Lefkowitz v. United States Attorney

Decision Date10 July 1931
Docket NumberNo. 432.,432.
PartiesLEFKOWITZ et al. v. UNITED STATES ATTORNEY FOR THE SOUTHERN DISTRICT OF NEW YORK.
CourtU.S. Court of Appeals — Second Circuit

David P. Siegel, of New York City (Milton B. Seasonwein, of New York City, of counsel), for appellants.

George Z. Medalie, U. S. Atty., of New York City (Ulysses S. Grant, Asst. U. S. Atty., of New York City, of counsel), for appellee.

Before MANTON, SWAN, and CHASE, Circuit Judges.

CHASE, Circuit Judge.

These two petitioners were arrested, together with one Williams, who was later released, in room 604, at No. 1547 Broadway, New York City, January 12, 1931, by a deputy United States marshal in execution of a John Doe warrant. They were charged with maintaining a liquor nuisance and with conspiracy to violate the National Prohibition Act. Four special agents assisted in making the arrests, which are to be treated as having been made lawfully.

Room 604 was on the sixth floor of a building at the above address, and was about ten feet wide and twenty feet long. It was divided by a partition into a front office and a back office, and used ostensibly by a real estate agency. At the time the men were arrested, Pauline Paris, who was employed as a typist in the office, was not present, but came in soon afterwards and was immediately placed under arrest. When they were arrested, the men were searched. Various papers were taken from the person of Lefkowitz and delivered to the United States attorney, who now has possession of all of them except what he has consented to return. A small bottle of whisky was taken from Williams.

Contemporaneously with the arrests, both rooms were thoroughly searched. Two desks were opened, ransacked, and papers they contained seized; a towel cabinet was searched and papers in it seized; waste paper baskets were emptied and scraps of paper taken from them and later pasted together. All that was seized after this search was delivered to the United States attorney, who now has possession of so much thereof as he has not seen fit to return.

After she was arrested, Pauline Paris was told by one of the officers that he would try to procure her release on bail and thus make it unnecessary for her to remain in jail over night if she would write on her typewriter a letter he would dictate and place her signature upon it. She readily consented to do so, and the following letter was written.

"Ulysses Grant, Post Office Bldg., New York City

"My dear Mr. Grant, Since everything has gone fine, I would suggest that this girl whose name is signed below be left out as soon as bail is arranged for her.

"Very truly yours "J. Ray Oliver "s Pauline Paris"

It was entirely in typewriting, except the name Pauline Paris, which was in her handwriting. The officer intended to, and did, facilitate her release on bail, but his primary purpose in having the letter written was to obtain a sample of her work on that typewriter and her signature.

One of the two desks searched was in each office into which the room had been divided. In the desk in the back office a small bottle partly filled with alcohol was found and seized. No other intoxicating liquor was discovered except that which Williams had. The search and seizure was made without a search warrant, and is claimed to have been lawful as an incident of the arrests.

Although this case differs from United States v. 1,013 Crates of Empty Old Smuggler Whiskey Bottles, etc., 52 F.(2d) 49, just decided by this court, in that this comes up on appeal from the denial of an application for the suppression and return of evidence seized while the appeal in that case was from a decree on a libel for forfeiture of contraband, the right to search and seize as an incident of a lawful arrest is, here as there, alone relied upon by the government in justification.

As is so well shown in Boyd v. United States, 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed. 746, the right to search for and seize contraband when it is done lawfully is utterly unlike a search for evidence merely and the seizure of one's private books and papers for the sole purpose of using them for purposes of incrimination. Without confusing a search for and seizure of contraband of which the government is entitled to take possession because of what in law is said to be the inherent guilt of the res itself and the search for and seizure of books, papers, documents and the like which are not, at least as yet, considered guilty themselves, but are only wanted to prove the guilt of persons or property, it is needless to emphasize that searches and seizures of both kinds must always be reasonable to be lawful. Whenever evidence is searched for and seized, it must be in connection with something else which gives to the public a paramount interest in it. Gouled v. United States, 255 U. S. 298, at page 309, 41 S. Ct. 261, 65 L. Ed. 647. This happens when it is done as an incident of a lawful arrest or a lawful seizure of contraband, but a search and seizure cannot be reasonable, and therefore justified, if it is based solely on the purpose to obtain nothing but information generally which may, perhaps, be proof that a crime has been committed. Evidence so obtained is not admissible against the person or persons whose rights have been violated. To admit it would be contrary to the Fifth Amendment in that part which reads "no person * * * shall be compelled in any Criminal Case to be a witness against himself." Boyd v. United States, supra; Gouled v. United States, supra. Consequently, when a seizure of contraband is defended as an incident of a lawful arrest, as in United States v. 1013 Crates, etc., supra, or a seizure of evidence is defended on the same ground, as in this case, the reasonableness of the search which resulted in the seizure is the test of legality in each instance.

The application of this principle to the present case results at once in dividing the property seized into two classes — that which was taken from the person of petitioner Lefkowitz when he was arrested and searched; and that which was seized when the office and its furniture were explored for evidence.

The things that were found on Lefkowitz were lawfully seized and may be used against him. Agnello v. United States, 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409; Marron v. United States, 275 U. S. 192, 48 S. Ct. 74, 72 L. Ed. 231; United States v. Kirschenblatt (C. C. A.) 16 F.(2d) 202, 51 A. L. R. 416. The law on this subject has long been so well settled that it is useless to do more than state it whenever occasion arises. It is difficult to conceive how the facts in one case can make it differ from others in this respect, and such a search properly conducted is reasonable as a matter of law.

What was seized in the search of the offices falls within the second class, and the application of the governing legal principles to...

To continue reading

Request your trial
6 cases
  • Austin v. United States
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • 21 Noviembre 1961
    ...agent from testifying before a grand jury was not discussed. See, also, that portion of the opinion in Lefkowitz v. United States Attorney for Southern Dist., 2 Cir., 52 F. 2d 52, in which it was held there was no right to pre-trial suppression of the letter which the secretary, Paris, had ......
  • United States v. Best
    • United States
    • U.S. District Court — District of Massachusetts
    • 26 Marzo 1948
    ...been done here. Matthews v. Correa, supra; United States v. Poller, supra. See dissenting opinion of Judge Swan in Lefkowitz v. United States Attorney, 2 Cir., 52 F.2d 52, 55. Nor can it be said that the manner of the search, under the circumstances, exceeded reasonable bounds. Cf. United S......
  • Drayton v. United States
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 5 Junio 1953
    ...search his person, Weeks v. United States, 232 U.S. 383, text 392, 34 S.Ct. 341, text 344, 58 L.Ed. 652, text 655; Lefkowitz v. United States Attorney, 2 Cir., 52 F.2d 52; United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877, and contemporaneously with the arrest may search ......
  • United States v. Margeson, Crim. No. 65-7.
    • United States
    • U.S. District Court — District of Maine
    • 3 Junio 1965
    ...F.2d 285, 287 (2d Cir.) (dictum), cert. denied, 298 U.S. 665, 56 S.Ct. 747, 80 L.Ed. 1389 (1936); Lefkowitz v. United States Attorney for the So. Dist. of N. Y., 52 F.2d 52, 54 (2d Cir. 1931), aff'd, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932); United States v. Kirschenblatt, 16 F.2d 20......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT