*1 al. FRIED et In re Docket
No. Appeals, Circuit. Second Court
Circuit 25, 1947. Feb. 23, 1947. June Granted Certiorari Writ of S.Ct. 1755. respondents
“The justify the search and opinion part: the judge said in grounds. seizure They on several will be treated seriatim. The search was in- cidental pursuant to a lawful arrest effected ato warrant of The warrant arrest. arrest was upon issued commissioner complaint which reads as follows: York, “‘Southern District of New ss.: FRANK, AUGUSTUS N. HAND and Kehoe, duly Jr., being sworn, F. de- John Circuit Judges, part. dissenting in poses says Special that he is Agent the Federal attached to Bureau of Investi- Department Justice, gation, in- alleges charges and belief formation wit, heretofore, follows: on or day June, about the 7th at the *2 argument that in the Nor is there force and within York of New Southern District Fried, arrest private person have made the Philip a could Court, jurisdiction of of Code warrant, York Fried, without New Fred Din- a Benjamin George Neary, and Terris, Birn- Criminal Procedure Sections and glefelder, Edward John unlawfully, event private a could herein, person because baum, the defendants arrest. make search incidental an their knowingly did a wilfully and know- possession chattels goods and certain justi- were “(3) The search and seizure stolen, goods said have been ing Neary. petitioner fied by the consent bales of consisting and chattels by govern- Normally a consent to search 110 lbs. rubber, weighing bale crude each not to be agents ment arrest after an description being to exact apiece, a more lightly inferred. “ there- unknown, had your deponent which important nature ‘Bearing mind the at truck from a certain been stolen tofore immunity right and of the constitutional Streets, West and corner of Noble Amendment, given ‘by it seems the Fourth wit, of the St. Y., Brooklyn, a truck N. facts should to me that trier of the a Co., Mont- 109-115 George Trucking voluntary finding slow in intentional and an Island, York Street, New gomery Staten right by relinquishment individ of this part of were goods chattels City. and Said testimony is un ual when of the the effect shipment of foreign and constituted Ruffner, D. United States C. certain.’ v. Finance from The Reconstruction freight Md., 1931, Nonresistance F.2d consigned Islands, Philippine Corporation, Hof equal to United v. consent. of New Trading Association Rubber D.C.E.D.N.Y.,1938,24 F.Supp. fenberg, York. petitioner Nierenberg “Upon hearing “ deponent’s information ‘The sources e., support ap- Neary] testified [i. belief are an investi- grounds of his Berke, a plication. He called Miss also gation in the course of him conducted witness, Sey- bookkeeper, and as a rebuttal his official duties. Cohen, employee Special Form- mour “ ‘Wherefore, prays that war- deponent Company. government ula Chemical may apprehension of rant issue for the agents participated called of the 15 who six may above named defendants arrest The arrest and and search. bailed, arrested, imprisoned as the September search 1946 at occurred on case be.’ plant Special offices Formula support a complaint will not “Such Company, which is the trade [Chemical] Mc United States warrant of v. Philip arrest. name under conducted which Fried 295; Cunn, D.C.S.D.N.Y.,1930, 40 F.2d agents ar- rubber cement business. Gokey, King rel. C. v. D. m., United States ex immediately p. 4.30 rived at about N.D.N.Y.,1929, F.2d Go-Bart Co. Nierenberg under placed arrest States, 282 U.S. United v. knowingly goods stolen charge possessing United States v. S.Ct. 75 L.Ed. foreign Other arrests commerce. F.Supp. 554; Pollack, D.C.N.J., made, employees also were interviewed Ruroede, D.C.S.D.N.Y. United States op- was entire the search conducted. The F. approximately eration three hours. lasted The search was incidental law “(2) parts: “The made in search was two An probable that a made on cause ful arrest inspection plant, yielded which two Since arrest was felony was committed. rubber believed the time to bales Special Agents of the Federal made part merchandise, stolen since Investigation, would be valid Bureau of goods; innocent returned as then an exam- arresting officer had reasonable only if Special business records of ination that there was likelihood believe grounds Company Formula and the Chemical seizure 300a; escaping. 5 person U.S.C.A. § government of some con- them. Haberkorn, Cir., 1945, 149 States v. proceeded the first search on an tends that F.2d 720. latter and the on both oral consent an oral written consent. The of such belief or of written consent “No evidence upon prepared presented hearing. form reads likelihood “(2) in- having been He Neary, matters, falsely T, George testified on some follows: and, in right not to instance, least one my con- constitutional am formed *3 herein- premises vinced wilfully' did so made of the mat- have a search —in ter of warrant his foreknowledge inspec- search of official mentioned without a after plant tion of to June, pre- to consent in my right to refuse 1946. His and Fleming vious search, hereby forgery authorize conviction not aid does Cox, his Wesley Special credibility. Eldred Liggitt L. and Investi- Bureau of Agents of the Federal “(3) June, Special Formula Department of gation, United States Jus- Chemical Company by had been searched tice, complete search of the conduct to agents, FBI Fried, with the consent of and St., 219th New building located at 400 West nothing of an incriminating nature had agents au- These City, Y. York N. been discovered. my residence take from by thorized me to “(4) Nierenberg entirely felt in secure prop- letters, materials or any papers, consenting search, to a as there was in fact they may erty which desire. no stolen rubber on the premises, and the given being permission written “‘This books acquisition revealed no such rub- Agents Special above named to the me ber as undoubtedly had He stolen. promises threats voluntarily without and believed exhibition of an attitude any kind. cooperation and willingness prove to George Neary. “‘(Signed) that ‘We have nothing to hide’ would lead “ ‘Witnesses: satisfactory result “ June F.B.I., Liggitt, N.Y.C. ‘Fleming L. investigation. significant It is pe- that the “ C, Cox, F.B.I., N. Y. ‘Eldred W. 9/17/46.’ titioners did not call Fried to contradict Nierenberg wit- signed and was “It testimony Agent Cox, during is un- agents of the It by two FBI. nessed inspection had Fried said ‘that the June plant testimony. It necessary to rehearse open was inspection time; at presents conflict controversies the usual that they had nothing they there de- * * * The substance of Nieren- of this character. to sired conceal time merely testimony is that he submitted berg’s we desired look through plant his we authority, that he feared the conse- should feel free to come and he would be refusal, ap- and that was not quences of happy to see that we through went prised right his to refuse. I de- Were plant’ application the affidavits in- ciding this “(5) My conclusion is that neither fear matter, itially I would be submitted nor submissiveness induced the undenied resolve this issue of fact inclined consent, experience but that and a motive petitioner. hearing The oral favor of give appearance innocence, persuaded against me to resolve him. security be, in which he himself believed My reasons are follows: Nierenberg give combined induce ac- “(1) Nierenberg general manager is the voluntary tual and consent to the search. Special Company. Formula Chemical Ilis “(6) amI convinced that Nierenberg enterprise from that earnings were authority give had consent. Fie was not $20,000. also a He is co-owner another only general manager, but testified that he enterprise. business mention these facts per was profits. entitled cent of the poor, illiterate, he is not a to indicate that Except for such matters as signing, check person, of sub- uninformed citizen authority was coextensive with Fried’s. gave every impres- means. He stance and Seymour Cohen, employee, called self-confidence, alertness, compe- sion of petitioners, referred to Fried and Nieren- opposite tency. quite He is of the car- berg as ‘the two bosses.’ representation toonist’s Timid Soul. affairs, He is a man accustomed to “The incident deal course of search authority during with persons Nierenberg at all authorized an em- badge ployee away overawed plant office. He con- to take from a col- militantly himself skilfully ducted lection of further dur- tools indicates that Nier- ing authority his cross-examination. had enberg to authorize the sei-
á56 agents Courthouse. was taken Nie'renberg the Federal there of such zure material as p. about 7:30 m. discovered. appellants kept All four separate seized return the were application “The questioned evi- from each other papers suppress books them with- out cessation from time arrived dence denied.” many office for F.B.I. thereafter hours concerning the heard No evidence agents relays, working F.B.I. oc- judge confessions, which the district as to casionally by an Assistant ground petition dismissed Attorney. *4 power, indict- before court lacked the all Philip Fried kidneys one of had had his confessions, ment, suppress matter the no to spleen his years before, removed some following The facts illegally how obtained. had been by physician advised his avoid to relating were stated to the confessions excitement, and was confined special to a appellants’ and were not contro- affidavits He had no during diet. food night the by govern- filed verted the affidavits except glass questioned He milk. was ment: hours, m., Septem- eleven until 5 :00 a. complaint A was before a United filed ber but his was statement not reduced agent States of the Commissioner writing. to At this time he was taken to ap- August charging F.B.I. on the Federal House of Detention where the plicants possession illegal quantity with of a prison guards apparent were his led foreign of rubber stolen from commerce.A hysterical inquire condition to whether he warrant to issued at that time arrest was hospital. should be removed to a upon complaint.. Nierenberg give to commenced satisfac- Fried, appellant, Philip operated a The tory questions at answers some time aft- factory rubber under trade cement er midnight, after about four hours continu- Special at name Formula Chemical Co. interrogation. signed ous He a written Street, At City. New York 219th West statement m., September about at 4:00 a. September p. on about 4:30 m. 18th, was taken then to the United agents, carrying the fifteen armed F.B.I. Headquarters. States Detention He had warrant, this fac- above-mentioned raided during food this Later in time. the morn- appellants, George tory and arrested ing September 18th, Nierenberg was re- Fried, Benjamin well as Nierenberg and turned office of the F.B.I. and inter- employees named others of Fried’s two rogated shortly further until before 2:00 complaint. p. September 18th, onm. at which time he signed statement, an additional written p. same agents, at 5:00 m. the Two F.B.I. twenty-one being over hours after his ar- Philip Fried, at appellant, day, arrested rest. Broadway, home, New York East Benjamin give satisfactory conducted, Fried did was also City, where search questions until about mid- answers Two F.B.I. nothing taken. night, signed written at statement day, arrested p. agents, 7:30 m. morning after 2 o’clockin the some time Birnbaum, at his appellant, Samuel nothing during He ate September 18th. Avenue, Brooklyn, home, Newkirk night. was also one of Birnbaum New York. agents would employees. Philip Fried’s refused to answer Birnbaum Samuel charge they what upon m., 18th, September Birnbaum not tell until 1:30 questions a. arresting been-questioned him. were he mon time had he began this time At five hours. Philip Fried, Nierenberg appellants, subsequently signed questions, and answer permission use Birnbaum, requested Upon his return from a written statement. lawyer but were not' telephone call a 18th) morning (September next jail appellants, of the None permitted do so. again he was refused office to the F.B.I. Im- Birnbaum, had dinner. except telephone make a call. permission Philip Fried, Benj- upon arrest mediately 18th all four September p. At 2:00 m. Birnbaum were taken Fried and amin arraigned the United were appellants in the States United F.B.I. of the office 45? complaint agents him; Commissioner that he was so threatened mentally mentioned and physically exhausted above. time he signed his written statement after relating the con- following facts 2:00 September a. 18th he fell m. in affida- specifically fessions denied asleep in his chair. government: filed vits Title provides: 300a “The U.S.C.A. § agents petition alleged that Fried’s Director, Directors, agents, Assistant who him to tell him for arrested refused inspectors of the Federal Bureau of Invest- arrested; when being what he he