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CHAPTER VI.

SEARCH WARRANTS AND THE SEARCHING OF PRISONERS FOR PROPERTY.

GENERAL REMARKS.

Section I-OF SEARCH WARRANTS FOR CHILDREN DETAINED BY SHAKERS.

II.-OF SEARCH WARRANTS TO COMPEL THE DELIVERY OF BOOKS AND PAPERS BY PUBLIC

OFFICERS TO THEIR SUCCESSORS.

III.-OF SEARCH WARRANTS ISSUED FOR STOLEN OR EMBEZZLED PROPERTY.

IV. OF THE WARRANT.

V.-WARRANT, TO WHOM DIRECTED, &C.

VI.-SEARCH IN THE NIGHT TIME.

VII.-BY WHOM TO BE EXECUTED.

VIII.-WARRANT, HOW EXECUTED

IX. SEARCH WARRANT FOR MINERAL WATER BOTTLES.
X.-SEARCHING PRISONERS, &C., FOR PROPERTY.

XI. OF THE DISPOSITION MADE OF STOLEN PROPERTY.
XII.-SEARCH WARRANTS FOR PROPERTY PAWNED.
XIII.-SEARCH WARRANTS FOR CANAL PROPERTY.

THE Constitution of the United States declares that the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.1

The same article is also incorporated into the bill of rights of this State.2

In former times, search warrants were contrary to law, and it was remarked by Lord CAMDEN, that they had crept into the law by imperceptible practice, but Lord HALE clearly establishes their legality, on the ground that without them felons would frequently escape detection.3

The provisions of our statutes regulating search warrants, and the cases in which they may issue, will be found specified below. The cases in which they are most frequently issued, are those for the recovery of personal property that has been stolen or embezzled.

'Const. U. S., art. 4, amendments. § 11.

Arch. Cr. Pr., 1, § 35, note a; 4 Inst., 176; 11 St. Tr. 321; Hawk. B., 2 ch. 13, § 17, n. 6; 2 Hale, 113; 1 D. & R., 97; Burn, J. et Williams, J., Search Warrant; Dick, J., Warrant, I.

SECTION I.

OF SEARCH WARRANTS FOR CHILDREN DETAINED BY SHAKERS.

The provisions of the Revised Statutes in relation to habeas corpus for children detained by Shakers, enact that if upon the return of any habeas corpus so issued, it shall appear that any child therein mentioned cannot be found, and satisfactory proof be made to the officer issuing the writ that such child is secreted or concealed by or among any society of Shakers in this State, he may issue his warrant, directed to the sheriff of the county where the said child is suspected to be, commanding such sheriff in the day time to search the dwelling houses and other buildings of such society, or of any members thereof, or any other building or dwelling house specified in the warrant, for such child, and to bring him before such officer, and the sheriff shall forthwith execute such warrant.1

When such child is brought before such officer, he may award the charge and custody thereof to that parent who shall not have joined the society of Shakers, for such time, under such regulations, and with such provisions and directions as he shall deem proper; and every such order may at any time on sufficient cause shown, be annulled, varied or modified by the officer who made the same, or in case of his being absent, or not exercising the duties of such office, then by any other officer who might originally have made such order.2

SECTION II.

OF SEARCH WARRANTS TO COMPEL THE DELIVERY OF BOOKS AND PAPERS BY PUBLIC OFFICERS TO THEIR SUCCESSORS.

In proceedings had to compel persons who have been removed from office, or where the term for which they shall have been elected or appointed shall expire, to deliver up to their successor all books and papers in their custody as such officer, or appertaining to their office; and the person complained against shall not make the oath required by the statute, and it shall

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appear that any such books or papers are withheld, the officer before whom such proceeding shall be had, shall also issue his warrant, directed to any sheriff or constable, commanding them in the day time to search such places as shall be designated in such warrant, for such books and papers as belonged to the officer so removed, or whose term of office expired in his official capacity, and which, appertained to such office, and seize and bring them before the officer issuing such warrant.1 Upon any books and papers being brought before such officer by virtue of such warrant, he shall inquire and examine whether the same appertained to the office from which the person so refusing to deliver was removed, or of which the term expired, and he shall cause the same to be delivered to the complainant.2

SECTION III.

