In re Fried

• Decision Date: 23 June 1947
• Docket Number: No. 168,Docket 20466.,168
• Citation: 161 F.2d 453
• Parties: In re FRIED et al.
• Court: U.S. Court of Appeals — Second Circuit

161 F.2d 453 (1947)

In re FRIED et al.

No. 168, Docket 20466.

Circuit Court of Appeals, Second Circuit.

February 25, 1947.

Writ of Certiorari Granted June 23, 1947.

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Wegman, Spark, Hoffman & Burke, of New York City (Richard J. Burke, of New York City of counsel), for appellants.

John F. X. McGohey, U. S. Atty., of New York City (Bruno Schachner and John C. Hilly, both of New York City, of counsel), for United States.

Before L. HAND, AUGUSTUS N. HAND and FRANK, Circuit Judges.

Writ of Certiorari Granted June 23, 1947. See 67 S.Ct. 1755.

FRANK, Circuit Judge.

1. Substantial testimony, the credibility of which was, of course, for the district judge to determine, sustains his conclusion that such authorized voluntary consent was given to the searches as to validate them and the seizures.

2. The district judge refused to consider any evidence whatever concerning the confessions. He ruled, in effect, as follows: Even if government officers were to use the most brutal, coercive methods in obtaining a man's confession to the commission of a crime, a district court would be powerless to prevent the government from presenting that confession to a grand jury in order to bring about that man's indictment for that crime. We cannot agree, and we therefore reverse and remand on this issue.

If an article has been illegally seized by a federal official, its potential use as evidence will be restrained by a district court, although no indictment is pending.¹ The reason, as suggested by Judge Sibley,² is that the court "may reach forward" to control the presentation, in a case which may come before it, of evidence acquired by unlawful conduct of federal officers. The government, however, argues as follows: (a) This doctrine rests on — is inseparably tied up with — the "property right," of the person from whom the article was taken, to have it returned to him. (b) A confession, even if written and signed, is an intangible which cannot be returned to the confessant; memory of its contents cannot be eradicated from the memories of the officials; the confessant therefore has no "property right in the confession." (c) Consequently, as it cannot be returned to him, an essential condition of its judicial suppression is lacking.

This contention necessarily includes a mistaken assertion: When an article illegally seized by the government is "contraband," so that the petitioner has no "property right" in it, its return to him will be denied, yet its use as evidence will be restrained. Rule 41(e) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. following section 687, provides: "If the motion is granted the property shall be restored unless otherwise subject to lawful detention³ and it shall not be admissible at any hearing or trial." The Advisory Committee's notes report that Rule 41(e) "is a restatement of existing law and practice" (with one exception not here relevant).⁴

The following argument is also made: The suppression, in advance of an indictment, of an illegally obtained confession must rest on the fact that, if there be an indictment, the confession will be excluded at the ensuing trial because of its incompetence or presumed untruthfulness; therefore, if such a confession is thus suppressed, in advance of indictment, it must logically, but absurdly, follow that the court will similarly prevent the possible use before a grand jury of any evidence which for any reason would be incompetent at a trial or which is shown to be untruthful. Not at all. The courts refuse to receive in evidence an unlawfully acquired confession, not because of its presumptive untruthfulness or unreliability or because it is irrelevant, but because of the illegality of the means by which it was acquired.⁵

The government further argues that an indictment founded upon such illicit evidence will do the applicant no harm, since such evidence will not be admitted at the trial which follows the indictment. That is an astonishingly callous argument which ignores the obvious. For a wrongful indictment is no laughing matter; often it works a grievous, irreparable injury to the person indicted. The stigma cannot be easily erased. In the public mind, the blot on a man's escutcheon, resulting from such a public accusation of wrongdoing, is seldom wiped out by a subsequent judgment of not guilty. Frequently, the public remembers the accusation, and still suspects guilt, even after an acquittal.⁶ Prosecutors have an immense discretion in instituting criminal proceedings which may lastingly besmirch reputations. That discretion is almost completely unfettered.⁷ It should surely not extend so far as to preclude judicial interference with a prosecutor's aim to induce an indictment by offering to a grand jury evidence which is the product of illegal acts of federal officers.

