§ 861. A search warrant is an order in writing, in the name of the people, signed by a magistrate, directed to a peace officer, commanding him to search for personal property, and bring it before the magistrate.

§ 862. It may be issued, upon either of the following grounds:

1. When the property was stolen or embezzled; in which case, it may be taken, on the warrant, from any house or other place in which it is concealed, or from the possession of the person by whom it was stolen or embezzled, or of any other person in whose possession it may be:

2. When it was used as the means of committing a felony; in which case, it may be taken, on the warrant, from any house or other place in which it is concealed, or from the possession of the person by whom it was used in the commission of the offence, or of any other person in whose possession it may be:

3. When it is in the possession of any person, with the intent to use it as the means of committing a public offence, or in the possession of another, to whom he may have delivered it for the purpose of concealing it, or preventing its being discovered; in which case, it may be taken, on the warrant, from such person, or from a house or other place occupied by him, or under his control, or from the possession of the person to whom he may have so delivered it.

The Revised Statutes limit the right to a search warrant, to cases where personal property has been stolen or embezzled. 2 R. S., 3d ed, 831, sec. 29. The Commissioners think that it should be extended to other cases; and accordingly propose, in the second and third subdivisions of the last section, that it may be issued to search for and take property, where it was used as the means of committing a felony, or where it is in the possession of any person, with the intent to use it as the means of committing a public offence, or in the possession of another to whom he may have delivered it for the purpose of concealing it or preventing its being discovered.

In the higher class of crimes, the testimony is almost invariably circumstantial; and no class of circumstances is more important, in cases of that description, in detecting and punishing guilt, than tracing to the possession of the defendant, property either used as the means of committing the offence, or intended to be used for that purpose. It is now usually obtained by the officers of justice, by the assumption of a responsibility on their part, which has no express sanction of law; and though they are rarely prosecuted for assuming this responsibility, it is rather owing to the fact, that the accused party seldom escapes punishment, than to the legality of the act. The propriety of legalizing the search for and seizure of property under these circumstances, cannot admit of doubt. Mr. Livingston, in his criminal code, in accordance with this idea, provided that search warrants may be issued, to seize forged instruments in writing, or counterfeited coin intended to be passed, or the instruments or materials prepared for making them; arms or munitions, prepared for the purpose of insurrection or riot; and weapons, implements or other articles, necessary to be produced on the trial of one accused of a crime. Liv. Crim. Code, 481, art. 43, Rules 1, 6.

§ 863. A search warrant cannot be issued, but upon probable cause, supported by affidavit, naming or describing the person, and particularly describing the property, and the place to be searched.

This section is taken from article 4, of the amendments to the constitution of the United States, which provides that

"the right of the people to be secure in their persons, houses, papers 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."

§ 864. The magistrate must, before issuing the warrant, examine, on oath, the complainant and any witnesses he may produce, and take their depositions in writing, and cause them to be subscribed by the parties making them.

§ 865. The depositions must set forth the facts tending to establish the grounds of the application, or probable cause for believing that they exist.

The last two sections are introduced, to supply what the Commissioners deem a defect in the existing statutes, which merely provide, that "upon complaint being made on oath to any officer or magistrate specified in the second title of this chapter, as authorised to issue warrants for the apprehension of offenders, that any personal property has been stolen or embezzled, and that the complainant suspects that such property is concealed in any particular house or place, if such inagistrate be satisfied that there is reasonable ground for s ch suspicion, he shall issue a warrant to search for such property." 2 R. S. 3d ed., 831, sec. 29.

In practice, the affidavit on which a search warrant is obtained, is usually very loosely drawn. It is It is proper that great care should be exercised in the proceedings leading to the issuing of a search warrant, especially in view of its extension to the cases mentioned in section 862, and the policy suggested in the note to that section, p. 392. These sections are similar to sections 148 and 149; and the reasons given in the note to those sections. p. 71, are equally applicable here.

§ 966. If the magistrate be thereupon satisfied of the existence of the grounds of the application, or that

there is probable cause to believe their existence, he must issue a search warrant, signed by him with his name of office, to a peace officer in his county, commanding him forthwith to search the person or place named, for the property specified, and to bring it before the magistrate.

Taken substantially from 2 R. S., 3d ed., 831, sec. 29.

§ 867. The warrant must be in substantially the following form:

"County of Albany, [or as the case may be.]

"In the name of the people of the state of NewYork: To any sheriff, constable, marshal or policeman in the county of Albany, [or as the case may be:]

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Proof, by affidavit, having been this day made before me, by [naming every person whose affidavit has been taken,] that [stating the particular grounds of the application, according to section 862; or if the affidavits be not positive, "that there is probable cause for believing that,"-stating the ground of the application in the same manner ;]

"You are therefore commanded, in the day time, [or "at any time of the day or night," as the case may be, according to section 871,] to make immediate search on the person of C. D., [or "in the house, situated”—describing it or any other place to be searched with reasonable particularity, as the case may be,] for the following property: [describing it with reasonable partic

ularity;] and if you find the same or any part thereof, to bring it forthwith before me, at [stating the place.] "Dated at the city of Albany, [or as the case may

Justice of the peace of the city

[or town] of [or as the case may be.]

§ 868. A search warrant may, in all cases, be served by any of the officers mentioned in its direction, but by no other person, except in aid of the officer, on his requiring it, he being present and acting in its execution.

The revised statutes provide, that a search warrant shall be executed by a public officer, and not by a private citizen. 2 R. S., 3d ed 831, sec 32. The last section embodies the same principle, but is more explicit, in declaring in what cases a private citizen may aid in the execution of the warrant, according to the well established principles of the common law.

§ 869. The officer may break open an outer or inner door or window of a house, or any part of the house, or any thing therein, to execute the warrant, if, after notice of his authority and purpose, he be refused admittance.

Declaratory of the common law rule. See sec. 173, p. 79.

§ 870. He may break open any onter or inner door or window of a house, for the purpose of liberating a person, who, having entered to aid him in the execution