Cullins, alleged lessee of the premises described in the caption, has moved: to quash a search warrant issued by the U. S. Commissioner, and the affidavit upon which it was based; to suppress, as having been illegally obtained, any evidence resulting from the search; and to require the District Attorney to return any and all matter seized in the search.
The record reveals that on November 6, 1953, Harold B. Smitherman, a Special Agent for the Intelligence Division of the Internal Revenue Service, appeared before the Commissioner in Shreveport and executed an affidavit on a printed form, the applicable portion of which reads:
“That
he has reason to believe
that on the premises known as office No. 508 Ricou-Brewster Bldg. (424 Milam Street) Shreveport, Caddo Parish, La., there is now being concealed certain property, namely, books, records, papers, documents and memorandums relating to the business of accepting wagers by a person, or persons, liable for the payment of the special tax provided for and imposed by 26 U.S.C. 3290 which has not been paid in violation of 26 U.S.C. 2707(b) and which are * * *.
“And that
the facts
tending to establish the foregoing grounds for issuance of a search warrant are as follows:
“That he has kept the premises under surveillance and observed as recent as Nov. 4, 1953, the following : Football scoreboard of the type commonly used by persons engaged in accepting wagers; overheard conversations relating to football games to be played over the coming week-end; seen a ticker tape machine.” (Emphasis supplied)
Upon the basis of this affidavit, the Commissioner issued a search warrant, on the same date, the body of which contains the following language:
“Affidavit having been made before me by Harold B. Smitherman, Sp. Agt. Intelligence Division of Internal Revenue Service that he
(has reason to believe)
that (on the premises known as) Office No. 508 Ricou-Brewster Building (425 Milam Street), Shreveport, Caddo Parish, Louisiana, in the Western District of Louisiana, there is now being concealed certain property, namely books, records, papers, documents and memorandums relating to the business of accepting wagers by a person, or persons, liable for the payment of the special tax provided for and imposed by 26 U.S.C. 3290, which has not been paid in violation of 26 U.S.C. 2707(b) and as I am satisfied that there is
probable cause
tq believe that the property so described is being concealed on the (premises) above described
and that the foregoing grounds for application for issuance of the search warrant exist.
* * *.”
(Emphasis supplied)
The return on the warrant shows that Mr. Smitherman searched the premises at 3:00 p. m., November 6, 1953.
On November 9, 1953, he filed a complaint
against Cullins, who was
arrested by the Marshal later on the same day.
Earlier that day Cullins had filed a rule, through his attorneys, calling upon Mr. Smitherman and the District Attorney to show cause: (1) why he should not be permitted to inspect and copy the books, papers and documents seized during his absence from his office; and (2) why the seized property should not be suppressed as evidence in any criminal proceeding. After hearing the rule, we ordered that the inspection and copying be permitted, in the presence of a representative from the District Attorney’s office. Upon request of all parties, we deferred action on the motion to suppress until a later date.
On December 30, 1953, Cullins filed a supplemental and amended motion praying that the affidavit and search warrant be quashed, and reiterating his prayer that the evidence seized in the search be suppressed.
Presented for determination, therefore, is the legal sufficiency vel non of the affidavit and search warrant issued pursuant to it.
Historically, the Fourth Amendment was adopted to avoid one» of the abuses suffered by Englishmen, and by the American colonists under English rule, before the Revolution. In 1766, in order to correct such abuse, whereunder the person, property and premises of individuals had been subject to practically unlimited search and seizure, the English House of Commons passed various resolutions condemning general, or unlimited, search warrants. Later, when the people of this country founded the various states and *he nation, they provided in their constitutions that the people should be secure in their persons, houses, papers and effects against unreasonable searches and seizures.
The Fourth Amendment, accordingly, originated in the determination of the framers of the Amendments to provide a Bill of Rights for the Constitution, securing to the American people those safeguards which had grown up in England to protect against such unreasonable conduct by police authorities.
This Amendment wisely requires that “ * * * no Warrants shall issue, but upon
probable cause,
supported by Oath or affirmation * *
Rule 41 stipulates that such “probable cause” shall be made to appear from an affidavit, which of and by itself must set forth facts sufficient to justify the Commissioner in believing that appropriate grounds exist for issuance of a search warrant. Which is to say that facts — not mere conclusions of the affiant — must appear within the four comers of the affidavit so as to justify a reasonable and ordinarily prudent person in believing that there is “probable cause” to conclude that a violation of the law has occurred, or is occurring, in the premises to be searched.
