Application of Fried

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtRichard J. Burke, of New York City, for petitioners
Citation68 F. Supp. 961
PartiesApplication of FRIED et al.
Decision Date12 November 1946

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

68 F. Supp. 962
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:

68 F. Supp. 963

"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...

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11 practice notes
  • Di Bella v. United States, No. 349
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 23, 1960
    ...A quantity of narcotics was found, which, together with other items, the agents seized.1 284 F.2d 899 In Application of Fried, D.C., 68 F. Supp. 961, 964, consideration was given to the sufficiency of a complaint upon which a warrant of arrest was issued. There, the complaint, after allegin......
  • United States v. Page, No. 17404.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 18, 1962
    ...N.Y., 1938, 24 F.Supp. 989; United States v. Novero, D.C.E.D.Mo., 1944, 58 F.Supp. 275; Application of Fried, D.C.S.D.N.Y., 1946, 68 F.Supp. 961; United States v. Alberti, D.C.S.D.N.Y., 1953, 120 F.Supp. 171; United States v. Minor, D.C.E.D. Okla., 1953, 117 F.Supp. 697; United States v. Gu......
  • Com. v. Dressner
    • United States
    • Superior Court of Pennsylvania
    • February 27, 1975
    ...be discovered, his consent was probably voluntarily given. Grice v. United States, 146 F.2d 849 (4th Cir. 1945); Application of Fried, 68 F.Supp. 961 (D.C.N.Y.1946), rev'd on other grounds 161 F.2d 453 (2d Cir. 1947), cert. denied 331 U.S. 858, 67 S.Ct. 1751, 91 L.Ed. 1865. State v. King, s......
  • Brinegar v. United States, No. 3518.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • March 8, 1948
    ...App. D.C., 115 F.2d 690; Gibson v. United States, App.D.C., 149 F.2d 381; United States v. Ruffner, D.C., 51 F.2d 579; In re Fried, D.C., 68 F.Supp. 961; GoBart Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed....
  • Request a trial to view additional results
11 cases
  • Di Bella v. United States, No. 349
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 23, 1960
    ...A quantity of narcotics was found, which, together with other items, the agents seized.1 284 F.2d 899 In Application of Fried, D.C., 68 F. Supp. 961, 964, consideration was given to the sufficiency of a complaint upon which a warrant of arrest was issued. There, the complaint, after allegin......
  • United States v. Page, No. 17404.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 18, 1962
    ...N.Y., 1938, 24 F.Supp. 989; United States v. Novero, D.C.E.D.Mo., 1944, 58 F.Supp. 275; Application of Fried, D.C.S.D.N.Y., 1946, 68 F.Supp. 961; United States v. Alberti, D.C.S.D.N.Y., 1953, 120 F.Supp. 171; United States v. Minor, D.C.E.D. Okla., 1953, 117 F.Supp. 697; United States v. Gu......
  • Com. v. Dressner
    • United States
    • Superior Court of Pennsylvania
    • February 27, 1975
    ...be discovered, his consent was probably voluntarily given. Grice v. United States, 146 F.2d 849 (4th Cir. 1945); Application of Fried, 68 F.Supp. 961 (D.C.N.Y.1946), rev'd on other grounds 161 F.2d 453 (2d Cir. 1947), cert. denied 331 U.S. 858, 67 S.Ct. 1751, 91 L.Ed. 1865. State v. King, s......
  • Brinegar v. United States, No. 3518.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • March 8, 1948
    ...App. D.C., 115 F.2d 690; Gibson v. United States, App.D.C., 149 F.2d 381; United States v. Ruffner, D.C., 51 F.2d 579; In re Fried, D.C., 68 F.Supp. 961; GoBart Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed....
  • Request a trial to view additional results

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