United States v. Ponder, 7251.
| Decision Date | 29 November 1956 |
| Docket Number | No. 7251.,7251. |
| Citation | 238 F.2d 825 |
| Parties | UNITED STATES of America, Appellant, v. Zeno PONDER, E. Y. Ponder, B. K. Meadows, Arthur E. Cantrell, LeRoy Shelton, W. T. Moore, Roy Freeman, Merit Whitt, Jeff Whitt, and James William Baldwin, Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
J. M. Baley, Jr., U. S. Atty., Marshall, N. C., for appellant.
Thomas A. Uzzell, Jr., Asheville, N. C. (A. E. Leake, Marshall, N. C., and W. R. Francis, Waynesville, N. C., on brief), for appellees.
Before PARKER, Chief Judge, SOPER, Circuit Judge, and BRYAN, District Judge.
The United States seeks review of an order of the District Court, entered in a pending prosecution of the appellees for election frauds, suppressing as evidence the election ballots, books, and returns. These had been obtained from some of the defendants, and were held, by the Marshal under an impounding order of the court made before the criminal action was begun. The order of suppression was granted on defendants' motion after indictment. Trial has since been stayed. The points being appropriately presented, we conclude that the order is appealable and that the trial court erred in suppressing the evidence.
After the 1954 general elections for the selection of members of Congress and certain State officers, complaints of irregularities therein, occurring in Madison County, North Carolina, prompted an investigation by the Department of Justice. In this undertaking the United States Attorney submitted a petition, supported by his affidavit, to the District Judge asking for an order impounding the ballots, registration books, returns, and other election records of the County. The affidavit referred to the pendency of the investigation, explained the need for examination of the election materials, and expressed the necessity for immediate safeguards against their loss or destruction.
Forthwith the District Judge ordered the United States Marshal to take possession of the electoral records, then in the hands of the State election officials. Pursuant to this order, entered December 29, 1954, the Marshal on the next day served it, with a copy of the petition and affidavit, upon the Chairman of the County Board of Elections and upon the Clerk of the court of the county. The Clerk at once delivered to the Marshal the abstracts of returns filed in his office; the Chairman likewise surrendered such books and voting records as he had, some he kept in the county courthouse and some at home. Thereafter the Marshal called at each voting precinct and received from the election officer there the records he was keeping. Complete inventory was filed by the Marshal with his return.
On November 17, 1955, a grand jury in the District Court indicted the appellees for conspiring to injure and oppress the citizens of Madison County in their right of suffrage, 18 U.S.C.A. § 241, the grand jury having considered the matter since September 8, 1955 and referred to the impounded papers or a part of them. Named in the true bill as defendants were the Chairman of the County Board of Elections, two precinct registrars, and seven others who were unofficial election workers or notaries public. Nothing had been taken from the seven. Entitling their motion in the criminal proceeding initiated by the indictment, all the defendants moved the District Court for the return to them, and the suppression as evidence in the prosecution, of the election materials taken by the Marshal.
The District Judge granted the motions. He considered the impounding order to be the equivalent of a search warrant; he held that the legal prerequisites to the issuance of such a warrant, as stipulated in Rule 41, Federal Rules of Criminal Procedure, 18 U.S. C.A., had not been followed in many particulars, but chiefly in the affidavit of probable cause. In his opinion the seizure violated the Fourth Amendment and the election materials were thereby rendered inadmissible as evidence. On this appeal the defendants have interposed a motion to dismiss, contending that the order of suppression is but a mesne order in the criminal action, without appealable finality.
I. We are of the opinion that the seizure, impounding, return, and suppression of the election records constituted a proceeding independent of the criminal case. The suppression order dissolved the pound, terminated the separate proceeding, and plainly, therefore, was a final decision, reviewable by virtue of section 1291, title 28, United States Code.
The power to impound is inherent in a court as an institution of law enforcement; it may be exercised originally, as well as auxiliary to pending suits or actions. United States v. McHie, D.C.Ill.1912, 196 F. 586; In re Howell, D.C.Pa.1902, 119 F. 465. A court is not so impotent that it cannot instantly seize, in the face of threat of destruction or spoilation, evidence of crime without awaiting inquest or accusation. Precedent for the power is found in repeated and unquestioned resort to it. Of course, an order of this kind would issue only on good cause shown, but the need for restraint does not deny the power.
In some instances a search warrant might be required to effectuate the impounding; if so, the warrant must fulfill the requisites of Rule 41. But we do not understand that the warrant cannot issue in the absence of a contemporaneous prosecution. Indeed, the Rule is geared to an ante litem seizure. 41 (b) (2). However, the present impounding order was not a search warrant; for it ordered no search. It was an order well within the province and proprieties of a District Court. The impoundage was a sovereign's act to safeguard public records; had it been executed at the behest of the State, its validity would be readily manifest; that it was effected by another sovereign, having an equal public interest, lessens its validity not a tittle.
Indicating its individuality, the imponding petition and order were entitled "In the Matter of Investigation of Alleged Election Irregularities in Madison County, North Carolina". From December, 1954 until the following September, when the grand jury inquiry was commenced, there was no other proceeding touching the election papers. The indictment was reported in November, 1955, but even afterwards, March 28, 1956, certain of the impounded documents were returned by an order rendered in the impounding proceeding rather than in the criminal case. The incidence upon the criminal prosecution of the final order in the separate proceeding did not destroy the independence of the later. Cogen v. U. S., 1929, 278 U.S. 221, 225, 49 S.Ct. 118, 120, 73 L.Ed. 275.
In the case just cited, Justice Brandeis reviews the tests for determining whether an application for the return of seized papers and objects is an independent proceeding. He notes that when it is made by a separate, plenary suit, the independence is obvious. However, he emphasizes, the same independence may exist in a proceeding by motion, which is the necessary form when the materials, as here, are in the possession of the court. "Where an application is filed in that form", continues the Justice, "its essential character and the circumstances under which it is made will determine whether it is an independent proceeding or merely a step in the trial of the criminal case".
Following this prescript, we accent the public character of the materials now in question. They were papers of the State of North Carolina, papers to which every citizen of that State would be entitled to reasonable access, regardless of the outcome of the criminal action. Thus, North Carolina would have had locus standi before the court to inquire of the future use or disposition of the records. Actually, in the intermediate order already mentioned as allowed in the impounding proceeding, the return of the papers was to a State or county election official on his request. This experience, and the possibility of similar applications, relates our case to the illustration of independence offered by Justice Brandeis: "The independent character of the...
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