The facts set forth need not be sufficient to support a verdict of ™ilt beyond a reasonable doubt. They must establish, however, something more than mere suspicion or possibility of criminal activity.
No hard and fast rule can be followed in determining the sufficiency of the alleged facts to constitute “probable cause”, and each case must be determined upon its own particular merits or demerits. It may be said, however, as a general proposition, that mere conclusions of the affiant, unsupported by
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DAWKINS, Jr., Chief Judge.
Invoking the Fourth Amendment to the Federal Constitution,
and Rule 41, Federal Rules of Criminal Procedure,
.
Henry Cullins, alleged lessee of the premises described in the caption, has moved: to quash a search warrant issued by the U. S. Commissioner, and the affidavit upon which it was based; to suppress, as having been illegally obtained, any evidence resulting from the search; and to require the District Attorney to return any and all matter seized in the search.
The record reveals that on November 6, 1953, Harold B. Smitherman, a Special Agent for the Intelligence Division of the Internal Revenue Service, appeared before the Commissioner in Shreveport and executed an affidavit on a printed form, the applicable portion of which reads:
“That
he has reason to believe
that on the premises known as office No. 508 Ricou-Brewster Bldg. (424 Milam Street) Shreveport, Caddo Parish, La., there is now being concealed certain property, namely, books, records, papers, documents and memorandums relating to the business of accepting wagers by a person, or persons, liable for the payment of the special tax provided for and imposed by 26 U.S.C. 3290 which has not been paid in violation of 26 U.S.C. 2707(b) and which are * * *.
“And that
the facts
tending to establish the foregoing grounds for issuance of a search warrant are as follows:
“That he has kept the premises under surveillance and observed as recent as Nov. 4, 1953, the following : Football scoreboard of the type commonly used by persons engaged in accepting wagers; overheard conversations relating to football games to be played over the coming week-end; seen a ticker tape machine.” (Emphasis supplied)
Upon the basis of this affidavit, the Commissioner issued a search warrant, on the same date, the body of which contains the following language:
“Affidavit having been made before me by Harold B. Smitherman, Sp. Agt. Intelligence Division of Internal Revenue Service that he
(has reason to believe)
that (on the premises known as) Office No. 508 Ricou-Brewster Building (425 Milam Street), Shreveport, Caddo Parish, Louisiana, in the Western District of Louisiana, there is now being concealed certain property, namely books, records, papers, documents and memorandums relating to the business of accepting wagers by a person, or persons, liable for the payment of the special tax provided for and imposed by 26 U.S.C. 3290, which has not been paid in violation of 26 U.S.C. 2707(b) and as I am satisfied that there is
probable cause
tq believe that the property so described is being concealed on the (premises) above described
and that the foregoing grounds for application for issuance of the search warrant exist.
* * *.”
(Emphasis supplied)
The return on the warrant shows that Mr. Smitherman searched the premises at 3:00 p. m., November 6, 1953.
On November 9, 1953, he filed a complaint
against Cullins, who was
arrested by the Marshal later on the same day.
Earlier that day Cullins had filed a rule, through his attorneys, calling upon Mr. Smitherman and the District Attorney to show cause: (1) why he should not be permitted to inspect and copy the books, papers and documents seized during his absence from his office; and (2) why the seized property should not be suppressed as evidence in any criminal proceeding. After hearing the rule, we ordered that the inspection and copying be permitted, in the presence of a representative from the District Attorney’s office. Upon request of all parties, we deferred action on the motion to suppress until a later date.
On December 30, 1953, Cullins filed a supplemental and amended motion praying that the affidavit and search warrant be quashed, and reiterating his prayer that the evidence seized in the search be suppressed.
Presented for determination, therefore, is the legal sufficiency vel non of the affidavit and search warrant issued pursuant to it.
Historically, the Fourth Amendment was adopted to avoid one» of the abuses suffered by Englishmen, and by the American colonists under English rule, before the Revolution. In 1766, in order to correct such abuse, whereunder the person, property and premises of individuals had been subject to practically unlimited search and seizure, the English House of Commons passed various resolutions condemning general, or unlimited, search warrants. Later, when the people of this country founded the various states and *he nation, they provided in their constitutions that the people should be secure in their persons, houses, papers and effects against unreasonable searches and seizures.
