362 U.S. 217 (1960), 2, Abel v. United States

Docket Nº:No. 2
Citation:362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668
Party Name:Abel v. United States
Case Date:March 28, 1960
Court:United States Supreme Court

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362 U.S. 217 (1960)

80 S.Ct. 683, 4 L.Ed.2d 668



United States

No. 2

United States Supreme Court

March 28, 1960

Argued February 24-25, 1959

Restored to the calendar for reargument March 23, 1959

Reargued November 9, 1959




Immigration and Naturalization Service officers arrested petitioner on an administrative warrant for deportation, searched the hotel room where he was arrested, his person and his luggage, and seized certain articles. After petitioner had checked out of his hotel room, an agent of the Federal Bureau of Investigation made a further search of the room, without a warrant but with the consent of the hotel management, and seized certain articles which petitioner had left there. The articles so seized were admitted in evidence over petitioner's objection at his trial for conspiracy to commit espionage, and he was convicted.

Held: These searches and seizures did not violate the Fourth or Fifth Amendment, and the use in evidence of the articles so seized did not invalidate petitioner's conviction. Pp. 218-241.

1. On the record in this case, the Government did not use the administrative warrant of the Immigration and Naturalization Service as an improper instrument of the Federal Bureau of Investigation in obtaining evidence for a criminal prosecution. Pp. 225-230.

2. Petitioner's claim that the administrative warrant under which he was first arrested was invalid under the Fourth Amendment is not properly before this Court, since it was not made below and was expressly disavowed there. Pp. 230-234.

3. The articles seized by the immigration officers during the searches here involved were properly admitted in evidence. Pp. 234-240.

4. Immigration officers who effect an arrest for deportation on an administrative warrant have a right of incidental search analogous to the search permitted criminal law enforcement officers incidental to a lawful arrest. Pp. 235-237.

5. The search of the hotel room by an FBI agent without a warrant but with the consent of the hotel management, after petitioner

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had relinquished the room, and the seizure of articles which petitioner had abandoned there were lawful, and such articles were properly admitted in evidence. Pp. 240-241.

258 F.2d 485 affirmed.

FRANKFURTER, J., lead opinion

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

The question in this case is whether seven items were properly admitted into evidence at the petitioner's trial for conspiracy to commit espionage. All seven items were seized by officers of the Government without a search warrant. The seizures did not occur in connection with the exertion of the criminal process against petitioner. They arose out of his administrative arrest by the United States Immigration and Naturalization Service as a preliminary to his deportation. A motion to suppress these items as evidence, duly made in the District Court, was denied after a full hearing. 155 F.Supp. 8. Petitioner was tried, convicted and sentenced to thirty years' imprisonment and to the payment of a fine of $3,000. The Court of Appeals affirmed, 258 F.2d 485. We granted certiorari, 358 U.S. 813, limiting the grant to the following two questions:

1. Whether the Fourth and Fifth Amendments to the Constitution of the United States are violated by

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a search and the seizure of evidence without a search warrant, after an alien suspected and officially accused of espionage has been taken into custody for deportation, pursuant to an administrative Immigration Service warrant, but has not been arrested for the commission of a crime?

2. Whether the Fourth and Fifth Amendments to the Constitution of the United States are violated when articles so seized are unrelated to the Immigration Service warrant and, together with other articles obtained from such leads, are introduced as evidence in a prosecution for espionage?

Argument was first heard at October Term, 1958. The case having been set down for reargument at this Term, 359 U.S. 940, counsel were asked to discuss a series of additional questions, set out in the margin. *

We have considered the case on the assumption that the conviction must be reversed should we find challenged items of evidence to have been seized in violation of the Constitution, and therefore improperly admitted into evidence. We find, however, that the admission of these items was free from any infirmity, and we affirm the judgment. (Of course the nature of the case, the fact that it was a prosecution for espionage, has no bearing

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whatever upon the legal considerations relevant to the admissibility of evidence.)

