United States v. Kirschenblatt, 88.

• Decision Date: 06 December 1926
• Docket Number: No. 88.,88.
• Citation: 16 F.2d 202
• Parties: UNITED STATES v. KIRSCHENBLATT.
• Court: U.S. Court of Appeals — Second Circuit

16 F.2d 202 (1926)

UNITED STATES v. KIRSCHENBLATT.

No. 88.

Circuit Court of Appeals, Second Circuit.

December 6, 1926.

John M. Harlan, of New York City, for the United States.

Leo H. Klugherz, of New York City, for defendant in error.

Before HOUGH, MANTON, and HAND, Circuit Judges.

HAND, Circuit Judge (after stating the facts as above).

The officers' entry under the warrant was lawful, the warrant itself being sufficiently supported by the affidavits. The arrest was also lawful, so that the question is of the officers' powers to search either under the warrant, or as an incident to the arrest. The prosecution argues that the arrest gave the officers power to search the premises and seize, not only liquors and bottling apparatus, but any incriminatory papers which they found. That the search warrant did not go so far we understand to be agreed; at any rate, so much is plain. It is authorized only by section 25, tit. 2, of the National Prohibition Act (Comp. St. § 10138½m), which describes the property seizable as "liquor, the containers thereof," and "property designed for the manufacture of liquor."

While the last phrase may possibly not exclude all papers, it is plain, at least in a case like this, that the warrant would not justify the indiscriminate seizure of incriminatory documents. For this reason the argument runs that, since a person arrested may be searched, and all documents found upon him may be kept whatever their nature, and since the premises in which he is arrested may be searched for contraband as an incident to the arrest, the search so authorized must be as broad as the search of his person.

It is true that the law has never distinguished between documents and other property found upon the person of one arrested. All may be used in the trial, so far as relevant. Baron v. U. S., 286 F. 822, 824 (C. C. A. 6); Browne v. U. S., 290 F. 870, 875 (C. C. A. 6); U. S. v. Kraus (D. C.) 270 F. 579; Dillon v. O'Brien, 16 Cox, Cr. Cas. 245; People v. Chiagles, 237 N. Y. 193, 142 N. E. 583, 32 A. L. R. 676; Getchell v. Page, 103 Me. 387, 69 A. 624, 18 L. R. A. (N. S.) 253, 125 Am. St. Rep. 307; 1 Bishop, New Crim. Proc. § 211. While the point was not involved, the language in Weeks v. U. S., 232 U. S. 383, 392, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177, was broad enough to cover it.

Furthermore, the Supreme Court has very recently held that, upon an arrest, the immediate premises may be searched for contraband (Agnello v. U. S., 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145), just as a vehicle may be searched (Carroll v. U. S., 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790), and as officers, once in under a search warrant, are not confined to the contraband specified in it (Steele v. U. S. No. 1 267 U. S. 498, 45 S. Ct. 414, 69 L. Ed. 757; U. S. v. Old Dominion Warehouse Co., 10 F.2d 736 C. C. A. 2). This doctrine has been extended beyond contraband to incriminatory papers in two cases in the Ninth circuit. Sayers v. U. S., 2 F.(2d) 146; Marron v. U. S., 8 F.(2d) 251.

Brady v. U. S., 300 F. 540 (C. C. A. 6), is put forward as another instance; but, so far as we can learn, the only evidence used against the defendants was contraband liquor.

While we agree that strict consistency might give to a search of the premises, incidental to arrest, the same scope as to a search of the person, it seems to us that that result would admit exactly the evils against which the Fourth Amendment is directed. Whatever the casuistry of border cases, it is broadly a totally different thing to search a man's pockets and use against him what they contain, from ransacking his house for everything which may incriminate him, once you have gained lawful entry, either by means of a search warrant or by his consent. The second is a practice which English-speaking peoples have thought intolerable for over a century and a half. It was against general warrants of search, whose origin was, or was thought to be, derived from Star Chamber, and which had been a powerful weapon for suppressing political agitation, that the decisions were directed, of which Entick v. Carrington, 19 How. St. Trials, 1029, is most often cited. These cases were decided just after the colonists had been hotly aroused by the attempt to enforce customs duties by writs of assistance, and when within 30 years they framed the Fourth Amendment it was general warrants that they especially had in mind. Boyd v. U. S., 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed. 746.

After arresting a man in his house, to rummage at will among his papers in search of whatever will convict him, appears to us to be indistinguishable from what might be done under a general warrant; indeed, the warrant would give more protection, for presumably it must be issued by a magistrate. True, by hypothesis the power would not exist, if the supposed offender were not found on the premises; but it is small consolation to know that one's papers are safe only so long as one is not at home. Such constitutional limitations arise from grievances, real or fancied, which their makers have suffered, and should go pari passu with the supposed evil. They withstand the winds of logic by the depth and toughness of their roots in the past. Nor should we forget that what seems fair enough against a squalid huckster of bad liquor may take on a very different face, if used by a government determined to suppress political opposition under the guise of sedition.

It is likely that the admitted power to seize the fruits, or the tools, of crime, itself rests upon a very ancient basis. People v. Chiagles, 237 N. Y. 193,...