steps were taken which should have been taken beforehand. But the point is that the indictment is based upon the arrest made without a warrant, and no probable cause is shown to make the arrest legal. In fact, the attempt is made to validate the arrest by the later warrant. It is to be emphasized that the search warrant was a 'John Doe' warrant as the name of the supposed owner of the premises was unknown to the officers. Had the government in this case, sought to hold the defendant under arrest without a warrant because of probable cause appearing, then another question would be presented, but that is not what is presented in this prosecution. Giordenello v. United States, 357 U.S. 480, 78 S. Ct. 1245, 2 L. Ed. 2d 1503, 1958.
AMENDMENT TO ORDER ON PETITION TO SUPPRESS EVIDENCE AND FOR DISCHARGE AS FILED JANUARY 26, 1962
In the above Order it is stated that the defendant is held on an indictment, whereas the record shows that he was held on an information, and THEREFORE, the said Order is amended to strike out the word 'indictment' and substitute therefor the word 'information'.
As an additional memorandum showing other reasons for discharge of the defendant, attention is directed to the record of the proceedings by the United States Commissioner. That record shows that the defendant was held on a warrant issued June 29, 1961. It is to be noted that the complaint executed by the Officer on which the warrant of arrest was issued is not drawn in accordance with the requirements of Rule 3 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. There are no essential facts constituting the crime charged averred in the complaint. It is simply stated that 'the complainant states that as a result of the service of a search warrant, that he has seized evidence of wagering activity.'
See Busby v. United States, 296 F.2d 328 (9 Cir.1961) at p. 332 where the Court of Appeals from the Ninth Circuit says:
'It is fundamental that an arrest without probable cause can not be validated by evidence obtained in a subsequent search and likewise that the search can not be validated by the invalid arrest.'
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