Goodman v. Lane

• Decision Date: 15 April 1931
• Docket Number: No. 8836.,8836.
• Citation: 48 F.2d 32
• Parties: GOODMAN v. LANE, Deputy Prohibition Administrator.
• Court: U.S. Court of Appeals — Eighth Circuit

48 F.2d 32 (1931)

GOODMAN v. LANE, Deputy Prohibition Administrator.

No. 8836.

Circuit Court of Appeals, Eighth Circuit.

March 9, 1931.

Rehearing Denied April 15, 1931.

William G. Boatright, of Kansas City, Mo. (I. J. Ringolsky and Harry L. Jacobs, both of Kansas City, Mo., on the brief), for appellant.

Claude E. Curtis, Asst. U. S. Atty., of Kansas City, Mo. (William L. Vandeventer, of Kansas City, Mo., on the brief), for appellee.

Before KENYON and BOOTH, Circuit Judges.

BOOTH, Circuit Judge.

This is an appeal from a decree dismissing a bill in equity on the ground of lack of jurisdiction.

The bill was filed February 10, 1930, and alleged, in substance, the following facts: Plaintiff is a citizen of the state of Missouri and a resident of Kansas City, in that state. Defendant is a Deputy Prohibition Administrator of the United States for the district which includes Kansas City. Plaintiff is a member of the Kansas City Athletic Club, which is a private club having a club building located in Kansas City reserved exclusively for members and guests. Plaintiff had made reservation of a room at said club and a table in the dining room for himself and wife and guests for the evening of December 31, 1929. They arrived at the club about 11:45 p. m. and checked in, in accordance with the usual custom, and were standing in a portion of the lobby of the club, which was reserved for members and their guests. Plaintiff was holding in his arms a package containing four bottles and contents, his own property. The bottles were securely and completely wrapped in paper and tied with a string so that the contents of the package could not be seen or observed. While plaintiff and his party stood in the lobby of the club, a prohibition agent of the United States, Lashbrook by name, a subordinate of defendant, forcibly took the package from plaintiff, and thereupon arrested plaintiff and caused him to be taken to the city hold-over and locked up for the night. The next morning, he was released on a cash bond conditioned that he report back to the hold-over January 2. He reported at that time, and was taken to the office of the United States Marshal, where he was confined until taken before the United States Commissioner the same day. The complaint before the Commissioner was made and sworn to by Lashbrook, and charged plaintiff with unlawfully transporting and possessing intoxicating liquor on December 31, 1929. Plaintiff pleaded not guilty. The Commissioner, after a hearing, dismissed the transportation charge, but held plaintiff and bound him over on the possession charge for action by the grand jury. Plaintiff was admitted to bail. The United States Attorney for the district informed plaintiff that he would seek an indictment against plaintiff before the grand jury, which was to convene February 17, on charges both of transportation and possession; and that, upon a trial, conviction of plaintiff would be sought on both charges. The United States Attorney further stated that he would endeavor to obtain such indictment and conviction through the use, as evidence, of said bottles and the contents thereof, and that defendant was keeping said bottles and contents for the purpose of producing the same at such times and places as requested by the United States Attorney for said purposes. Lashbrook, when he took said bottles from plaintiff's person and possession, had no warrant for the arrest or search of plaintiff or any knowledge or information justifying the making of a search or an arrest; nor did he have any warrant for a search of said club building or for the arrest of any persons therein. Lashbrook was not a member of said club nor a guest of a member at the time of the occurrence. Lashbrook delivered said bottles and the contents to defendant, who still had them at the time of filing the bill.

The bill further alleged that Lashbrook, in taking said bottles from plaintiff, in arresting plaintiff, and in entering the part of said club reserved exclusively for members and their guests, acted illegally and in violation of the Fourth and Fifth Amendments to the Constitution of the United States. The prayer of the bill was as follows: "Wherefore, plaintiff prays that defendant be ordered and directed to return said bottles and contents to plaintiff; that he and his subordinates be enjoined from taking said bottles and contents before any grand jury, petit jury or court or from testifying of how or where or by what means or from whom or at what time and place same were obtained, or of the contents thereof; that the use of said bottles and contents as evidence against plaintiff be suppressed and that, pending final judgment herein, temporary injunction and restraining order issue against defendant, and for such other relief as may be just and equitable."

Defendant moved to dismiss the bill, stating as grounds:

"(1) Plaintiff's petition does not state sufficient facts to constitute a cause of action.

