United States v. Sylvan Scolnick, Sidney Brooks, Kenneth Paull, A/K/A 'Harold Fleishman', Allenrosenberg, Sidney Brooks

HASTIE, Before FREEDMAN and SEITZ, Judges. Circuit OF OPINION THE COURT SEITZ, Judge. Circuit appellant (“defendant”) appeals jury from his conviction for rescu- ing box seized (“Service”) Internal Revenue Service 7212(b); larceny 26 U.S.C. § federally contrary from a insured bank 2113(b); conspiracy to 18 U.S.C. § (18 to commit the aforementioned acts 371). U.S.C. Three other individuals defendant, were indicted but only the defendant stood trial. finding jewelry, of the bizarre Not complete stolen summation A police the safe closed box without culminated which events necessary removing any However, to understand the its contents. conviction is day appeal. They on the same notified disposition of this the Ser- ultimate $100,000 vice part introduced existence of the appear as hearing day cash in either at the box. Later by the Government through Service, agents, suppress the or at trial. caused an to the motion on $100,000 in the assessment of to be sum by of Defendant was arrested against made on defendant. Thereafter Philadelphia Department the Police on day the a same Termination Notice morning April 13, the while $100,- Tax Year as well as demand for a operating a was motor vehicle. (26 unpaid and in due taxes U.S.C. pursuant made to a warrant arrest was 6851(a)) at were served defendant charging burglary jewelry him with a Philadelphia the Detention De- Center. January 1964. As a result committed in accepted demand fendant the notice and search made as incident to the a agents and informed the that he would arrest, deposit key box was found attorney. later the same contact his Still among keys key ring on a attached the Levy, day caused a Notice of the Service igni- key in the inserted the vehicle’s to Lien Notice Notice of Federal Tax and arresting offi- tion switch. One pursuant Seizure to U.S.C. § keys. legality of the seized cers (a) to served on which be the bank challenged here. this action is placed the located. A was box was seal police warning attempting upon anyone the ascertained safe the box gain deposit key to the seized it was box which to admission thereto belonged purposes. identi- federal tax had been rented one seized for income seizure, fying Subsequent himself as Howard Davis. The such the Phila- application gave delphia as Davis rental the Police turned over Service applicant’s key address what later deter- the box it had taken which mined residence address at the arrest. time defendant’s A warrant brother. prevent In order to the Service from deposit then box was search safe removing box, contents sought by Philadelphia Police. An defendant secured from the Federal Dis- purporting April 13,1965, dated affidavit temporary injunction trict Court dated showing requirement of to fulfill April 27, 1965, prohibiting the from bank “probable cause,” peti- accompanied the turning over the or its box contents to necessary It is not tion for warrant. Service. On December petition’s point at this to delineate pursuant plan by adopted to a de- they except indi- contents note fendants, deposit another safe box reasonably police believed that the cated gain rented in order to be able to ad- might placed the have that defendant containing mission to the vault the seized jewelry the box. stolen 30, 1965, safe box. On December being previous after unsuccessful by the issued warrant was The search attempts master secure bank’s magistrate April in the afternoon late key, conspirators decided that if a morning, pursu- following 13, 1965. The disturbance was created while one of warrant, the directive of ant to conspirators was inside the vault using Philadelphia Department Police might key. They obtain the master per- by key bank and assisted seized put plan then their into effect. The key, using master the bank’s sonnel defendant, bank, who was outside the The box box. opened the safe through hurled front a rock window. $100,000 United contain found to In the confusion the con- that followed currency spirator miscellaneous other and the vault the bank's inside seized key. By using conjunction master it in jewelry found. items. No (1960), key duplicate defendant L.Ed.2d 1669 interred which with a platter” Thus, him, provided he carried the “silver doctrine. evi- retained and had trial, dence used in the entire safe a federal criminal from the bank though originally by by even obtained been seized Service. had which authorities, judged by evening must be re- Later money quirements conspirators of the Fourth divided Amendment.1 other Testimony admissibility revealed disposed of evidence obtained of the box. $80,000. received search officers and there- that defendant sought after to be in a federal trial used prior After indictment to the trial but judged though is to be had the search suppress defendant moved to If the made federal officers. concerning the search of evidence obtained the state officers ground box and its contents on the have been inadmissible trial had been obtained prob- Philadelphia was without Police officers because of a violation in able cause therefore and objec- Fourth it is no Amendment, less rights, the alter- his or in constitutional by state tionable because it was obtained native, in violation that the search was Elkins, supra; see officers. and Weeks statute hereinafter v. 34 United 232 U.S. S.Ct. court denied discussed. (1914). 58 L.Ed. 652 motion. Thereafter principles stood trial. With these con- in mind we Evidence was offered the Government sider defendant’s contention that as to the through question contents of the box search warrant in was issued agents, personnel bank probable and the without cause tested when alleged co-conspirators. requirements. De- We must consider objected fendant’s counsel testimony, intro- this issue because to which duction of the evidence for the same objected, defendant’s counsel was offered given support reasons in knowledge of his motion Government based suppress. objections His were over- allegedly obtained as a result of ruled. The illegal defendant was convicted and search. disputed it is not that defendant’s counsel turn to We the affidavit which properly preserved objections ap- for accompanied request warrant. peal purposes. it, evaluating present purposes, In primary Defendant's contention is that we realize that its content must be tested Philadelphia the search conducted interpreted and in a common sense and Department Police of the safe Being realistic fashion. nor drafted or, probable box was without cause mally by non-lawyers in the haste alternative, constituted a violation investigation, criminal such affidavits dealing specifi- statute specificity need not contain the elaborate cally of safe boxes. searches required plead once under common law consequence, says any testi- ing. Ventresca, United v. 380 mony regarding the of the box seizure 13 L.Ed.2d S.Ct. in this its contents was inadmissible (1965). “probable cause” proceeding because warrant, for the of a search issuance provisions of the Fourth Amendment. very