230 F. 262 | N.D.N.Y. | 1916
One of the assistant United States attorneys for the Northern district of New York having received through inspectors of the Post Office Department information tending to show that the defendant, Wylie B. Jones, had devised a scheme or artifice to defraud and for obtaining money and property by means of false and fraudulent pretenses, representations, and promises, and tliat said Jones had been and then was engaged in the execution of such scheme, and that he had used and was using the post office at Binghamton, N. Y., for the execution of such scheme or artifice by sending and receiving letters, writings, circulars, pamphlets, and advertisements through said post office, and having information that said Jones had in his possession letters received by him in the execution of such scheme and circulars or pamphlets, such as had been used and which were to be used in his possession at his office in said city of Bingham-ton, thereupon applied to the nearest United States commissioner for a warrant of arrest of said Jones, and also for a search warrant authorizing the search of his said premises or office at the city of Bing-hamton, and the seizure of the documents referred to, if found. These warrants were placed in the hands of a deputy United States
There was no forcible resistance to the execution of this search warrant, and the defendant was not arrested. At that time no indictment had been found. The defendant in no way obstructed the search, but protested against same, and against the taking and carrying away of the papers mentioned. The defendant thereupon on petition applied for and obtained an order to show cause why such papers, documents, etc., should not be returned, atid enjoining the use of same until the determination of the order to show cause. While an indictment was subsequently found against the defendant and is now pending, such documents and papers have not been used.
The defendant not only challenges the power and authority of the United States commissioner to issue the search warrant in question, but alleges that the search and taking constituted and constitutes an unlawful, an unwarranted and an unreasonable search and seizure, in violation of his constitutional rights, and that the seizure and use of such documents and papers will be compelling the defendant to furnish or give evidence against himself.
The Fourth Amendment to the Constitution of the United States provides as follows:'
“The right of the people to be secure ia 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.”
The Fifth Amendment to the Constitution of the United States provides that:
“No person shall be held to answer for a capital-or otherwise infamous crime unless on a presentment or indictment of a grand jury, * * * nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law. * * * ”
In customs cases by section 3066 of the Revised Statutes of the United States (Comp. St. 1913, § 5769), it is provided that if any collector, naval officer, surveyor, or other person specially appointed by either of them, or inspector, shall have cause to suspect the concealment of any merchandise in any particular dwelling house, store building, or other place, they or either of them, upon proper application on oath to any justice of the peace, shall be entitled to a warrant to enter such house, store, or other place in the daytime only, and there to search for such merchandise, and if any shall be found to seize and secure the same for trial, and all such merchandise on which the duties shall not have been paid or secured to be paid shall be forfeited.
By section 173 of the Criminal Code of the United .States (Act March 4,_ 1909, c. 321, 35 Stat. 1121 [¡Comp. St. 1913, § 10343]), it is provided that a judge or United States commissioner may upon proper oath or affirmation within their respective jurisdictions issue a search warrant authorizing any marshal or other persons specially mentioned to enter any house, store building, boat, or other place named in the warrant in which there shall appear probable cause for believing that the manufacture of counterfeit money, etc., is carried on or concealment thereof made, and there search for counterfeit money and appliances for making same, and also to seize and secure the same. Dies, molds, and plates which may be searched for and seized under the provisions of this section are harmless in and of themselves, but are instrumentalities and appliances for the commission of a crime, to wit, the crime of manufacturing counterfeit money, coins, or obligations of the United States.
When a person or persons has devised an artifice or 'scheme to defraud such as is mentioned in section 215 of the Criminal Code of the United States (Comp. St. 1913, § 10385), and executes same in whole or in part by sending letters, pamphlets, writings, circulars,
All that the case of Weeks v. United States, 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177, really decides is that when a person is accused of the commission of a crime and arrested by an officer without a warrant of arrest, and while so held away from his home other officers of the law without a search warranfgo to his home and enter it without permission, no one being at home, and make a search of his rooms and furniture, and find and seize and without the consent of such arrested person take away his letters and envelopes of an incriminating nature and other property found on such premises and in any furniture found thereon used by him, such acts constitute an illegal search and seizure, and the papers and property so seized must be returned, and that the court has power, and it is its duty, under such circumstances, to direct and compel the United States attorney to whom such papers have been delivered to return same to the owner. However, considerable is said in the opinion of the court in that case which throws some light on the questions here involved. Whether the issuing and execution of search warrants in criminal cases is limited to cases where Congress has expressly provided for their issue and execution is a question, and an important question. From the fact that Congress has specifically provided for the issue and execution of search warrants in revenue cases, in counterfeiting cases, and in customs cases only, we may infer that no such’ power exists in reference to post office depredations and post office fraud cases, such as the use of tire United States mails in the execution of a scheme to defraud, in violation of section 215 of the Penal Code of the United States. However, in Ex parte Jackson, 96 U. S. 727, 24 L. Ed. 877, the court held:
“1. The power vested in Congress to establish ‘post offices and post roads’ embraces the regulation of the entire postal system of the country. Under it, Congress may designate what shall be carried in the mail, and what excluded.
