KEEHN v. UNITED STATES, 300 F. 493

BINGHAM, Circuit Judge. The question in this case is whether, under the provisions of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 1013814 et seq.), search warrants may be lawfully issued to and served by a federal prohibition agent. The material facts are as follows: A criminal information was brought against Keehn, charging him with unlawful possession .of intoxicating liquor fit for beverage purposes, in violation of the Prohibition Act. “At the opening of the trial and before any testimony was taken, the defendant moved that the search warrant be quashed and evidence obtained thereunder be suppressed, because it was issued in violation of

section 7 of title 11 of the Espionage Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10496J4g), in that it was directed ‘to the United States marshal for the district of Rhode Island or any of his deputies or any federal prohibition agent or any civil officer of the United.

States duly authorized to .enforce any law thereof/ and in fact was served by a prohibition agent who was not a civil officer of the United States duly authorized to enforce or assist in enforcing any law thereof, or a person duly authorized by the President of the United States.” This motion was denied, and evidence obtained under the search warrant was admitted. To both rulings exceptions were duly taken, now assigned as errors. Keehn was convicted and fined, and it is from this judgment of conviction that the present writ of error is prosecuted. The search warrant in question was served by Francis W.

Pollard, who made a return entitling himself “Federal Prohibition Agent.” The return shows the seizure of a substantial quantity of whisky and other intoxicants, as well as containers. The record contains a stipulation that Pollard and all the other prohibition agents participating in this search and seizure were appointed and commissioned by the Commissioner of Internal Revenue.

Section 25, title 2, of the National Prohibition Act (Comp. St.' Ann. Supp. 1923, § 10138%

m) provides: “It shall be unlawful to have or possess any liquor or property designed for the manufacture of liquor intended for use in violating this title or which has been so used, and no property rights shall exist in any such liquor or property.

A search warrant may issue as provided in title XI of public law numbered 24 of the Sixty-Fifth Congress, approved June 15, 1917, and such liquor, the containers thereof, and such property so seized shall be subject to such disposition as the court may make thereof. * * * No search warrant shall issue to search any private dwelling occupied as such unless it is being used for the unlawful sale of intoxicating liquor, or unless it is in part used for some business purpose such as a store, shop, saloon, restaurant, hotel or boarding house.”

Section 2 of this title of the act (Comp. St. Ann. Supp. 1923, § 10138%

a) provides: “Sec. 2.

The Commissioner of Internal Revenue, Ms assistants, agents, and inspectors shall investigate and report violations of this act to the Unified States attorney for the district in which committed, who is hereby charged with the duty of prosecuting the offenders, subject to the direction of the Attorney General, as in the case of other offenses against the laws of the United States; and such Commissioner of Internal Revenue, his assistants, agents, and inspectors may swear out warrants before United States commissioners or other officers or courts authorized to issue the same for the apprehension of such offenders, and may, subject to the control of the said United States attorney, conduct the prosecution at the committing trial for the purpose of having the offenders held for the action of a grand jury.

Section 1014 of the Revised Statutes of the United States is hereby made applicable in the enforcement of this act. Officers mentioned in said

section 1014 are authorized to issue search warrants under the limitations provided in title XI of the act approved June 15, 1917 (Fortieth Statutes at Large, page 217 et seq.).”

Section 1014 of the Revised Statutes (Comp. St. § 1674) provides: “Sec. 1014.

For any crime or offense against the United States, the offender may, by any justice or judge of the United Staites, or by any commissioner of a Circuit Court to take bail, or by any chancellor, judge of a Supreme or superior court, chief or first judge of common pleas, mayor of a city, justice of the peace, or other magistrate, of any statte where he may be found, and agreeably to the usual mode of process against offenders in such •state, and at the expense of the United States, be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offense.

Copies of the process shall be returned as speedily as may be into the clerk’s office of such courit, together with the recognizances of the witnesses for their appearance to testify in the case. * * * ” By this provision the officials by whom search warrants may be issued-in the enforcement of the Prohibition Act are enlarged over those provided for in title 11, § 1, of the Espionage Act of June 15, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §< 10496%a). In

section 6 of title 11 of the Espionage Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10496%

f) it is provided: “Sec. 6.