was igation Department of the permission lawyer he Justice asked call empowered subpoe- to serve warrants and explaining be- “plenty had to do” told nas authority issued under the agents aget lawyer; fore could that the States; United to make seizures under war- him, interrogated who threatened him rant for violation of the laws him, him, pro- using abused and shouted States; to make arrests without warrant for *5 language; fane was that he reduced to a felonies which have been and committed hysteria interrogation. state of by the cognizable which are under the laws of the supporting George The affidavit States, in person cases where the alleges agents Nierenberg that the who ar- making arrest grounds has reasonable rested him inform him for what refused person believe that so arrested arrested, he was told him he being and “had gulltv felony of such and where ais there questions a lot of to answer” before he person likelihood escaping before a get lawyer; could he could observe arrest, warrant can be obtained for his but pistols agents holsters; carried person arrested shall immediately during interrogation agents his taken committing before a officer. Such him, abused him shouted and threatened members of the Federal Bureau Investi- him; agents that he told the felt he sick gation Department are au- Justice hospitalized twenty-five and had been empowered thorized and to carry firearms.” during weeks for past colitis three Wegman, Spark, Burke, Hoffman & years, disregarded statements; they but his New City Burke, (Richard York of New during night told agents he J. City counsel), York for appellants. hungry, given was was and a ham sand- wich, permit which his diet him to McGohey, did Atty., X.F. U. S. New John eat; September that at 4:00 City (Bruno a. m. 18th York Schachner and C. John agents one Philip Hilly, asked him whether both of City, New York of counsel), Fried had ever an inmate of an insane for United States. asylum; signed that before he his second HAND, Before L. p. Septem- written AUGUSTUS N. statement at 2:00 m. on FRANK, HAND Judges. Circuit ber agents 18th one of the threatened him physical violence, with securing after FRANK, Judge. Circuit laughingly statement commented to agent, another it, “We know how to do testimony, Substantial the cred don’t we ?” ibility was, course, of which for the dis supporting The determine, affidavit of judge Samuel Birn- trict sustains his con alleged agents baum that the who arrested clusion that authorized voluntary con him refused to tell him given even whether or sent searches to vali : being arrested; not was during his date them the seizures. interrogation agents told him it would 2. The district judge refused to consider “go easier” him with if he told them what any evidence concerning whatever the con- they know, wanted and that would ruled, effect, He fessions. as follows: “get it if night”; it took them all that on Even if government officerswere to use the September agent 18th he an heard threaten brutal, most coercive methods in obtaining appellant Nierenberg during the latter’s man’s confession to the of a commission interrogation. crime, a powerless district court would be The supporting Benjamin prevent government affidavit of from presenting alleged Fried that during interrogation grand confession to a jury in order to port that Rule a restatement 41(e) for that “is indictment bring that man’s about excep existing practice” law one (with there- agree, we cannot
crime. We
relevant).4
tion
here
remand on
issue.
fore reverse and
The
made:
following argument
is also
illegally seized
has been
If an article
suppression,
an indict-
The
advance of
official,
potential
use
by a federal
ment,
illegally
of an
obtained confession
by a district
restrained
evidence will be
that,
must rest
on the fact
if there
pending.1
court, although no indictment
indictment, the
will be excluded
confession
Sibley,2
by Judge
reason,
suggested
ensuing
a-t the
because of its incom-
trial
forward”
“may reach
court
that the
untruthfulness;
presumed
petence or
there-
a case which
presentation,
control the
fore,
sup-
thus
if
such a confession is
acquired
it, of evidence
may come before
indictment,
pressed,
in advance of
must
officers.
federal
conduct
by unlawful
logically,
absurdly,
follow that
however, argues as fol
government,
similarly prevent
possible
court
insep
on—is
rests
This doctrine
(a)
lows:
jury
use
evidence
grand
right,”
“property
arably
with —the
up
tied
incompetent
would
reason
article was
whom
person from
be untruth-
at a
or which is shown to
trial
(b)
to him.
A
taken,
have it returned
to re-
Not at
courts refuse
all.
ful.
signed, is
confession,
if written
even
unlawfully acquired
ceive in evidence an
be returned to
intangible which cannot
*6
confession,
presumptive
because
its
memory
contents
of its
confessant;
unreliability
it
or because
untruthfulness or
memories of
from
eradicated
cannot be
illegality
irrelevant,
is
but because of
therefore has
officials;
confessant
acquired.5
by which
of the means
it
(c)
right in the confession.”
“property
no
be returned
it cannot
Consequently, as
argues
government
The
further
that an
judicial
its
him,
condition of
an essential
indictment
founded
such illicit evi
suppression
lacking.
is
harm,
do
applicant
dence will
no
since
necessarily
contention
includes a such evidence will not be
This
admitted
illegal
article
trial which follows the
That is
assertion: When an
indictment.
mistaken
argument
government
is
astonishingly
“contra
an
callous
which
ly
by
seized
band,”
petitioner
“prop
ignores
wrongful
has no
the obvious. For
so
a
indict
matter;
it,
erty right”
laughing
its
to him will be ment
if works
return
often
irreparable
grievous,
injury
person
denied, yet
use
evidence
re a
stigma
easily
of the
Rules
41(e)
Federal
The
cannot
strained. Rule
indicted.
A.,
Procedure,
public mind,
18
foilow
In the
U.S.C.
blot on
Criminal
erased.
687,
escutcheon,
“If
provides:
resulting
n
the motion is man’s
such a
ing sectií
from
property
wrongdoing,
be restored
public
shall
unless
accusation of
granted
is seldom
subject
wiped
subsequent
judgment
detention3 and
out
of not
otherwise
lawful
admissible,
any hearing
public
guiltjr. Frequently,
or
remembers
shall
accusation,
Advisory
suspects
*7
pros-
(1930) 347;
Government,
But
means—what?
Pol.Sc.Q.
45
152,
(1942)
Angels
is
one to
a
Frank,
ecutor
determine —before
Were
Men
If
trial and
with
conviction
accordance
Degree by
8
law—what citizens are
In oth-
See,
g.,
criminals.
