Judge Brown Makes an Important
Ruling Regarding Search Warrants
Valdez Miner.
One of the most important rulings
made bv an Alaskan court during the
past year was made by Judge E. M.
Brown this week in the case of William
S, Russell, for violation of the liquor
laws, in which a directed verdict of not
guilty was ordered. The Court’s in
structions to the jury follows:
“The fourth amendment to the Con
stitution of. the United States provides:
'*Tbs-V:ght of people to be secure in
the persons, houses, papers-and effects
against unreasonable searches and seiz
ures, snail not be violated, and no war
rants shall issue, but on probabl ecause.
supported bv oath or affirmation, and
, particularly describing the place to be
, searched, anti the persons or things- to
be seized.
“This matter of search warrants is a
veoy important question. , I agree with
the District Attorney that' where a
crime is being committed in the pres
ence of an officer he can make an arrest
without a warrant, but am unable to
agree with the authority cited by him
to the effect that because-an officer
smells or hears something or even sees
something in somebody’s home, it nec
essarily follows that he can invade that
borne without a warrant, because in
such a case it cannot be held that it is
being done in his presence. Whe^e
liquor is-being transported in an auto
mobile or vehicle or in a boat a differ
ed t question arises. There is a recog
nized difference- in the Volstead Aot,
and there may be cases of that kind
where liquor could be seized without a
warrant: that is. there may be cases
where such prohibited transportation
oould be deemed to be carried on in
the presence of an officer and so seized.
However, to bold that because an of-*
finer smells something cooking, as
raisins, or yeast, or sourdough in some
one’s bouse, that he has a right to in
vade the privacy aod* sanctity of- a
home without a warraut legally issued,
would be to open the door to an intol
erable condition clearly intended to be
safeguarded by the .fourth amendment
to the Constitution..
‘“A-n officer going aloDg the street
may hear some outcry for help, there
may be a murder being committed, and
he might be justified in such case in
going into one’s house and rendering
assistance, and might be justified in
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making an arrest—one can imagine a
great many circumstances where he
might be authorized to go into a house
to make an arrest, where a matter is
brought to his attention by some sound
or outcry, hut Here is a condition
where a great abuse may grow up in
the United States; here is a condition
where suddenly a thing is done that
was never done in the world before
prohibition has been forced upon over
a hundred millions of people.
"Now if anv encroachment is mad*e
upon or any lessening of this constitu
tional right of freedom from seizure
and search, if that be broken down or
lessened, it is easy to see that no one’s
home will be inviolate, no one’s home
will be protected or the privrey of bis
home safeguarded, because any officer
may deem it his duty whenever he
smells something suspicious to go into
any one’s home, and that cannot
permitted under our constitutional
government where the liberties of the
people are at stake. It is unfortunate
that one guilty shall escape punish
raent, but I have to pass upon the law,
and I- feel , satisiied that there was a
clear violation of the constitutional
right of the defendant in goiDg into bis
place without a search warrant. I
agree with counsel for the defendant
in this, that facts of this character
coming to the notice or knowledge of
an officer, might be a basis for getting
a search warrant; he could have gone
to the commissioner for a search war
rant upou an affidavit stating that the
ground of his knowledge was that, he
smelled this strong odor coming from
the house. He says that he has had
enough experience to feel perfectly
satisfied that that is what it was; that
is, mash or fermenting liquor, and that
might have been sufficient to justify
the search and afford the basis or
ground upon which a warrant would
issue. It is the duty of the magistrate
to paso on this, whether there is suffi
cient evidence on which to act, but a
peace officer cannot be judge and exe
cutioner and go in and invade the sanc
tity of the home without eome official
authority.
"[ think that every deputy marshal
Notice of Forfeiture.
To Henry Johnson, Thomas Burns,
Victor Crisson, William Marklin,
Leroy Tozier, John Clark, Geortre
Wescb, their heirs, executors and
assigns:
You, and each of you, are hereby
notified that I, the undersigned, your
co-owner, have expended in labor and
improvements the sum of not less than
one hundred dollars ($100.00) for the
years 1018, 1919 and 1920 upon your in
terests in the Spot Association, situ
ated on Ganes creek, in the Innoko re
cording precinct, Territory of Alaska,
in order to hold said claim under the
provisions of Section 2324 of the Re
vised Statutes of the United States and
; the amendments thereto concerning
‘•annual labor upon mining claims, being
the amount required to hold said min
ing claim for the period ending Decem
ber 31, 1920.
