Fraternal Order of Eagles, No. 778 v. United States

*95 BUFFINGTON, Circuit Judge

(dissenting).

In this, and in cases of other Eagle Clubs, the court below, on hearing, issued injunctions closing the clubhouses. Such decree was based on the court’s finding's of fact that these Eagle elubrooms were common nuisances where intoxicating liquors were sold in violation of law. There is no question as to the fact that these Eagle elubrooms were nuisances, and that the lodgos, by their club stewards, were selling intoxicating liquors in violation of law. Consequently the only question involved is whether the evidence to support the court’s findings and decrees was obtained in a way which violated the rights of the Eagle Clubs under the Constitution of the United States.

Now it is a familiar historical fact that the abuse of illegal searches and seizures by British crown officers, which led to the insertion of this clause in the Constitution of the United States, was that these officers obtained, without hearings had, blank search warrants from magistrates, in which there was no specification of person, premises, or things to bo searched or seized. These blanks the crown officer filled up with the names, tho premises, and tho articles to be seized as Ms whim- or malevolence suggested. In other words, the search warrant put the whole situation in control of the searcher, without the preliminary and protective judgment .of a magistrate acting on evidence. It was against such abuses and to protect against the evil of unreasonable searches without probable cause shown to a magistrate that the Constitution (Amendment 4) provided: “The right of the people to be secure in their persons, houses, papara, 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.” It will therefore be seen that the requirements provided by the Constitution were “probable cause” — this was to be “supported by oalli or affirmation” — the warrant was one “particularly describing the place to be searched, and the persons or things to be seized,” It follows, therefore, that, if these constitutional requirements in the present case were complied with, the Plagie Clubs had the protection the Constitution provided.

Assuming the Eagle Clubs were entitled to the constitutional safeguarding thus defined, were they denied what the Constitution provided? Clearly not. Before search warrants were issued, not one, but two, persons made affidavits to tho effect that they had been in the Eagle Clubs and had bought unlawful intoxicating liquors therein. The truth of those assertions was shown when the premises were searched, illegal liquors found therein, and the selling by the steward was being continued. It is thus clear that the requirements of tho Constitution, first, probable cause; second, support of oath; third, description of the placo and things to be seized ■ — were complied with.

But the Eagles say, true, but we were denied constitutional protection because of the way the affiants learned of our criminal acts. On the point as to where and how tho affiants of probable cause should get their information the Constitution is silent, so that the protection of tho Eagle Clubs thus sought is, so to speak, not intraconstitutional but extra-constitutional. This alleged breach of the Constitution of the United States consists in this: These clubs gave their club members cards or certificates of membership, and the affiants, who were prohibition agents, in some way got possession of two such cards, erased the names of the members, inserted other names, and by virtue of such cards were admitted to the club, bought intoxicating liquors, paid therefor, and saw their money placed in the club’s cash register by tho elub steward. This case therefore resolves itself into the question, Was this subterfuge by which the crime was detected a violation of the constitutional rights of these law-breaking dubs? Tho judge below said “No,” and closed the clubs, giving them, by the way, the privilege of using their clubs for lawful purposes, but' of which they did not avail themselves, by providing that at the end of three months the clubhouse might be opened and used in a lawful manner, on giving bond. On tho other hand, this court says “Yes;” -that tho constitutional rights of the Eagle Clubs were violated. Because I agree with the view of the judge below and differ from the holding of this court, I now record my respectful, but firm, dissent. I state my reasons therefor.

While the Fourth Amendment recited was for the protection of tho citizens, it must not be overlooked that in construing it due regard must be given to the interests of the public. The duty of thus regarding and conserving tho public interest, while giving the citizen his rights, was asserted in Carroll v. United States, 267 U. S. 132 , 45 S. Ct. 280, 284 , 69 L. *96 Ed. 543 , 39 A. L. R. 790, where the Supreme Court said: “The Fourth Amendment is to he construed in the light of what was deemed .an unreasonable search and seizure when it was adopted, and in a manner which will ■conserve public interests as well as the interests and rights of individual citizens.” It .follows, therefore, in construing the amendment by adding to it a proviso that those who •obtain jiroof of crime cannot avail themselves of subterfuge to obtain such proofs, we ■are forced to consider what effect such a construction would have on the detection and punishment of crime. I respectfully submit that, if the holding of this court prevail, the power of every anti-erime agency would be 'lessened, and the ability of crime to thwart ■detection correspondingly increased.

But we are not forced to such a regrettable holding, for the common law, which antedated the Constitution, had always held that the admissibility of evidence is not affected by the means by which it was obtained. Here :at most the subterfuge was, in club practice, unethical, but it was not illegal, for no law forbade subterfuge. But that question is set at rest by the Supreme Court in Olmstead v. United States, 277 U. S. 438 , 48 S. Ct. 564, 569 , 72 L. Ed. 944 , 66 A. L. R. 376, where it held: “The common-law rule is that the admissibility of evidence is not affected by the illegality of the means by which it was obtained.” And, referring to obtaining evidence by unethical means, that eourt further held: “Our general experience shows that much evidence has always been receivable, although not obtained by conformity to the highest ethics. The history of criminal tri.•als shows numerous eases of prosecutions of oathbound conspiracies fon murder, robbery, and other erimes, where officers of the law have disguised themselves and joined the organizations, taken the oaths, and given themselves every appearance of active members ■engaged in the promotion of crime for the purpose of securing evidence. Evidence secured by such means has always been received. A standard which would forbid the reception of evidence, if obtained by other than nice ethical conduct by government officials, would make society suffer and give criminals greater immunity than has been known heretofore. In the absence of controlling legislation by Congress, those who realize the difficulties in bringing offenders to justice may well deem it wise that the exclusion of evidence should be confined to eases where rights under the Constitution would be violated by admitting it.”

Such being the law, as stated by the Supreme Court, I justify my following it until that court holds otherwise.