United States v. Lefkowitz 19 23, 1932

• Decision Date: 11 April 1932
• Docket Number: No. 466,466
• Citation: 52 S.Ct. 420,285 U.S. 452,76 L.Ed. 877,82 A.L.R. 775
• Parties: UNITED STATES v. LEFKOWITZ et al. Argued Feb. 19-23, 1932
• Court: U.S. Supreme Court

285 U.S. 452

52 S.Ct. 420

76 L.Ed. 877

UNITED STATES

v LEFKOWITZ et al.

No. 466.

Argued Feb. 19-23, 1932.

Decided April 11, 1932.

[Syllabus from pages 453-455 intentionally omitted] The Attorney General and Mr. Thomas D. Thacher, of Washington, D. C. (Messrs. G. A. Youngquist, Asst. Atty. Gen., and John J. Byrne and Wilbur H. Friedman, both of Washington, D. C., on the brief), for the United States.

[Arguments of Counsel from pages 453-456 intentionally omitted] Messrs. David P. Siegel and Milton B. Seasonwein, both of New York City, for respondent.

[Arguments of Counsel from Pages 456-457 intentionally omitted] Mr. Justice BUTLER delivered the opinion of the Court.

The question is whether searches and seizures claimed by the government to have been made as lawfully inci- dent to the arrest of respondents on a warrant for conspiracy to violate the National Prohibition Act transgressed their rights under the Fourth and Fifth Amendments.

January 12, 1931, a prohibition agent complained to a United States Commissioner in the Southern District of New York that commencing June 21, 1930, and continuing to the time of making the complaint Henry Miller (meaning respondent Lefkowitz), Jane Doe (meaning respondent Paris), and another person called Richard Roe did conspire to sell, possess, transport, furnish, deliver, and take orders for intoxicating liquor contrary to the National Prohibition Act (27 USCA). The complaint alleged it was a part of the conspiracy that from room 604 at 1547 Broadway defendants should solicit orders for liquor, have it delivered by express companies or other carriers, collect for it, and share the proceeds. It alleged certain overt acts but they have no significance upon the question under consideration. The allegations of the complaint show that the complaining witness had knowledge and information of facts amply sufficient to justify the accusation.

The commissioner issued his warrant, to which was attached a copy of the complaint, commanding the marshal and his deputies to arrest defendants. It was given to a deputy marshal for execution and he, the complaining witness, and three other prohibition agents went to room 604. The room was about ten feet wide and twenty feet long and was divided by a partition. In its outer portion, there were a stenographer's desk used by respondent Paris, a towel cabinet, and a waste basket, and in the inner part another desk and basket. When the deputy marshal and agents entered, Lefkowitz was in the room. The deputy marshal arrested him, and thereupon one of the prohibition agents searched and took from his person various papers and other things all of which were given to the deputy marshal and later turned over to the assistant United States attorney. The agents opened all the drawers of both desks, examined their contents, took therefrom and carried away books, papers, and other articles.¹ They also searched the towel cabinet and took papers from it. ² There was no breaking as the desks and cabinet were not locked. They also took the contents of the baskets and later pasted together pieces of papers found therein.³ Respondent Paris came in while the room was being searched, and the deputy marshal arrested her. All the searches and seizures were made without a search warrant. The prohibition agents delivered to the special agent in charge all the things taken from the desks, cabinet, and baskets. And, until delivered to the assistant United States attorney after Lefkowitz applied to the court for their suppression and return, they were held by the agent in charge for use in making further investigations concerning the conspiracy referred to in the complaint.

January 21, 1931, the District Court on the application of Lefkowitz issued an order to show cause, why the court should not make an order for the suppression of evidence obtained by reason of the search of the room and for the return of all the books, papers, and other things belonging to Lefkowitz. With the exception of some things that the prosecuting attorney did not wish to retain as evidence and which he had returned to Lefkowitz before the hearing, all the papers and articles seized were produced and submitted to the court. The Government submitted, in opposition to respondents' motions, affidavits of its attorney, the deputy marshal, and three of the four prohibition agents.

