The Wheeling intelligencer. [volume] (Wheeling, W. Va.) 1903-1961, 1921-05-11
VOLS'EAD WARRANTS FAULTY
IS JUDGE BAKERS DECISION

described in the warrant and that
there is probable cause Tor DeI'eN-
ing tho existence OF the grounds on
which the warrant was issued tncn
The Judge or commi SSioner shall or
der the same retained in the GUS
toby OF the person Selling :; or |"
be otherwise disposed OF according
TO law"
The invaljdity Of the search warrant
presented In these cases. tested by the
Constitution and the statutes herein
referred TO. is apparent upon the race
thereof They do not comply with the
provisions Of the Fourth Amendment
to the Constitution OF the United states.
nor with the provisions or sections
and % Of Title II OF the National Fro-
hibition Act. nor with the provisions OF
Title NJ OF the Act Of June 10 l'i.'
Chapter so. nor with the general search
and seizure statutes, in that they DO
not set forth any probable cause, 90
not particularly describe the premises
or property 10 be seized, do not set torth
any Of the facts 20 establish the
grounds OF the application or propaoie
cause for believing they exist nor 90
said papers contain any direction as
imperatively required by the statute as
10 the time OF udS the Wal i"HN "'
to be executed Neither do they con-
"a n any allegation that the Intoxicating
Esuor was being sold in defendants
residence. as required before search
warran, can be issued to search pri-
vate dwelling.
The wording of the Fourth Amend
ment to the Constitution implies that
search warrants were in familiar use
when the Constitution was adopted
and plainly that when issned upon
probable cause, supported by oath or
afflr nation. and properly describing the
place to be searched and the persons
or things to be seized" searches and
seizures made under them are to be re-
Garded as not unrea Sonable. and there
fore not prohibited by the Amendment.
Searches and seizures are as consul u
tlonal under the Amendment when made
with valid search warrant. as they are
unconstitutional and unreasonable when
made without them. The permission or
the Amendment has the same constitu-
tional warrants as the prohibition has.
and the definition OF the former re-
strains the scope Of the latter
Although search warrants have thus
been used FOR many cases ever since the
adoption of the Constitution. and al
though their use has been extended
from time to time to meet needs within
the old rule. nevertheless it is clear
that at common law, and as a result OF
numerous decisions Of the highest
Courts In this land they may not be
used as a means Of obtaining access to
a mans house or office solely for the
purpose Of securing evidence to be used
against him in criminal or penal pro-
ceeding. and that they may be resorted
to only when primary right 10 such
warrant and seizure may be found in
the interest which the public or the
complainant may have In the property
to be seized or In the right TO the pos
session OF it. or when valid exercise
Of the police power renders the pos
session Of the property unlawful and
provides that II may be taken. under
a properly issued search warrant for
the purpose Of preventing fraud.
Can the evidence secured by the exc
cution Of SUCH illegal search warrant
be used in the trial OF tho defendant?
II such evidence. so taken Is admit
ted in evidence against the person from
whose house or property it was taken.
such person then being on trial for the
crime for which ne is accused in the
affidavit for the warrant, is such ad-
mission OF evidence n violation OF the
Fifth Amendment TO the Constitution
OF the United States?
The answer must be in the afffrma-
tive. such evidence having been seized