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the District Attorney, after he has returned them, lawfully make use, against the owner, of information thus obtained, by compelling their production through a subpoena duces tecum or otherwise. But a conviction will not be reversed because incriminating papers have been improperly seized, when upon the trial no use was made of them nor of information which they contained.3

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These rules do not apply to a case where the papers were voluntarily surrendered to a public authority by a witness, nor when the objection to their seizure was waived,5 nor, it has been said, when the seizure was not seriously resisted, nor where they were offered in evidence by the accused in the same 7 or another case, nor where the seizure was made under a valid search-warrant, nor to a search of the person of a man who has been arrested,10 nor, it has been held, where the property seized, such as intoxicating liquors and an automobile in which they are unlawfully transported, was forfeited to the United States, or the seizure has been made by a State officer who did not claim to act under Federal authority.12

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It has not yet been settled whether the fraudulent or the surreptitious 14 seizure of incriminating papers prevents their

C. A., 233 Fed. 481; Fitter v. U. S., 258 Fed. 567; U. S. v. Wang Quong Wong, 94 Fed. 832, supra, § 339a. 2 Silverthorne Lumber Co. v. U. S., 251 U. S. 385.

3 Fitter v. U. S., 258 Fed. 567. 4 Perlman v. U. S., 247 U. S. 7; U. S. v. Hart, 214 Fed. 655; Farmers v. U. S., C. C. A., 223 Fed. 903; Linn v. U. S., C. C. A., 234 Fed. 543; U. S. v. Abrams, 230 Fed. 313.

5 U. S. v. Gouled, 253 Fed. 242. 6 Luneyan v. U. S., C. C. A., 193 Fed. 970, 972, citing Abrams v. N. Y., 192 U. S. 585, 24 Sup. Ct. 372, 48 L. ed. 575.

7 Perlman Rim Corp. v. Firestone Tire & Rubber Co., 244 Fed. 304.

8 Perlman v, U. S., 247 U. S. 7, affirming 244 Fed. 304.

9 Schenck v. U. S., 249 U. S. 48;

U. S. v. Gouled, 253 Fed. 770; U. S. v. Stilson, 254 Fed. 120.

10 Weeks v. U. S., 232 U. S. 383, 392, 34 Sup. Ct. 341, 344, 58 L. ed. 652.

11 U. S. v. Fenton, 268 Fed. 221. Contra, U. S. v. Rykowski, 267 Fed. 866.

12 Youngblood v. U. S., C. C. A., 266 Fed. 765.

13 U. S. v. Maresca, 226 Fed. 713, holds that such papers are competent evidence.

14 In Gouled v. U. S., C. C. A., 264 Fed. 839, 841, 842, the following questions were certified to the Supreme Court by the Court of Appeals for the Second Circuit: "First: Is the secret taking or abstraction without force by a representative of any branch or subdivision of the govern

admission in evidence. A consent by the wife of the accused,15 or by her attorney at law, does not ordinarily bind the accused in this respect.16

A surrender of papers under a threat has the same effect as an unlawful seizure.17

The admission in a State court of papers unlawfully seized is not a violation of the Fourteenth Amendment.18

§ 487c. Return of books, papers and property unlawfully seized. When books, papers or property have been unlawfully seized, the courts should direct them returned to the owner by the District Attorney if they are in his possession,1 or by

ment of the United States of a paper writing, of evidential value only, belonging to one suspected of crime, and from the house or office of such person, a violation of the Fourth Amendment? Second. Is the admission of such paper writing in evidence against the same person, when indicted for crime, a violation of the Fifth Amendment? Third. Are papers of no pecuniary value, but possession evidential value against persons presently suspected and subsequently indicted under sections 37 and 215, C. C., when taken under search warrants issued pursuant to Act of June 15, 1917, from the house or office of the person so suspected, seized and taken in violation of the Fourth Amendment? Fourth. If such papers so taken are admitted in evidence against the person from whose house or office they were taken, such person being then on trial for the crime of which he was accused in the affidavit for warrant, is such admission in evidence a violation of the Fifth Amendment? Fifth. If in the affidavit for search warrant under Act of June 15, 1917, the party whose premises are to be searched be charged with one crime, and property be taken under the

warrant issued thereon, can such property so seized be introduced in evidence against said party when on trial for a different offense? Sixth. If papers of evidential value only be seized under a search warrant and the party from whose house or office they are taken be indicted, if he then move before trial for the return of said papers, and said motion is denied, is the court at trial bound in law to inquire as to origin of or method of procuring said papers, when they are offered in evidence against the party SO in

dicted?"

15 U. S. v. Rykowski, 267 Fed. 866, 871.

16 Re Tri-State Coal & Coke Co., 253 Fed. 605.

17 U. S. v. Abrams, 230 Fed. 313. 18 Adams v. New York, 192 U. S. 585, 48 L. ed. 575.

§ 487c. 1 U. S. v. Mounday, 208 Fed. 186; Wise v. Mills, 220 U. S. 549, 557; affirming U. S. v. Mills, 185 Fed. 318, S. C., C. C. A., 189 Fed. 583; Weeks v. U. S., 232 U. S. 383; U. S. v. Friedberg, 233 Fed. 313; Re Marx, 255 Fed. 344; U. S. v. McHee, 194 Fed. 894; U. S. v. Premises in Butte, 246 Fed. 185, Supra, 339a.

