Paper v. United States

• Decision Date: 19 October 1931
• Docket Number: No. 3177.,3177.
• Citation: 53 F.2d 184
• Parties: PAPER v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

53 F.2d 184 (1931)

PAPER v. UNITED STATES.

No. 3177.

Circuit Court of Appeals, Fourth Circuit.

October 19, 1931.

Paul Berman, of Baltimore, Md., for appellant.

Simon E. Sobeloff, U. S. Atty., of Baltimore, Md. (O. Norman Forrest and Cornelius Mundy, Asst. U. S. Attys., both of Baltimore, Md., on the brief), for the United States.

Before PARKER and NORTHCOTT, Circuit Judges, and WAY, District Judge.

PARKER, Circuit Judge.

The appellant, William Paper, was indicted and convicted of unlawful possession of intoxicating liquor in violation of the National Prohibition Act (27 USCA). The only question presented by the appeal relates to the admissibility of the evidence of government officers that, in searching for appellant on his premises in order to arrest him under a bench warrant, they found a quantity of liquor in his cellar. The judge below found that the officers were in good faith searching for the defendant and were not conducting a search for discovering evidence of crime, when quite by accident they discovered the liquor in question. There is nothing to warrant the contention that the search for the defendant was a pretext for searching his premises for evidence of crime, and there is no basis for the application of the rule that under a warrant describing a thing to be seized a general search may not be conducted and seizure made of other things. The case is a simple one of where officers, lawfully and in good faith searching a defendant's home for the purpose of finding and arresting him, discover that he is engaged in the commission of a crime other than that for which they are seeking his arrest.

We think there can be no question but that the evidence was admissible. The purpose of the Fourth Amendment was to prevent the use of "governmental force" to search a man's house, his person, his papers or his effects and to prevent their seizure against his will. Olmstead v. U. S., 277 U. S. 438, 48 S. Ct. 564, 72 L. Ed. 944, 66 A. L. R. 376. Most cases of search in violation of this constitutional provision involve the element of trespass, i.e. the entry without right upon the premises of the citizen. And all cases of unlawful search will be found to involve either this element or some element of fraud or subterfuge, as where an arrest is made a pretext for a search, or where the right to search having been obtained ostensibly for one purpose is used in reality for another. Henderson v. U. S. (C. C. A. 4th) 12 F.(2d) 528, 51 A. L. R. 420; Thompson v. U. S. (C. C. A. 4th) 22 F.(2d) 134. But where the entry and search are rightful and there is present no element of trespass or fraudulent invasion of the rights of the citizen, there is no reason for excluding evidence of crime discovered in the course of the search. If the officers, in this case, had discovered in the cellar a counterfeiting plant in operation, would it have been their duty to ignore it? If they had come upon the body of a murdered man, would their testimony as to finding the body be excluded?

In Milam v. U. S. (C. C. A. 4th) 296 F. 629, 632, officers, having information that whisky was being conveyed in a truck, searched it for the purpose of discovering whisky and found instead that Chinamen were being unlawfully transported in it. The evidence so discovered was admitted, this court holding "that the search was not unreasonable, and that the evidence obtained was competent."

In U. S. v. Old Dominion Warehouse, Inc. (C. C. A. 2d) 10 F.(2d) 736, 738, it appeared that federal officers saw a truck deliver ten or twelve barrels of intoxicating liquor to a warehouse. They obtained a warrant authorizing them to search the warehouse for this liquor. In the course of the search, they discovered and seized 4,867½ cases of various kinds of intoxicating...