Importing Co v. United States

Citation282 U.S. 344,51 S.Ct. 153,75 L.Ed. 374
Decision Date05 January 1931
Docket NumberNo. 111,GO-BART,111
PartiesIMPORTING CO. et al. v. UNITED STATES
CourtUnited States Supreme Court

[Syllabus from pages 344-346 intentionally omitted] Mr. Edward F. Colladay, of Washington, D. C. (Messrs. Benjamin B. Pettus and Joseph C. McGarraghy, both of Washington, D. C., of counsel), for petitioners.

The Attorney General and Mr. Thomas D. Thacher, Sol. Gen., of Washington, D. C., for respondent.

[Argument of Counsel from page 347 intentionally omitted] Mr. Justice BUTLER delivered the opinion of the Court.

In a criminal proceeding before a United States commissioner in the Southern District of New York in which Gowen, Bartels, and others are defendants, the petitioners applied to the district court for an order enjoining the use as evidence of books and papers alleged to have been seized and taken from petitioners in violation of the Fourth and Fifth Amendments and directing their return. The court made an order that the United States show cause why the relief prayed should not be granted. The United States attorney appeared and opposed the motion, and affidavits of W. J. Calhoun, special agent in charge of special agents of the Bureau of Prohibition, and certain of his subordinates were filed in opposition. The district court denied the applications. The Circuit Court of Appeals affirmed as to the United States attorney and held that as to the special agent in charge the order to show cause should have been discharged. 40 F.(2d) 593.

Petitioners' applications to the district court, which are in form affidavits, set forth the following:

June 5, 1929, Calhoun went before the United States commissioner and, in order to have a warrant issued for the arrest of Gowen, Bartels and others, verified and filed a complaint. He alleged, upon information and belief, that beginning January 1, 1929, and continuing down to the filing of the complaint Gowen, Bartels, and other defendants conspired in that district to commit a nuisance against the United States, that is to say, to possess, transport, sell, and solicit and receive orders for intoxicating liquor in violation of the National Prohibition Act, and that, in pursuance of the conspiracy and to effect its objects, one Heath purchased an automobile on May 23, 1929. See 27 U. S. Code, §§ 33, 35 (27 USCA §§ 33, 35). The complaint did not specify any builing , structure, location, or place, or set forth any particulars or other overt act or show any connection between the purchase of the automobile and any offense referred to in the complaint. On the same day the commissioner issued a warrant in the usual form commanding the marshal of the district and his deputies to apprehend the persons so accused and to bring them before the commissioner or some judge or justice of the United States to be dealt with according to law.

On the next day Calhoun's subordinates, prohibition agents O'Brien, Collins, and Sipe, went to the petitioning company's office at No. 200 Fifth avenue. Bartels, the secretary-treasurer of the company, was there when they entered. O'Brien said he had a warrant to search the premises and exhibited a paper which he falsely claimed was such a warrant. The agents arrested Bartels, searched his person, and took papers therefrom. While they were there Gowen, the president of the company, came to the office. O'Brien told him that he had a warrant for his arrest and a warrant to search the premises. The agents arrested and searched Gowen and took papers from him. They took his keys and by threat of force compelled him to open a desk and safe, searched and took papers from them, searched other parts of the office and took therefrom other papers, journals, account books, letter files, insurance policies, cancelled checks, index cards, and other things belonging respectively to Gowen, Bartels, and the company. For brevity these will be referred to herein as 'papers.'

Gowen and Bartels were on the same day arraigned before the commissioner and held on bail further to answer the complaint. A date was set for the examination, hearing has been postponed from time to time, and no examination has been had. The papers so seized were taken to the office of Calhoun in the Subtreasury Building where they were examined by him and the United States attorney and their subordinates, and such papers have since been kept and held there, as is later herein shown, under the control of the United States attorney in the care and custody of the special agent in charge, for use as evidence against Gowen and Bartels.

Soon after the seizures were made, each of the petitioners brought a suit in equity in the federal court for that district against the special agent in charge and the United States attorney, to enjoin them from using such papers as evidence and to have them returned. The court dismissed these suits on the ground that the proper remedy was by motion in the criminal proceedings.

