Abel v. United States, 2

Decision Date28 March 1960
Docket NumberNo. 2,2
Citation4 L.Ed.2d 668,80 S.Ct. 683,362 U.S. 217
PartiesRudolf Ivanovich ABEL, also known as 'Mark' and also known as Martin Collins and Emil R. Goldfus, Petitioner, v. UNITED STATES of America
CourtU.S. Supreme Court

Mr. James B. Donovan, New York City, for petitioner.

Mr. J. Lee Rankin, Sol. Gen., Washington, D.C., for respondent.

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, 2 Cir., 258 F.2d 485. We granted certiorari, 358 U.S. 813, 79 S.Ct. 59, 3 L.Ed.2d 56, 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 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, 79 S.Ct. 720, 3 L.Ed.2d 674, 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 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 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 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 I.N.S.) on June 21, 1957, in a single room in the Hotel Latham in New York City, his then abode. The attention of the I.N.S. had first been drawn to petitioner several days earlier when Noto, a Deputy Assistant Commissioner of the I.N.S., was told by a liaison officer of the Federal Bureau of Investigation (hereafter abbreviated as F.B.I.) that petitioner was believed by the F.B.I. to be an alien residing illegally in the United States. Noto was told of the F.B.I.'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 F.B.I.'s communication with Noto about petitioner. About one month before the F.B.I. 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 F.B.I. had thereupon placed petitioner under investigation. At the time the F.B.I. communicated with the I.N.S. 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 I.N.S., with a view to commencing deportation proceedings against him.

Upon being notified of the F.B.I.'s belief that petitioner was residing illegally in this country, Noto asked the F.B.I. to supply the I.N.S. with further information regarding petitioner's status as an alien. The F.B.I. did this within a week. The I.N.S. 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, 8 U.S.C.A. § 1305. Noto then determined on petitioner's administrative arrest as a preliminary to his deportation. The F.B.I. was so informed. On June 20, two I.N.S. 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 I.N.S. who, after the information in the possession of the I.N.S. regarding petitioner was put before him, signed the warrant and the order. Following this, Schoenenberger and Kanzler went to F.B.I. headquarters in New York where, by prearrangement with the F.B.I. in Washington, they were met by several F.B.I. officers. These agreed to conduct agents of the I.N.S. to petitioner's hotel so that the I.N.S. might accomplish his arrest. The F.B.I. officer in charge asked whether, before the petitioner was arrested, the F.B.I. might 'interview' him in an attempt to persuade him to 'cooperate' with regard to his espionage. To this Schoenenberger agreed.

At 7 o'clock the next morning, June 21, two officers of the I.N.S. and several F.B.I. men gathered in the corridor outside petitioner's room at the Hotel Latham. All but two F.B.I. agents, Gamber and Blasco, went into the room next to petitioner's, which the F.B.I. had occupied in the course of its investigation of petitioner. Gamber and Blasco were charged with confronting petitioner and soliciting his cooperation with the F.B.I. They had no warrant either to arrest or to search. If petitioner proved cooperative their instructions were to telephone to their superior for further instructions. If petitioner failed to cooperate they were to summon the waiting I.N.S. agents to execute their warrant for his arrest.

Gamber rapped on petitioner's door. When petitioner released the catch, Gamber pushed open the door and walked into the room, followed by Blasco. The door was left ajar and a third F.B.I. agent came into the room a few minutes later. Petitioner, who was nude, was told to put on a pair of undershorts and to sit on the bed, which he did. The F.B.I. agents remained in the room questioning petitioner for about twenty minutes. Although petitioner answered some of their questions, he did not 'cooperate' regarding his alleged espionage. A signal was thereupon given to the two agents of the I.N.S. waiting in the next room. These came into petitioner's room and served petitioner with the warrant for his arrest and with the order to show cause. Shortly thereafter Schoenenberger and Kanzler, who had been waiting outside the hotel, also entered petitioner's room. These four agents of the I.N.S. remained with petitioner in his room for about an hour. For part of this time an F.B.I. agent was also in the room and during all of it another F.B.I. agent stood outside the open door of the room, where he could observe the interior.

After placing petitioner under arrest, the four I.N.S. agents undertook a search of his person and of all of his belongings in the room, and the adjoining bathroom, which lasted for...

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