The "third degree" and cognate devices alarmingly persist in this country.⁸ The reports of the United States Supreme Court alone disclose eight cases in the six years 1940-1945 in which convictions were reversed because of the use of coerced confessions.⁹ The indications are that the following statement, made in 1930 by a Committee of the American Bar Association, could be made today: "It is conservative to say that for every one of the cases which do by a long chance find a place in the official reports, there are many hundreds, and probably thousands of instances of the use of the third degree in some form or other." We have cause for shame as a nation that such foul exploits by government officials are designated "the American method."¹⁰ Until such miserable misbehavior is stamped out, it will remain an empty boast that we have, and that we respect, a Constitution which guarantees civil liberties, blocks representatives of government from lawless incursions on the rights of the individual.¹¹ As possible prosecution of offending officers and civil actions for damages against them seem to have no practical value,¹² the courts, unfortunately, can do little to eliminate these evils; but what slight powers they have to do so they should vigorously exercise. Among those powers is the issuance of orders that screen from scrutiny by grand juries evidence derived from such official illegality.¹³

It is urged that, if motions to suppress confessions before indictment are entertained, the courts and prosecutors will be unduly burdened and decisions of such motions will be made by judges unable to consider the issues as intelligently as the judges presiding at trials. But that argument is equally applicable to motions for suppression, in advance of indictment, of unlawfully seized documents; and, as to them, it has been rejected by the Supreme Court.

We do not now decide that here there was any official abuse. We reverse and remand in order that the district court may pass on that issue of fact. Judge A. N. Hand would affirm the district court's order as to the confessions. Judge Learned Hand would suppress any of the confessions shown to have resulted from constitutional violations; to that extent he and I agree; such, therefore, is the decision of this court.

3. I, however, would go further than Judge Learned Hand. The following is thus a partial dissent from that decision.

Even if a confession follows a lawful arrest and does not result from coercive measures violative of the confessant's constitutional privileges, I think a federal district court should suppress it before indictment when — should it not be suppressed and should indictment and trial ensue — the confession would be inadmissible at the trial because federal officers obtained it by means of a violation of federal statute governing their authority. See McNabb v. United States, 318 U.S. 332, 344-346, 63 S.Ct 608, 87 L.Ed. 819, as further elucidated in United States v. Mitchell, 322 U.S. 65, 67, 64 S.Ct. 896, 88 L.Ed. 1140. For, as above stated, the reason for suppressing a confession procured by a violation of a constitutional privilege is solely the illegality of the means used in procuring it; and the means are just as illegal if they consist of official transgression of a federal statute. The F.B.I. and the office of the United States Attorney are but two different branches of the Department of Justice. I think it irrational that one branch of the Department should be allowed to bring about an indictment through evidence which has come into its possession through any illegal acts of another branch. Nor should it be forgotten that the federal judges, too, are part of the federal government.¹⁴ The privileges and immunities of citizens created by the Fourth and Fifth Amendments to the Constitution undoubtedly, at times impede the apprehension and conviction of criminals. Further obstacles of that kind have been erected by the F.B.I. statute, 5 U.S.C.A. § 300a which, by imposing limits on the investigatory methods lawfully available to the F.B.I., extends the citizens' immunities. Since Congress is the constitutional agency empowered to create such new immunities by enacting statutes, I think the restrictions put on official behavior by that statute deserve as much respect from the courts as the constitutionally-imposed restrictions.

Opposition to pre-trial suppression of illegally acquired confessions, and even a limited opposition to such suppression when no constitutional but only statutory immunities have been invaded, seem to me to imply criticism of those Supreme Court decisions holding inadmissible any evidence which federal officers obtain unlawfully. I do not join in that criticism. Particularly are those decisions valuable in the case of confessions, since they do something to guard against that most grievous kind of wrong — the conviction of innocent persons.¹⁵ Such wrongs undeniably occur, else the federal and several state governments would not have provided by statute for the award of financial compensation to victims of...