145 F.2d 1015 (9th Cir. 1944), 10782, United States v. Rosenwasser

Docket Nº:10782.
Citation:145 F.2d 1015
Case Date:November 21, 1944
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1015

145 F.2d 1015 (9th Cir. 1944)




No. 10782.

United States Court of Appeals, Ninth Circuit.

November 21, 1944

Page 1016

Charles H. Carr, U.S. Atty., and James M. Carter and V. P. Lucas, Asst. U.S. Attys., all of Los Angeles, Cal., for appellant.

Bernard B. Laven and Harry Graham Balter, both of Los Angeles, Cal., for appellee.

Before WILBUR, DENMAN, and STEPHENS, Circuit Judges.

STEPHENS, Circuit Judge.

Appellee moves to dismiss the appeal of the United States from an order of the District Court of the United States for the Southern District of California granting a motion to suppress evidence at the trial of the cause.

Charges were preferred against appellee in an information alleging violations of the Fair Labor Standards Act of 1938, 29 U.S.C.A. § 207 et seq. Defendant-appellee filed a demurrer to the information and a motion for a bill of particulars. In addition, he moved to suppress certain evidence which he asserted had been obtained by search and seizure without a warrant thereby violating his rights under the Fourth and Fifth Amendments to the Constitution. The challenged evidence consisted of certain books and records of appellee's business, a suit and coat manufacturing concern known as the Perfect Garment Company. It was all introduced at a trial on an identical information in a former case in which the jury returned a verdict of guilty but the court granted a motion for a new trial.

In an affidavit supporting his motion herein appellee explained that a representative of the Wage and Hour Division, Department of Labor, appeared at his office and made known her desire to take the records in question to the Department office for further checking, that she claimed the existence of a provision for such inspection in the Wage and Hour Law, that she promised to give a receipt for the records and to return them as soon as possible, and that appellee thereupon delivered the papers to her. It appears from the record that the documents were returned after photostatic copies had been made.

The district court granted appellee's motion. Specifically, its order forever suppressed all records, photostats, copies, or information secured therefrom, in any proceeding of any kind against appellee, and decreed the return of the data to appellee by the officers and agents of the Department of Labor, Wage and Hour Division. The United States perfected an appeal to this court from the order. Appellee now moves to dismiss the appeal on the ground that no right of appeal lies to this court from an interlocutory order such as that questioned herein. The United States contends that the order is final and appealable to this court under the provisions of 28 U.S.C.A. § 225(a), 1 but that even if considered interlocutory in character, it enjoins the United States, its officers and agents, from using the property in any proceeding and is therefore appealable under the provisions of 28 U.S.C.A. § 227 2 as an order...

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