“2. In the enforcement of regulations excluding matter from: the mail, a distinction is to be made between‘what is intended to be kept free from inspection, such as letters, and sealed packages subject to letter postage, and what is open to inspection, such as newspapers, magazines, pamphlets, and other printed matter, purposely left in a condition to be examined.
*267 “3. Letters, and sealed packages subject to letter postage, in the mail, can be opened and examined only under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one’s own household. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be.”
And in passing on the question the court (96 U. S. at pages 732 and 733, 24 L. Ed. 877) said:
“The difficulty attending the subject arises, not from the want of power in Congress to prescribe regulations as to what shall constitute mail matter, but from the necessity of enforcing them consistently with rights reserved to the people, of far greater importance than the transportation of the mail. In their enforcement, a distinction is to be made between different kinds of mail matter, between what is intended to be kept free from inspection, such as letters, and sealed packages subject to letter postage, and what is open to inspection, such as newspapers, magazines, pamphlets, and other printed matter, purposely left in a condition to be examined. Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to; their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one’s own household. No law of Congress can place in the hands of officials connected with the postal service any authority to invade the secrecy of letters and such sealed packages in the mail; and all regulations adopted as to mail matter of this kind must be in subordination to the great principle embodied in the Fourth Amendment of the Constitution.”
We are at liberty to imply from this language contained in the opinion of the court that papers which are instrumentalities for the commission of a crime in violation of the laws of the United States may be seized by virtue of a search warrant issued upon oath and affirmation particularly describing the thing to be seized. It is clear that the learned judge who wrote the opinion in the Jackson Case so understood the law to be. The question, however, was not involved in that case. But, if so, we find here no warrant for holding that a United States commissioner has authority to issue a search warrant authorizing such a search or seizure. Congress seems to have pointed out by statute the particular cases in which a United States commissioner may issue a search warrant. If a United States commissioner has this general power, there would seem to be no necessity for the special enactments to which attention has been called.
In the act entitled “An act to reduce tariff duties and to provide revenue for the government, and for other purposes,” approved October 3, 1913 (38 Stat. 195, c. 16, § 4, subd. G, subsec. 3 [Comp. St. 1913, § 5301]), it is provided:
“That any Circuit or District Judge of the United States, within the proper district, before whom complaint in writing of any violation of the two preceding sections is made, to the satisfaction of such judge, and founded on knowledge or belief, and if upon belief, setting forth the groundsi of such belief, and supported by oath or affirmation of the complainant, may issue,*268 conformably to the Constitution, a warrant directed to tbe marshal or any deputy marshal in the proper district, directing him to search for, seize, and take possession of any such article or thing mentioned in the two preceding sections, and to make due and immediate return thereof, to the end that the same may be condemned and destroyed by proceedings, which shall be conducted in the same manner as * * * in the case of municipal seizure, and with the same right of appeal or writ of error.”
The sections referred to are evidently subsection 1 and subsection 2 of paragraph G (Comp. St. 1913, §.§ 5299, 5300), and those subsections relate to the importation of obscene books, pamphlets, and certain drugs and medicines, and also to lottery tickets, and also relate to “other articles of indecent or immoral use or tendency.” This provision providing for searches and seizures in the cases referred to confers the power to issue the search warrant upon a Circuit or District Judge, and of course excludes United States commissioners.
The statutes of all the states provide in certain cases for the issuing of search warrants as do the statutes of the United States, and specify the cases in which they may issue. In 35 Cyc. 1266, it is said, citing cases:
“Search warrants can only be issued upon probable cause supported by oath or affirmation, and upon the grounds and w, the manner prescribed bu statute."
