United States v. Gowen

• Citation: 40 F.2d 593
• Decision Date: 14 April 1930
• Docket Number: No. 285.,285.
• Parties: UNITED STATES v. GOWEN et al.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

40 F.2d 593 (1930)

UNITED STATES v. GOWEN et al.

No. 285.

Circuit Court of Appeals, Second Circuit.

April 14, 1930.

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J. Edward Lumbard, Jr., of New York City (Seymour B. Quel, of New York City, of counsel), for appellants.

Charles H. Tuttle, U. S. Atty., of New York City (Robert B. Watts, Asst. U. S. Atty., of New York City, of counsel), for the United States.

Before MANTON, SWAN and AUGUSTUS N. HAND, Circuit Judges.

SWAN, Circuit Judge (after stating the facts as above).

The major premise of the appellants' argument is that the Fifth Amendment protects every person against incrimination by the use of evidence obtained through unreasonable search or seizure in violation of rights secured to him under the Fourth Amendment. This is unassailable. Agnello v. United States, 269 U. S. 20, 34, 46 S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409; Marron v. United States, 275 U. S. 192, 194, 48 S. Ct. 74, 72 L. Ed. 231. The minor premise is that the seizure of the papers and documents in suit violated their rights under the Fourth Amendment. This the United States attorney denies, asserting that the seizure was privileged as an incident to a lawful arrest of Gowen and Bartels. The legality of their arrest is therefore the first subject for consideration.

It is challenged by the appellants upon the theory that an arresting officer who purports to act under a warrant may not justify on any other ground. It may be doubted whether an officer who makes no return of service of a warrant can be said to act under it; and whether the argument does not come to this, that an officer who tells the accused that he acts under a warrant can only justify by showing a legal warrant. But, if it be assumed that O'Brien purported to act under the warrant, the contention that he may not otherwise justify cannot be sustained. As was said by the Supreme Court in Stallings v. Splain, 253 U. S. 339, 342, 40 S. Ct. 537, 64 L. Ed. 940, the possession of an insufficient warrant does not render illegal an arrest which could lawfully be made without it. In numerous cases the insufficiency of search warrants has been held immaterial when the search and seizure might be otherwise justified. Marron v. United States, 275 U. S. 192, 48 S. Ct. 74, 72 L. Ed. 231; Vachina v. United States, 283 F. 35, 36 (C. C. A. 9); Fryar v. United States, 3 F.(2d) 598 (C. C. A. 6); Billingsley v. United States (C. C. A.) 16 F.(2d) 754, 756; Lee Kwong Nom v. United States, 20 F.(2d) 470, 472 (C. C. A. 2); State v. District Court, 72 Mont. 77, 231 P. 1107. Cf. Murby v. United States, 293 F. 849, 852 (C. C. A. 1). These search warrant cases the appellants attempt to distinguish upon the ground that in them the arresting officers had evidence of crime committed in their presence, rather than probable cause to believe that the person arrested had previously committed a felony. The logic of the attempted distinction is not apparent, and we regard these cases as authorities against the appellants' first contention. See, also, Salisbury v. Commonwealth, 79 Ky. 425, involving an invalid warrant of arrest. Cases where a warrant is necessary to gain lawful entry to the premises are distinguishable and have no application to the present situation.

The legality of the arrest is next attacked upon the ground that O'Brien had no authority to arrest without warrant, because (1) a prohibition agent is not a peace officer; (2) the Treasury Regulations under which prohibition agents act do not sanction it unless crime is committed in the agent's presence; and (3) if the agent relies only upon the right of a private individual to arrest without warrant, he did not have probable cause to believe that Gowen and Bartels had committed the felony for which they were arrested. We pass at once to the third branch of the argument, for, if this is decided adversely to the appellants, it will be unnecessary to consider the other two.

The New York Code of Criminal Procedure provides:

"§ 183. A private person may arrest another: * * *

"2. When the person arrested has committed a felony, although not in his presence."

