Cogen v. United States, No. 89

CourtUnited States Supreme Court
Writing for the CourtBRANDEIS
Citation73 L.Ed. 275,278 U.S. 221,49 S.Ct. 118
Decision Date02 January 1929
Docket NumberNo. 89
PartiesCOGEN v. UNITED STATES

278 U.S. 221
49 S.Ct. 118
73 L.Ed. 275
COGEN

v.

UNITED STATES.

No. 89.
Argued Nov. 20, 1928.
Decided Jan. 2, 1929.

Page 222

Mr. Sanford H. Cohen, of New York City, for petitioner.

The Attorney General, for the United States.

Mr. Justice BRANDEIS delivered the opinion of the Court.

Cogen, with others as codefendants, was indicted in the federal court for southern New York on a charge of conspiracy to violate the National Prohibition Act (27 USCA). Before the indictment, certain papers had been taken from his person without a warrant. After the indictment and before trial, he applied to that court, in the criminal case, for an order requiring the United States attorney to return the papers; and to suppress all evidence obtained therefrom, on the ground that the search and seizure had been in violation of his constitutional rights. The application was denied. Before the trial of the cause, Cogen sued out a writ of error from the Circuit Court of Appeals. It dismissed the writ, holding that the order sought to be reviewed was interlocutory and hence not appealable. 24 F.(2d) 308. This court granted a writ of certiorari. 277 U. S. 579, 48 S. Ct. 436, 72 L. Ed. 997. The sole question for decision is whether the order of the District Court is a final judgment within the meaning of section 128 of the Judicial Code (28 USCA § 225).

Cogen claims that it is final, contending that his application for surrender of the papers is a collateral matter, distinct from the general subject of the litigation, and that the order thereon finally settled the particular controversy. He argues that, being so, it falls, like the orders in Forgay v. Conrad, 6 How. 201, 203, 204, 12 L. Ed. 404; Trustees of Internal Improv. Fund v. Greenough, 105 U. S. 527, 531, 26 L. Ed. 1157; and Williams v. Morgan, 111 U. S. 684, 699, 4 S. Ct. 638, 28 L. Ed. 559, within the exception to the general rule which limits the right of review to judgments which are

Page 223

both final and complete. See Collins v. Miller, 252 U. S. 364, 370, 40 S. Ct. 347, 64 L. Ed. 616; Oneida Navigation Corp. v. W. & S. Job & Co., 252 U. S. 521, 40 S. Ct. 357, 64 L. Ed. 697.

It is true that the order deals with a matter which, in one respect, is deemed collateral. As was said in Segurola v. United States, 275 U. S. 106, 111, 112, 48 S. Ct. 77, 79 (72 L. Ed. 186): '* * * A court, when engaged in trying a criminal case, will not take notice of the manner in which witnesses have possessed themselves of papers or other articles of personal property, which are material and properly offered in evidence because the court will not in trying a criminal cause permit a collateral issue to be raised as to the source of competent evidence. To pursue it would be to halt in the orderly progress of a cause and consider incidentally a question which has happened to cross the path of such litigation and which is wholly independent of it.' Hence, a defendant will, ordinarily, be held to have waived the objection to the manner in which evidence has been obtained unless he presents the matter for the consideration of the court seasonably in advance of the trial; and he does this commonly by a motion made in the cause for return of the property and for suppression of the evidence. The rule is one of practice; and is not without exceptions. See Gouled v. United States, 255 U. S. 298, 305, 41 S. Ct. 261, 65 L. Ed. 647; Agnello v. United States, 269 U. S. 20, 34, 35, 46 S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409; Panzich v. United States (C. C. A.) 285 F. 871, 872.

It is not true that the order on such a motion deals with a matter distinct from the general subject of the litigation. Usually the main purpose of the motion for the return of papers is the suppression of evidence at the forthcoming trial of the cause. The disposition made of the motion will necessarily determine the conduct of the trial and may vitally affect the result. In essence, the motion resembles others made before or during a trial to secure or to suppress evidence, such as applications to

Page 224

suppress a deposition, Grant Bros. Const. Co. v. United States, 232 U. S. 647, 661, 662, 34 S. Ct. 452, 58 L. Ed. 776; Pullman Co. v. Jordan (C. C. A.) 218 F. 573, 577; to compel the production of books or documents, Pennsylvania R. R. Co. v. International Coal Mining Co. (C. C. A.) 156 F. 765; for leave to make physical examination of a plaintiff, Union Pacific Ry. Co. v. Botsford, 141 U. S. 250, 11 S. Ct. 1000, 35 L. Ed. 734; or for a subpoena duces tecum, Murray v. Louisiana, 163 U. S. 101, 107, 16 S. Ct. 990, 41 L. Ed. 87; American Lithographic Co. v. Werckmeister, 221 U. S. 603, 608-610, 31 S. Ct. 676, 55 L. Ed. 873. The orders made upon such applications, so far as they affect the rights only of parties to the litigation, are interlocutory. Compare Alexander v. United States, 201 U. S. 117, 26 S. Ct. 356, 50 L. Ed. 686. It is only when disobedience happens to result in an order punishing criminally for contempt, that a party may have review by appellate proceedings before entry of the final judgment in the cause. Union Tool Co. v. Wilson, 259 U. S. 107, 110, 111, 42 S. Ct. 427, 66 L. Ed. 848.