Cha
Third
The
e.
words,
police
prosecuting
(1931),
report
and
er
fee,
and Stern
a
Pollack
right
attorney
dispense
to have
to
are
Ob
Committee
National
Law
presumption
They
Keedy,
Enforcement;
with the
of innocence.
and
servance
unhampered
decide,
by legal proc-
Legal Interrogation
to
Degree
are
esses,
and
of
Third
among our
Suspects,
citizens are
of Pa.Law Review
Un.
85
statutory
Degree,
761; Note,
entitled to constitutional
and
43
The Third
rights.
624,
617,
625;
You see where that
leads:
to
Rev.
Harv.Law
dictatorship,
Frank,
to
ADgels
absolutism in its most
If Men
317—
Were
pronounced
For,
today
pros-
Radin,
Reality
form.
324;
if
and
Pretense
deprive
rights
Law,
ecutor
to
chooses
of his
Bull.
4 Ore.St.Bar
Criminal
you (reading
newspa-
someone whom
trial)
Florida,
per
1940,
9
of
accounts
a
believe to be a
v.
309
U.S.
Chambers
criminal,
may
472,
716; Canty
he
227,
tomorrow
do the same
84 L.Ed.
60 S.Ct.
you
acquiesce
Alabama,
629,
to
1940,
Or to me. Once we
v.
309
60
U.S.
S.Ct.
prosecutor
Texas,
988;
612,
1940,
the doctrine
a
to be
v.
84 L.Ed.
White
unhampered
1032,
530,
his selection of
men
those
60 S.Ct.
310 U.S.
1342;
84 L.Ed.
rights (prior
Texas,
to
denied
1941,
who are
Lomax v.
civil
313 U.S.
during
trial) solely because,
956,
1544;
544,
Vernon
85 L.Ed.
61 S.Ct.
judgment,
Alabama, 1941,
547,
his uncontrolled
313 U.S.
61 S.
believes
v.
guilty,
1092,
tyr-
v. Tex
them
anny,
are on
L.Ed.
Ward
we
the road to
Ct.
as,
85
1942,
1139,
547,
dictatorship,
U.S.
62 S.Ct.
86
to the death
de-
1944,
Tennessee,
mocracy.” Fi-ank,
Ashcraft v.
L.Ed.
loc. eit. 323.
143,
921, 88 L.Ed.
64 S.Ct.
322 U.S.
position is
11 The
reminiscent of that
York, 1945,
1192; Malinski
New
v.
Coke.
his Institutes he wrote that
401,
781,
89 L.Ed.
S.Ct.
U.S.
“there is no law to warrant
tortures
Frankfurter,
J.,
Pennekamp
land,
justified
they
See
this
can
nor
”
* * *
331, 350,
Florida,
page
prescription.
Yet,
U.S.
Lea,
v.
said
page
1044:
66 S.Ct.
there
“in
is warrant addressed to
rely
Fleming,
Attorney
“Prosecutors who
third de-
Coke
and So-
necessary
General,
gree
directing
it is
often
apply
assert
licitor
them to
rights
ignore constitutional
in order
Hunsdorn,
torture to
servant of Lord
discharge
jailing
duty
guilty
speech-
their
criminals.
who had been
of some idle
ac
offending
and civil
officers
Even if a
a lawful ar-
ecution of
confession follows
against them seem
rest and
damages
does
from coercive
tions
not result
courts,
value,12
un
measures
practical
violative
confessant’s con-
have no
eliminate these
fortunately,
privileges,
little to
can do
think a federal dis-
stitutional
I
powers they,
evils;
slight
trict
suppress
have
court
it
indict-
but what
should
before
exercise.
vigorously
ment
they
suppressed
do so
should
when—should it not be
of or
is the issuance
Among
powers
those
indictment and trial ensue—the
grand
scrutiny by
screen
confession would
ders that
from
be inadmissible at
official
from such
trial because
juries evidence derived
federal officers
obtained
illegality.13
means of a violation of federal statute
governing
authority.
their
v.
McNabb
suppress
that, if
urged
It is
motions
States,
344-346,
United
318 U.S.
enter-
are
confessions
indictment
S.Ct
further eluci-
L.Ed.
will be
tained,
prosecutors
the courts and
Mitchell,
dated in
States
United
U.S.
mo-
unduly burdened
decisions
65, 67,
For,
S.Ct.
L.Ed. 1140.
con-
by judges
be made
unable to
tions will
stated,
as above
suppressing
reason for
judges
as the
intelligently
sider the issues as
procured by
a confession
violation of
argument
presiding
But
at trials.
constitutional privilege
solely
illegal-
suppres-
equally
applicable to motions
it;
ity
procuring
used
means
indictment,
sion,
of unlaw-
in advance
them,
documents; and,
just
illegal
are
if
consist
the means
as to
seized
fully
Supreme
rejected
Court.
transgression
official
federal statute.
has
office
and the
F.B.I.
not now decide that here
doWe
Attorney are but two different bran-
any official abuse. We reverse
there was
think
Department
I
ches
Justice.
order that the district court
and remand in
Depart-
branch
it irrational that one
Judge
issue of
pass on that
A. N.
fact.
bring
allowed
about an
should be
ment
the district court’s or
affirm
Hand would
Judge
through
Learned
evidence which
the confessions.
indictment
as to
der
suppress any
confessions
any illegal
possession through
would
into
Hand
come
from constitutional
resulted
of another
Nor should it
shown
acts
branch.
agree;
too,
violations;
that extent
forgotten
judges,
federal
that the
therefore,
government.14
is the decision of
court.
such,
the federal
part of
*8
of citizens created
however,
immunities
go
privileges
further
arid
I,
would
than
and Fifth Amendments
by
Fourth
following
Hand.
Judge Learned
undoubtedly,
im-
at times
from that decision.
the Constitution
partial dissent
thus
123,
James,
King
(1937)
The annotations
note 57.
and the re-
2
respecting
es
cite
cases.
in U.S.C.A.
handwrit-
to this section
in Coke’s
confession
sultant
Admissibility
Atkinson,
super-
personally
of Evidence
showing that
See
ing,
Through
Lea, Super-
Unreasonable Search-
Obtained
examination.”
intended
Seizures,
Ed.1892)
(4th
&
Col.Law Rev.
