Cogen v. United States, 257.
| Decision Date | 20 February 1928 |
| Docket Number | No. 257.,257. |
| Citation | 24 F.2d 308 |
| Parties | COGEN v. UNITED STATES. |
| Court | U.S. Court of Appeals — Second Circuit |
Sanford H. Cohen, of New York City (George Cohen, of New York City, on the brief), for plaintiff in error.
Robert B. Watts, of New York City, for defendant in error.
Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.
L. HAND, Circuit Judge (after stating the facts as above).
Papers, like other chattels, can ordinarily be recovered only by some possessory remedy, such as replevin; we have to do neither with that, nor with a bill in equity for the same relief. This case comes up upon motion in the criminal prosecution then pending, and, while we attach no significance to the way in which the papers are entitled, it is plain that unless the motion lay as an independent proceeding, it was but a step in the defense and the order is not a "final decision" under section 128 of the Judicial Code (28 USCA § 225). Under section 16 of the Search Warrant Act (18 USCA § 626), upon the return of the executing officer, the judge or commissioner allowing the writ is to restore property unlawfully seized. Such an order, after indictment, was treated sub silentio as a "final decision" in Steele v. U. S., No. 1, 267 U. S. 498, 45 S. Ct. 414, 69 L. Ed. 757, and in Re No. 191 Front Street, 5 F.(2d) 282 (C. C. A. 2), and U. S. v. Kirschenblatt, 16 F.(2d) 202 (C. C. A. 2), we did the same.
As search warrants are almost invariably issued before indictment, it is probable that in all these cases the warrants had issued before the indictments were found, but that circumstance was not considered. In re Hollywood, 5 F.(2d) 851 (C. C. A. 2), seems not to have involved any prosecution. On the other hand, in Coastwise, etc., Co. v. U. S., 259 F. 847 (C. C. A. 2), we held that an order upon search warrant issued before indictment was not appealable, if entered after indictment found, and the same was ruled by the Ninth Circuit in Jacobs v. U. S., 8 F. (2d) 881, distinguishing Steele v. U. S., because in that case no suppression of the evidence had been asked. See, also, U. S. v. Mattingly, 52 App. D. C. 188, 285 F. 922. We need not now consider how far the last three cases can stand after Steele v. U. S., or whether it makes any difference that a prayer is added for the suppression of the evidence. It is enough that the order at bar did not determine a search warrant proceeding.
In Essgee Co. v. U. S., 262 U. S. 151, 43 S. Ct. 514, 67 L. Ed. 917, an order was reviewed which, after indictment, denied the return of papers produced in compliance with a subpœna duces tecum issued by the grand jury. The point was again assumed without discussion, and the case is in any event to be distinguished, in that the motion was a determination of a proceeding commenced by the court's writ. In this regard it was like a search warrant, though issuing as of course. No doubt a court has always supervision over the execution of its writs (Wise v. Henkel, 220 U. S. 556, 558, 31 S. Ct. 599, 55 L. Ed. 581), and its orders may perhaps be treated as final which dispose of them.
Again, the motion was not made, and decided before indictment found to compel the district attorney to return papers unlawfully seized, like Perlman v. U. S., 247 U. S. 7, 38 S. Ct. 417, 62 L. Ed. 950, and Burdeau v. McDowell, 256 U. S. 465, 41 S. Ct. 574, 65 L. Ed. 1048, 13 A. L. R. 1159, or after the indictment had been quashed, as in Re Brenner, 6 F.(2d) 425 (C. C. A. 2). Dowling v. Collins, 10 F.(2d) 82 (C. C. A. 6), arose upon orders made after search warrant, and moreover the chattels seized had a value quite independent of their use as evidence. Possibly in such a case an order, even though not disposing of a writ, should be treated as final, because it determines the title to the property. In the case at bar no writ had issued, and the property, so far as appears by the record, was of no value, except as evidence on the trial. A motion to suppress and surrender the evidence, made after indictment in such a case, appears to us no more than a step in preparation for the trial and the order as interlocutory.
Appeal dismissed.
The order appealed from denied the application of the plaintiff in error for the return of papers, cards, memoranda, and books seized from his person. It directs their suppression as evidence which might be offered upon the trial of an indictment found against him by the grand jury. The order is not appealable, because it is interlocutory, and not final. It was not an independent proceeding. The application for...
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