Freeman v. United States, 11262.
| Decision Date | 21 May 1946 |
| Docket Number | No. 11262.,11262. |
| Parties | FREEMAN v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Gerald D. Hile, of Seattle, Wash., Samuel Edelstein and O. C. Moore, both of Spokane, Wash., for appellant.
Harvey Erickson, U. S. Atty., and Frank R. Freeman, Asst. U. S. Atty., both of Spokane, Wash., for appellee.
Before GARRECHT, DENMAN and BONE, Circuit Judges.
Appellee moves the dismissal of an appeal from an order of the district court refusing to order the return to appellant of documents seized under a commissioner's warrant. Appellant claims that the documents were not described in the warrant and hence should have been returned under 18 U.S.C.A. § 626 which provides "If it appears that the property or paper taken is not the same as that described in the warrant * * * the judge or commissioner must cause it to be restored to the person from whom it was taken; * * *".
One of the grounds for the dismissal is that the proceeding before the district court was entitled United States v. Freeman, as in a proceeding before the commissioner for Freeman's detention, instead of Freeman v. the person who is holding the documents in question. There is no merit in this contention. A proceeding's character is determined by the relief sought, not by its title. Coastwise Lumber & Supply Co. v. United States, 2 Cir., 259 F. 847, 849. In Cogen v. United States, 278 U.S. 221, 226, 49 S.Ct. 118, 73 L.Ed. 275, the Supreme Court cites with approval the decisions in In re Brenner, 2 Cir., 6 F. 2d 425 and Dickhart v. United States, 57 App.D.C. 5, 16 F.2d 345, and states, at page 226 of 278 U.S., at page 120 of 49 S. Ct., that the independent character of the proceeding is shown where the motion to return evidence, "although entitled in the criminal case, is not filed until after the criminal prosecution has been disposed of."
Nor is there merit in the contention that the order is interlocutory because sought after a complaint filed with the commissioner and the holding of Freeman on it for a grand jury investigation thereafter.
Here a complaint against Freeman had been filed with the commissioner. The commissioner's proceedings are quasi judicial in character. Go-Bart Importing Co. v. United States, 282 U.S. 344, 354, 51 S.Ct. 153, 75 L.Ed. 374. The issue before him is not guilt or innocence but probable cause for the arrest of the person charged. After the commissioner has issued his order for the arrest and commitment of the person complained of, the proceeding before him is ended and his jurisdiction exhausted. 18 U.S.C.A. § 591. It was not until the commissioner's jurisdiction was so exhausted that the instant proceeding was brought before the district court. It is obvious that it was not a part of the commissioner's proceeding of which there had been such final disposition.
The case is like Perlman v. United States, 247 U.S. 7, 11, 38 S.Ct. 417, 62 L.Ed. 950, where the documents sought were wrongly obtained from Perlman to be used before the grand jury to obtain an indictment to be sought, as here, after the district court proceedings for their return had been initiated.
In Cogen v. United States, supra, 278 U.S. 225, 49 S.Ct. 120, the Perlman case is cited with approval, the Supreme Court there stating the independent character of such summary proceedings is clear "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."
The sole purpose of the retention of the documents by the OPA was for their use before a grand jury which might or might not indict Freeman, and for the trial if he be indicted. It was against just such use of the documents that the constitutional provision against unreasonable search and seizure was enacted. In the period between arrest and indictment the arrested man is presumed innocent and still entitled to his constitutional immunity against the use of documents procured by illegal search and seizure. The fact that they were wrongfully used in the ended commissioner's proceeding does not make them documents held by the OPA as an incident in the jurisdiction not yet acquired by the grand jury — here where there is no evidence that...
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