implies, probabili term involves decision Elkins ties. cause “the Probable exists where offi- 364 U.S. facts and circumstances within [the issue, upon probable 1. The to the Federal shall Fourth Amendment warrants but supported by affirmation, provides: eause, oath or Constitution right people particularly describing place “The to be secure things papers, searched, persons persons, houses, and ef- their be and the seized, fects, against, searches and to be unreasonable violated, seizures, and no shall not be jewelry part knowledge had all or of the stolen and of which cers] trustworthy or a safe box.” reasonably information Brooks’ home to warrant in themselves sufficient [are] The affiant further in- stated that an in the belief caution of reasonable a man vestigation subsequent to seizure of Car- conducted. should that” a key given revealed that the address States, 267 U.S. roll v. United person who rented the safe 280, 288, L.Ed. 45 S.Ct. address of defendant’s brother, and that no one the name in mind these standards With given application in the resided at the present It we examine affidavit. given. The address affidavit recited that by Philadelphia was executed Detective person the affiant believed who Snyder (“affiant”) one rented the de- It arrested defendant. recited that who fendant. informant, in the identified an who was affidavit, to him under oath stated magistrate clearly informed burglarized apart he and defendant underlying the affidavit itself of the $16,000 worth of ment and took about supporting circumstances con- affiant’s jewelry; the informant further Thus, gave affiant facts clusions. substantiate his ability all of stated that defendant retained the credit- belief as to investigation independent jewelry. By of the informant’s statement jewelry Police determined jewel- him that defendant had taken the apartment on stolen from the identified ry; probably that he rented the safe given by the informant. the date deposit might box and he that well be sup informant affidavit recited that the using deposit the the safe box store plied Philadelphia Department the Police jewelry. reading stolen A fair month information in the with reliable conclu- reveals that its whole affidavit previous to the affidavit the month when upon pos- sions are information based re further executed. affidavit by police sessed the the time. at pursu cited was arrested that defendant found, agree, district court that and we on the of issued basis ant to a warrant the met Fourth Amendment affidavit burglary by participation af probable requirement cause. See of they and that officer fiant and another Ventresca, supra. United States v. deposit key him a safe took from a for argument, we Defendant’s second as during that Affiant further recited box. it, is if we should understand that even years he known has his ten a detective as probable find that affidavit evidenced burglars store to use such boxes cause, the neverthe search warrant was waiting dispose jewelry stolen while illegal less it was issued viola because follows: it. He then stated as of (Act statutory Pennsylvania tion of law. of my because “It that belief 1961, September 1532 No. my P.L. information, and facts and these experience ).2 Detective, that sec. P.S. § Police aas appear opportunity during any may provided, “Except box have an as herein purpose answering pro- investigation in court for the or criminal criminal why any petition petition de- ceeding show cause the safe filed with when opened. deposit posit open not be If box should for an order court shall, by filing petition by person petition af- such box, is filed whether such fidavit, any person, the holder police the court that other advise or official any safe box can order until or holders of said not issue such shall court may located, forty-eight issue then the court notice of not be hours after least at opening petition filing order said and a certified such of such petition copy without the notice been served of said has pow- upon the safe this act. The court shall have or holders of the holder petition set forth er to order the said safe shall box. disposition pe- place pending when the sealed and time and the date enjoin or holders tition and to the holder holders said holder m observed Mr. Justice Frankfurter concedes that The Government comply when his dissent in Elkins said: with not did Philadelphia Police However, it ar- Pennsylvania Act. “Under today rule the Court vitiate gues did not that statute announces, court, federal trial that, assume shall We search. whenever state-seized evidence is chal- law, statute matter lenged, wholly hypo- must decide the request applicable to the question thetical whether that evidence shall We involved. here search warrant during ‘obtained state officers the warrant assume further which, a search if conducted federal law. illegal as a matter officers, would have violated the de- assumptions because make We immunity fendant’s from unreasonable Penn- violations assumed nature searches and seizures Fourth are sylvania law are such Amendment.’ Irrelevant are viola- pro- criminal cognizable federal in a law, tions hypothetical vio- ceeding. conclusion our baseWe statutes, lations of had the teaching of Elkins application of the search been ‘conducted facts. supra, our States, (emphasis officers.’” supplied). Supreme case the United 243-244, U.S. at at 1459. S.Ct. power supervisory exercising Court, The rule majority in Elkins was jus- of criminal administration over applied in Rios v. United 364 U. courts, announced in the federal tice S. S.Ct. 4 L.Ed.2d 1688 determining used to be standard (1960) and quoted has appar con- a state secured whether approval ent by a unanimous court in a federal used ducted Preston v. United 376 U.S. Stewart Mr. Justice trial. 366, 84 11 L.Ed.2d 777 stated: Supreme These Court cases show evi- hold that we “For these reasons the fact illegally evidence is during dence obtained obtained exclusively by state officers by which, conducted federal if a search does not automatically preclude its use de- officers, violated have would in federal criminal trials. This is made immunity from unreasonable fendant’s abundantly clear from facts in Rios Fourth under and seizures searches United above. There the state over inadmissible is Amendment court had found the evidence to have been objection a fed- timely illegally obtained as a determining matter of state trial. eral However, law. Supreme Court did unreason- an been there has whether not decide thereby it was by rendered offi- state seizure search and able inadmissible in the Rather, federal trial. an in- make must cers, court a federal it remanded the case an not evaluation of inquiry, whether dependent by by Fourth inquiry a Amendment an such has been there standards. Supreme Had the felt irrespective how Court court, and state that an illegality established may out. turned any inquiry have such law was preclude sufficient to law, use in neither is test one federal the federal courts there would have court enlarged by one what no need to by hearing. remand for a countenanced, nor diminished