OF SEARCH WARRANTS ISSUED FOR STOLEN OR EMBEZZLED PROPERTY.

Upon complaint being made on oath, to any of the following officers or magistrates, viz: A Justice of the Supreme Court, a Judge of the Superior Court of Law, of the city and county of New York, a Judge of the County Courts, a Mayor, Recorder or Alderman of a city, a Justice of the Justices' Court, or a Police Justice in the city of New York, or Justice of the Peace or Police Justice, appointed for any city or elected in any town, that any personal property has been stolen or embezzled, and that the complainant suspects that such property is concealed in any particular house or place, if such magistrate be satisfied that there is reasonable ground for such suspicion, he shall issue a warrant to seach for such property.3

It is made necessary by statute that this complaint should be filed and preserved by the magistrate, and he is to exhibit the same upon the demand of any person affected by the warrant for his perusal, and allow such person by himself or another, to take a copy thereof.4

1 R. S., 125, § 66.

• Id., § 67.

R. S., 746, § 32; Id. 706, § 1.

4 Laws 1866, ch. 95.

SECTION IV.

OF THE WARRANT.

The place to be described, must be particularly described in the search warrant. Where a part of the complaint was recited in the warrant, in which it was stated that the complainant suspected the stolen property was concealed in the stable of C. P., on the east side of the canal, in the village of Whitehall, in said county, known as the "red barn," and then the warrant gave direction to search the places where the said property was suspected to be concealed, it was held insufficient, for the reason that though the place mentioned in the complaint was sufficiently designated the direction given in the warrant was too general, and authorized the search of any suspected place, instead of confining the search to the place so suspected by the complainant.1

The warrant should be under seal, and if issued without one, it affords no protection to the officer attempting to enforce it.o

The search warrant should not be granted without oath made before the justice or other officer, that the party complaining has probable cause to suspect his property has been stolen, or is concealed in such a place, and showing his reasons for such suspicion.3

A search warrant under the hand and seal of a justice reciting information on oath that certain goods, describing them, had been stolen by A and B, and were concealed in the house of C, describing it, and commanding the officer to whom it was directed to enter the said house in the day time, and search for the articles stolen, and to bring them with C, or the person in whose custody the goods should be found, before the justice, was held a legal and valid warrant. It does not seem to be essential that the owner of the goods be stated in the warrant.4

1 People v. Holcomb, 3 Park. 656.

• Id.

* 2 Hale, 113–150; 2 Wils., 283–291; 11 St. Tr. 321; 5 Iredell, 45. Bell v. Clapp, 10 John., 263.

SECTION V.

WARRANT, TO WHOM DIRECTED, ETC.

Such warrant shall be directed to the sheriff of the county, or any constable or marshal of the town or city, and shall command him to search the place where such property is suspected to be concealed in the day time (which place shall be described in such warrant), and to bring such property before the magistrate issuing the warrant.1

A search warrant cannot be sustained as valid when directed to "any constable" of the county in which the search is directed to be made, the statute requiring all such warrants to be directed "to the sheriff of the county, or to any constable or marshal of the town or city" in which the stolen property is alleged to be secreted. The statute contemplates that a search warrant should only be executed by the sheriff of the county, or a constable or marshal of the town or city in which the stolen property is alleged to be secreted. To direct it to any other officer is a violation of the statute, and the direction of a warrant is a material part of it.2

SECTION VI.

SEARCH IN THE NIGHT TIME.

If there be positive proof that any property stolen or embezzled is concealed in any particular house or place, the warrant may authorize the searching of such house or place in the night time.3

SECTION VII.

BY WHOM TO BE EXECUTED.

Every such warrant shall be executed by a public officer, and not by a private citizen.1

This was also the rule at common law, though it is fit that the

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