United States v. Klapholz, No. 113

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtFRANK, HINCKS and WATERMAN, Circuit
Citation230 F.2d 494
Docket NumberNo. 113,Docket 23596.
Decision Date21 February 1956
PartiesUNITED STATES of America, Appellee-Appellant, v. David KLAPHOLZ and Paula Klapholz, Defendants-Appellants-Appellees.

230 F.2d 494 (1956)

UNITED STATES of America, Appellee-Appellant,
v.
David KLAPHOLZ and Paula Klapholz, Defendants-Appellants-Appellees.

No. 113, Docket 23596.

United States Court of Appeals Second Circuit.

Argued October 10, 1955.

Decided February 21, 1956.


230 F.2d 495

Cornelius W. Wickersham, Jr., Chief Asst. U. S. Atty., Brooklyn, N. Y. (Leonard P. Moore, U. S. Atty., and Peter E. DeBlasio, Asst. U. S. Atty., Brooklyn, N. Y., on the brief), for appellee-appellant.

Arthur Kaplan, New York, N. Y., for defendants-appellants-appellees.

Before FRANK, HINCKS and WATERMAN, Circuit Judges.

HINCKS, Circuit Judge.

These are cross appeals from an order of Judge Weinfeld in the Southern District of New York, granting in part and denying in part motions of the defendants to suppress evidence pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. The opinion of the District Court is reported at 17 F.R.D. 18.

The defendants, who had been arrested in the Eastern District of New York at 4:00 p. m., on August 2, 1954, but whose arraignment had been deferred until August 4, 1954 at 1:00 p. m., moved to suppress all evidence obtained during and by reason of the presence of government agents in the defendants' apartment in the Southern District of New York from about 8:00 p. m. on August 2, 1954 to 11:30 a. m. August 4, 1954, on the ground (1) that the presence of the agents in the apartment violated their rights under the Fourth and Fifth Amendments of the Constitution of the United States and (2) that the delay in arraigning them was in violation of Rule 5(a) of the Federal Rules of Criminal Procedure. The defendants also moved to suppress all evidence obtained as a result of the search made (1) of their apartment on August 4, 1954, and (2) of the defendant Paula Klapholz's safe deposit box on August 4, 1954 pursuant to a warrant dated that date. These motions were filed by the defendants in the court below on September 13, 1954. Meanwhile, on August 23, 1954 indictments against the defendants had

230 F.2d 496
been returned to the United States District Court for the Eastern District of New York

After a hearing in which all the defendants' procedural rights were scrupulously and fully protected the District Court denied the defendants' motions to suppress the evidence obtained by execution of the search warrants. The denial was based on findings that the warrants were issued on probable cause; that they were sufficient on their faces in stating the grounds of probable cause for their issuance; that the warrants were seasonably executed within the ten-day period specified in Rule 41(d); and that failure to give a receipt for items seized did not invalidate an otherwise lawful search. From the order giving effect to this ruling, the defendants appealed.

We affirm that order on Judge Weinfeld's findings and opinion below.

As to the motion to suppress evidence in addition to that obtained through the search warrants, i. e., evidence which had been obtained through the presence of the government officers in their apartment, the court found that the officers were there by the defendants' consent. That finding required a conclusion — which was implicit, if not expressly stated, in the opinion below — that the search and seizure was not in violation of the Fourth Amendment. However, the judge apparently thought that even though there had been no constitutional violation the evidence might be suppressed if there had been "unnecessary delay" in bringing the defendants before a United States Commissioner in violation of Rule 5(a). Apparently assuming that, on the authority of McNabb v. U. S., 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, the court had jurisdiction to suppress for violation of Rule 5(a), he meticulously found that to defer the defendants' presentation to a Commissioner until August 3 at 10:30 a. m. did not involve "unnecessary delay" within the meaning of Rule 5(a), but that the further deferment of the presentation was unreasonable and so did constitute "unnecessary delay." Accordingly, it was ordered that, as to evidence obtained through the presence of the government agents in defendants' apartment prior to that date and hour, the motion to suppress should be denied; and that, as to evidence so obtained thereafter, the motion be granted. From this order, both the defendants and the government appealed.

