U.S. Supreme Court GO-BART IMPORTING CO. v. U.S., 282 U.S. 344 (1931)

[Page 282 U.S. 344, 352]

any time, if desired by the Court, in connection with the consideration of this order to show cause.'

In reply to O'Brien's affidavit, petitioners submitted affidavits of Gowen, Bartels and other defendants who were arrested at the company's office on that occasion and affidavits of other persons who were present during some part of the time that the prohibition agents were there. These affidavits show that O'Brien said he had a warrant of arrest and produced a paper which several of these affiants say they read and believe to be the warrant issued by the commissioner, a copy of which was filed with the moving papers. As to these details there is no conflict in the evidence.

The district court refused to sustain the contention that no use was made of the warrant and accepted the statements that O'Brien claimed to have warrants for the arrests and searches. The Circuit Court of Appeals did not definitely express opinion as to that matter. We have examined the evidence. It requires a finding that O'Brien did so claim, that he had the warrant issued by the commissioner or a copy of it, and that when he arrested Gowen and Bartels he claimed and purported to act under the warrant. No warrant for the search of the premises was issued.

The orders dismissing petitioners' suits in equity are not before us. The question whether the district court had jurisdiction summarily to deal with petitioner's applications, while not brought forward by the parties, arises upon the record, was considered by the Circuit Court of Appeals and suggested during the argument here.

United States commissioners are inferior officers. [Footnote 1] United States v. Allred, 155 U.S. 591, 594, 15 S. Ct. 231; Rice v. Ames,

[Page 282 U.S. 344, 358]

any criminal overt act in 1929. Calhoun's description to O'Brien of the company's office in detail and of Gowen and Bartels shows that he knew the place and offenders. Notwithstanding he had an abundance of information and time to swear out a valid warrant, he failed to do so. O'Brien falsely claimed to have a warrant for the search of the premises and he made the arrests under color of the invalid warrant. By pretension of right and threat of force he compelled Gowen to open the desk and the safe and with the others made a general and apparently unlimited search, ransacking the desk, safe, filing cases and other parts of the office. It was a lawless invasion of the premises and a general exploratory search in the hope that evidence of crime might be found. Federal Trade Commission v. American Tobacco Co., 264 U.S. 298, 306, 44 S. Ct. 336, 32 A. L. R. 786.

Plainly the case before us is essentially different from Marron v. United States, , 48 S. Ct. 74. There, officers executing a valid search warrant for intoxicating liquors found and arrested one Birdsall who in pursuance of a conspiracy was actually engaged in running a saloon. As an incident to the arrest they seized a ledger in a closet where the liquor or some of it was kept and some bills beside the cash register. These things were visible and accessible and in the offender's immediate custody. There was no threat of force or general search or rummaging of the place.

The uncontradicted evidence requires a finding that here the search of the premises was unreasonable. Silverthorne Lumber Co. v. United States, supra; Marron v. United States, supra, page 199 of 275 U. S., 48 S. Ct. 74. United States v. Kirschenblatt (C. C. A.) 16 F.(2d) 202, 51 A. L. R. 416. The judgments below must be reversed andthe case remanded to the district court with directions to enjoin the United States attorney and the special agent in charge from using the papers as evidence and to order the same returned to petitioners.

Reversed. Footnotes

Footnote 1 As to the office of United States commissioner, see: Section 4, Act of March 2, 1793, 1 Stat. 334; Section 1, Act of February 20, 1812, 2 Stat. 679; Act of March 1, 1817, 3 Stat. 350; sections 1, 2, Act of August 23, 1842, 5 Stat. 516; Rev. St. 627 (28 USCA 526 note); sections 19, 20 and 21, Act of May 28, 1896, 29 Stat. 184 (28 USCA 526, 527, 529). United States v. Maresca (D. C.) 266 F. 713, 719.

Footnote 2 The powers and duties of United States commissioners include: To arrest and imprison, or bail, for trial (18 U. S. Code, 591 (18 USCA 591). See, also, sections 593-597) and in certain cases to take recognizances from witnesses on preliminary hearings (28 U. S. Code, 657 ( 28 USCA 657)); to issue warrants for and examine persons charged with being fugitives from justice (18 U. S. Code, 651 (18 USCA 651)); to hold to security of the peace and for good behavior (28 U. S. Code, 392 ( 28 USCA 392)); to issue search warrants (18 U. S. Code, 611-627 (18 USCA 611-627); 26 U. S. Code, 1195 (26 USCA 1195)); to take bail and affidavits in civil causes (28 U. S. Code, 758 (28 USCA 758)); to discharge poor convicts imprisoned for non-payment of fines (18 U. S. Code , 641 (18 USCA 641)); to institute prosecutions under laws relating to the elective franchise and civil rights and to appoint persons to execute warrants thereunder (8 U. S. Code, 49, 50 (8 USCA 49, 50)); to enforce arbitration awards of foreign consuls in disputes between captains and crews of foreign vessels (28 U. S. Code, 393 (28 USCA 393)); to summon master of ship to show cause why process should not issue against it for seamen's wages (46 U. S. Code, 603 (46 USCA 603)); to take oaths and acknowledgments. 5 U. S. Code, 92 (5 USCA 92). 28 U. S. Code , 525 (28 USCA 525).