Section 4026 of the Revised Statutes .(Comp. St. 1913, § 7552) provides as follows:
“The Postmaster General may, by a letter of authorization under his hand, to be filed among the records of his department, empower any special agent or other officer of the post office establishment to make searches for mailable matter transported in violation of law; and the agent or officer so authorized may open and search any car or vehicle passing, or having lately before passed, from any place at which there is a post office of the United States to any other such place, or any box, package, or packet, being, or having lately before been, in such car or vehicle, or any store or house, other than a dwelling house, used or occupied by any common carrier or transportation. company, in which such box, package, or packet may be contained, whenever such agent or officer has reason to believe that mailable matter, transported contrary to law, may therein be found.”
Section 3990 of the Revised Statutes (Comp. St. 1913, § 7474) provides :
“Any special agent of the Post Office Department, collector, or other customs officer, or United States marshal or his deputy, may at all times seize all letters and bags, packets or parcels, containing letters which are being carried contrary to law on board any vessel or on any post route, and convey the same to the nearest post office, or may, by the direction of the Postmaster General or Secretary of the Treasury, detain them until two months after the final determination of all suits and proceedings which may, at any time within six months after such seizure, be brought against any person for sending or carrying such letters.”
If it be competent and constitutional for Congress to enact that the workshop of a counterfeiter may be searched under authority of a, search warrant, and the counterfeit money and appliances for making same seized, if found, it seems clear that it is constitutional and competent for Congress to enact that the workshop or storehouse of the one who seeks to gain a livelihood by defrauding his fellow men by tneans of false and fraudulent representations in the form of circulars or letters written or printed for that purpose, and sent or intended to be sent through tire mails in violation of law, shall be subject to search, and such instrumentalities for defrauding the unwary shall he subject to seizure. It seems to me clear that such documents, pamphlets, and letters intended for such a purpose, whether written or printed, “rightfully belong to the custody of the latm,” and that the law has the right to search for and seize them. Such documents are not within the category of a person’s “private books or papers.” The lav/ suggested, in my judgment, would not be unconstitutional within Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746. In that case the customs revenue law condemned by the court required the defendant, or claimant, to produce in court “his private books, invoices, and papers,” and the court then held:
“It does not require actual entry upon premises and search for and seizure of papers to constitute an unreasonable search and seizure within the meaning of the Fourth Amendment; a compulsory production of a party’s private books and papers to be nsed against himself or his property in a criminal or penal proceeding, or for a forfeiture, is within the spirit and meaning of the amendment. * * * l'ho seizure or compulsory production of a man’s private papers to be nsed in evidence against him is equivalent to compelling him to be a witness against himself, and, in a prosecution for a crime, penalty, or forfeiture is equally within the prohibition of the Fifth Amendment. Both amendments relate to the personal security of the citizen. They nearly run into and mutually throw light upon each other. When the thing forbidden in the Fifth Amendment, namely, compelling a man to be a witness against himself, is the object of a search and seizure of his private papers, it is an ‘unreasonable search and seizure’ within the Fourth Amendment. Search and seizure of a man’s private papers to be used in evidence for the purpose of convicting him of a crime, recovering a penalty, or of forfeiting his property, is totally different from the search and seizure of stolen goods, dutiable articles on which the duties have not been paid, and the like, which rightfully belong to the custody of the law.”
' “But, when examined with care, it is manifest that there is a total unlikeness of these official acts and proceedings to that which is now under consideration. In the case of stolen goods, the owner from whom they were stolen is entitled to their possession; and in the case of excisable or dutiable articles, the government has an interest in them for the payment of the duties thereon, and until such duties are paid has a right to keep them under observation, or to pursue and drag them from concealment; and in the case of goods seized on attachment or execution, the creditor is entitled to their seizure in satisfaction of his debt; and the examination of a defendant under oath to obtain a discovery of concealed property or credits is a proceeding merely civil to effect the ends of justice, and is no more than-what the court of chancery would direct on a bill for discovery; whereas, by the proceeding now under consideration, the court attempts to extort fromi the party his private books and papers to make him liable for a penalty or to forfeit his property.”
This court is of the opinion that a suitable law on this subject should be enacted. However, after consideration of the statutes and cases, I am of the opinion that the commissioner had no authority to issue the warrant in this case, and that the marshal, in the absence of statutory authority, had no authority to search for and seize the papers in question.
Hence the motion for their return is granted.
