Flagg v. United States, 196.

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Citation: 233 F. 481
• Docket Number: 196.
• Parties: FLAGG v. UNITED STATES.
• Decision Date: 09 May 1916

233 F. 481

FLAGG
v.
UNITED STATES.

No. 196.

United States Court of Appeals, Second Circuit.

May 9, 1916

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.' [233 F. 482] 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 [233 F. 483] 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...