The seven items, all in petitioner's possession at the time of his administrative arrest, the admissibility of which is in question were the following:

(1) a piece of graph paper, carrying groups of numbers arranged in rows, allegedly a coded message;

(2) a forged birth certificate, certifying the birth of "Martin Collins" In New York County in 1897;

(3) a birth certificate, certifying the birth of "Emil Goldfus" in New York in 1902 (Emil Goldfus died in 1903);

(4) an international certificate of vaccination, issued in New York to "Martin Collins" in 1957;

(5) a bank book of the East River Savings Bank containing the account of "Emil Goldfus";

(6) a hollowed-out pencil containing 18 microfilms; and

(7) a block of wood, wrapped in sandpaper, and containing within it a small booklet with a series of numbers on each page, a so-called "cipher pad."

Items (2), (3), (4) and (5) were relevant to the issues of the indictment for which petitioner was on trial in that they corroborated petitioner's use of false identities. Items (1), (6) and (7) were incriminatory as useful means for one engaged in espionage.

The main claims which petitioner pressed upon the Court may be thus summarized: (1) the administrative arrest was used by the Government in bad [80 S.Ct. 688] faith; (2) administrative arrests as preliminaries to deportation are unconstitutional; and (3) regardless of the validity of the administrative arrest here, the searches and seizures through which the challenged items came into the Government's possession were not lawful ancillaries to such an arrest. These claims cannot be judged apart from the circumstances leading up to the arrest and the nature of

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the searches and seizures. It becomes necessary to relate these matters in considerable detail.

Petitioner was arrested by officers of the Immigration and Naturalization Service (hereafter abbreviated as INS) on June 21, 1957, in a single room in the Hotel Latham in New York City, his then abode. The attention of the INS had first been drawn to petitioner several days earlier when Noto, a Deputy Assistant Commissioner of the INS, was told by a liaison officer of the Federal Bureau of Investigation (hereafter abbreviated as FBI) that petitioner was believed by the FBI to be an alien residing illegally in the United States. Noto was told of the FBI's interest in petitioner in connection with espionage.

An uncontested affidavit before the District Court asserted the following with regard to the events leading up to the FBI's communication with Noto about petitioner. About one month before the FBI communicated with Noto, petitioner had been mentioned by Hayhanen, a recently defected Russian spy, as one with whom Hayhanen had for several years cooperated in attempting to commit espionage. The FBI had thereupon placed petitioner under investigation. At the time the FBI communicated with the INS regarding petitioner, the case against him rested chiefly upon Hayhanen's story, and Hayhanen, although he was later to be the Government's principal witness at the trial, at that time insisted that he would refuse to testify should petitioner be brought to trial, although he would fully cooperate with the Government in secret. The Department of Justice concluded that, without Hayhanen's testimony, the evidence was insufficient to justify petitioner's arrest and indictment on espionage charges. The decision was thereupon made to bring petitioner to the attention of the INS, with a view to commencing deportation proceedings against him.

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Upon being notified of the FBI's belief that petitioner was residing illegally in this country, Noto asked the FBI to supply the INS with further information regarding petitioner's status as an alien. The FBI did this within a week. The INS concluded that, if petitioner were, as suspected, an alien, he would be subject to deportation in that he had failed to comply with the legal duty of aliens to notify the Attorney General every January of their address in the United States. 8 U.S.C. § 1305. Noto then determined on petitioner's administrative arrest as a preliminary to his deportation. The FBI was so informed. On June 20, two INS officers, Schoenenberger and Kanzler, were dispatched by Noto to New York to supervise the arrest. These officers carried with them a warrant for petitioner's arrest and an order addressed to petitioner directing him to show cause why he should not be deported. They met in New York with the District Director of the INS who, after the information in the possession of the INS regarding petitioner was put before him, signed the warrant and the order. Following this, Schoenenberger and Kanzler went to FBI headquarters in New York, where, by prearrangement with the FBI in Washington, they were met by several FBI officers. These agreed to conduct agents of the INS to petitioner's hotel so that the INS might accomplish his arrest. The FBI officer in charge asked whether, before the petitioner was arrested, the FBI might "interview" him in an attempt to persuade him to "cooperate" with regard to his espionage. To this, Schoenenberger agreed.

[80 S.Ct. 689] At 7 o'clock the next morning, June 21, two...

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