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for believing the existence of the grounds on which the warrant was issued, then the judge or commissioner shall order the same retained in the custody of the person seizing it or to be otherwise disposed of according to law." 57

"The judge or commissioner must annex the affidavits, searchwarrant, return, inventory, and evidence, and if he has not power to inquire into the offense in respect to which the warrant was issued he must at once file the same, together with a copy of the record of his proceedings, with the clerk of the court having power to so inquire." 58

"Whoever shall knowingly and willfully obstruct, resist, or oppose any such officer or person in serving or attempting to serve or execute any such search-warrant, or shall assault, beat, or wound any such officer or person, knowing him to be an officer or person so authorized, shall be fined not more than $1,000 or imprisoned not more than two years.

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"Sections one hundred and twenty-five and one hundred and twenty-six of the Criminal Code of the United States shall apply to and embrace all persons making oath or affirmation or procuring the same under the provisions of this title, and such persons shall be subject to all the pains and penalties of said sections.' 60

"A person who maliciously and without probable cause procures a search-warrant to be issued and executed shall be fined not more than $1,000 or imprisoned not more than one year.

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"An officer who in executing a search-warrant willfully exceeds his authority, or exercises it with unnecessary severity, shall be fined not more than $1,000 or imprisoned not more than one year.

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"Nothing contained in this title shall be held to repeal or impair any existing provisions of law regulating search and the issue of search-warrants." 63

§ 487a. Search warrants under the national prohibition law. By the National Prohibition Law: "It shall be unlawful to have or possess any liquor or property intended for use in vio

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lating this title or which has been so used; and no property rights shall exist in any such 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. If it is found that such liquor or property was so unlawfully held or possessed, or had been so unlawfully used, the liquor, and all property designed for the unlawful manufacture of liquor, shall be destroyed, unless the court shall otherwise order. No searchwarrant 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. The term 'private dwelling' shall be construed to include the room or rooms used and occupied not transiently but solely as a residence in an apartment house, hotel, or boarding house. The property seized on any such warrant shall not be taken from the officer seizing the same on any writ of replevin or other like process. "1

By à previous section of the same statute, "Section 10142 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 searchwarrants under the limitations provided in title XI of the Act approved June 15, 1917."3 The statute describing the practice. to which reference is made is quoted at length in the preceding section. Although such former statute, as originally enacted, may have only applied to felonies; it must be followed in proceedings founded upon misdemeanors under the Prohibition Law.5

The search warrant may be issued by a judge of a United States District Court, or by a judge of a State, or Territorial

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Court of Record, or by a United States Commissioner for the district wherein the property sought is located.

"When the commissioner, his assistants, inspectors, or any officer of the law shall discover any person in the act 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. Such officer shall at once proceed against the person arrested under the provisions of this title in any court having competent jurisdiction; but the said vehicle or conveyance shall be returned to the owner upon execution by him of a good and valid bond, with sufficient sureties, in a sum double the value of the property, which said bond shall be approved by said officer and shall be conditioned to return said property to the custody of said officer on the day of trial to abide the judgment of the court. The court upon conviction of the person so arrested shall order the liquor destroyed, and unless good cause to the contrary is shown by the owner, shall order a sale by public auction of the property seized, and the officer making the sale, after deducting the expenses of keeping the property, the fee for the seizure, and the cost of the sale, shall pay all liens, according to their priorities, which are established, by intervention or otherwise at said hearing or in other proceeding brought for said purpose, as being bona fide and as having been created without the lienor having any notice that the carrying vehicle was being used or was to be used for illegal transportation of liquor, and shall pay the balance of the proceeds into the Treasury of the United States as miscellaneous receipts."

"All liens against property sold under the provisions of this section shall be transferred from the property to the proceeds.

6 Act of June 15, 1917, ch. 30, Title XI, § 1, 40 St. at L. 228, Comp. St., § 104964a, supra, § 487.

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of the sale of the property. If, however, no one shall be found claiming the team, vehicle, water or air craft, or automobile, the taking of the same, with a description thereof, shall be advertised in some newspaper published in the city or county taken or if there be no newspaper published in such city or county, in a newspaper having circulation in the county, a week for two weeks and by handbills posted in three public places near the place of seizure, and if no claimant shall appear within ten days after the last publication of the advertisement, the property shall be sold and the proceeds, after deducting the expenses and costs, shall be paid into the Treasof the United States as miscellaneous receipts."7

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In all cases in which intoxicating liquors may be subject to be destroyed under the provisions of this Act the court shall have jurisdiction upon the application of the United States Attorney to order them delivered to any department or agency of the United States Government for medicinal, mechanical or scientific uses, or to order the same sold at private sale for such purposes to any person having a permit to purchase liquor, the proceeds to be covered into the Treasury of the United States to the credit of miscellaneous receipts, and all liquor heretofore seized in any suit or proceeding brought for violation of law may likewise be so disposed of, if not claimed within sixty days. from the date this section takes effect." 8

"§ 39. 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 which 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."9

Α search warrant under the National Prohibition Law must be supported by an affidavit stating facts to the knowledge of the deponent which show probable cause for the belief that intoxicating liquor 10 or property intended for use in violation of the statute is upon the premises where the search is to be

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made.11

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An affidavit upon "knowledge, information and belief, or that the affidant "has reason to believe and does believe" that the premises are used in violation of the statute 13 is insufficient. It is sufficient to allege upon the knowledge of the affiant that the premises are occupied in whole or in part as a saloon, and that at a given time the affiant bought intoxicating liquor there which is described in the affidavit.14 The affidavit and the warrant must contain a description of the premises and their location.15 If they are upon a street or road which bears a name, such name must be fully given.16 If there are two streets or roads by the same name the papers must show which of them is intended.17 The street number, if any, should be given.18 It is the better practice also to state the purpose for which the premises are used.19 No search can be made at night, unless the warrant contains a direction that it be served at any hour of the day or night.20 The warrant cannot be executed when ten days after its date have expired.21 When liquor has been improperly seized by a prohibition officer without a search-warrant, or under a search-warrant not supported by a proper affidavit, it has been held that the writ of mandamus will issue to compel him to sue out a summons to the claimant in order that the validity of the seizure and the right to the property may be tested; 22 but according to a New Jersey ruling it seems that unless such summons is issued the court cannot direct the return.23

§ 487b. Effect of unlawful seizures. Papers which have been unlawfully seized by officers of the United States cannot be put in evidence against the person to whom they belong, nor can

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