And if within ninety days after the
publication of this notice you fail or
refuse to contribute your proportion of
said expenditures, as well as the cost of
recording the same, and the costs of
this advertisement, your interests in
said claim will become the property of
the undersigned, your co-owner, who
has made the required expenditures
under the terms of said section of the
Revised Statutes of the United States.
C. L. Baker,
Co-Owner.
Date of first publication, July 13, 1921.
Date of final publication, Oct. 19, 1921.
in this division and every commissioner
should be furnished with printed forms
for the affidavit and search warrant
and instructed how to use them. I
hold that there are some cases where
iL is hard to act or get. immediate ac
tion; but we cannot help that one may
go to the North Pole and take a barrel
of whiskey up there, there is mi officer
there to prevent it, but in and adjacent
to towns and settlements there are
usually officers, and they should be in
structed regarding the matter and act
accordingly—act within the law. There
may be some cases where parties will
escape punishment, but if one is manu
facturing or selling this white mule or
intoxicating liquor in such quantities
that it is important or serious, he is
bound to get*. caught; the officers will
use reasonable discretion and diligence
and they will get sufficient evideuce
upon which to base their affidavit for a
search warrant.
"I feel that there is nothing else I
can do but. to sustain the motion to
strike out the evidence and the oifer
of these exhibits will be denied.”
After Gold on the Islander.
Seattle.—Frank Walters, a diver of
international fame, is on his way to
Juneau to make an attempt to recover
the $200,000 in gold dust from the Ca
nadian steamer Islander, sunk olT the
east coast of Douglas island early in
the morning of August 15, 1001. The
vessel was believed to have hit an ice
berg, as she sank with sixty-live per
sons, including Captain A. 11. Foote,
her master. There was a considerable
quantity of gold on board, some of
which was in the purser’s safe and
some in the staterooms of the passen
gers who were taking it as baggage.
Washington.—By order of Postmas
ter General Hays rural mail carriers
are to be paid twice a month hereafter,
instead of once. The new plan goes
into effect immediately.
Notice.
In the Probate Court for Innoko Pre
cinet, Fourth Division, Territory
of Alaska,
Estate of Charles Ansio, a missing per
son; Charles Isaacson, guardian.
In the matter of the estate of Charles
Ansio, a missing person, take notice:
Charles Isaacson, ^uardiau. having
made application for permission to sell
-_1
the mining property of said estate of
Charles Ansio, I have set Wednesday.
September 7th, at my ollice, in Ophir,
Alaska, as a date for a hearing of such
application, when all persons are
warned to be present- and show cause
why such application should not be
granted.
Witness my hand and official seal
this 23d day of July, 1921.
H. F5. Smith,
U. S. Commissioner and ex-otlicio
probate judye, Innoko precinct.
Notice.
In the Frobate Court for Tnnoko Pre
cinct, Fourth Division, Territory
of AlasKa.
Before B. B. Smith, United States Com
missioner and ex-officio probate
judge.
In the matter of the Estate of Robert
Evans, deceased.
Notice is hereby given that the
judge of the above entitled court hav
ing appointed Evan L. .Tones and Daniel
Nicholson executors of the estate of
Hubert Evans, deceased, ail persons
having claims against the estate of said
Robert Evans, deceased,, are required
to present them, with proper vouchers,
within six months from the date of this
notice, to said Evan L. Jones and
Daniel Nicholson, executors of said
estate, at the office of B. B. Smith, at
Ophir, Innoko precinct, Alaska.
Evan L. Jones,
Daniel Nicholson,
Administrators of the Estate of
Robert Evans, deceased.
Dated at Ophir, Alaska. July 30, 1921.
Notice.
In the Probate Court for the Innoko
precinct., Fourth judicial division,
Territory of Alaska.
Estate of William Christie.
Evan L. Jones, administrator, having
applied for permission to sell the real
property of said estate, all persons in
terested in said estate are notified to
appear in my office at Ophir, Alaska,
Saturday, September 10, 1921, at 4 p.
m.. to show cause why such permission
should not be given.
Witness mv hand and official seal
this 30th day of July, 1921.
B. B. Smith,
U. S. Commissioner, Acting as pro
bate judge, Innoko precinct.
PROFESSIONAL
W. F. Green—
M. D., D. D. S.
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