United States v. McCunn

• Decision Date: 18 April 1930
• Citation: 40 F.2d 295
• Parties: UNITED STATES v. McCUNN et al.
• Court: U.S. District Court — Southern District of New York

40 F.2d 295 (1930)

UNITED STATES v. McCUNN et al.

District Court, S. D. New York.

April 18, 1930.

Charles H. Tuttle and Arthur H. Schwartz, both of New York City, for the United States.

M. Michael Edelstein, of New York City, for defendant McCunn.

J. Edward Lumbard, Jr., of New York City, for defendants Collins and Maloney.

BONDY, District Judge.

This is a motion by the defendants McCunn and Collins for an order directing the United States attorney to return to the defendants property alleged to have been wrongfully seized and for an order suppressing the use thereof as evidence against them.

The search and seizure were made without a search warrant, and therefore can be sustained, if at all, only if made as an incident of a lawful arrest, or if made with the consent of the defendants.

The defendant Collins was arrested on the second floor of a loft building under a warrant which was issued upon a complaint, all the allegations of which were made on information and belief by a special prohibition agent. The complaint states: "The sources of your deponent's information and the grounds for his belief are official investigations made by your deponent in his official capacity."

In affidavits subsequently submitted in opposition to this motion, the special agent alleged that he received the information from official communications from his superiors and various papers giving summarized and detailed reports from informers "whose names and identity for reasons of public policy and public safety it is impossible to disclose." He also alleged that he was not at liberty to disclose the names of his informers and the sources of his information, because it would cause injury to the units of the government engaged in the investigation of violations of the law, and that the ability of the government to procure information has always been aided by the protection given to the sources of information and the persons who have given the same, and that under Regulations of the Treasury Department he was forbidden to reveal any confidential information without the consent of the Secretary of the Treasury.

It is apparent that, on the facts presented by the complaint, the special prohibition agent, and not the committing magistrate, nor even a prosecuting attorney, acted as the absolute judge of the sufficiency of the information on which the probable cause for the belief in the guilt of the accused was based.

Mr. Justice Bradley of the United States Supreme Court, sitting as a Circuit Judge in Georgia, said: "It is plain from this fundamental enunciation, as well as from the books of authority on criminal matters in the common law, that the probable cause referred to, and which must be supported by oath or affirmation, must be submitted to the committing magistrate himself, and not merely to an official accuser, so that he, the magistrate, may exercise his own judgment on the sufficiency of the ground for believing the accused person guilty; and this ground must amount to a probable cause of belief or suspicion of the party's guilt. In other words, the magistrate ought to have before him the oath of the real accuser, presented either in the form of an affidavit or taken down...