"(2) Plaintiff's petition, on its face, shows that this court has no jurisdiction in this cause.

"(3) Plaintiff has an adequate remedy at law and is not entitled to the relief in equity for which he prays."

The order and decree dismissing the bill is set out in the margin.¹

The present appeal followed on February 17, 1930. Application was made the same day to the trial court for an order preserving the status quo pending the appeal, but this was denied.

Notice was at once given to the Assistant United States Attorney that a similar application would be made to this court. Arrangement was made with one of the judges of this court for hearing said application at 3 p. m., February 17. The United States Attorney was notified between 1 and 1:30 of the time fixed for the hearing, and said he would appear. Hearing was had at the time fixed. An Assistant United States Attorney was present. At the conclusion of the hearing, the judges indicated a desire to consider the matter for a short while and suggested that, of course, nothing would be done meanwhile. The Assistant United States Attorney said that he had nothing to do with that matter, and was thereupon told by the court to inform the United States Attorney that nothing should be done until the court had passed on the application. Thereupon, counsel left the court's chambers. About fifteen minutes later, the Assistant United States Attorney returned and stated that he had been advised that the matter had already been presented to the grand jury. The court directed a written return to be made the next morning. A return was made, showing that the matter had been presented to the grand jury between the hours of 1 and 2 o'clock p. m., February 17, that Lashbrook appeared and testified, and that the grand jury voted an indictment which later was returned and docketed in the office of the clerk of the District Court. The hearing in this court was thereupon continued until February 20, at which time neither counsel appearing, the application was denied.

Appellee advances the proposition that equity has no jurisdiction to stay criminal proceedings; cites authorities to that effect; admits that there are exceptions to the general rule; but contends that the case at bar is not within the exceptions. All this may be conceded, but it is not decisive, because the present case is not one in which equity is invoked to stay criminal proceedings. The relief here asked, apart from return of the property, is that the defendant be enjoined from making use of certain evidence in any criminal proceedings against appellant. This is quite different from staying criminal proceedings. The relief asked is somewhat broader in scope, but of the same character as that asked in the usual motion in criminal cases to suppress evidence. The jurisdiction of equity to prevent the use in evidence of property illegally seized and/or to order a return thereof is well established. Such jurisdiction was involved or recognized in the following cases: Burdeau v. McDowell, 256 U. S. 465, 41 S. Ct. 574, 575, 65 L. Ed. 1048, 13 A. L. R. 1159; Cogen v. United States, 278 U. S. 221, 49 S. Ct. 118, 73 L. Ed. 275; United States v. Hee (D. C.) 219 F. 1019, 1021; Petition of Barber (D. C.) 281 F. 550; Friedman v. Yellowley (D. C.) 290 F. 248; Sims v. Stuart (D. C.) 291 F. 707; Dowling v. Collins (C. C. A.) 10 F.(2d) 62; Applybe v. United States (C. C. A.) 32 F. (2d) 873, rehearing denied (C. C. A.) 33 F.(2d) 897; United States v. Gowen (C. C. A.) 40 F.(2d) 593, reversed on other points, Go-Bart Imp. Co. v. United States, 282 U. S. 344, 51 S. Ct. 153, 75 L. Ed. ___; United States v. Mahon (D. C.) 42 F.(2d) 571; Dock v. Dock, 180 Pa. 14, 36 A. 411, 57 Am. St. Rep. 617; Pressed Steel Car Co. v. Standard Steel Car Co., 210 Pa. 464, 60 A. 4.

Burdeau v. McDowell, supra, was a suit brought by McDowell against Burdeau, a special assistant to the Attorney General of the United States, to obtain return of certain books and papers, and to enjoin Burdeau and officers of the Department of Justice from using them in criminal proceedings against him. No use had yet been made of the books and papers. It appeared that the books and papers had been obtained from McDowell wrongfully by a third person who had turned them over to Burdeau. No question was raised that a suit in equity was the proper procedure, and the court said: "We do not question the authority of the court to control the disposition of the papers." And in the dissenting opinion, it was said: "That the court would restore the papers to plaintiff if they were still in the thief's possession is not questioned."

In Dowling v. Collins, supra, a suit to obtain return of property, consisting of liquor, seized, and to suppress use of it as evidence, it appeared that, prior to the commencement of the suit, plaintiffs had made a motion to the same effect in a criminal action in which they were defendants. The motion had been denied. It was held that the order denying the motion in...