Flagg v. United States

Decision Date09 May 1916
Docket Number196.
Citation233 F. 481
CourtU.S. Court of Appeals — Second Circuit

Martin W. Littleton and Owen N. Brown, both of New York City, for plaintiff in error.

H Snowden Marshall, U.S. Atty., Claude A. Thompson, Sp. Asst U.S. Atty., and Ben A. Matthews, Asst. U.S. Atty., all of New York City, for the United States.

Before COXE and WARD, Circuit Judges, and VEEDER, District Judge.

COXE Circuit Judge.

The defendant insists that he was convicted by methods prohibited by the fundamental law of the land. The Fourth Amendment to the federal Constitution provides:

'The right of the people to be secure in their persons, houses papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.' The Fifth Amendment provides, inter alia, that no person--
'shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.'

These amendments were intended to safeguard the rights of the people of the United States against the encroachments of unlawful and arbitrary power and to preserve the rights of the humblest as well as the most powerful citizen. They were passed to perpetuate in our law the English doctrine proclaimed by Sir Edward Coke and eloquently reasserted by Chatham in his memorable address on the Excise Bill, as follows:

'The poorest man may in his cottage bid defiance to all the forces of the crown; it may be frail, its roof may shake, the wind may blow through it; the storm may enter, the rain may enter; but the king of England cannot enter; all his forces dare not cross the threshold of the ruined tenement.'

What becomes of this defendant, important as it is, sinks into insignificance when compared with the right of the people of the United States to be protected from unlawful search.

On September 23, 1911, the defendant was arrested at his place of business and all his books and papers, including securities and cash, were seized by the parties making the arrest and were carted away to the post office building, in which is the office of the United States attorney. The courtrooms of the United States are also located therein. It is contended by the counsel for the United States that the seizure was made by members of the local police force. His version of what occurred when the books and papers were seized does not differ materially from the defendant's version. He contends that the municipal police made the arrest of the defendant and the seizure of the books and papers but he does not pretend that they had any process which warranted the seizure. He admits that the defendant was taken by the municipal police to the United States post office building, where he was arrested under a warrant issued by a United States Criminal Code. The upon the verified complaint of Post Office Inspector Kincaid, charging a violation of section 215 of the United States Criminal Code. The brief on behalf of the United States dismisses the unlawful arrest by the police with the following statement:

'Under what process or authority the arrest and seizure were made by the municipal police officers does not appear in the record. Nor does the record show whether at that time Flagg was charged with having violated any state law or municipal ordinance. When the marshal made the arrest under the federal warrant, he seized only the person of the defendant, and he never seized and never had possession of any of the defendant's books and records. On the trial the government conceded that the United States marshal had no process authorizing him to seize anything other than the person of the defendant.'

In other words, when the defendant was arrested at his place of business on Fortieth street and his books and papers were seized, there was no warrant or process of any kind either of arrest or of search issued against him. The defendant insists that his books and papers were taken possession of by the postal authorities of the United States under direction of the Department of Justice without process or legal authority of any kind. This matter might have been made perfectly clear but it has been left largely to inference and conjecture. Who the police officers were, where they got their orders, who the United States official was who apparently was directing the so-called 'raid' does not satisfactorily appear, but it does appear that the papers and books were all carted to the federal building where they remained for several years and where the government officials worked over them for 18 months, although the defendant applied for their return September 26th, 3 days after they were seized. Some conclusions may be left to presumption, and it is impossible to believe, in the face of these facts, that the United States, acting through its accredited agents, was not responsible for the arrest of the defendant and the seizure of his property. To attribute such an elaborate and carefully prepared proceeding as was planned to convict the defendant, to a few local patrolmen or to some unknown parties, in the face of the fact that the property was immediately carted to the federal courthouse and remained there till the federal officials had obtained all the information desired, makes too severe a demand upon the imagination.

The fact that the government officials returned the books after they had worked over them for a year and a half and had obtained all the information possible, is not of the least importance in considering the question of the initial illegality. We have, then:

First, a seizure of the defendant's books and papers without warrant or legal process of any kind-- an unlawful entry and an unlawful taking.

