The opinion
ANDERSON, Circuit Judge
(dissenting). With the foregoing opinion I cannot concur. Passing minor matters, a single point warrants brief mention.
The opinion goes on the theory that the positive statement required by section 10 is found in this search warrant. So to hold seems to me plainly error; and, what is of considerable importance, to make a precedent justifying the night clause in practically) every search warrant. This warrant recites that:
“Whereas, complaint in writing, supported by affidavit, has this day been made before-, Commissioner, by- — •, Prohibition Agent, alleging that the laws of the United States, namely, the National Prohibition Act, have been and are being violated by the unlawful possession of certain intoxicating liquor * * * by reason of the facts stated in the said affidavit, to wit: said-, Prohibition Agent, made a personal visit to the saloon * * * July 18, 1923, when he purchased a drinlc of whisky containing more than one-half of 1 per cent, alcohol for beverage purposes.”
To me it is manifest from the warrant that the complaint alleges violation of law solely “by reason of the facts stated in said affidavit,” to the effect that, two days before, whisky was bought on these premises. The words “by reason of the facts,” etc., exclude any other basis for the warrant. Neither the complaint as recited nor the affidavit purports to contain a positive statement of the presence of intoxicating liquors on the premises on July 20, when the complaint was made. It is the ordinary application for the usual day search warrant.
*29 It follows that the case presents the flat question as to whether evidence obtained on a search warrant containing the night clause, but served during the daytime, is admissible.
I concur in the statement on page 27 that, on that point, the authorities appear to be in conflict. I think the weight of argument is in favor of the invalidity of such warrant. Compare Hussey v. Davis, 58 N. H. 317; Giles v. United States (C. C. A.) 284 Fed. 208 and cases cited.