In re Ginsburg

• Citation: 147 F.2d 749
• Decision Date: 13 February 1945
• Docket Number: No. 216.,216.
• Parties: In re GINSBURG.
• Court: U.S. Court of Appeals — Second Circuit

147 F.2d 749 (1945)

In re GINSBURG.

No. 216.

Circuit Court of Appeals, Second Circuit.

February 13, 1945.

Garey, Desvernine & Garey, of New York City (Jacob J. Rosenblum, Milton I. Hauser, and Wm. Francis Corson, all of New York City, of counsel), for appellant.

John F. X. McGohey, U. S. Atty., of New York City (Richard J. Burke and Robert Mitchell, Asst. U. S. Attys., both of New York City, of counsel), for appellee.

Before HUTCHESON, SIMONS, and CLARK, Circuit Judges.

HUTCHESON, Circuit Judge.

What is in question here is whether the district judge was right in denying appellant's motion to suppress the use, in evidence, of property, documents, etc. searched for, seized and taken from defendant's apartment at the time of, and in connection with, his arrest under a warrant of arrest. Based on the Fourth¹ and Fifth Amendments,² this is another of those cases in which appellant and appellee, concerning themselves little with the Constitutional words, seize upon particular words in particular cases³ to roll them as sweet morsels under their tongues. It may not be doubted that, in respect of searches and seizures, the decisional gloss which constitutes the common law of the Constitution has created in the federal courts a climate of opinion favorable to the citizen, less favorable to his oppressors.⁴ Neither may it be doubted that particular decisions have not only struck down particular oppressors but in their vigor and clarity have set up streams of tendency in accord with which later decisions have run.⁵ It remains true, however, that each case of this kind is a fact case. The correct decision of each depends not so much upon a higher critical examination of the accumulated decisional gloss as upon a common sense determination of whether, within the meaning of the word the Constitution uses, the particular search and seizure has been "unreasonable,"⁶ that is, whether what was done and found bears a reasonable relation to the authority then possessed and exercised or transcends it to become oppression.

The evidence taken by the district judge on the motions runs to 745 printed pages, but the determining facts can be stated in very small compass.⁷ On the hearing, the items dealt with in the motion to suppress were roughly divided into Exhibits 4 and 5. As to those in Exhibit 4, though the district judge found that none of the items had been unlawfully seized, the Government offered to return them. As to Exhibit 5, some of the items were found to be "irrelevant" and, therefore, on that ground, deliverable to the petitioner, but there was a general finding that none of them had been unlawfully seized. Here the Government divides the materials seized into three groups. The first consists of $73,955 in cash together with a number of securities of a substantial monetary value found in the locked metal box described as the large green box. The second consists of materials of a monetary value against which the Bureau has filed a tax lien. The third consists of the balance of the material having no apparent value. Contending only for an affirmance as to the articles in the first group, the Government does not contest the suppression as evidence of the material in the second and third groups. Except, therefore, as the generality of the search which swept these articles into its compass bears generally upon the question of its unreasonableness, the seizure of these articles is not a matter of contention before us, and our determination is confined to whether the arrest under the warrant authorized the search for, and seizure of, the money and papers in the first group. The Government contends that this money and these papers were searched for and seized as fruits or instruments of the crime for which the arrest was made. Appellant denies this, pointing out that the fruits of the crime for which he was arrested were self limited to $3000, and there is neither claim nor proof that the $3000 supposed to have been given eight months before was in any way traced into or connected with the moneys or securities found. The government is of the opinion that this view is too foreshortened and that the evidence of easy and affluent living the apartment afforded in contrast with the meagerness of appellant's salary, furnished ample evidence of venality on a large scale. It, therefore, insists that, in connection with the arrest, the agents were authorized to make a general search of the apartment for evidence of misbegotten wealth, and that what was found in the box was lawfully seized as weapons, fruits or instrumentalities of a life of crime. The argument seems to run thus: they had arrested appellant for bribe taking; in his apartment, luxuriously staffed and furnished, they found large boxes, two of them locked; they had a right to suppose that these boxes contained bribe money, and, therefore, a right to take and break them open; and having found so much money and securities they had the right to seize the moneys and securities as the fruits not necessarily of the crime for which the arrest was made but of other similar crimes.

Appellant, denying that the search may be sustained on such grounds, attacks it as a general exploratory one not stemming from and based on the...