have colorably sup- may have what another Given the violation of 223-224, 80 at pressed.” here, required law the federal court was supplied). (emphasis at 1447. to independent make an determination as by to whether facing court search conducted problem this exact state officers rule was would have violated consequence Elkins as a hereby procedural opening is and it declared to be box from safe said is not opening ex- intended to affect the substantive the box permitting rights by act of holders of safe boxes.” This cept court. as directed it been conducted the offense seizure rescue. Amendment had tute are and Fourth way by One federal constitu- officers. The Government establish prop- requirement a seizure warrant lawful to show that the tional erty “probable by person on was seized a authorized must been issued have by so of his do virtue office. See cause.” (3rd Cooper v. 299 F. 483 satisfied, are as was We 1924). right Cir. of revenue that, court, tested of the Internal make Revenue Service standards, was issued warrant seizure, such is not a warrant without probable stat cause. The challenged. 6331(a). See 26 U.S.C. § any aspect prob ute did not relate to testimony here such officers legislative history3 able As its cause. made established that the seizure was indicates, so enacted that a was Additionally, jury them. was know that holder box properly regarding the Gov- instructed was, opened. It as proof. ernment’s burden of indicates, purely added state Act procedural provision.4 The defendant’s other conten tions preceding identified in the second argues Defendant next that the district paragraph in validity effect attack the failing properly court erred to instruct of the lien-obtained the Service. The charge jury regarding the criminal necessary premise for defendant’s asser involving property. seized rescue of tions is that are relevant factors in He claims that the Government failed a trial where charged a defendant is following: establish that the Service the criminal rescuing property offense year terminated defendant’s taxable seized the Service under the circum April 14, 1965; the tax owed stances herein stated. We think as period $100,000; for the sumption is unwarranted. Such issues payment that the Service determined that are proceedings relevant in civil attack jeopardy as is tax was in ing the They Government’s seizure. are immediately them to lien tax- allow relevant permit here. To such payer’s property; placed lien that a issues be raised in connection with a levy assets; on defendant’s prosecution under these statutes would placed on the encourage be to self-help violent where bringing property it into seized civil admittedly are remedies available. possession Appar- of the Service. Compare United States v. United Mine ently, alternatively, he claims that Workers, 330 67 S.Ct. jury to should have instructed as been passing L.Ed. 884 It is of inter regard to in Government’s burden est this defendant was aware of all such matters. his civil Indeed was suc remedies. he question, application in in cessful his statute to obtain an injunction prohibiting 7212(b), to it a crime U.S.C. makes from Service § “ * * * opening any property forcibly rescue box. His own apparently seized under after shall have rendered it been actions that action * * refusing ele- The essential moot. We this title thus find no error in consti- required statute to instruct on ments such matters. comply Gen- not have been

