Andersen v. United States

• Decision Date: 21 September 1956
• Docket Number: No. 15053.,15053.
• Citation: 237 F.2d 118
• Parties: Albert Lloyd ANDERSEN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

237 F.2d 118 (1956)

Albert Lloyd ANDERSEN, Appellant, v. UNITED STATES of America, Appellee.

No. 15053.

United States Court of Appeals Ninth Circuit.

September 21, 1956.

Ralph Morgali, Charles Miles, Jr., Las Vegas, Nev., Albert M. Dreyer, Washington, D. C., for appellant.

Franklin P. R. Rittenhouse, U. S. Atty., Howard W. Babcock, Asst., U. S. Atty., Las Vegas, Nev., for appellee.

Before LEMMON, FEE and BARNES, Circuit Judges.

LEMMON, Circuit Judge.

"It is an old joke," the appellant's expert testified, and only semi-humorously, "that you have got to be a little nuts to be a psychiatrist.

"You got to be a little off to be a psychiatrist or you can't make a living any other way unless you are, and pretty near the same thing follows for a psychologist."

The appellant himself, however, who holds a Ph.D. in clinical psychology, disagreed with his expert witness.

"It isn't too good for a psychologist to be crazy," he said.

That remark might easily be classified as the understatement of the year.

On one occasion, in a movie, the appellant "began to feel like I was going to start crying". He hurried back to his office, where he put a pillow to his head so people in the building couldn't hear his sobs.

"Big boys don't cry," the appellant explained.

1. Statement of the Case

On September 29, 1955, there was filed against the appellant an indictment in two counts, charging him with violations of 18 U.S.C.A. § 474, infra, on or about August 1, 1955, at Las Vegas, Nevada.

Count One alleged that the appellant did "photograph, and print the likeness of, a genuine Fifty Dollar * * * United States Federal Reserve Note * *"

Count Two charged that he photographed and printed the likeness of a genuine $20 Federal Reserve Note.

Section 474, supra, provides for the punishment of any one who "prints, photographs, or in any other manner makes or executes any engraving, photograph, print, or impression in the likeness of any such obligation or other security of the United States, * * * except by direction of some proper officer of the United States".

The jury returned a verdict of guilty on both counts, and the appellant was sentenced to two years' imprisonment on each count, the sentences to run concurrently. From that judgment the present appeal has been taken.

The appellant made a motion in the court below to suppress as evidence the two Federal Reserve Notes mentioned above, "on the grounds that (1) said items were unlawfully seized and taken from Defendant's premises; and (2) the property seized is not that described in the warrant".

2. Statement of Facts on the Motion to Suppress

On the Motion to Suppress, the following salient evidence was adduced:

Armed with a search warrant and a warrant of arrest, Detective Sergeant Jack D. Ruggles, of the Las Vegas Police Department, entered the appellant's office premises some time after 4 p. m., September 22, 1955. He was accompanied by Policeman Herbert L. Barrett, of the same Department.

The doctor's office consisted of five rooms — a reception room, a private office, a treatment room, a utility room, and a darkroom. This last had "three or four different locks on it."

The appellant was not in his private office when the officers entered it. In a few minutes he came in and his visitors identified themselves. Sergeant Ruggles showed the appellant the warrant of arrest charging grand larceny, and also exhibited the warrant for search of the office premises and the appellant's home. Detective Ruggles testified that burglaries had been committed right across the hall from the appellant's office and the witness had "good reason to believe that Dr. Andersen had committed those burglaries". The warrant of arrest itself, however, was for the grand larceny of a camera.

When he was shown the two warrants and was told that he was under arrest, Dr. Andersen "said it was fantastic". He "became suddenly ill", and was "apparently very nervous".

"His face became flushed," the officer continued. "He was shaking outwardly — trembling * * * In fact, he said he felt sick.

"He requested me to allow him to lie down until he felt better and I told him he certainly could and so he took me around in this east room and got into this chair, and I began talking to him * * I asked him if he had stolen that camera that he was charged with stealing * * I asked him about the burglaries."

In the meantime, Sergeant Ruggles told Barrett to search the entire office premises for the articles listed in the search warrant. Shortly afterward, Barrett asked Ruggles to come into the other room, and "pointed out a plastic bag full of these notes and these printed up bills".

Sergeant Ruggles confronted the appellant with the bag and asked him where he had obtained it. The detective then plunged into the crucial part of his narrative, so far as the present case is concerned:

"He said he had been photographing money and transferring the photograph onto the money, which was his hobby, and I told him I didn\'t think it was legal as a hobby or any other respect to photograph money, so I ordered Detective Barret to further search the premises for any kind of equipment that he might use to make these photographs with, in addition to the things listed on the original warrant, and Detective Barrett stated there was a room back there that had three or four different locks on it and he couldn\'t get in.

"I requested Dr. Andersen to unlock it and he took out a set of keys and started to unlock it. He unlocked each of the locks and when the locks were off it was a darkroom approximately four feet by four feet.

It had a phone, a developing tray, all sorts of chemicals and things photographers would use.

"There was a large portrait camera. That was not in the darkroom. It was on a table outside the darkroom. Most of the stuff was in the room on the west side of the office. So we gathered up — we also found in the darkroom, as I remember, a small overnight bag or suitcase and we took it out and opened it and it had a leather case with several different compartments and in these compartments we found these negatives and bills that looked much better than the ones in the plastic bag. He said those in the plastic bag were those he had discarded. Those in the folder were better. Some had the bill printed on both sides and the colors were better. I mean that they began to look more like the real thing, to me, anyway. This overnight bag and the leather container had his initials on it. I asked him if it was his and he said yes, it was. That is where he put these negatives and the good bills.

* * * * *

"He didn\'t object to opening up the darkroom and he didn\'t object to making the search at any time. I didn\'t ask him for permission, I admit, but he did not make any objection."

When the two police officers had gathered up the evidence and were ready to go, the thought occurred to Ruggles that there was no Secret Service agent in Las Vegas. He therefore telephoned to the FBI and "asked them to step over to the office * * * that I wanted to inquire of them how to contact the nearest Secret Service agent." The FBI agents went to the appellant's office and told Ruggles that they had no authority in the case. They referred him to Agent Spaman, in Los Angeles. Ruggles further testified:

"The FBI gave me no instructions and they told me that they had no authority whatsoever, and they gave me no assistance whatsoever, and turned around and walked out."

Before leaving, however, Bryan C. Wheeler, a Special Agent of the FBI, told Ruggles that he would attempt to get the telephone number of the Secret Service in Los Angeles. After departing from the appellant's office, Wheeler did obtain that telephone number, "and called Detective Ruggles back". The FBI men were in the appellant's office for about four or five minutes, Wheeler testified.

W. Albert Stewart, Jr., the other FBI man, said their visit lasted "Not more than five minutes". Barrett's estimate of the duration was "not more than one minute", while that of Ruggles was "A very few minutes".

After the second telephone conversation, Ruggles and Barrett, the city detectives, took the appellee's exhibits, admitted in evidence, marked them for identification, and later turned them over to Howard M. Sweeney, a Secret Service agent stationed at Los Angeles. Agent Sweeney selected the photographs described in Counts One and Two for presentment to the grand jury. Sweeney got into the case because Frank Lava, whose name was given to Ruggles by Agent Wheeler, had been transferred and Ruggles "got a hold of" Sweeney instead.

Agent Sweeney first saw the appellant at about 6:30 p. m., on the evening of September 23, 1955, in the Las Vegas city jail.

3. The Denial of the Appellant's Motion to Suppress and the Subsequent Admission of the Photographic Exhibits Were Proper.

The first specified error is that "The Court erred in denying appellant's motion to suppress the evidence".

The appellant concedes that "ordinarily" the Fourth Amendment of the United States Constitution does not "prevent the introduction in Federal Courts of evidence obtained by unreasonable searches and seizures by state officers alone, which evidence is subsequently handed over to the federal authorities on a silver platter".

"However," insists the appellant, "where federal agents had any part in the unlawful acquisition of the evidence by state officers it must be excluded in Federal Courts as against an accused".

(a) The Doctrine of "The Silver Platter"

We must inquire, therefore, what, under the decisions, amounts to a vitiating "part", contributed by Federal agents, "in the unlawful acquisition of the evidence by state officers". In other words, what is this thing, "participation"?

The doctrine of participation is thus expounded in the leading case of Lustig v. United States, 1949, 338 U.S. 74, 78-79, 69 S.Ct. 1372, 1374, 93 L.Ed. 1819, heavily relied upon — though we do not understand why — by the...