25
es
11,
Force
stition
22, 23,
Columbia,
that
12
shown
where
is also
District of
Nueslein
See
offending
690,
against
85,
con-
suits
officers
note
civil
App.D.C.
F.2d
115
73
remedy;
apparent
ineffective
to the
opinion
stitutes
discusses
to16
Note,
Degree,
effect,
Third
617, 624, 625;
see
§
of 18 U.S.C.A.
53a
ineffectiveness
Rev.
predecessor,
43 Harv.Law
53.§
18 U.S.C.A.
its
Grant,
1917,
631,
Search and Seizure
Califor-
ren-
cf.
enacted
§
U.S.C.A.
1'8
138,
nia,
imprisonment
Rev.
subject
So.Calif.Law
to fine and
ders
executing a
who in
search
officer
“an
Vinson,
authority,
willfully
then on
Justice
his
Cf. Chief
exceeds
warrant
Appeals,
unnecessary
Nueslein v. District
it with
severi-
Court
or exercises
Columbia,
App.D.C.
Yet, Lasson, writing
F.2d
ty.”
re-
illegal
marked, “Degpite
Vth
and Vth
“The
Amend
the numerous
693:
issues,
seizures, however,
different
that
ments relate
cases
have
searches
present
provision
make the
place,
which
consid
that
facts
it seems
can
taken
these Amendments over
never been
erations behind
enforced.’11
Act
Development
lap.”
Lasson,
History
Holmes, J., in
Olmstead v. Unit
Amendment
Constitu-
Fourth
the
tion,
States,
University
Hopkins
ed
U.S.
Johns
Studies
S.
564, 72
and Political
No.
L.Ed.
§ 2184. ery outside the individual —should * * * 18 Rea, Superstition (4th and iForce arise. As a Ed. occasion matter 1892) security fact, group 514. ais function of indi- * * * 19 Ibid., security. Pro tanto does vidual mistakenly suggests that the non-existent facts—to facts observation explored unjust, less a defec- be “found”—is less no problem us here cannot administration, operation judicial tive consideration adequately without some “substantive” apply an erroneous deeper is obscured problem which way, legal law” rule the actual facts. Either “substantive the distinction between is expressed rule policy correct “procedure,” the relative in the and and “finding” in- in facts frustrated. An error part of those neglect, of most on the yields might “injustice im- thus what called “procedure,” of most terested e., according to law.” judicial fact-find- portant component, i. rules, legal civil ing. “substantive” past facts case are involved criminal, policies embody (“social social They do not into the court walk facts. enforce, thus To judgments”). value pro fact-finding, a human room. Judicial to, considered one policies is give such effect attempt a man men cess which or some They principal duties courts. segment “objective” to reconstruct however, not at whole- discharge duty, is a past, necessarily For it fallible. retail, by applying those rules sale but at history- and, job history-writing, like all particular facts specific law suits writing, inescapably “subjective” involves “found” respective suits of those obstacles factors encounters other merely rule “substantive” As a courts. But courts sometimes insurmountable.21 legal specified consequences declares job. acknowledg And cannot shirk that facts, specified state of to a will be attached per process that the can never reach ment only operative parti- rule rendering not from fection does excuse us actually practically facts where those free of cular instances all avoidable defects. major Unfortunately, efforts of those Accordingly, policy social occurred. improve legal system actually who have tried our rule is embodied improvements court, devoted either when, deciding have been a case, a enforced “procedure” phases other actually what or in misapprehension of through legal improve Those occurred, rule facts in “substantive” applies that rules. needlessly job just ments nullified whole then never truth existed. Mistakenly fact-finding process apply to extent remains rule miscarries: gleston, Legal Development society’ in a when Modern ‘protection of each increase from indiscriminate Community, volume, 167, 184, protected in the same individual 188; Radin, power. Ex Pacto Ius: Ex Fac official lure exercise irrational tum, volume, 578; ‘society’ Radin, recognize in the same denotes We Logic Experience Law as being total number from the different other, prob units, separated 47-61. Even Blackstone from the sensed the one itsof lem; Commentaries, III, 329, time, that ‘soci- see realize at the designate merely Since court-room ety’ reconstruction of as- and ‘individual’ history-writing, past a-ny nature, . discussions of pects actual human pertinent. the historian’s difficulties antithesis.” See, g., Johnson, e. Allen The Historian accurate reconstruction 21 The (1926) 21, and Historical Evidence “objective” past by trial court can sel 42-48, 133, 141, 159-160; Nevins, The assured, it encounters because dom be Gateway History (1938) 175, 176, To “subjective” evidence, in the conflicts 203; Pirenne, Try- Are What Historians testimony, missing data, errors *10 Do?, volume, Rice, ing in Meth- To “subjective” inescapably reac and the (1931) 435, ods of Social Science 437- data, tions, the trial available Frank, 444; (1945) Fate Freedom See, g., jury. re judge In J. P. e. or 11-15,18-24, 28-33, 334. 650, 652-654; Cir., Linahan, F.2d 138 2 Co., Seating Cir., historian, trial a acts 2 court as 138 v. American Zell opinion Pennsyl dissenting 647-648; 641, v. see Ricketts F.2d Rubenstein, Cir., 915, Cir., Co., 2 F.2d 151 note 2 153 F.2d 761 R. vania Plato, 44; Theaetetus, Tay- 200-201; Pact, Prank, 6; cf. Do In Courts What note lor, (2d 344; Ed.1927) 658-662; Aristotle, (1932) Plato 658 at Ill.L.Rev. 26 I, Rhetoric, Angels Bk. (1942) Ch. 3. Frank, Men If Were scientists, 271; Frank, That, 111-118, 91-94, for even “facts” are “objective” Influence, volume, or Frank, not “hard” An in the often they may Sketch seem, Interpretations Legal Modern Philoso see Fate and 259-261; 235-236, Eg 174-186, (1945) phies (1947) Freedom 312-315. “instrumental” “remedial,” or “telic” and consequently, and, insufficiently scrutinized stated, Once, however, it Fact-finding is to needlessly defective.22 rights).25 ju- analysis, terms of this that a the administration of formal spot, in day soft appli- is dicial decision is measure that “result In considerable justice.23 law to largely cation of the reformers rule [substantive] because the true it be- fact-finding methods the proceduratty disregarded actual fads