3. 1961 Session Assembly: question. Indeed, Legislative Journal— the state statute in eral p. 1961) (Re- forty-eight requirement (June is hour notice Senate 1964. Donolow); Legislative. provision inconsistent with the Senator of Fed. marks of (August 41(c) p. Rules of Crim. Procedure Journal —House 3686-87 Representative 1961) (Remarks Eil- officer to whom it is directed make shall berg). the search "forthwith.” agents Certainly sought had federal involved would search warrant here argues respect failure is claimed with to a show- also counsel Defendant’s ing refusing purloin.” of an intent to or “steal erred the district court inspect, examina- cross permit him to rescue, Forcible as that term given purposes, entire statements tion 7212(b), not, is used U.S.C. is agents prior the trial to Government opinion, proof our limited force witnesses. of the Government’s two against Rather, persons. exerted we record shows after Gov- each think the statute the force embraces given ernment witness who had such a viz., breaking proved, here of the examination, statement testified direct on window, bank the removal of Ser prosecution to defense made available vice’s seal on the removal portion counsel that of each statement its contents from box and pertinent the issues which believed the bank. counsel involved. the defense re- When missing portions purloin” issue, quested the of the state- On the “steal conducting judge, argues ments, trial after he defendant that since owned deposit box, of the entire he an in camera examination the contents of the safe requests. statements, requisite De- denied the could have had the intent argues purloin property. that the determination fendant steal own Sullivan, portion statements was of these United States v. 333 F.2d what (3rd 1964), examination should cross this court said: material to the Cir. having validly invoked, levy] effects have him after “When [a been made given property opportunity delinquent’s to examine a seizure witnesses. of both entire tantamount to a transferral owner statements ship.” Thus, the as well as Government en defendant Before a property had an interest delivery titled statement to the taken from the bank. Act, the so-called Jenks 18 U.S.C. § judgment court is testi must have Government witness affirmed. relate to fied and the statement must testimony. subject mattter FREEDMAN, Judge (dissent- Circuit though This is true even the statements ing). may subject relate to matter presents case For me this bizarre Buten indictment. See United problem prosecution 1967). ko, Cir., whether in a federal (3rd 384 F.2d 554 Oct. ruling used which was obtained requested be to whether testimony given of a state state officers statement relates to the requires a court order to statute which the witness left determination “ * * * judge authorize access to a safe of the trial after an in owner, appropriate if can spection notice to the court in camera.” 3500(c). the exact This was U.S.C. § found. procedure proper followed did obtain a search The state officers Acceptance of de district court here.5 magistrate agree and I warrant from a argument nullify the fendant’s majority the affidavit with the procedure adopted Act to in the Jenks probable cause. How- it was based on conflicting policy meet factors. ever, government concedes that the comply procedure police did not ground with error asserted Another of prescribed alleged of Act of failure defendant relates 1961,1 20, September quoted requisite in the ma- establish the Government to jority “forcibly” opinion, necessary for the search and of element force seizure deposit of contents of A similar the safe box. rescue a safe box. 1532, 651, material 1. P.L. Act No. 19 the withheld Purdon’s have examined Pa. 5. We rulings agree Stat. Annot. 591. of the court. 328 Although poorly the statute stitutionally drawn invalid and not as decisive might on its face leave some question doubt of policy of which we have