Second, a presumption, well nigh conclusive, that the United States, whose agents took the books and papers into custody, and who alone was interested in prosecuting the defendant, was the party who made or instigated the unlawful seizure through its agents and servants.

The question then is reduced to this-- can a party be convicted of a crime upon proof procured from books and papers which have been taken from him by force and without a pretense of legal authority?

Will the people be secure in their persons, papers and effects if seizures and searches made without pretense of legality are sustained by the courts?

The case of Boyd v. United States, 116 U.S. 616, 6 Sup.Ct. 524, 29 L.Ed. 746, goes further in protecting the rights of the citizen than is required in the case at bar for it holds that a compulsory production of private papers under an act which provides that, if not produced, the prosecutor's version of their contents shall be taken as true, is as much within the prohibition of the Fourth Amendment as is a forcible entry and seizure of the books and papers. In other words Judge Bradley construes the amendment to mean what it says and holds it to be a constitutional barrier in the path of him who seeks to seize another's property without due process of law. He says:

'The search for and seizure of stolen or forfeited goods, or goods liable to duties and concealed to avoid the payment thereof, are totally different things from a search for and seizure of a man's private books and papers for the purpose of obtaining information therein contained, or of using them as evidence against him.' Again he says:

'The principles laid down in this opinion (Lord Camden's) affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employes of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors, * * * that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property, where that right has never been forfeited by his conviction of some public offense-- it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment. Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods, is within the condemnation of that judgment. In this regard the Fourth and Fifth Amendments run almost into each other.'

It is unnecessary to quote further from Judge Bradley's opinion. No one can read it without being impressed by its learning and the force of its logic. It is a powerful argument for sustaining broadly the protection provided by the Constitution against unreasonable seizures and searches.

The case of Adams v. New York, 192 U.S. 585, 24 Sup.Ct 372, 48 L.Ed. 575, differs from the case at bar in many important particulars but chiefly in the essential feature that in that case a valid search warrant was issued and incidentally the letters were seized in executing it. Had there been such a warrant...

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49 cases
  • State v. McCollum
    • United States
    • Washington Supreme Court
    • March 16, 1943
    ... ... probable cause, that are forbidden. Carroll v. United ... States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 ... A.L.R. 790. That the ... 385, 40 [17 Wn.2d 99] S.Ct. 182, 64 ... L.Ed. 319, 24 A.L.R. 1426; Flagg v. United States, 2 ... Cir., 233 F. 481; United States v. Mounday, ... D.C., 208 F ... ...
  • United States v. Massey
    • United States
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    ...that the government subpoenaed was the same material originally seized unlawfully, the court premised its decision on Flagg v. United States, 233 F. 481 (2d Cir. 1916), where, under similar circumstances, the Court of Appeals had excluded both primary and secondary evidence that was uncondi......
  • Elkins v. United States
    • United States
    • U.S. Supreme Court
    • June 27, 1960
    ...such participation by federal agents in the search and seizure as to make applicable the exclusionary rule of Weeks. See Flagg v. United States, 2 Cir., 233 F. 481, 483; United States v. Slusser, D.C., 270 F. 818, 820; United States v. Falloco, D.C., 277 F. 75, 82; Legman v. United States, ......
  • Harris v. United States
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    • U.S. Court of Appeals — Tenth Circuit
    • November 28, 1945
    ...v. United States, 2 Cir., 267 F. 819; Colyer v. Skeffington, D.C., 265 F. 17; United States v. Murphy, D.C., 264 F. 842; Flagg v. United States, 2 Cir., 233 F. 481; United States v. Hart, D.C., 214 F. 655; United States v. Mills, C.C., 185 F. 318, appeal dismissed 220 U.S. 549, 31 S.Ct. 597......
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1 books & journal articles
  • Dirty Silver Platters: The Enduring Challenge of Intergovernmental Investigative Illegality
    • United States
    • Iowa Law Review No. 99-1, November 2013
    • November 1, 2013
    ...federal participation, 100 seemingly emitting a sigh of relief that repudiation of the Fourth Amendment silver 96 . Flagg v. United States, 233 F. 481, 483 (2d Cir. 1916). Awkwardness associated with federal efforts to downplay involvement of state or local police was exhibited in an instan......

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