United States v. Best

• Decision Date: 26 March 1948
• Docket Number: Crim. No. 17666.
• Citation: United States v. Best, 76 F.Supp. 857 (D. Mass. 1948)
• Parties: UNITED STATES v. BEST.
• Court: U.S. District Court — District of Massachusetts

76 F. Supp. 857

UNITED STATES v. BEST.

Crim. No. 17666.

District Court, D. Massachusetts.

March 26, 1948.

COPYRIGHT MATERIAL OMITTED

William T. McCarthy, U. S. Atty., and Gerald J. McCarthy, Asst. U. S. Atty., both of Boston, Mass., Theron L. Caudle, Asst. Atty. Gen., Clyde E. Gooch and Tom DeWolfe, Sp. Assts. to the Atty. Gen., and Samuel C. Ely and Victor C. Woerheide, Special Attorneys, Department of Justice, both of Washington, D. C., for plaintiff.

Charles W. Bartlett and Henry M. Leen, both of Boston, Mass., and Maxmilian J. St. George, of Chicago, Ill., for defendant.

FORD, District Judge.

The defendant has moved for the suppression as evidence and return to him of certain property which he claims to own. The property consists of various written transcripts of broadcasts, recordings of broadcasts, personal letters, memoranda, clippings, books, articles of clothing, toilet articles, and travel equipment, claimed by Best to have been unlawfully seized from his premises at Waechtergasse No. 1, in the City of Vienna, Austria, and other places, by members of the United States Army and employees of the Department of Justice, in violation of his rights under the Fourth and Fifth Amendments of the United States Constitution.¹

It appears from the facts adduced and stipulated at the hearings on the motions that the defendant was arrested in January, 1946, by British forces in Vienna and turned over by them to the United States Army.

Orders to search the defendant's apartment at No. 1 Waechtergasse were given by the Commanding Officer of the 430th C. I. C. Detachment with headquarters in Vienna, Austria, in the same month, in accordance with military directives in force at the time and promulgated by the Joint Chiefs of Staff to the Commander-in-Chief of the United States Forces of Occupation Regarding the Military Government of Austria. When the orders to search were given, the United States Army authorities knew that Best had been engaged in propaganda activities for the German Reich and accordingly had reasonable grounds to believe that he had committed the crime of treason.

Two entries were made into Best's apartment. The first was gained through a Dr. Ludwig Priester, an Austrian police official, who had secured the keys to Best's apartment from the janitor of the building in which the defendant's apartment was located. The United States Army officer on this raid arranged, in the order of their importance, the documents, which consisted of books, speeches, newspaper clippings, files and letters and, except for documents not here concerned, left them in the apartment. A second entry was made about two weeks later by United States Army authorities at which time the documents and papers of Best were removed. Mrs. Robert H. Best accompanied the United States authorities on this second visit to Best's apartment and made no objection to the removal of the defendant's property. At the time of the entries and seizure of the property, the authorities were not in possession of a search warrant. All the papers and documents seized at this later entry have been returned to the defendant Best except the following:

Drafts of ten propaganda broadcasts written by defendant.

Draft of one propaganda leaflet written by defendant.

Defendant's copies of nine items of correspondence between him and German radio and other officials.

I. Ordinarily, search and seizure without the authority of a search warrant is prohibited as an unreasonable search and seizure within the meaning of the Fourth Amendment and a conviction based on evidence thus obtained cannot stand. Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098; Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652; Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647.

However, there are exceptions to the safeguard of a warrant issued by a magistrate, i. e., where circumstances preclude the obtaining of a warrant. Carroll v. United States, 267 U.S. 132, 156, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790. At the hearing on these motions, conditions that prevailed in Austria at the time of the search and seizure were described in very great detail. These conditions are set forth later in this memorandum. Certainly our federal courts had no power to issue a search warrant to be acted upon in Austria. Weinberg v. United States, 2 Cir. 126 F.2d 1004. The Austrian courts had no jurisdiction over American nationals. Government's Exhibit 6, Austrian Military Government Handbook, Annex 32B, p. 3, Art. 7, Para. 14. See Dow v. Johnson, 100 U.S. 158, 165, 25 L.Ed. 632. The occupying forces had no machinery for the issuance of search warrants. It follows that not only was it impracticable to obtain a search warrant under the conditions that existed in Austria at the time; it was impossible to do so. Thus it is perfectly apparent that search and seizure of Best's property at the time it was made cannot be said to be unreasonable within the meaning of the Fourth Amendment merely because of the lack of a search warrant.

The evidence showed that the Army authorities, when the property concerned in these motions was finally taken by them, entered the defendant's premises with the consent of Mrs. Best and that at the time of entry they had reasonable grounds to believe that Best had joined up with the enemy and had committed the crime of treason and they knew the manner in which he was alleged to have committed treason, namely, by engaging in broadcasting activities for the German Reich. Also, at the time, it was reasonable for the Army authorities to suspect, as they later found out, that Best was in possession and control of the transcripts of his broadcasts. Under the conditions that existed, the Army officers had the right to seize any property they would have been justified in seizing had they been able to procure a search warrant. This would include any property "which * * * has been used as the means of committing a criminal offense". Federal Rules of Criminal Procedure, Rule 41(b) (2), 18 U.S.C.A. following section 687; cf. Carroll v. United States, supra; Matthews v. Correa, 2 Cir., 135 F.2d 534, 537; and United States v. Poller, 2 Cir., 43 F.2d 911, 913, 74 A.L.R. 1382, cases where, without a warrant, the fruits of crime and means to commit crime were seized incident to an arrest.

This brings us to the question whether the property seized by United States Army forces was used by Best as instrumentalities or means of committing the crime of treason.

Evidence introduced by the government showed that all property, papers and documents taken by the Army authorities at the time of seizure were returned to defendant Best except copies of Best's propaganda speeches and leaflets and correspondence between Best and officials of Germany and the Radio Station concerning his activities and employment with the Reich Broadcasting Corp.

The indictment charges, in part, as treasonable acts that the defendant caused to be recorded talks for subsequent broadcast to the United States and also that he engaged in and performed the duties of a news editor in the offices of the United States of American Zone of the German Short Wave Radio Station.

It would appear that the propaganda speeches of the defendant were used as a means in the commission of the offense charged. They were employed to carry out the crime. United States v. Poller, supra, at page 914 of 43 F.2d. It is charged in the indictment that the recording of talks and speeches gave aid and comfort to the German Reich and assisted the enemy in the conduct of its war against the United States. And the evidence at the hearing on the motions showed that the defendant admitted to an agent of the United States Department of Justice that the transcripts seized were the very transcripts recorded and used for the subsequent broadcasts to the United States.

The letters and correspondence seized were used by Best to obtain employment with the German Short Wave Radio Station. These were means through which an alleged treason, namely performance of the duties of a news editor in the German Short Wave Radio Station, one of Germany's most potent weapons of warfare against the United States, was accomplished. These papers were used in perpetrating an alleged criminal offense; they were used in connection with the alleged crime of treason.

The objection to the use of these documents as evidence because they are the private papers of the defendant has no merit in the circumstances of this case. To be sure, the seizure of private papers from a person for the purpose of obtaining information or of using them in evidence against him at his trial runs afoul of the Fourth Amendment. United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877, 82 A.L.R. 775. But we are not here, as in the Lefkowitz case, dealing with papers "in themselves unoffending." Id. at page 465 of 285 U.S., at page 423 of 52 S.Ct. Papers in which the public has an interest, as in papers used as a means of committing a criminal offense, have not the immunity of private papers. As was stated in the Gouled case, at page 309 of 255 U.S., at page 265 of 41 S.Ct.: "There is no special sanctity in papers, as distinguished from other forms of property, to render them immune from search and seizure, if only they fall within the scope of the principles of the cases in which other property may be seized, * * *."

The search did not contravene the Fourth Amendment on the ground that it was in the nature of a general exploratory search for evidence. Harris v. United States, supra, at page 153 of 331 U.S., 67 S.Ct. 1098. The United States Army authorities had reasonable cause to believe that Best had aided Germany in the conduct of its war against the United States; they knew the manner in which he aided Germany, namely, by broadcasting or recording broadcasts; and when they searched Best's apartment, it is reasonable to infer, they were searching for...