Cogen v. United States

• Decision Date: 02 January 1929
• Docket Number: No. 89,89
• Citation: 73 L.Ed. 275,278 U.S. 221,49 S.Ct. 118
• Parties: COGEN v. UNITED STATES
• Court: U.S. Supreme Court

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.

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 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 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 court to entertain an objection to their admission or a motion for their exclusion and to consider and decide the question as then presented, even where a motion to return the papers may have been denied before trial.' Upon a review of the final judgment against the defendant, both the refusal to order return of the property and its admission in evidence are commonly assigned as errors. See Weeks v. United States, 232 U. S. 383, 387-389, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Byars v. United States, 273 U. S. 28, 29, 47 S. Ct. 248, 71 L. Ed. 520; Marron v. United States, 275 U. S. 192, 193, 194, 48 S. Ct. 74, 72 L. Ed. 231.¹ Compare Adams v. New York, 192 U. S. 585, 594, 24 S. Ct. 372, 48 L. Ed. 575.

Motions for the return of papers and the suppression of evidence made in the cause in advance of the trial, under this rule of practice, must be differentiated from independent proceedings brought for a similar purpose. Where the proceeding is a plenary one, like the bill in equity in Dowling v. Collins (C. C. A.) 10 F.(2d) 62, its independent character is obvious; and the appealability of the decree therein is unaffected by the fact that the purpose of the suit is solely to influence or control the trial of a pending criminal prosecution. Applications for return of papers, or other property may, however, often be made by motion or other summary proceeding, by reason of the fact that the person in possession is an officer of the court. See United States v. Maresca (D. C.) 266 F. 713; United States v. Hee (D. C.) 219 F. 1019, 1020. Compare Weinstein v. Attorney General (C. C. A.) 271 F. 673. Where an application is filed in that form, its essential character and the circumstances under which it is made will determine whether it is an independent proceeding or merely a step in the trial of the criminal case. The independent character of the summary proceedings is clear, even where the motion is filed in a criminal case, whenever the application for the papers or other property is made by a stranger to the litigation, compare Ex parte Tiffany, 252 U. S. 32, 40 S. Ct. 239, 64 L. Ed. 443; Savannah v. Jesup, 106 U. S. 563, 1 S. Ct. 512, 27 L. Ed. 276; Gumbel v. Pitkin, 113 U. S. 545, 5 S. Ct. 616, 28 L. Ed. 1128; or wherever the motion is filed before there is any indictment or information against the movant, like the motions in Perlman v. United States, 247 U. S. 7, 38 S. Ct. 417, 62 L. Ed. 950, and Burdeau v. McDowell, 256 U. S. 465, 41 S. Ct. 574, 65 L. Ed. 1048, 13 A. L. R. 1159; or wherever the criminal proceeding contemplated or pending is in another court, like the motion in Dier v. Banton, 262 U. S. 147, 43 S. Ct. 533, 67 L. Ed. 915; or wherever the motion, although entitled in the criminal case, is not filed until after the criminal prosecution has been disposed of, as where under the National Prohibition Act a defendant seeks, after acquittal, to regain possession of liquor seized.² And the independent character of a summary proceeding for return of papers may be so clear, that it will be deemed separate and distinct, even if a criminal prosecution against the movant is pending in the same court. This was true in Essgee Co. of China v. United States, 262 U. S. 151, 43 S. Ct. 514, 67 L. Ed. 917, where the petition was entitled as a separate matter and was referred to by the court as a special proceeding.

Motions for the return of property, made in connection with a motion to quash a search warrant issued under the National Prohibition Act, may be independent proceedings, but are not necessarily so. By Act of October 28, 1919, c. 85, title 2, § 25, 41 Stat. 315 (27 USCA § 39), and Espionage Act, June 15, 1917, c. 30, title 11, § 16, 40 Stat. 229 (18 USCA § 626), Congress made specific provision, by an independent proceeding, for the vacation of a warrant wrongfully issued and for return of the property.³ Dumbra v. United States, 268 U. S. 435, 45 S. Ct. 546, ...