United States v. Gross

• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
• Citation: 137 F. Supp. 244
• Parties: UNITED STATES of America v. Phil GROSS, Defendant.
• Decision Date: 05 January 1956

137 F. Supp. 244

UNITED STATES of America
v.
Phil GROSS, Defendant.

United States District Court S. D. New York.

January 5, 1956.

137 F. Supp. 245

COPYRIGHT MATERIAL OMITTED

137 F. Supp. 246

Paul W. Williams, U. S. Atty., New York City, for United States, George S. Leisure, Jr., New York City, of counsel

Irwin Ross, for defendant, Daniel H. Greenberg, New York City, of counsel.

WEINFELD, District Judge.

The defendant is under a six count indictment charged with mailing an obscene film and advertisements soliciting obscene matter in violation of 18 U.S.C. § 1461. Prior to the return of the indictment Government agents obtained a warrant for the arrest of the defendant and a search warrant for the premises where he resided.

The defendant moves for an order directing (1) the return and suppression as evidence of certain property taken at his apartment at the time of his arrest; (2) that he be furnished with a copy of the arrest warrant and the complaint upon which it was obtained; (3) that he be furnished with a copy of (a) the search warrant and papers upon which it was obtained; (b) return of the search warrant; and (c) an inventory of the property taken from him; (4) an inspection of the grand jury minutes upon which the indictment was founded, and upon such inspection, dismissal of the indictment for insufficiency; and (5) an inspection of letters, envelopes and a film taken from him with permission to copy the letters and the envelopes.

The principal controversy centers about that branch of the motion, made pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure, 18 U.S.C., which seeks the return and the suppression as evidence of the property taken from the defendant.

The essential facts as to what transpired are not in dispute. The affidavit of the postal inspector who directed the search and that of the defendant are in substantial accord and hence there is no need to "receive evidence on any issue of fact necessary to the decision of the motion" as required by Rule 41(e).

On July 22, 1955 Harry J. Simon, the postal inspector, accompanied by a Deputy United States Marshal, went to defendant's apartment armed with both a warrant for his arrest and a search warrant covering the apartment at 982 Leggett Avenue, Bronx, New York, occupied by the defendant and his wife. The warrants had been issued the day before by a United States Commissioner on the postal inspector's application. Both were admitted by defendant's mother in the latter's presence. The defendant concedes he was told by the officers they had a warrant for his arrest. He also admits they stated they had a warrant to search for obscene matter kept in the apartment. Simon states he suggested to the defendant that he surrender the material and unless he did so "it would be necessary to pull everything apart in the apartment in order to enforce the search warrant", or as the defendant puts it, "they would turn the apartment upside down". According to the postal inspector the defendant stated that if the officers wanted to search the premises they could do so. The Deputy Marshal then handed the defendant a copy of the search warrant, which he placed on the top of a bureau dresser in the bedroom where the parties then were. The inspector commenced to examine some books in a bookcase when the defendant's wife entered the bedroom and was informed by the inspector that her husband was not "cooperating" and unless he voluntarily surrendered all obscene matter in his possession it would be necessary "to pull everything apart in the apartment pursuant to the search warrant." The defendant then undertook to give to the officers books, pamphlets and films which he contended were

137 F. Supp. 247

his personal collection and which he kept for his own amusement. At or about this time the Deputy Marshal picked up the warrant from the top of the dresser where the defendant had placed it. The defendant then led the officers to another bedroom where he pointed out a bookcase in back of a wardrobe from which the officers obtained possession of the property, the subject matter of this motion. Upon receipt of the property the defendant was forthwith removed from the apartment pursuant to the warrant of arrest and arraigned before the United States Commissioner

The Government concedes that no copy of the search warrant was left with or thereafter delivered to the defendant, that no inventory was made of the property at the time, that no receipt was given to the defendant and no return was made as required by Rule 41(d). But it contends that this was not required since the defendant consented to the search and voluntarily turned over the property to the agents.

The initial inquiry is whether the defendant did in fact consent to the search and voluntarily turn over the property, thereby dispensing with the need for compliance by the Deputy Marshal with the requirements of Rule 41(d). The situation is unique in that here, unlike many other situations, the enforcement officers did apply for and obtain a search warrant as well as an arrest warrant but now claim that although they commenced to execute the search warrant it was unnecessary to carry it through to finality because of the defendant's alleged consent.

In passing upon the issue of consent certain general principles should be noted. A waiver of a constitutional right is not to be lightly implied. Indeed, the "`courts indulge every reasonable presumption against waiver' of fundamental constitutional rights" and "`do not presume acquiescence in the loss of fundamental rights.'"¹ Consent to search and seizure in derogation of one's constitutional right of privacy under the Fourth...