The District Court denied respondents' motions. It construed the complaint to charge felony under section 37 of the Criminal Code (18 USCA § 88) defining conspiracy and title 2, § 21 of the National Prohibition Act (27 USCA § 33) defining nuisance, held that each of the papers seized was, within the meaning of title 2, sections 21 and 22 (27 USCA §§ 33, 34), kept and used to maintain a nuisance; said that 'it is enough if the conspiracy was there or the petitioners or their associates had any of them gathered in the room to conduct the conspiracy or do any act to effect its object'; that 'it might well follow that, in the sense of the word as used in the Carroll Case (267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790), supra, the seized papers were contraband'; and that 'it is not necessary, however, to determine that, for the reason that, at least within the Marron Case (275 U. S. 192, 48 S. Ct. 74, 72 L. Ed. 231) all the papers were but usual and ordinary means of carrying on a business of the character presented here.' 47 F.(2d) 921, 922.

The Circuit Court of Appeals reversed. 52 F.(2d) 52, 54. It found that the search of the person of Lefkowitz was lawful and that the things taken might be used as evidence against him, held that the things seized when the office and furniture were explored did not belong to the same class, referred to 'the firmly rooted proposition that what are called general exploratory searches throughout premises and personal property are forbidden,' and said that it did not matter 'whether the articles of personal property opened and the contents examined are numerous or few, the right of personal security, liberty and private property is violated if the search is general, for nothing specific, but for whatever the containers may hide from view, and is based only on the eagerness of officers to get hold of whatever evidence they may be able to bring to light. * * * Such a search and seizure as these officers indulged themselves in is not like that in Marron v. United States * * * where things openly displayed to view were picked up by the officers and taken away at the time an arrest was made. The decision that does control is Go-Bart Co. v. United States, 282 U. S. 344, 51 S. Ct. 153, 75 L. Ed. 374. Indeed, this case differs in its essential facts from that one so slightly that what is said in that opinion in characterizing the search made will apply with equal force to this one, which must accordingly be held unreasonable.'

The government maintains that the facts and circumstances set forth in the affidavits submitted by it constitute a sufficient showing not only that the arrests were lawfully made on a valid warrant for the offense charged in the complaint but also that, without regard to the warrant, the arrests were justified as having been made for a felony by officers believing upon probable cause that respondents committed it and that when arrested they were actually engaged in the commission of crime. And it argues that, since the arrests were lawful, the search of the place where they were made was lawful, and that, having the right to search the premises, the officers were bound to do it thoroughly.

It is clear that respondents were arrested in the proper execution of the warrant, and not by officers acting without a warrant merely upon probable cause to believe that respondents were guilty of a felonious conspiracy. The offense charged involved the use of the room only to solicit orders for liquor, to cause it to be delivered, to collect for it and divide proceeds. There is nothing in the record to support the claim that at the time of the arrest, the offense for which the warrant issued or any other crime was being committed in the presence of the officers. It cannot be claimed that they saw conspiracy being committed or that any understanding, agreement, or combination was being had, made, or formed in their presence. Go-Bart Co. v. United States, supra, 282 U. S. 357, 51 S. Ct. 153, 75 L. Ed. 374. The maintenance of a nuisance or conspiracy to maintain one is not involved. The complaint did not attempt or purport to charge either. It did not allege that the room was a place where liquor was or ever had been manufactured, sold, kept, or bartered, or that it contained fixtures or other things essential or intended to be used for the sale of liquor to be consumed on the premises or otherwise. The mere soliciting of orders from the room in connection with the other uses alleged in the complaint is not sufficient to constitute the maintenance of nuisance therein. See sections 18, 21, and 22, title 2, National Prohibition Act, 27 U. S. C. §§ 30, 33 and 34 (27 USCA §§ 30, 33, 34); Miller v. United States (C. C. A.) 300 F. 529, 535; Schechter v. United States (C. C. A.) 7 F.(2d) 881. Cf. Todd v. United States (C. C. A.) 48 F.(2d) 530, 532. The facts and circumstances stated in the affidavits of the prohibition agents do not support but are inconsistent with and negative the assertions therein contained to the effect that respondents were arrested while commiting the crime of conspiracy or nuisance.

The only question presented is whether the searches of the desks, cabinet, and baskets and the seizures of the things taken from them were reasonable as an incident of the arrests. And that must be decided on the basis of valid arrests under the warrant. Save as given by that warrant and as lawfully incident to its execution, the officers had no authority over respondents or anything in the room. The disclosed circumstances clearly show that the prohibition...