The Wheeling intelligencer. [volume] (Wheeling, W. Va.) 1903-1961, 1921-05-11
MEANS THAT SIXTY Or MORE
IIUoR CASES WILL BE
THROwN OUT.
Final Opposition Thursday - Liquor
seed Cannot Be Returned.

Final Imposition THURSDAY - 4hQu0h
seed Cannot BE Returned.
Warrants used by the federal prohi-
bition officers in searching houses an"
SEEKING Of liquor and stills in the North
crn district OF West Virginia. were heId
faulty BY Judge W +. Baker. who yes
terda' afternoon at O'Clock read MS
opinirn in the cases Of some SIXTY OF
+ more alleged national prohibition act
violaorS. in which cases motions 10
quaR tho warrants were made.
Judge Baker sustained the motion
bu. rejected the petitions that the
seized property h" returned 10 It's Tor
Smer owners. He took this position after
H. Mad been pointed out by Assistant
piSric, Attorney Harry Byrer that the
1iouor or stills seized. legally or ille-
gally, arc Contraband and thus have no
property rights. Jduge Bakers de-
cision. while generally expected. came
as a great victory Cor the defendants
and means u complete change in the
forms OF search and seizure warrants
which will BE- used by prohibition Off
GERS in tho future.
Since such a decision has been made.
a great number Of the cases. in most
OF which these invalid warrants were
used. will be thrown out Of court.
!
OF this week at which time these cases
Will be disposed or.
Following will be found the full text
Of the decision read by Judge Baker:
Tho full text OF Judge Bakers de-
cision follows:
In the matter OF the motion 10 quash
search warrants, made on a former day
OF this term, and the return OF prop
erty seized under such warrants, on the
ground that the same was Illegally and
unlawfuny seized. l have had no little
trouble in reaching an equitable con-
cluSon.
The qquestionS involved in this mo-
ton are of great Importance, as num-
Der of cases involving violations OF the
National Prohibition Act are concerned.
In the enforcement OF this law, and
in the Interpretation or the Eolstead
Act. the rights qua ranteed under the
Constitution OF the. United Stales must
not bA overlooked but must be observed
at all costs. Likewise, the intention
of Congress in passing this Act must
constantly be kept in mind. a casual
reading OF Section 25, OF Title H. or the
National Prohibition Act. so far AS II
relates to search warrants. IS quite
clear and there can be no doubt as 10
it's meaning wherein it says:
NO search warrant shall issue
to search any private dwelling oc-
cQpied as such unless It Is being
used for the unlawful ga1s Of In
toz1eSttng liquor, or unless It Is in
part used for some business purpose
such as a store. shop. saloon. res
taurant. 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 residence
in an APARTMENT house hotel, or
boarding house. The property seized
on any such warrant shall not be
taken from the officer Selling same
on any writ OF replevin or other llke
process"
The search warrants involved in these
cases are based upon affidavit that
affiant has reason TO believe and does
verify believe that II fraud upon the
revenue laws of the United States has
been and is being coEsmitted upon and
by the use Of certain building, Tor
instance designated as situated at 25OI
Wood street. Wheeling. West Virginia.
This may comply with the requirements
~ Revised Statute 1862, but IT Is not
sufficient under Constitutional Amend
ment 4, wherein IL i provided that no
search warrant shall issue but upon
affirmation, particularly describing the
place to be searched and the persons
or things to DO seized under such war
rant, the facts from which the magis-
trate may determine the existence or
probable cause must be stated.
Our Federal search and seizure laws
"a laid down in Barnes Federal Code,
chapter is. provide as follows:
Search warrants authorized by
this title may issue by Judges OF
the United States District Court. or
by q Judge OF State or Territorial
Court OF record. or by United
States Commissioner for the dis
trict wherein the property sought
is located
Section l0052 provides.
"A search warrant cannot be Is
sued By upon probable cause. sup
ported by affidavit. naming or de-
scribing the persons. and particu-
larry describing the property or
place TO be searched.
Section 10053 provides
The affidavit or deposition must
set forth the facts tending TO rstab-
lish the grounds Of the application
or probable cause for believing
they exist"
Section 10056 provides
must insert direction IN the war
rant that II DC served in the day
time. unless the affidaYits are posi-
tive that the property is on the per
son. or in the place to be searched,
in which case he may insert direc-
ton that it be served at any time
OF tho day or night"
Section 10000 provides.
Tho Judge or Commissioner must
thereupon. II required. deliver
copy Of the inventory to the person
from whose possession the prop
erty was taken, and to the appli-
cant for the warrant.
Section 10e62 provides,
"Ic il 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
issued. the judge or commi ssioner
must cause IL to be restored TO the
person from whom ii was taken;
TAat ha