United States v. Elkins

• Decision Date: 07 July 1961
• Docket Number: No. C-18321.,C-18321.
• Citation: 195 F. Supp. 757
• Parties: UNITED STATES of America v. James Butler ELKINS and Raymond Frederick Clark, Defendants.
• Court: U.S. District Court — District of Oregon

195 F. Supp. 757

UNITED STATES of America v. James Butler ELKINS and Raymond Frederick Clark, Defendants.

No. C-18321.

United States District Court D. Oregon.

July 7, 1961.

C. E. Luckey, U. S. Atty., Portland, Or., for plaintiff.

Walter H. Evans, Jr., Portland, Or., for defendants.

EAST, District Judge.

In the above entitled cause the defendants were convicted by a jury of the charges in the indictment submitted to it. Thereupon, the Court entered its judgment of conviction on May 21, 1957, fining and imprisoning each of the defendants. Subsequently, the cause was appealed to the United States Court of Appeals for the Ninth Circuit and was affirmed (266 F.2d 588). Thereafter, said defendants filed their writ of certiorari to, and which was allowed by, the Supreme Court of the United States.

The Supreme Court, in its 5-4 opinion entered in Elkins et al. v. United States, 1960, 364 U.S. 206, at page 224, 80 S.Ct. 1437, at page 1447, 1453, 4 L.Ed.2d 1669, opined:

"The judgment of the Court of Appeals is set aside, and the case is remanded to the District Court for further proceedings consistent with this opinion."

As stated in the majority opinion of the Supreme Court:

"The defendants were indicted in the United States District Court in Oregon for the offense of intercepting and divulging telephone communications and of conspiracy to do so.¹ Before trial the petitioners made a motion to suppress as evidence several tape and wire recordings and a recording machine, which had originally been seized by Oregon state law enforcement officers in the home of defendant Clark under circumstances which, two Oregon courts had found, had rendered the search and seizure unlawful.² At the hearing on the motion this Court assumed without deciding that the articles had been obtained as the result of an unreasonable search and seizure, but denied the motion to suppress because there was no evidence that any `agent of the United States had any knowledge or information or suspicion of any kind that this search was being contemplated or was eventually made by the State officers until they read about it in the newspaper.'" Emphasis supplied.

The opinion continues:

"The question is this: May articles obtained as the result of an unreasonable search and seizure by state officers, without involvement of federal officers, be introduced in evidence against a defendant over his timely objection in a federal criminal trial? In a word, we reexamine here the validity of what has come to be called the silver platter doctrine."

The "silver platter" label stems from a phrase first turned in the prevailing opinion in Lustig v. United States, 1949, 338 U.S. 74, 78-79, 69 S.Ct. 1372, 1374, 93 L.Ed. 1819:

"The crux of that doctrine is that a search is a search by a federal official if he had a hand in it; it is not a search by a federal official if evidence by state authorities is turned over to the federal authorities on a silver platter." Emphasis supplied.

As pointed out in the minority opinion of Elkins v. United States, supra, 364 U.S. at page 233, 80 S.Ct. at page 1453:

"The Court today overturns a rule of evidence always the law and formally announced in 1914 by a unanimous Court including Mr. Justice Holmes and Mr. Justice Hughes. Weeks v. United States, 232 U.S. 383, 398 34 S.Ct. 341, 58 L.Ed. 652. The rule has since that time been applied in this Court's unanimous per curiam decision in 1925 in Center v. United States, 267 U.S. 575 45 S.Ct. 230, 69 L.Ed. 795, and for five decades, as a matter of course, in federal prosecutions * * *" as a dictate to the United States District Courts in dealing with the problem here involved.

In declining to rule upon the defendants' motion to suppress under the silver platter doctrine, this Court did not have the temerity of prognosticating what the Supreme Court might hold if it were to review an order either sustaining or denying the motion for suppression, but instead applied the federal law of 50-years' standing of its Circuit and the United States Supreme Court, which, in the language of Mr. Justice Harlan, had:

"* * * behind it the strongest judicial credentials, the sanction of long usage, and the support of what, in my opinion, is sound constitutional doctrine under our federal scheme of things, * * *" Elkins v. United States, supra, 364 U.S. at page 252, 80 S.Ct. at page 1463.

The Supreme Court has plainly and simply instructed this Court under its remand for "further proceedings consistent with" its opinion to make "an independent inquiry" and ruling upon the defendants' original motion and any supplemental motions to suppress, irrespective of how any prior inquiry of the subject by any state court may have turned out.

It has been stipulated by the parties and their respective counsel of record that the matter should be submitted to the Court upon the record made upon the defendants' motion to suppress without further evidence on behalf of either party. However, the defendants did file herein their amended and supplemental motion to suppress as evidence the above mentioned articles seized by the state officers, wherein the defendants state, inter alia:

"That the articles above enumerated five reels of magnetic or recording tape on spools and the boxes in which they were contained and the slips of paper which accompanied them, together with a Minifon recording machine and three spools of Minifon recording machine wire were in their lawful possession, custody and control on the night of May 17, 1956 the night of the seizure by state officers and that the defendants were the owners of said * * *" Emphasis supplied.

enumerated articles.

From the foregoing admission of the defendants it is clear, and this Court is of the opinion, that both of the defendants have "standing."³

Where persons claiming ownership of property Elkins had entrusted its possession to another Clark, the latter being the one from whom the property was actually seized, the law is clear that ownership without possession is a sufficient interest to entitle one to object to the seizure. United States v. Jeffers, 1951, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59; Pielow v. United States, 9 Cir., 1925, 8 F.2d 492, and United States v. Lester, D.C.W.D.Pa.1957, 21 F.R.D. 376.

and therefore had a right to pursue the provisions of Rule 41(e) of the F.R.Crim. P., 18 U.S.C. which inter alia, provide:

"A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property and to suppress for the use as evidence anything so obtained on the ground that * * * (3) the property seized is not that described in the warrant, * * *"

which Rule gives vitality and "teeth" to the Fourth Amendment to the United States Constitution, which provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Emphasis supplied.

It is self-evident that the search warrant issued and which the state officers were executing (and for the purposes of this case, following the dictates of Elkins v. United States, supra, the substituted federal officers), did not particularly describe the "things to be seized,"...