If the judge or commissioner is thereupon satisfied of the existence of the grounds of the application ori that there is probable cause to believe their existence, he must issue a search warrant, signed by him with his name of office, to a civil officer of the United States duly authorized to enforce or assist in enforcing any law thereof, or to a person so duly authorized by the President of the United States, stating the particular grounds of probable cause for its issue and tbe names of tbe persons whose affidavits bave beén taken in support thereof, and commanding bim forthwith to search the person or place named, for the property specified, and to bring it before 'the judge or commissioner.” It is apparent, from the above citations from the Prohibition Act and

section 1014 of the Revised Statutes embodied therein, that the provisions of

section 6 are enlarged so far as the officials there named are concerned who may issue search warrants in the enforcement of the Prohibition Act. By

section 38, title 2, of the Prohibition Act (Comp. St. Ann. Supp.. 1923, § lOlSS^y), it is provided: “Sec. 3S. The Commissioner of Internal Revenue and the Attorney General of the United States are hereby respectively authorized to appoint and employ such assistants, experts, clerks, 'and other employees in ithe District of Columbia or elsewhere, * * * as they may deem necessary for the enforcement of the provisions of this act. * * * ” The questions here presented are (1) whether a prohibition agent, appointed by the Commissioner of Internal Revenue for the enforcement of the provisions of the act, under

section 38, is a civil officer of the United States duly authorized to enforce or assist in enforcing any law thereof, within the meaning of

section 6 of title 11 of the Espionage Act; or (2) if he is not such a civil officer, whether the provisions-of

section 6 relating to the officials to whom a search warrant may be issued, as well as those by whom it may be issued, have been enlarged by the provisions of the Prohibition Act to include agents appointed by the Commissioner of Internal Revenue under

section 38 for the enforcement of the provisions of that act. It must be conceded that the prohibition agent in question would be an officer of the United States within the strict constitutional meaning of

article 2, § 2, of the Constitution, had he been appointed by the Attorney General under the provisions of

section 38, and as such be an official to whom a search warrant might be issued under the provisions of

section 6 of title 11 of the Espionage Act. United States v. Germaine, 99 U. S. 508, 25 L. Ed. 482. It must also be conceded that if

section 38 of title 2 of the Prohibition Act contained a provision that the Commissioner, in making appointments under that section, should do so-with the approval of the Secretary of the Treasury, and the prohibition agent in question had been appointed by the Commissioner with the approval of the Secretary of the Treasury, he would be a civil officer of the United States within the meaning of the Constitution and of

section 6 of title 11 of the Espionage Act, to whom search warrants might be issued. United States v. Hartwell, 6 Wall. 385, 18 L. Ed. 830; Price v. Abbott (C. C.) 17 Fed. 506. But

section 38 of title 2 of the Prohibition Act contains no provision calling for the approval of the Secretary of the Treasury of such appointments by the Commissioner, and the only provisions in the Prohibition Act, which we have found, where the approval of the Secretary of the Treasury is called for, are in title 2, § 1 (7), being Comp. St. Ann. Supp. 1923, § 10138*4, which authorizes the .Commissioner to make regulations for carrying out the provisions of the act with the approval of the Secretary of the Treasury, and title 2, § 35, par. 2, (Comp. St. Ann.

Supp. 1923, § 10138]/>v), — neither of which, apparently, have any relation to the approval by the Secretary of the Treasury of appointments of agents made by the Commissioner. Whether this legislative omission arose through oversight or was intentional we are unable to say, but inasmuch as the prohibition agent in question was not appointed by the head of a department, or by the head of a bureau under a law calling for the approval of the. department, we feel constrained to hold that he was not an officer of the United States, within the meaning of

article 2, § 2, of the Constitution. United States v. Smith, 124 U. S. 525, 8 Sup. Ct. 595, 31 L. Ed. 534; United States v. Mouat, 124 U. S. 303, 8 Sup. Ct. 595, 31 L. Ed. 463; Burnap v. United States, 252 U. S. 512, 40 Sup. Ct. 374, 64 L. Ed. 692. The remaining question is whether the provisions of

section 6 of title 11 of the Espionage Act, relating to the officials to whom search warrants may be issued, have been enlarged by the provisions of the Prohibition Act to include agents appointed by the Commissioner of Internal Revenue under

section 38 of title 2 to enforce the provisions of that act. The Prohibition Act (title 2) contains the following provisions: “Sec. 28. The Commissioner, Ms assistants, agents, and inspectors, and all other officers of the United States, whose duty it is to enforce criminal laws, shall have all the power and protection in the enforcement of this act or any provisions thereof which is conferred by law for the enforcement of existing laws relating to the manufacture or sale of intoxicating liquors under the law of the United States.” Comp. St. Ann. Supp. 1923, § 10138% o. "Sec. 26.

When the Commissioner, Ms assistants, inspectors, or any officer of the law shall discover any person in the aot of transporting in violation of the law, intoxicating liquors in any wagon, buggy, automobile, water or air craft, or other vehicle, it shall be his duty to seize any and all intoxicating liquors found therein being transported contrary to law.

