United States v. Carlson

(after stating the facts as above). The motion to suppress must be sustained. As has been announced from the bench many times, courts must determine an issue upon the facts that are presented, and while this court has heretofore sustained searches made upon defective affidavits, yet facts were presented before the court in all cases, so far as recalled, that have been disposed of, showing that there was reasonable grounds to believe that a crime was being committed, or that the search was not unreasonable. In this issue as now before the court, predicated solely upon the affidavit which is insufficient, the motion to suppress is sustained, and unless it is established upon the trial that the- search was not unreasonable, but was obtained solely upon the search warrant, without *464any basis of fact to bring it within the provisions of the Fourth Amendment, the testimony will be excluded upon the trial. The dissenting opinion of Judge Hough in Ganci v. U. S. (C. C. A.) 287 Fed. 60, at page 67, expresses my views. The opinion of Judge Mayer, in the same case, however, expresses the opinion of the court. Elucidating likewise is the decision of Judge Ervin in U. S. v. McBride (D. C.) 287 Fed. 214.

I should like to call the attention of the prohibition enforcing officers and court commissioners as to the discussion of the sufficiency of an affidavit and search warrant, in addition to the above cases, to Lambert v. U. S. (C. C. A.) 282 Fed. 413; Giles v. U. S. (C. C. A.) 284 Fed. 208; U. S. v. Kaplan (D. C.) 286 Fed. 963.