established,”26 which, “procedural are comes clear that a mistaken by trial courts used destroys, for fact-finders, reas establishment” of facts and for other the chief important part purposes, court-room the asserted “sub- most constitute ons,24 that, right,” proce from which it follows system; even the stantive judicial our concerned, their at so far as courts are the effective have restricted reformers dural right” de- phases of trial court assertion of “substantive chiefly to those tention ability pends entirely themselves on the “procedure” manifest claimant’s “procedural right.” trial-court maintain his so-called upper-court and occasional lawyers perhaps this The Roman sensed opinions. “procedural they spoke of the truth when It has little noticed that “sub- been too a by consumption” “right of a of action” legal right”- stantive “interest” said to —an “right into which it was a transformed protected” "legally a “substantive'” words, prac- practical legal value when rule—has no a judgment.”27 right purposes, tical court no “substantive” by mistakenly mis-finding court the facts— right a a exists—whether it be asserted documents, missing because of witnesses or private person government or testimony or because believes of wit- inaccurate, tru-th a nesses who in are etc.— role o-f vindicator of “substantive” crim- gives the claimant decides such inal rule—unles-s a court enforce- “right” Doubtless, judgment right- or favor alleged “interest.” an- able alytic purposes, ; an-d, utility ordinarily, there is often much a holder court formally judgment, differentiating give between even when “sub- a it uses a “procedural” rights (or rule, “pri- seemingly stantive” and goes wrong “correct” if it mary” “secondary,” course, similarly “antecedent” on the Of a mis- facts.28 Pennsylvania Co., right- right, Ricketts v. R. Cf. vades “substantive” Cir., acquires, against invader, note F.2d 46. holder the' 23 Gall, Judg- right, “secondary” Decision Practical kind new or “re- 42; Frank, (1946) right. it, If Men Were medial” ment To enforce lend it 66-127, 269-271, 284-294, Angels (1942) “sanction,” right- gives the “law” “procedural” (or holder tal”) “instrumen- 304-305. overhelming majority right obtain cases redress law- appealed through judgment. trial are end in th.e a court’s suit said courts. Sometimes suit that a creates “jural parties The several classifications of relation” between the Procedure, courts; sort, Bentham, Austin, Holland, Millar, see and the Sal mond, conveniently Gook, others, Encyc. (1934) 439, of Soc.Sc. 449. See Koeou-rek, Engelmann, History set forth in Substance also of Continental Procedure, (trans. 10 Fordham Law Rev. Civil Procedure and edited Buckland, Millar, 1927) 305, also 157. See Some Reflections —106; Jurisprudence (1945) Beale, Millar, 442; emphasis (cid:127)on loc. cit. 10 1 added. Millar, cit., 441; Engelmann, Treatise The Conflicts Law loc. 68; Bowman, I, 67, Elementary cit, 262, 278, 304-306, 337, 355, loc. Law ; 93; Radin, Radin, Hohfeld, 70 A Restate A Restatement Hohfeld, (1938) 1114, 1152, ment of 51 Harv.Law Rev. Harv.L.Rev. It Holland, Jurisprudence that, judgment, was said with the a sec 147-148, (13th Ed.1924) “consumption” place: judg 322-329. ond took theory formulations, “procedural in its varies ment “consumes” the rela but, general, tion”; Engelmann, cit., runs thus: “Substan- loc. *11 “primary” rights 28 tive” or or “antecedent” way saying This is but another wrongful (“If exist before act. all a when court that uses a rule which smoothly,” rights went such “would alone “correct” if be the would facts actual says exist,” “If Holland. men “finds,” all were those which it were the rule is law-abiding well-informed, there the “correct” rule if in truth those sanctions, would no need and law- “found” facts are the actual facts. go business,” course, may could courts Buckland.) When, however, out of writes Of a court blunder into a decision, e., someone in- “correct” i. its decision inad- pot give errone- the All may you will never the fact-finding
take cause in beer.”)31 think, which, that our goes who defends to show judgment ous to one I adverse larger re- against courts assume a trial asserted claim. ascertainment, near sponsibility for as This, clearly if perhaps, appears more we may be, litigated as facts of of the actual theory of crudely schematize the formal e., theory process (i. decisional that a disputes.32 prod-
judicial judgment decision or is the ensure, then, To substantive that “the legal applied a rule uct of “substantive” criminals,” “designed criminal law” is by saying: RXF=D case) facts of the “procedural people,” it and the for honest facts, rule, D F the R is the —when is criminal prosecutions essential in basis, an On decision judgment.29 untiringly eliminate the courts seek to will lead an erroneous D.30 erroneous F fact-finding, practically avoidable in defects belief the trial court’s the F consists of As aspects as as well in other “procedure.”33 facts, F, past actual as to what were the society, only our hardened In democratic D, if will be erroneous and therefore the cynic innocent will assert that to convict an in- court reaches its F reliance man, through fact-finding induced mistaken accurate evidence. confession, his should be a mat coerced concern, matter, then, great ter of no since the convic how excellent the “sub- No preserve help public tion will to create or legal R’s) rules the social (the stantive” respect embody, specific will for the “substantive” criminal rule policies they decisions competent fact-finding. applied although which court errone astray, absent go — ously fully only as much as if that “the use of the man .