Rodgers v. United States

Decision Date06 January 1958
Docket NumberNo. 2083.,2083.
Citation158 F. Supp. 670
CourtU.S. District Court — Southern District of California
PartiesEvan W. RODGERS and E. Nadine Rodgers, Plaintiffs, v. UNITED STATES of America et al., Defendants.

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COPYRIGHT MATERIAL OMITTED

Edgar B. Hervey, James Edgar Hervey, Harry D. Steward, San Diego, Cal., for plaintiffs.

Laughlin E. Waters, U. S. Atty., Los Angeles, Cal., William Seavey, Asst. U. S. Atty., San Diego, Cal., for defendants.

JAMES M. CARTER, District Judge.

This case presents a disturbing problem in the administration of criminal justice—i. e., pre-indictment motions or proceedings to suppress evidence,—in reality an attempt to try a civil proceeding concerning evidence allegedly illegally seized, prior to the trial of the criminal proceeding in which the seizure evidence is to be used. No picture need be painted of the impact of such techniques on the administration of criminal justice, if they are allowed to go unchallenged.1 On the other hand, every defendant must necessarily have the unfettered right under any conceivable set of facts, to present to a court for hearing and determination in an orderly manner, his contention that evidence has been obtained in violation of his constitutional rights, is in the possession of federal officers and that such officers propose to use such evidence against him.

The Proceedings

On October 11, 1957, federal agents arrested E. Nadine Rodgers and Evan W. Rodgers for violation of narcotic laws and allegedly searched the person of E. Nadine Rodgers and seized narcotics found on such search.2 The defendants were arraigned before the Commissioner and posted bond.

On Tuesday, November 12, 1957, Harry Steward, attorney for the plaintiffs E. Nadine Rodgers and Evan Rodgers, had prepared this civil action speaking in equity, entitled, "Complaint to Suppress Evidence and for Preliminary Restraining Order and Injunction." At about 4 P.M., of the same day, Steward, without having filed the action, requested from the court an ex parte restraining order directed to the United States, the United States Attorney, various Assistant United States Attorneys and the Collector of Customs and various Customs agents suppressing the evidence and restraining the "defendants and each of them from presenting the evidence" to the federal grand jury. The prayer of the civil action was in similar language.

The court requested the presence of an Assistant United States Attorney; the matter was then discussed and the court agreed to look into the matter at 10 A.M., Wednesday, November 13, 1957. The court's business on that day required the matter to go over until Thursday, November 14, 1957, at 10 A.M. On Thursday, November 14, 1957, no motion had been served on the United States Attorney, no defendant had been served, and although an Assistant United States Attorney was present, the proceeding was still one for an ex parte restraining order. The court conducted an informal inquiry. An Assistant United States Attorney was sworn and testified that the matter had been fully presented to the grand jury several weeks before but that they had not acted. He testified he had nothing further to present.

Plaintiffs' counsel lodged two proposed Ex Parte Orders, one following the prayer of the complaint, and one restraining the United States Attorney and his assistants from signing an indictment against plaintiffs or presenting an indictment to the grand jury and from conducting any further proceedings before the grand jury pertaining to the arrest and seizure.

The court on November 14, 1957 declined to issue an ex parte order without notice or to exercise its discretion in the matter unless the matter was brought on by proper motion.

Thereafter on the same day, November 14, 1957, the grand jury indicted both plaintiffs for a narcotic offense and the indictment, No. 27110, was filed.

On November 19, 1957, plaintiffs filed a first amended complaint praying for a preliminary and permanent injunction restraining the defendants from presenting evidence or testimony with respect to the seizure of the narcotics "at any trial or hearing pertaining to plaintiffs" and that the seized evidence be suppressed. On the same day plaintiffs filed a motion for preliminary injunction and noticed it for December 2, 1957. The relief asked was similar to the prayer of the amended complaint.

Prior to hearing on December 2, 1957, the United States Attorney filed an answer for all defendants. The matter was continued at plaintiffs' request to December 3rd, and likewise from the 3rd to December 4, 1957. On December 4, 1957, at the hearing, the Assistant United States Attorney suggested that the files and records of the court showed that plaintiffs had an adequate remedy at law, viz., a motion to suppress under Criminal Rule 41(e), 18 U.S.C.A. in the then pending criminal proceedings and that the allegation in the amended complaint "that no plain, speedy and adequate remedy at law existed," was patently untrue; and urged that the court refuse to hear the motion and refuse to exercise its equitable jurisdiction.