The sole express authority for a pre-trial suppression of evidence by any court other than a trial court is found in Rule 41(e). And the authority thus conferred goes no further than to permit a district court to suppress evidence obtained by unlawful searches and seizures within its district. Its operativeness thus depends on a violation of...

To continue reading

Request your trial
49 practice notes
  • Di Bella v. United States, No. 349
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 23, 1960
    ...1930, 43 F.2d 911, 74 A.L.R. 1382; Cheng Wai v. United States, 2 Cir., 1942, 125 F.2d 915; cf. United States v. Klapholz, 2 Cir., 1956, 230 F.2d 494; United States v. Russo, 2 Cir., 1957, 241 F.2d We hold the order made by the District Court in this case to be appealable. The motion was arg......
  • Chin Kay v. United States, No. 17469.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 4, 1963
    ...Judge Weinfeld, in the District Court of the Southern District of New York, stated in U. S. v. Klapholz, D.C., 17 F.R.D. 18, 25, affirmed 230 F.2d 494 (C.A.2, 1955), cert. denied 351 U.S. 924, 76 S.Ct. 781, 100 L.Ed. 1454, "considering the nature of the objects of the search (in that case d......
  • United States v. Koenig, No. 18355.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 12, 1961
    ...in the district court of trial in Pennsylvania. "Such a course", the Second Circuit pointed out in United States v. Klapholz, 1956, 230 F.2d 494, 497, "would have avoided invasion of the trial court's normal province to pass on the admissibility of evidence * * * without jeopardy to the rig......
  • Di Bella v. United States United States v. Koenig, Nos. 21 and 93
    • United States
    • United States Supreme Court
    • March 19, 1962
    ...Wilson v. Schnettler, 365 U.S. 381, 81 S.Ct. 632, 5 L.Ed.2d 620. There is a decision in the Second Circuit, United States v. Klapholz, 230 F.2d 494 (1956), allowing the Government an appeal from an order granting a post-indictment motion to suppress, apparently for the single reason that th......
  • Request a trial to view additional results
49 cases
  • Di Bella v. United States, No. 349
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 23, 1960
    ...1930, 43 F.2d 911, 74 A.L.R. 1382; Cheng Wai v. United States, 2 Cir., 1942, 125 F.2d 915; cf. United States v. Klapholz, 2 Cir., 1956, 230 F.2d 494; United States v. Russo, 2 Cir., 1957, 241 F.2d We hold the order made by the District Court in this case to be appealable. The motion was arg......
  • Chin Kay v. United States, No. 17469.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 4, 1963
    ...Judge Weinfeld, in the District Court of the Southern District of New York, stated in U. S. v. Klapholz, D.C., 17 F.R.D. 18, 25, affirmed 230 F.2d 494 (C.A.2, 1955), cert. denied 351 U.S. 924, 76 S.Ct. 781, 100 L.Ed. 1454, "considering the nature of the objects of the search (in that case d......
  • United States v. Koenig, No. 18355.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 12, 1961
    ...in the district court of trial in Pennsylvania. "Such a course", the Second Circuit pointed out in United States v. Klapholz, 1956, 230 F.2d 494, 497, "would have avoided invasion of the trial court's normal province to pass on the admissibility of evidence * * * without jeopardy to the rig......
  • Di Bella v. United States United States v. Koenig, Nos. 21 and 93
    • United States
    • United States Supreme Court
    • March 19, 1962
    ...Wilson v. Schnettler, 365 U.S. 381, 81 S.Ct. 632, 5 L.Ed.2d 620. There is a decision in the Second Circuit, United States v. Klapholz, 230 F.2d 494 (1956), allowing the Government an appeal from an order granting a post-indictment motion to suppress, apparently for the single reason that th......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT