Matthews v. Correa, 204.

• Decision Date: 16 April 1943
• Docket Number: No. 204.,204.
• Citation: 135 F.2d 534
• Parties: MATTHEWS v. CORREA, United States Atty.
• Court: U.S. Court of Appeals — Second Circuit

135 F.2d 534 (1943)

MATTHEWS v. CORREA, United States Atty.

No. 204.

Circuit Court of Appeals, Second Circuit.

April 16, 1943.

Arthur Garfield Hays, of New York City (Henry E. Coleman and Oscar Stabiner, both of New York City, on the brief), for appellant.

Bruno Schachner, Asst. U. S. Atty., of New York City (Mathias F. Correa, U. S. Atty., of New York City, on the brief), for appellee.

Before SWAN, CHASE, and CLARK, Circuit Judge.

CLARK, Circuit Judge.

This is a proceeding by the petitioner to obtain the return of certain property seized at the time of her arrest under a warrant, and "to suppress the evidence thereof." An earlier attempt by petitioner to secure this relief was before us in Matthews v. Correa, 2 Cir., 131 F.2d 597, an appeal which we dismissed because the order from which it was taken was not final, since it provided for the return by the United States Attorney of such of the property as he deemed himself not entitled to retain and gave the petitioner leave to move again after the Attorney had acted. Now it appears that the Attorney did return certain of the property seized, but retained and claimed the right to hold seven address books and one account book — a black book, 8 by 12 inches — and in consequence this new proceeding was begun. Hearing was held below on affidavits submitted by the parties, as a result of which the court filed its order denying the petition, and this appeal followed.

From the affidavits of the parties it appears that petitioner was arrested at her home, 15 Sutton Place, New York City, on June 22, 1942, by three agents of the Federal Bureau of Investigation on a warrant issued on a complaint made by one of the agents charging her with violation of 11 U.S.C.A. § 52, sub. b, and specifically with concealing money, merchandise, and other property from her trustee in bankruptcy. The three agents then searched her premises, a one-family house, and took away various articles of personal property, including that in question. It does not appear just where this property was found; while petitioner swears the officers searched the house "from cellar to roof," she says merely that certain of the property originally was found in her purse and that the other items "were taken from drawers and tables in the house." There is some dispute as to the nature of the books. Petitioner asserts that only one of her address books was in existence prior to her bankruptcy (which occurred December 4, 1940), and that the book of account had no relation to any business conducted by her prior to the bankruptcy. But the affidavit of a government agent is that the account book shows petitioner's receipts and disbursements from October 2, 1939, to June 20, 1942, and that of the address books two contain entries pertaining to receipts and expenditures, some of which appear to relate to the period on or about the defendant's bankruptcy, while all contain addresses of various suppliers which defendant used prior to her bankruptcy and identify such persons by names, addresses, and telephone numbers.

Bankruptcy Act, § 29, sub. b, 11 U.S.C.A. § 52, sub. b, so far as here material, reads as follows: "A person shall be punished by imprisonment for a period of not to exceed five years or by a fine of not more than $5,000, or both, upon conviction of the offense of having knowingly and fraudulently (1) concealed from the receiver, custodian, trustee, marshal, or other officer of the court charged with the control or custody of property, or from creditors in any proceeding under this title, any property belonging to the estate of a bankrupt; * * * or (8) after the filing of a proceeding under this title, withheld from the receiver, custodian, trustee, marshal, or other officer of the court any document affecting or relating to the property or affairs of a bankrupt, to the possession of which he is entitled." § 70, 11 U.S.C.A. § 110, provides that the bankruptcy trustee, upon his appointment and qualification (here January 6, 1941), is vested by operation of law with the bankrupt's title to various inclusive types of property there listed beginning with "(1) documents relating to his property." The original complaint made here upon which the warrant of arrest was issued appears to have been based particularly on (1) of § 29, sub. b; while the retention of the property is now justified chiefly on the ground that it constituted the "fruit" of a crime under (8). And the Government relies on Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231, that when officers are making a valid search and come upon another crime being committed in their presence they are entitled to seize the fruits thereof. It relies further on the well settled rule — conceded by petitioner — that officers in making an arrest may search the person lawfully arrested and the place where the arrest was made "to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody." Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5, 70 L.Ed. 145, 51 A.L.R. 409; Cheng Wai v. United States, 2 Cir., 125 F.2d 915.

Petitioner claims, both because of the above facts and because of the manner and form of the search, that it was merely "exploratory and general and made solely to find evidence of * * * guilt," as condemned in United States v. Lefkowitz, 285 U.S. 452, 465, 52 S.Ct. 420, 423, 76 L.Ed. 877, 82 A.L.R. 775, and in Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374.

The problem before us, therefore, is to walk gingerly among or between these precedents, with due circumspection, so far as lies in our power, for the constitutional rights of the petitioner and the need that government officials be not unduly hampered in tracking down crime. Considering, first, formal factors of demarcation, this case, so far as the affidavits disclose, seems to u...