It is not true that the decision on such a motion for the return of papers necessarily settles the question of their admissibility in evidence. If the motion is denied, the objection to the admissibility as evidence is usually renewed when the paper is offered at the trial. And, although the preliminary motion was denied, the objection made at the trial to the admission of the evidence may be sustained. For as was said in Gouled v. United States, 255 U. S. 298, 312, 313, 41 S. Ct. 261, 266 (65 L. Ed. 647): '* * * Where, in the progress of a trial, it becomes probable that there has been an unconstitutional seizure of papers, it is the duty of the trial...

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207 practice notes
  • National Super Spuds, Inc. v. New York Mercantile Exchange, Nos. 343
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 17, 1979
    ...should give rise to differing interpretations. The original understanding of Perlman, both by the Supreme Court, Cogen v. United States, 278 U.S. 221, 225, 49 S.Ct. 118, 73 L.Ed. 275 (1929); Go-Bart Importing Co. v. United States, 282 U.S. 344, 356, 51 S.Ct. 153, 75 L.Ed. 374 (1931), see al......
  • State v. Garcia, No. 15128
    • United States
    • Supreme Court of Connecticut
    • May 9, 1995
    ...v. MacDonald, 435 U.S. 850, 857, 98 S.Ct. 1547, [1550], 56 L.Ed.2d 18 (1978) (denial of motion for speedy trial); Cogen v. United States, 278 U.S. 221, 227-28, 49 S.Ct. 118, [120-21], 73 L.Ed. 275 (1929) (denial of motion for return of seized property); State v. Atkins, 203 Conn. 33, 34, 52......
  • State v. J.M.F., AC 37200
    • United States
    • Appellate Court of Connecticut
    • January 10, 2017
    ...States v. MacDonald , 435 U.S. 850, 857, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978) (denial of motion for speedy trial); Cogen v. United States , 278 U.S. 221, 227–28, 49 S.Ct. 118, 73 L.Ed. 275 (1929) (denial of motion for return of seized property); State v. Atkins , 203 Conn. 33, 34, 522 A.2d 1......
  • State Of Conn. v. Fielding, No. 18184.
    • United States
    • Supreme Court of Connecticut
    • May 4, 2010
    ...States v. MacDonald, 435 U.S. 850, 857, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978) (denial of motion for speedy trial); Cogen v. United States, 278 U.S. 221, 227-28, 49 S.Ct. 118, 73 L.Ed. 275 (1929) (denial of motion for return of seized property); State v. Atkins, 203 Conn. 33, 34, 522 A.2d 1234......
  • Request a trial to view additional results
207 cases
  • National Super Spuds, Inc. v. New York Mercantile Exchange, Nos. 343
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 17, 1979
    ...should give rise to differing interpretations. The original understanding of Perlman, both by the Supreme Court, Cogen v. United States, 278 U.S. 221, 225, 49 S.Ct. 118, 73 L.Ed. 275 (1929); Go-Bart Importing Co. v. United States, 282 U.S. 344, 356, 51 S.Ct. 153, 75 L.Ed. 374 (1931), see al......
  • State v. Garcia, No. 15128
    • United States
    • Supreme Court of Connecticut
    • May 9, 1995
    ...v. MacDonald, 435 U.S. 850, 857, 98 S.Ct. 1547, [1550], 56 L.Ed.2d 18 (1978) (denial of motion for speedy trial); Cogen v. United States, 278 U.S. 221, 227-28, 49 S.Ct. 118, [120-21], 73 L.Ed. 275 (1929) (denial of motion for return of seized property); State v. Atkins, 203 Conn. 33, 34, 52......
  • State v. J.M.F., AC 37200
    • United States
    • Appellate Court of Connecticut
    • January 10, 2017
    ...States v. MacDonald , 435 U.S. 850, 857, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978) (denial of motion for speedy trial); Cogen v. United States , 278 U.S. 221, 227–28, 49 S.Ct. 118, 73 L.Ed. 275 (1929) (denial of motion for return of seized property); State v. Atkins , 203 Conn. 33, 34, 522 A.2d 1......
  • State Of Conn. v. Fielding, No. 18184.
    • United States
    • Supreme Court of Connecticut
    • May 4, 2010
    ...States v. MacDonald, 435 U.S. 850, 857, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978) (denial of motion for speedy trial); Cogen v. United States, 278 U.S. 221, 227-28, 49 S.Ct. 118, 73 L.Ed. 275 (1929) (denial of motion for return of seized property); State v. Atkins, 203 Conn. 33, 34, 522 A.2d 1234......
  • Request a trial to view additional results

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