In re Dooley, 195.
| Decision Date | 09 March 1931 |
| Docket Number | No. 195.,195. |
| Citation | 48 F.2d 121 |
| Parties | In re DOOLEY et al. |
| Court | U.S. Court of Appeals — Second Circuit |
J. Edward Lumbard, Jr., of New York City (Seymour B. Quel, of New York City, of counsel), for appellants.
Robert E. Manley, Acting U. S. Atty., of New York City (Arthur H. Schwartz, Asst. U. S. Atty., of New York City, of counsel), for the United States.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
This appeal involves the proper scope of the order of the District Court to be entered on a motion for the return of articles seized by prohibition agents at the premises of J. M. Dooley Fireproof Warehouse Corporation in the course of an illegal search. The illegality of the search and seizure is not questioned. The order directed the return of the articles seized and enjoined their use in any prosecution of J. M. Dooley Fireproof Warehouse Corporation, Joseph M. Dooley, its president, and Joseph M. Dooley, Jr., Frederick Dooley, and William M. Dooley, the three sons of the president of the corporation, who, with him, were at the premises at the time of the unlawful raid.
The petitioners by this appeal seek to have the order of the District Court so modified as to provide that the property seized be suppressed as evidence not merely as against themselves but as against all persons. Their contention is that the policy of the Fourth and Fifth Amendments to the Constitution precludes the use of illegally seized property as evidence against anyone whatever. But it has been held by an impressive weight of authority that the objection to an unlawful search and seizure is personal and cannot be successfully raised by third parties. Rouda v. United States (C. C. A.) 10 F.(2d) 916; Lusco v. United States (C. C. A.) 287 F. 69; Ganci v. United States (C. C. A.) 287 F. 60; Morris v. United States (C. C. A.) 26 F.(2d) 444; Graham v. United States (C. C. A.) 15 F.(2d) 740; Cantrell v. United States (C. C. A.) 15 F.(2d) 953; Lewis v. United States (C. C. A.) 6 F.(2d) 222; Remus v. United States (C. C. A.) 291 F. 501; Chicco v. United States (C. C. A.) 284 F. 434; Tsuie Shee v. Backus (C. C. A.) 243 F. 551; Moy Wing Sun v. Prentis (C. C. A.) 234 F. 24.
It is argued that the reasoning of the Supreme Court in Silverthorne Lumber Company v. United States, 251 U. S. 385, 40 S. Ct. 182, 64 L. Ed. 319, 24 A. L. R. 1426, goes so far as to preclude evidence obtained through an unlawful search even as against persons whose rights have not been invaded. We cannot concur in such an interpretation of that decision. There the premises of the Silverthorne Lumber Company were unlawfully searched and property of the corporation and its officers was seized. The papers were returned pursuant to a court order, and thereafter the corporation and two of the Silverthornes were indicted with others for conspiring to defraud the United States. The two Silverthornes, who were officers of the company, had their offices on the premises of the Silverthorne Lumber Company and one of them, Frederick Silverthorne, was served with a subpœna duces tecum directed to him individually and as president of the corporation requiring the production upon the trial of corporate papers found during the illegal search. Because the corporation and its officers could not claim immunity under the Fifth Amendment from the production of corporate papers, it was contended in the Silverthorne Case that the Fourth Amendment likewise did not protect them from an unlawful search for corporate papers and so would not prevent the United States from requiring the production of the corporate papers at the trial. The Supreme Court held that a corporation enjoys the immunities granted by the Fourth Amendment to the same extent as an individual, and that the subpœna did not lie because the papers...
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