United States v. Kraus

• Citation: 270 F. 578
• Parties: UNITED STATES v. KRAUS et al. SAME v. JOSEPH AJELLO CO., Inc., et al. SAME v. BORNSTEIN et al.
• Decision Date: 01 February 1921
• Court: U.S. District Court — Southern District of New York

270 F. 578

UNITED STATES v. KRAUS et al. SAME v. JOSEPH AJELLO CO., Inc., et al. SAME v. BORNSTEIN et al.

United States District Court, S.D. New York.

February 1, 1921

[Copyrighted Material Omitted]

George L. Donnellan, of New York City, for petitioners.

David V. Cahill and Robert A. Peattie, both of New York City, for the United States.

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

Except for the character of the documents seized, the law in cases of unlawful searches is now well settled. Weeks v U.S., 232 U.S. 383, 34 Sup.Ct. 341, 58 L.Ed. 652, L.R.A 1915B, 834, Ann. Cas. 1915C, 1177; Silverthorne Lumber Co. v. U.S., 251 U.S. 385, 40 Sup.Ct. 182, 64 L.Ed. 319; Flagg v. U.S., 233 F. 481, 147 C.C.A. 367; Veeder v. U.S., 252 F. 414, 164 C.C.A. 338; United States v. Mills (C.C.) 185 F. 318. When seized, they must be returned, with them all copies taken while the officers retained their illegal possession. Furthermore, the prosecution may not use at the trial or in its preparation any information obtained from their scrutiny. Unless, therefore, the respondents can justify, the documents must be returned. They do justify: First, on the ground of the petitioners' consent, which presents an issue of fact; and, second, on the ground that, as the petitioners were wholesale liquor dealers and had taken out basic permits, the records kept by them were subject to inspection under sections 10 and 34 of title 2 of the Volstead Act and section 3318 of the Revised Statutes, and, if to inspection then to the enforcement of that right without process, even to the extent of seizure. Farther they insist that, because the records were not properly kept, those papers were included within their powers which should have been transcribed into the records.

It is quite true that the officers had the right to inspect the records, and therefore the right to enter the place where they were kept. I shall for argument's sake further assume that, if the records were not kept as required, they had the right to inspect such other papers on the premises as recorded transactions which should have been transcribed into the records. It does not, however, follow from these concessions that they had the right to break and enter, though the petitioners wrongfully refused to allow them to inspect, nor does it either follow that they had the right to seize the records and papers after an inspection.

To take up the last first, it is clear that the right to inspect did not give the right to seize, and this is enough to require a return of the papers, though not of any copies taken or of any other information obtained from their custody. Since Silverthorne Lumber Co. v. U.S., supra, and Weeks v. U.S., supra, this right to retain copies is the nub of the case. There are sections of the Revised Statutes of long standing, e.g., sections 3276, 3065 (Comp. St. Secs. 6016, 5768), authorizing similar officers to enter buildings, not dwellings, for the purpose of search, and at least in the case of persons situated as the petitioners there is no need to question their validity. Had this been a distillery, another question would arise. R.S. Sec. 3276. The difficulty I find here is that there was no provision of law purporting to justify a forcible entry, and that without some such a search warrant was necessary. The officers' right to examine the records was to be enforced, so far as the statutes show, only by penalties; they had no right to enforce the duty specifically by force.

The distinction is authoritatively settled by Silverthorne Lumber Co. v. U.S., supra, where the records, being all corporate as I read the report, were subject to subpoena. Hale v. Henkel, 201 U.S. 43, 26 Sup.Ct. 370, 50 L.Ed. 652; Wilson v. U.S., 221 U.S. 361, 31 Sup.Ct. 538, 55 L.Ed. 771, Ann. Cas. 1912D, 558. The right to seize them in one way did not justify their violent seizure. U.S. v. Distillery No. 28, Fed. Cas. No. 14,966, and some language of In re Meader, Fed. Cas. No. 9,375, do indeed support the respondents' contention that the records at least, and perhaps the other papers, would be subject to subpoena, and nothing in Boyd v. U.S., 116 U.S. 616, 6 Sup.Ct. 524, 29 L.Ed. 746, not even the dictum touching searches, contradicts it. But the Fourth Amendment does not touch the competency of proof, but the means used to get it, and here, therefore, the means are everything.

It is apparent, therefore, that not only must the papers be returned, but any copies now in the possession of the respondents. A more difficult question arises to prevent any use of the information derived from their possession, a question which must not be interjected into the trial. Adams v. N.Y., 192 U.S. 585, 24 Sup.Ct. 372, 48 L.Ed. 575. The officials made the first unlawful move, and any confusion resulting from it they must undertake to clear up. The order must therefore provide that no testimony or other evidence of any transaction recorded in any of the papers seized shall be offered upon the trial unless the respondents can show that they got it independently of their wrongful possession. To settle this before trial some reference will be necessary to a master, who will make a record of all purchases and sales of liquor recorded in any of the papers surrendered, so that they may be identified if evidence is offered of them at the trial. No such transactions may be proved unless the respondents show before the master that they have independent proof not derived from information contained in the papers. The expenses of that reference will be borne by the prosecution, through whose wrong the difficulty arose.

I have throughout taken the issue of consent against the respondents. Obviously they must have the right to try it and the issue cannot be decided upon affidavits. In the case at least of U.S. v. Bornstein they dispute the petitioner's version, and the trial of the issue must precede any order. It may be brought on at the criminal term on any convenient day and will be tried before the...