(Holmes, J., once said — contents, just guilty, provided only present their mistake the forms pot present publicly only the never And only use of a disclosed.34 * * cynic say *, public meditation welfare is and infinite beer 30 Unless, vertently may in it would have as indicated note what it happens and had facts stumble “correct” de found actual if had cision, despite applied them the “correct” rule. its mistake about the facts. right” Incidentally, is called an When a “substantive the discussion in tho text right,” suggests fallacy in one sense the an- more those “antecedent “logical priority” legal certainty by i. who measure is one the sta- tecedence e., “pro- explain logically bility instability or rules; serves the “substantive” judg- legal Frank, right” results see which If Men Were cedural Angels is, (whether or the court ment. 288-294. Wu, explains decision) September 10, 1923, is deemed to not it Letter past reprinted Shriver, Holmes, found the facts have existence Book No- right” tices, invoked a “substantive which etc. Frank, “procedurally” Angels entitled the claimant See If Men Were 123-127; judgment. Willoughby, Principles (1929) 95-98, the interaction of 206, 207, 213, Pertinent Judicial here Administration “facts,” dissenting opin “substantive” rules decisions, aspect “gestalt” Pierre, Cir., ion States v. St. logic to “rationalizations” 132 F.2d relation of 147 A.L. note See, g., process. e. decisional dis- R. the senting Colony opinion Bondhold- “background Old do not refer here York, Co., facts,” e., N. H. & H. facts,” R. v. New ers i. “economic and social Cir.1947, subject 161 F.2d notes 80 and 81. which are the of the so-called briefs”; Frank, cit., deliberate mis-find- As to incorrectible “Brandéis see loe. judge, ing trial see dissent- of facts and note. ing opinion sure, in La Touraine Coffee Co. mistaken To decisions Cir., Co., suits, 157 F.2d Coffee due to Lorraine civil mistakes in fact-find- pages consequences ing, may virtually 122-124. 115 at Improvement fact-finding obviously grave those stem from mistak- By calls for a careful reconsideration of the in criminal suits: en convictions policies may suit, numerous wrongful behind the exclusion- in a man defeat civil ary evidence rules. ruined and children his become Frank, Fact, delinquent, through What Courts Do loss of his liveli- ' savings 1932) 649-651; hood, Frank, Ill-Law Rev. or his investments. Angels time,” happened my If Men Were “This wrote Montaigne. century humane 16th “Certain *12 opinion the inno of fessional similarly contrary, indictment it be- served law, mis-finding of cent, my says, come grand-jury brother Frank induced settled facts, only is followed not when an indictment the victim the reclaim docu- public never acquittal which the ments and property of other in an seized violation wrongful that, inflicts of Amendment, indictment the As Fourth but learns. when person, harm on the indicted these are substantial contraband not re- and need be ex right” him, may to be to infringing his “substantive turned in of advance trial indictment, empt harm, courts should and even of from such the an secure from a cynic’s actively view.35 Since court repudiate preventing the an order their use as evi- usually sort preventive Although, know, best justice is the far as dence. so the I courts, think, try, yet justice, I rule has not as of should to extended means, procured to forestall all feasible confessions violation pre enjoin Amendment, to feasible Fifth It is not harms. I feel too much the untrue, ir grand juries consistency sentation all force of not take to to this added step. True, reformers, incompetent judges I think or evidence. are to relevant however, eminently feasible, depends entirely upon law which irrational desirable, suppres pre-indictment rightly discredited, to order distinctions for is one by means patently confession alternative wrong. sion obtained or other is I an infraction either Constitution Since cannot rational see basis here po regulating the distinguishing statute federal for of a between the two Amend- ments when nearly lice. the situation is so seizures; same, accept amI content to this innova- Affirmed as reversed Nevertheless, tion. strictly I wish to con- remanded as to the confessions. it to the violation of constitutional fine HAND, Judge. Circuit L. right; accept only because of the result, I concur in but wish I higher respect in which these are tradition- my upon very ground. to rest vote limited ally held. Were it inevitable that all the It would an intolerable burden privileges of accused should be treated prosecution crime, possible if it were concerned, alike, my I so far vote was competency test advance the of evi compel postpone the accused to even should accused, say nothing which an dence objection a constitutional until trial. prospective accused, might be able to impose upon choose him I what- should likely against show was used him. entail, might rather ever risk protection op individual from prosecution by mincing hobble the crime pression police and abuse and other separate successive trial into determi- enforcing major is in officers indeed a nations. society; terest a free but so is effec HAND, Judge AUGUSTUS Circuit N. prosecution crime, tive interest which part). (dissenting at times forgotten. seems to be Perfection impossible; like human institutions All agree members the court proceedings compromise. criminal be a must validity as to the of the searches and sei now, agree spite I pro- much holding I dissent from the zures. murder; men are condemnedto the death judges repent no reason to it. have sentence, pronounced, if not up, To those sum devils are sacri i>oor point * * * decided and At that
least fixed. justice. form of ficed judges informed, by officers many wit How condemnations nearby, they of an inferior court hold criminal than the nessed more crime. All custody openly several inmen who con brings my mind these ancient murder, to that fess and are able wrong must needs do theses: light throw the whole business that right wholesale, would do detail who yet they admits of no doubt. And injustice de things little if he would ” interrupt * * * liberate whether defer shall justice great. achieve Es the execution of the sentence Ill, says, Bk. Ch. 13. passed upon They first accused. con its con One whether wonders statutes case, novelty sider governmental compensation ximvide sequence suspendingjudgments; persons wrongfully tor indicted. passed, juridically sentence and the *13 invalidly suppression in advance confession, if confessions majority multiply will obtained, suppressed -trial. am confident in advance I should be dilatory impede prosecuting petitioners motions Any injustice the of trial. instances, without, except in officers rare an invalid confession