The Law

Most of the cases on pre-indictment and post-indictment proceedings to suppress, have arisen on the question of whether a particular order was appealable. Generally the cases hold as follows:3

If the motion is filed and the order entered before indictment returned, then the order is usually held to be final and independently appealable. Burdeau v. McDowell, 1921, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048; Perlman v. United States, 1918, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950; Hoffritz v. United States, 9 Cir., 1956, 240 F.2d 109; Lapides v. United States, 2 Cir., 1954, 215 F.2d 253, 254; Centracchio v. Garrity, 1 Cir., 1952, 198 F.2d 382; White v. United States, 5 Cir., 1952, 194 F.2d 215, certiorari denied 343 U.S. 930, 72 S.Ct. 760, 96 L.Ed. 1340; In re Fried, 2 Cir., 1947, 161 F.2d 453, 1 A.L.R.2d 996; Cheng Wai v. United States, 2 Cir., 1942, 125 F.2d 915, 916; Goodman v. Lane, 8 Cir., 1931, 48 F.2d 32. Cf. United States v. Sineiro, 3 Cir., 1951, 190 F.2d 397. See Cogen v. United States, 1929, 278 U.S. 221, 225, 49 S.Ct. 118, 73 L.Ed. 275. See Weldon v. United States, 9 Cir., 1952, 196 F.2d 874, 875.

When the motion is filed after, and the ruling made after the return of the indictment, the order is interlocutory and not independently reviewable. Carroll v. United States, 1957, 354 U.S. 394, 404-405, 77 S.Ct. 1332, 1 L.Ed.2d 1442; Cogen v. United States, 1929, 278 U.S. 221, 49 S.Ct. 118, 73 L.Ed. 275; United States v. Rosenwasser, 9 Cir., 1944, 145 F.2d 1015, 156 A.L.R. 1200; Jacobs v. United States, 9 Cir., 1925, 8 F.2d 981; United States v. Marquette, 9 Cir., 1921, 270 F. 214. Dissent of Chief Judge Stephens in, United States v. Cefaratti, 1952, 91 U.S.App.D.C. 297, 202 F.2d 13, 17. Contra, Essgee Co. of China v. United States, 1923, 262 U.S. 151, 43 S.Ct. 514, 67 L.Ed. 917 (a sub silento ruling where the problem was not discussed); United States v. Ponder, 4 Cir., 1956, 238 F.2d 825.

But where motions are made before indictment and ruled on thereafter, the cases are in conflict. One line of cases holds the orders final and independently appealable, In re Sana Laboratories, 3 Cir., 1940, 115 F.2d 717, United States v. Poller, 2 Cir., 1930, 43 F.2d 911, 74 A.L.R. 1382, while another line of cases hold the order interlocutory and not independently appealable, United States v. Williams, 4 Cir., 1955, 227 F.2d 149; Nelson v. United States, 1953, 93 U.S. App.D.C. 14, 208 F.2d 505, 516-517; United States v. Mattingly, 1922, 52 App. D.C. 188, 285 F. 922.

The basis of the court's jurisdiction in independent equity proceedings is said to rest on "the inherent power of the court to discipline an officer of the court," Centracchio v. Garrity, 1 Cir., 1952, 198 F.2d 382, at page 386, and cases there collected.

The nature of a pretrial proceeding to suppress is differently described in different cases. Eastus v. Bradshaw, 5 Cir., 1938, 94 F.2d 788, rejects the contention that even a so-called formal bill in equity as a pre-indictment proceeding invokes the equity jurisdiction of the court, but terms it "supervisory jurisdiction of the District Court over its officers in advance of prosecution," (at page 789) and "summary control over its (the court's) own officers," (at page 789). Centracchio v. Garrity, 1 Cir., 1952, 198 F.2d 382 at page 385, refers to a pre-indictment proceeding entitled, "Petition and Motion to Suppress Evidence" as "an independent proceeding of a summary character against the United States attorney as an officer of the court." United States v. Klapholz, 2 Cir., 1956, 230 F.2d 494, when a pre-indictment motion under Rule 41(e), Federal Rules of Criminal Procedure was filed, said at page 496:

"The sole express authority for a pretrial suppression of evidence by any court other than a trial court is found in Rule 41(e)."

But Goodman v. Lane, 8 Cir., 1931, 48 F.2d 32, decided before the Federal Rules of Criminal Procedure and Rule 41(e), but while pre-indictment proceedings under case law were well known, treated a bill in equity praying for pre-indictment suppression of evidence, as a true equity proceeding. The court summarized the then state of the law as follows (at page 35):

"* * * The questions of return of property illegally seized, and/or the suppression of the same as evidence, are presented to the courts by various methods of procedure. There is no uniformity throughout the several circuits, and oftentimes not within the same circuit. Independent petitions, either before or after criminal proceedings are started, summary motions or petitions in criminal cases after indictment or information, independent bills in equity, are all recognized by the courts as proper * *".

In Hoffritz v. United States, 9 Cir., 1956, 240 F.2d 109, at page 112, the Ninth Circuit said:

"* * * The cases are not in agreement as to whether a motion to suppress and return
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