Then Gowen and Bartels, each in his own behalf, and the company, acting through Bartels, made these applications. The court made its order that the United States show cause why an injunction should not issue restraining it and its officers from using as evidence the papers so seized and why an order should not issue directing their return.

In opposition, the affidavit of one Braidwood was submitted. It tends to show that in 1927 and 1928 petitioners and others acting together engaged in the unlawful sale of intoxicating liquor, that at the company's office they exhibited and took orders for intoxicating liquor some of which was delivered there and some elsewhere, and that in April, 1929, he reported these facts to Calhoun. Calhoun's affidavit states that Braidwood had so reported and that by independent investigations he had corroborated such statements and thus knew that a conspiracy unlawfully to sell intoxicating liquors in 1928 and 1929 had been entered into and overt acts in furtherance thereof had been performed within the district and that he believed the petitioners had been parties to such conspiracy, that prior to the day of the arrests he communicated such statements and belief to O'Brien and assigned him to further investigate the case.

O'Brien's affidavit states: From the information given him by Calhoun he believed petitioners and others had so conspired. Calhoun described to him the company's office in detail and the personal appearnce of Gowen and Bartels. On June 6, 1929, he took a certified copy of the complaint and warrant 'for the purpose of reference as to the names of the various defendants' and went to petitioners' office. It consisted of a suite of three rooms fitted up with office furniture including desks, filing cabinets, and a safe. He told Bartels and Gowen that he was an officer of the United States and placed them under arrest for such conspiracy. No warrant was 'served' upon either of them. The office was searched and there were found and taken therefrom approximately a dozen bottles of assorted intoxicating liquor, a large number of memoranda, books of account, records, filing cases, and other papers all of which pertained to unlawful dealings by Gowen and Bartels in intoxicating liquors.

O'Brien's affidavit also states that the papers so seized are of such quantity and bulk tnat it is impracticable to attach copies to the affidavit, that such papers are 'specifically incorporated herein by reference and made a part hereof and are further made available for inspection at any time, if desired by the Court, in connection with the consideration of this order to show cause.'

In reply to O'Brien's affidavit, petitioners submitted affidavits of Gowen, Bartels and other defendants who were arrested at the company's office on that occasion and affidavits of other persons who were present during some part of the time that the prohibition agents were there. These affidavits show that O'Brien said he had a warrant of arrest and produced a paper which several of these affiants say they read and believe to be the warrant issued by the commissioner, a copy of which was filed with the moving papers. As to these details there is no conflict in the evidence.

The district court refused to sustain the contention that no use was made of the warrant and accepted the statements that O'Brien claimed to have warrants for the arrests and searches. The Circuit Court of Appeals did not definitely express opinion as to that matter. We have examined the evidence. It requires a finding that O'Brien did so claim, that he had the warrant issued by the commissioner or a copy of it, and that when he arrested Gowen and Bartels he claimed and purported to act under the warrant. No warrant for the search of the premises was issued.

The orders dismissing petitioners' suits in equity are not before us. The question whether the district court had jurisdiction summarily to deal with petitioner's applications, while not brought forward by the parties, arises upon the record, was considered by the Circuit Court of Appeals and suggested during the argument here.

United States commissioners are inferior officers.1 United States v. Allred, 155 U. S. 591, 594, 15 S. Ct. 231, 39 L. Ed. 273; Rice v. Ames 180 U. S. 371, 377, 378, 21 S. Ct. 406, 45 L. Ed. 577. Cf. Ex parte Hennen, 13 Pet. 230, 257, et seq., 10 L. Ed. 138. The Act of May 28, 1896, 29 Stat. 184, abolished commissioners of the circuit courts, authorized each district court to appoint United States commissioners, gave to them the same powers and duties that commissioners of the circuit courts had, required such appointments to be entered of record in the district courts, provided that the commissioners should hold their office subject to removal by the court appointing them (28 U. S. Code, § 526 (28 USCA § 526)), and required them to keep records of proceedings before them in criminal cases and deliver the same to the clerks of the courts on the commissioners' ceasing to hold office. Id.,...

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