This in effect is declaratory of the common law, which concededly permits a peace officer or a private individual to arrest without warrant where a felony has in fact been committed by the person arrested and the person making the arrest had probable cause for so believing. See Carroll v. United States, 267 U. S. 132, 161, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790; Brady v. United States, 300 F. 540 (C. C. A. 6); Bishop, New Crim. Proc. (2d Ed.) § 181. Braidwood's affidavit sets forth ample facts, none of which is denied, to show that Gowen and Bartels had conspired to violate the National Prohibition Act. We do not understand appellants to deny that Braidwood would have had sufficient reason to believe them guilty of a felony to justify an arrest by him without a warrant. The objection is that O'Brien's belief was based, not upon personal knowledge, but upon information obtained from his superior officer, Calhoun, who in turn had received from Braidwood most of the information he imparted to O'Brien. It is urged that the "probable cause" which will justify arrest of a felon must be founded upon more than unsworn hearsay. But neither in reason nor upon the authorities is the rule so limited; rather, the test is whether the belief is reasonable. In Carroll v. United States, supra, the court said (page 161 of 267 U. S., 45 S. Ct. 280, 288):

"The necessity for probable cause in justifying seizures on land or sea, in making arrests without warrant for past felonies, and in malicious prosecution and false imprisonment cases has led to frequent definition of the phrase. In Stacey v. Emery, 97 U. S. 642, 645, 24 L. Ed. 1035, a suit for damages for seizure by a collector, this court defined probable cause as follows:

"`If the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offense has been committed, it is sufficient.'"

Instances where the arrest has been sustained although the arresting officer acted on information obtained from others, rather than on personal knowledge, may be found in Brady v. United States, supra; King v. United States, 1 F.(2d) 931 (C. C. A. 9); White v. United States (C. C. A.) 18 F.(2d) 870. Measured by the test above stated, we think O'Brien was justified. He had received his information from his superior officer, whose own investigations had corroborated the facts reported by Investigator Braidwood. Calhoun, the superior officer, had sworn to a complaint charging Gowen and Bartels with the crime. It is true that that complaint was legally insufficient, but it may nevertheless be considered as affording O'Brien an additional reason for giving credence to the detailed facts Calhoun had stated to him concerning the conspiracy. The source of his information and the detailed character of it were such as to justify a cautious and prudent man in reaching the same conclusion as did O'Brien. It is urged that to sanction arrest upon information of this character and to permit a search as incidental to the arrest makes it easy to fabricate a justification which the arresting officer did not have when he made the arrest. This objection goes to the credibility of the officer's testimony, not to his right to make the arrest. Knowledge gained from the arrest or from a seizure incidental thereto cannot be used to support a finding of probable cause. See United States v. Maresca, 266 F. 713, 725 (D. C. S. D. N. Y.). But nothing is shown to raise doubt that O'Brien had received before the arrests the information which he says he had. We conclude that the arrests were legal.

Granting this, it is urged that the search and seizure were illegal. In considering this argument, it will be convenient to differentiate between the papers found on the persons of Gowen and Bartels, and those found in the search of the safe, desks, and offices. It is not, and cannot be, denied that papers taken upon the person of the accused in connection with his lawful arrest may be retained for use upon his trial, if relevant thereto. Agnello v. United States, 269 U. S. 20, 30, 46 S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409; United States v. Kirschenblatt (C. C. A. 2), 16 F.(2d) 202, 203, 51 A. L. R. 416. Therefore, with respect to the papers found upon the individual appellants, the order denying their return was clearly right.

The privilege of search incidental to a lawful arrest is not limited to search of the person; it extends to the premises where the arrest was made, and permits seizure of property there located and within the control of the accused, if it be contraband, as in Carroll v. United States, supra, or "things used to carry on the criminal enterprise," as in Marron v. United States, 275 U. S. 192, 48 S. Ct. 74, 77, 72 L. Ed. 231. In the latter case, Marron and others were charged with conspiracy to maintain a nuisance in violation of the Prohibition Act. Having been convicted, Marron challenged the judgment on the ground of error in admitting evidence consisting of a ledger and certain bills seized by prohibition agents upon the premises where a fellow conspirator, Birdsall, had been arrested. The ledger showed "inventories of liquors, receipts, expenses, including gifts to police officers, and other things relating to the business." The bills were for gas, electric light, water, and telephone service furnished on the premises. At the trial there was evidence that Marron made most of the entries in the ledger, and that he was concerned as proprietor or partner in carrying on the business of selling intoxicating liquors. In affirming the conviction, the court said (page 198 of 275 U. S., 48 S. Ct. 74, 77):

"When arrested, Birdsall was actually engaged in a conspiracy to maintain, and was actually in charge of, the premises where intoxicating liquors were being unlawfully sold. Every such...