the marshal; since they are the court's officers and consequently subject to its orders. It has been held that the court should not make a summary order for their return, when they are in the possession of revenue officers, or others not officers of the court.3 In cases arising under the Act of June 15, 1917, "if it appears that the property or paper taken is not the same as that described in the warrant or that there is no probable cause for believing the existence of the grounds on which the warrant was issued, the judge or commissioner must cause it to be restored to the person from whom it was taken."4

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By the National Prohibition Law: "The property seized on any search-warrant thereunder issued shall not be taken from the officers seizing the same on any writ of replevin or other like process. By a subsequent section of this statute: "In all cases wherein the property of any citizen is proceeded against or wherein a judgment affecting it might be rendered, and the citizen is not the one who in person violated the provisions of the law, summons must be issued in due form and served personally, if said person is to be found within the jurisdiction of the court."6 It has been held that the owner of liquor unlawfully seized, may obtain the writ of mandamus to compel the Supervising Prohibition Agent to cause a summons to be issued and served upon the claimant in a proceeding to determine whether the property is subject to forfeiture."

If at the time of the hearing of the motion for a return of the things seized the magistrate is then of the opinion that there existed probable cause when the warrant issues he should sustain the seizure. The facts that subsequently the defendants were indicted and one of them pleaded guilty may then be considered. Knowledge gained by the act of seizure,10 or, it has been said, from the thing seized 11 cannot be used to support a finding of probable cause; but it has been held that if the thing seized, such as a burglar's tool, or a mash, or still, or

2 Ibid.

3 U. S. v. Hee, 219 Fed. 1019.

4 Ch. 30, Title XI, § 16, 40 St. at L. 229, Comp. St., § 104961⁄4p.

5 Act of October 28, 1919, ch. 85, Title II, § 25, 41 St. at L. 315; U. S. v. Fenton, 268 Fed. 221.

6 Ibid., § 39.

7 U. S. ex rel. Soeder v. Crossen, 264 Fed. 459.

8 Gouled v. U. S., 253 Fed. 770; U. S. v. Maresca, 266 Fed. 713.

9 Gouled v. U. S., 253 Fed. 770.
10 U. S. v. Maresca, 266 Fed. 713.
11 U. S. v. Maresca, 266 Fed. 713.

a part thereof, is clearly intended for an illicit use and is contraband it should not be returned.12

The person executing the warrant is upon such an application bound by his return thereof.13

It has been said that no gift or surrender of the property seized nor estoppel subsequent to the return can then be considered by the magistrate; who should, when such a claim is made, so frame his order, if he directs a return, as to direct a return in so far as only the property seized is held by virtue of the search-warrant.14 This will leave the claimants to their remedies at common law, after annulling any defense based upon the warrant.15

§ 487d. The manner of making objections to search warrants. An objection to the form of the search-warrant or to the papers upon which it was granted may be made by a motion to quash the warrant. A denial of the motion may be reviewed by writ of error.2

An order quashing a warrant is not a bar to a subsequent application for another search-warrant against the same property upon proper papers.3

Where the warrant is void upon its face, resistance to its execution is justified, even when a deadly weapon is used by the party resisting,5 or an action for trespass may be maintained against the officers who have executed it. When the only defect is that the warrant is too broad they are not liable if they have seized nothing except the papers or articles therein specified.7

§ 488. Preliminary examination. A person arrested under process of a Federal court has the right to a preliminary investigation of the charge against him and to proof of probable cause, before he is committed to await an indictment or for trial.1

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A defendant who has been indicted has no right to a preliminary hearing because of an information presented against him before his arrest.2

The hearing is usually held in the presence of the magistrate before whom the warrant is returnable, who is ordinarily a United States Commissioner. The statutory provision authorizing a State judge or magistrate to conduct the proceedings is constitutional. It is the duty of a United States Commissioner, who issues a warrant, to make the same returnable before him, provided that he is the commissioner nearest or most convenient to the residence of the accused. Otherwise, he should make it returnable before the commissioner having an office, and acting, nearest to the residence of the accused."

Since the United States Commissioner has the power to administer oaths, an indictment for perjury will lie because of intentional false testimony in answer to a material question before him; although it has been held not to be perjury committed in a court of the United States when a United States judge conducts the proceedings.7

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The proceedings must take place agreeably to the usual mode of process against defendants, in the State where the accused is arrested. "It was the intention of Congress by these words 'Agreeably to the usual mode of process against offenders in such State,' to assimilate all proceedings for holding accused persons to answer before a court of the United States to proceedings had for similar purposes by the laws of the State where the proceedings should take place." The United States Commissioner, upon such a hearing, acts as a committing magistrate.10 He has the same power as a State magistrate and no greater power.11 The commissioner must proceed according to

2 U. S. v. Kerr, 159 Fed. 185.

3 See supra, § 483f.

4 Ex parte Gist, 26 Ala. 156; Bag

nall v. Ableman, 4 Wis. 163.

5 General Order of Court Governing the Conduct of United States Commissioners; Roe's Criminal Procedure, 25.

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6 Safford v. U. S., C. C. A., 252 Fed. 471.

7 U. S. v. Clark, 1 Gallison, 497 Fed. Cas. No. 14,804.

8 U. S. R. S., § 1014.

9 U. S. v. Rundlett, 2 Curtis C. S. 41, Fed. Cas. No. 16,208, per Mr. Justice Curtis.

10 U. S. v. Walker, 6 Pitts. L. J. 37; U. S. v. Martin, 17 Fed. 150, 9 Sawyer 90.

11 U. S. v. Horton, 2 Dillon, 94,

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