would suffer in case affording not defendants relief avail a basis for indict should used as might able a-t the 1° extend the they to would not greater ment is trial. no remedy grand in case of unlawful allowed suffer from consideration the sake of con incompetent Such searches to confessions for jury other evidence. objections my opinion, sistency practical injustice is, in out because the danger of outweigh log advantages certain imposing upon weighed by objection to consistency, the im attorneys ical and also because opposing burden of district return, papers petition, of mediate suppress motions confessions advance only the search is seized on unlawful have, think, never I Such motions trial. summary remedy for substitution of granted in of trial where been advance made, replevin. ancillary An slow action at law of they were objection has been suppress their use as motion, motion trial to premature. simi before grant If we natural con evidence -seem to applications certain to be made would quite lar and, replevin, been They like limited nearly every comitant case of confession. objects. Indeed, who judges tangible made do Rule 41 (e) will be before before often record them and Procedure, have the trial- Rules Criminal Federal than those who will judges before other prior practice, al conforming federal trial, and who not be preside at the of trials lows motions to be made advance question of wisely with the able deal books, papers and other return excluding a confession admitting objects unlawfully and for tangible seized judge. See United States v. the trial would evidence, suppression of but use as their D.C.W.D.N.Y., 976, Lydecker, 275 F. suppression provision makes Moreover, suppression in advance . seems reason before trial. It confessions trial of evidence derived from indictment or suppose they were left to able departure from was an unlawful search only by with tribunal before dealt adopted, believe, I English practice sought far be introduced. So were particular danger peace because discover, applications suppress can as I community security of indi- trial have when made confessions dwelling ransacking involved in viduals Reed, 397, People Ill. denied. v. probable buildings without houses State, 847; thought Kokenes 213 Ind. appropri- 164 N.E. v. was sanction It cause. prevent Ly Motions to ate 476, invasions. United States 13 N.E.2d v. only advance of trial were not suppress D.C.W.D.N.Y., decker, People 275 F. but, under doctrine Weeks allowed 477, Nentarz, 142 Misc. N.Y.S. 574. v. States, 383, 341, 232 U.S. S.Ct. v. United Bradshaw, Cir., also Eastus v. L.R.A.1915B, Ann.Cas. 58 L.Ed. 576, 58 certiorari denied 304 U.S. F.2d required 1915C, in order to aid single In the L.Ed. S.Ct. prosecuting giving officer him a Pollack, v. of United States D.C.D. case warning position timely a defendant’s 554, suppression F.Supp. was grant 64N.J. protect the latter. re- rather than This obj was not made ed, ection but the mitigated in Gouled Unit- quirement premature. application was States, 255 41 S.Ct. ed U.S. Judge the order of my opinion Rifkind L.Ed. 647. only as to the be affirmed statutory requirement In the absence of respects. all seizures remedy extend such a searches think unwise to notes guilt, Committee’s re still even trial.” 2 McDowell, States, 1 Cir., Foley v. 256 U.S. Burdeau 5 v. F. See United 64 574, 1048, 1, 475, 3; 465, 762, L.Ed. 65 41 2d denied S.Ct. certiorari 289 U.S. 1159; Cogen States, 796, United 53 S.Ct. L.Ed. v. 77 1505. 13 A.L.R. 3 119, 225, Emphasis 221, 49 S.Ct. 73 L. added. 278 U.S. 4 States, 275; published by United also the Perlman v. 247 See volume New Ed. 950; 417, 7, University L.Ed. 62 Cob York S.Ct. School of Law 38 on the U.S. States, 323, 309 U.S. Rules of United Federal Criminal bledick v. Procedure 540,. 783; 328, 329, 84 L.Ed. Go- S.Ct. 130. 60 . States, 344, Preliminary 282 U.S. 51 In the Committee’s Second United Bart v. 374; Camp, February 1944, 153, v. L.Ed. Turner Draft 75 cited United S.Ct. 840, 842; Foley Rykowski, D.C., Cir., 866, v. F.2d Unit States v. 267 F. 123 5 Cir., 1; States, States, Voorhies 4 F.2d cf. 870. also v. United 64 re See ed D.C., 275, Co., 837, 839; Cir., 277; F.2d 5 F. 22 299 etc. Film Poller, Cir., D.C., Kaplan, 963, 972, 975; 2 v. F.2d v. F. United States 1382; Potter, D.C., 912, 32, Collins F. 74 A.L.R. v. O’Connor v. 33. California, 364, 369, Miller, 40 S.Ct. 5 Lisenba 252 U.S. U.S. L.Ed. 62 S.Ct. 166. LEd. an acquittal.6 American after Prosecutors Committee of instituting criminal Association, immense discretion in Bar today: could be made lastingly besmirch proceedings which say every “It is conservative is almost com- reputations. That discretion long one chance cases which do surely not pletely It should unfettered.7 place reports, there are find a the official judicial inter- preclude far so extend hundreds, probably many thousands of aim induce prosecutor’s ference with a degree instances of the use third jury grand to a offering an indictment We have cause for some other.” form illegal product is the which evidence exploits foul shame as a nation that such acts of federal officers. designated are officials “the government degree” cognate devices The “third method.”10 Until such miser American country.8 The alarmingly persist in this out, stamped it will re misbehavior able Supreme reports the United States have, empty that we main boast and that eight cases alone disclose Court guarantees which respect, a Constitution we years convictions 1940-1945 six liberties, representatives blocks civil of the use of co reversed because from lawless incursions government confessions.9 The indications erced statement, made following possible pros rights individual.11 As Angels since, police Frank, long Not commissioner Men Were If Landis, large city bluntly Admin of a said: ‘If I have cf. Black, my oath the Constitution or violate Process istrative office, Case, Progress Lec I’ll violate Constitution.’ of a Criminal who, 339, 345; anyone Topics (1929) Legal That means tures government Hall, Objectives trial seems officers to be Procedural of Criminal criminal, not entitled to Revision, the civil L.J. Yale guaranteed by 7 Wallace, liberties Process the Constitution. A Nullification: