Application of Fried

• Decision Date: 12 November 1946
• Citation: 68 F. Supp. 961
• Parties: Application of FRIED et al.
• Court: U.S. District Court — Southern District of New York

68 F. Supp. 961

Application of FRIED et al.

District Court, S. D. New York.

November 12, 1946.

Richard J. Burke, of New York City, for petitioners.

John F. X. McGohey, U. S. Atty., of New York City (John C. Hilly, Asst. U. S. Atty., of New York City, of counsel), for the Government.

RIFKIND, District Judge.

By petition Philip Fried and others prayed for an order directing the United States Attorney to return books, checks and papers belonging to the petitioner Fried and suppressing them as evidence and for an order suppressing the confessions made by the petitioners. The grounds assigned are that the books, checks and papers were seized unlawfully and that the confessions were obtained by violating petitioner's rights to prompt arraignment and by other unlawful means. Upon the petition an order to show cause issued and the matter came on for hearing and argument.

The search and seizure complained of were contemporaneous with the arrest of the petitioner Nierenberg by special agents of the Federal Bureau of Investigation upon a warrant issued on a verified complaint.

I address myself first to the prayer for the suppression of the confessions. The United States Attorney asserts that the granting of such relief is beyond the power of the Court and that such application may not be entertained before indictment. Diligent search by counsel and additional investigation by the Court have failed to uncover any precedent for such an application. Apparently the question is one of first impression.

Exploration of the decisional territory adjacent to this problem reveals the following:

(1) Evidence secured by an unlawful search and seizure may be suppressed on application made before indictment. Perlman v. United States, 1918, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950; Turner v. Camp, 5 Cir., 1941, 123 F.2d 840; Foley v. United States, 5 Cir., 1933, 64 F.2d 1, certiorari denied 289 U.S. 762, 53 S.Ct. 796, 77 L.Ed. 1505; United States v. Poller, 2 Cir., 1930, 43 F.2d 911, 74 A.L.R. 1382.

(2) The Federal Rules of Criminal Procedure prescribe that a motion for the return and suppression of anything obtained by an unlawful search and seizure should be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion. The Court, by that Rule, retains discretion to entertain the motion at the trial or hearing. Rule 41(e).

(3) A respectable body of authority supports the view that an application to suppress a confession will not be entertained before trial. In all the cited cases the application was made after indictment. People v. Reed, 1928, 333 Ill. 397, 164 N.E. 847; Kokenes v. State, 1938, 213 Ind. 476, 13 N.E.2d 524; People v. Nentarz, 1931, 142 Misc. 477, 254 N.Y.S. 574; United States v. Lydecker, D.C.W.D.N.Y., 1921, 275 F. 976.

No decisions to the contrary have been located except Ah Fook Chang v. United States, 9 Cir., 1937, 91 F.2d 805, and United States v. Pollack, D.C.N.J.1946, 64 F.Supp. 554, where a motion to suppress a confession was entertained before trial. The point, however, was not raised.

In some of these decisions a distinction is expressly made between suppression of the fruits of unlawful seizures and the suppression of a coerced confession. Kokenes v. State, supra; United States v. Lydecker, supra.

(4) The argument advanced by the petitioners is substantially as follows: The fruits of unlawful seizures are suppressed in advance of indictment in order to (a) protect the petitioners' constitutional right under the Fourth Amendment and (b) to afford a sanction against misconduct by federal officials. The suppression of coerced confessions in advance of indictment would likewise protect the aggrieved person's rights under the Fifth Amendment and discourage official misconduct.

Support for this argument may be derived from the fact that confessions have been held inadmissible, not only because coercion has destroyed their trustworthiness, Wagner v. United States, 5 Cir., 1940, 110 F.2d 595, certiorari denied 310 U.S. 643, 60 S.Ct. 1104, 84 L.Ed. 1411, but also because they were procured through official misconduct, McNabb v. United States, 1943, 318 U.S. 332, 344, 63 S.Ct. 608, 87 L.Ed. 819.

Indeed in Nueslein v. District of Columbia, 1940, 73 App.D.C. 85, 115 F.2d 690, the Court held a confession inadmissible because obtained in the course of an unlawful entry effected in violation of the Fourth Amendment. The Court spoke of the confession as the thing "found" in the course of the unlawful "search," thus assimilating confessions unlawfully secured with property unlawfully seized.

In further support of the petitioners' position we have the language of Foley v. United States, supra:

"Though no indictment be pending, the court may reach forward to control the improper preparation of evidence which is to be used in a case coming before it, and can always by summary procedure restrain oppressive or unlawful conduct of its own officers." (Page 3 of 64 F.2d)

The facts of the case, however, related to a search and seizure, and not to a confession.

Despite these considerations, I have come to the conclusion that the petitioners' application is premature.

(1) It would introduce a strange anomaly in the law to permit the suppression of confessions before indictment and refuse suppression between indictment and trial. The trespass upon the constitutional privileges is no less grave in subjecting one to trial upon a coerced confession than in subjecting him to indictment. Nevertheless, as we have seen, the authorities generally adhere to the rule that objection must be made at the trial and not in advance thereof.

(2) Legal symmetry alone is, of course, not a very compelling consideration. There are, however, significant differences which distinguish the coerced confession from the product of unlawful search. In dealing with unlawful seizures we are not concerned with the probative force of the material sought to be suppressed as evidence. Probative force is assumed. The vindication of the right of privacy is alone in issue. In dealing with challenged confessions, their testimonial worth is generally in issue (except in cases like Nueslein v. District of Columbia, supra).

That distinction leads to this practical difference: A decision on an application to suppress as evidence materials obtained by an unlawful search and seizure is conclusive, that is, the evidence is excluded from the grand jury or the trial if the application is successful, and is admissible (unless excluded by other rules of evidence) if the application is unsuccessful. No such finality would attach to a pretrial or preindictment determination on a challenged confession. If the application to suppress were successful, it would, of course, be excluded. But if it were unsuccessful, the trial judge would still have to hear the challenge, at the trial, with the jury excluded, and if he determined that the confession was admissible, the issue of the voluntary character of the confession could still be submitted to the jury. (It would not do to make the decision of the judge hearing the preindictment or pretrial application, not to suppress, binding upon the trial judge.) To permit an application to suppress before indictment and before trial, would add two more possible hearings on the same facts to the two hearings already provided by existing practice.

In short, whereas the pretrial disposition of challenged seizures promotes the efficiency of trial administration by relieving the trial court of an extraneous issue to be tried while the jury is excluded, no such advantage is assured by the pretrial or preindictment disposition of challenged confessions.

It may be poor dialectics to argue against a proposition by extruding it to absurd lengths. It should nevertheless be noted that the same arguments which support the petitioners' position here would also support the contention that allegedly perjured statements in the possession of the United States Attorney may be suppressed before indictment. Indictment or trial on perjured evidence is an invasion of the right to due process. Such logic would lead to the absurd result that in a criminal case we would first try the "evidence" before we indicted or tried the accused.

Perhaps a distinction may be drawn between confessions challenged because they are alleged to be the products of coercion or duress and those challenged because they were obtained in the course of some other violation of the confessor's rights, such as unlawful search or delayed arraignment. The practice concerning the latter type could easily be assimilated to that applicable to unlawful search and seizure. However, I am not disposed to introduce such a classification. The benefits it would yield would be small. The practical difficulties outweigh it. While on paper the distinction seems real, actual experience shows few cases where both factors, coercion and other illegality, are not intimately entangled.

The petition to suppress the confessions is dismissed.

I address myself now to the petition to return and suppress certain books and papers.

The respondents justify the search and seizure on several grounds. They will be treated seriatim.

(1) The search was incidental to a lawful arrest effected pursuant to a warrant of arrest.

The warrant of arrest was issued by a commissioner upon a complaint which reads as follows:

"Southern District of New York, ss.:

"John F. Kehoe, Jr., being duly sworn, deposes and says that he is a Special Agent attached to the Federal Bureau of Investigation, Department of Justice, and upon information and belief alleges and charges as follows:

"That heretofore, to wit, on or about the 7th day of June, 1946, at the Southern District of New York and within the jurisdiction of this Court, Philip Fried, George Neary, Benjamin Fried, Fred Dinglefelder, Edward Terris, and John Birnbaum, the defendants herein, unlawfully,...