whether it was intended to be manda- before us. tory directory, legislative history I why see no policy reason of the designed makes it clear that it was state special pro that there should be a mandatory prohibition against protection privacy for cedure of the by police search of a safe of safe boxes should not be except and the of its seizure contents respected, especially by officers, authority judicial of a order on uphold sworn to the state’s laws. To owner, notice to the if he could found allow them to violate statute and not, and if then on an order entered not- produce prosecutor to a federal the infor withstanding the of want notice.2 mation thus obtained for use a federal trial, subject This is a federal to our encouragement trial is to lend federal supervisory power over the administra- the violation state officers of laws justice my tion of criminal and in view which control their conduct. It consti permit a federal court should unspoken expression by tutes the receipt the fruits of agencies approval illegal of the acts box effected officers, only and its foundation Philadelphia police acceptance can be an of the view that statute. justifies end the means. It offends decisions in Elkins United v. fundamentally position expressed by States, 1437, L. 80 4 U.S. Mr. Justice Brandeis in his famous dis (1960) Ed.2d 1669 and Rios United sent in Olmstead v. L. U.S. 80 S.Ct. 471, 483, 48 S.Ct. (1960) readily Ed.2d 1688 form the could (1928) powerfully L.Ed. 944 which so I basis of elaborate discussion. think it judicial describes the evil inherent in the enough simply my to record view illegality.3 use of the of official fruits present ques are not decisive I would therefore hold that the evidence open tion but it for decision wheth leave obtained the search and seizure of policy er as a matter of the evidence the contents of the safe I them as should be excluded. read erroneously admitted. dealing determinations wheth with state con- respectfully er I the searches there involved were therefore dissent. 2. officers’ mit seem to be sponsibility fruits of these acts knowledge, ment of punishing plish * Journal —House 3687 Statement tive Journal —Senate Statement “When * * its crimes, own Government, Justice And sought, present ends, Senator Government, Rep. if this defendants, to effect to avail it assumed through all the Eilberg, Legislative in order Donolow, Legisla- Court would officers’ means of elements itself of there would having purpose moral Depart- (1961); crimes. accom- of a per- full re- its means —to ample. To nipresent the conviction of a fails Our Government self ratification. “In teaches declare that ^[*] would commit crimes to observe bring government Crime is government teacher. declare that terrible retribution. become a ^[*] If law the whole in the so, is the the law contagious. will be ^[*] For the Government private lawbreaker. people by end administration order the Government potent, good laws, imperiled ^[*] scrupulously. justifies criminal— to secure * * existence * the om- its ex- ^[*] * if it ’’ * ill, it- *

Case Details

Case Name: United States v. Sylvan Scolnick, Sidney Brooks, Kenneth Paull, A/K/A 'Harold Fleishman', Allenrosenberg, Sidney Brooks

Court Name: Court of Appeals for the Third Circuit

Date Published: Mar 11, 1968

Citation: 392 F.2d 320

Docket Number: 16552_1

Court Abbreviation: 3rd Cir.