The Fourth Amendment, accordingly, originated in the determination of the framers of the Amendments to provide a Bill of Rights for the Constitution, securing to the American people those safeguards which had grown up in England to protect against such unreasonable conduct by police authorities.
This Amendment wisely requires that “ * * * no Warrants shall issue, but upon
probable cause,
supported by Oath or affirmation * *
Rule 41 stipulates that such “probable cause” shall be made to appear from an affidavit, which of and by itself must set forth facts sufficient to justify the Commissioner in believing that appropriate grounds exist for issuance of a search warrant. Which is to say that facts — not mere conclusions of the affiant — must appear within the four comers of the affidavit so as to justify a reasonable and ordinarily prudent person in believing that there is “probable cause” to conclude that a violation of the law has occurred, or is occurring, in the premises to be searched.
The facts set forth need not be sufficient to support a verdict of ™ilt beyond a reasonable doubt. They must establish, however, something more than mere suspicion or possibility of criminal activity.
No hard and fast rule can be followed in determining the sufficiency of the alleged facts to constitute “probable cause”, and each case must be determined upon its own particular merits or demerits. It may be said, however, as a general proposition, that mere conclusions of the affiant, unsupported by
concreté: facts, or ..facts alleged- upon bare belief or' information, unsüpported' by other .'reliable facts- affirmatively averred, are inadequate in the eyes of the law. to save the .affidavit, and the warrant based upon it, from the. court’s condemnation, if. genuine ■ “probable cause” is not. shown.
With those principles before us, therefore, we now examine the affidavit and warrant -ill question to determine whether, as :a -matter of law, the .Commissioner reasonably had -“probable .cause” to believe from the affidavit that a violation of federal law had occurred, or was occurring, at the premises in question/ The cardinal consideration is not whether á gambling business was being, conducted - :in the establishment, but whether this Was being done without thé' registration and licensing, and 'without payment of ■ the gambling tax, required by federal law. Gambling businesses are 'forbidden by State law but aré not prohibited by Act of Congréss. In' fact, it is only through the 'licensing and taxing approach that the federal government can exercise any jurisdiction over such businesses.
To put it another way, the affidavit here must stand scrutiny as to whether it contains
facts
which constituted “probable cause” to conclude that a violation of the federal
tax
laws had occurred. If it fails to meet that test, it is'fatally defective and must be struck down under the proscription of the -Fourth Amendment.
In our judgment the affidavit is inadequate because it goes only half-..way toward' establishment of “probable cause”. It contains facts reasonably tending to show only one of two necessary elements, namely, that a gambling business was being carried on at 508 Rieou-Brewster Building. It contains
.no facts
reasonably tending to show the second essential element in order for there to have been a federal violation, namely, that the person or persons operating the business had not registered or paid the tax required by federal law. All it shows in the latter respect is that Mr. Smitherman “has reason to believe” that such is the case — a conclusion. It does not show
why
he entertained that belief, i. e., upon what
facts
his reason for such belief was based.
According to settled jurisprudence, affidavits as to mere, “belief” or “information and belief”, without
facts
reasonably justifying and supporting such belief, are legally insufficient to serve as the basis for search warrants, and. must.be .stricken.
However guilty and deserving ■of punishment we may believe the defendant to be, no- matter how outraged we may feel that a known law-violator is escaping his just deserts through an apparent technicality, -yet it is our duty to maintain the fundamental rights of all citizens, be they innocent or guilty.
' To deviate one iota from this principle, in order to punish one of known guilt, would be to remove the Constitutional cloak of protection thrown about the--shoulders of all American citizens
against unreasonable searches and seizures. The interests of society as a whole must be protected, and it is better to permit one offender to escape punishment than to open the door to abuses against all the people, which could and probably would result were this basic constitutional right abrogated in the slightest degree.
Cullins still may be, and ought to be, prosecuted for violation of Louisiana laws. against gambling,' if he actually was guilty of such. Nevertheless, insofar as this court is concerned, we have .no alternative- but to Sustain the motions filed in his behalf.
Proper decree should be presented.