Whenever intoxicating liquors transported or. possessed illegally shall be seized by an officer he shall take possession of the vehicle and team or automobile, boat, air or water craft, or any other conveyance, and shall arrest any person in charge thereof, iáuch officer shall ait once proceed against the person arrested under the provisions of this title in any court having competent jurisdiction,” etc. Comp. St. Ann. Supp. 1923, § 10138%mm. Section 1 (7), par. 2: “Any act authorized to be done by tbe Commissioner may be performed by any assistant or agent designated by him for that purpose.” Comp. St. Ann.

Supp. 1923, § 10138%. By

an act supplemental to the National Prohibition Act (Act Nov. 23, 1921, 42 Stat. at Rarge, pp. 222, 223, 224 [Comp. St. Ann. Supp. 1923, § 10184a]) it is provided: “Sec. 6.

That any officer, agent, or employee of tha United States engaged in the enforcement of this act, or the National Prohibition Act, or any other law of the United States, who shall search any private dwelling as defined in the National Prohibition Act, and occupied as such dwelling, without a warrant directing such search, or who while so engaged shall without a search warrant maliciously and without reasonable cause search any other building or property, shall be guilty of a misdemeanor and upon conviction thereof shall be fined for a first offense not more than $1,000, and for a1 subsequent offense not more than $1,000 or imprisoned not more, than one year, or both such fine and imprisonment.” It thus appears that by

section 38 the assistants or agents to be appointed by the Commissioner or Attorney General are appointed “for the enforcement of the provisions of this act,” and in its enforcement have all the powers and protection afforded them by the act and which are “conferred by law for the enforcement of existing laws relating to the manufacture or sale of intoxicating liquors under the law of the United States,” and that, by section 1 (7) “any act authorized to be done by the Commissioner may be performed by any assistant or agent designated by him for that purpose.” There can be no question but that the Commissioner of Internal Revenue is an officer of the United States charged with the enforcement of the Prohibition Raw, to whom a search warrant may be issued for service; that the service of such a warrant is the execution of one of the powers essential to the enforcement of the law, and, being

an act authorized to be done by the Commissioner, it may, by the express language of the statute (section 1 [7], par. 2), like any other act in the enforcement of the law, be performed by an assistant or agent designated by him for the purpose. Indeed, it is hardly possible to read the provisions of'the Prohibition Act and reach the conclusion that the service of search warrant process, as respects the agents appointed by the Commissioner and Attorney General, is limited to those appointed by the Attorney General only.

The Commissioner and his assistants, not the Attorney General and his assistants, are the officials upon whom the power and duty of enforcing the law is primarily conferred and imposed. The duties of the Attorney General and his assistants largely arise after the arrests, seizures, and committals have been made, when prosecutions are to be instituted before the courts. See sections 28, 26, and 2.

By section'26 the Commissioner and his assistants and inspectors are given the special power, on discovery of any person in the act of transporting intoxicating liquors in violation of law, to seize the liquors and vehicle in which they are being transported and arrest such person without a warrant — the conferring of a power as drastic in nature, as difficult of exercise, and quite as liable to abuse (if not more so) as is the service of a search warrant. And

section 6 of

chapter 134 of the act of 1921 recognizes that the Commissioner, his agents or employees, engaged in the enforcement of that act or the National Prohibition Act, have authority to search a private dwelling with a warrant issued to them for that purpose, and expressly provides that they shall be guilty of a crime if they search such a dwelling without a Warrant. Furthermore,

section 3462 of the Revised Statutes (Comp. Stat. § 6364), which was in existence at the time of the enactment of the Prohibition Act and relates to the control of the manufacture and sale of intoxicating liquors under the laws of the United States, when read in connection with

section 28, manifests an intention to enlarge the class of officials named in

section 6 of title 11 of the Espionage Act, and to include assistants, agents, or inspectors of the Commissioner of Internal Revenüe as officials to whom search warrants may be issued to search premises for. liquors possessed or kept in violation of the Prohibition Act, for

section 28 of title 2 of the Prohibition Act confers upon the Commissioner, "his assistants, agents and inspectors,. * * * all the power and protection in the enforcement of’ the Prohibition Act, “conferred by law for the enforcement of existing laws relating to the manufacture or sale of intoxicating liquors under the laws of the United States.” United States v. Syrek (D. C.) 290 Fed. 820; Smith v. Gilliam (D. C.) 282 Fed. 628, 638-640. We are therefore of the opinion that the provisions of

section 6 of the Espionage Act, relating to the officials to whom a search warrant may be issued, are enlarged by the provisions of the Prohibition Act and its amendment, and include the agents and assistants appointed and commissioned by the Commissioner of Internal Revenue for the enforcement of the provisions of the act; that the seizure here in question was lawful and the evidence properly received. Park v. United States (C. C. A.) 294 Fed. 776, and cases there cited. The judgment of the District Court is affirmed.