United States v. McCunn

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBONDY
Citation40 F.2d 295
PartiesUNITED STATES v. McCUNN et al.
Decision Date18 April 1930

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

40 F.2d 296
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...

To continue reading

Request your trial
24 practice notes
  • Di Bella v. United States, No. 349
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 23 Noviembre 1960
    ...duties." The Court there held "Such a complaint will not support a warrant of arrest. United States v. McCunn, D.C.S.D.N.Y., 1930, 40 F.2d 295; United States ex rel. King v. Gokey, D.C.N.D.N.Y., 1929, 32 F.2d 793; * * * United States v. Pollack, D.C.N.J., 1946, 64 F.Supp. 554; United States......
  • United States v. Page, No. 17404.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 18 Abril 1962
    ...D.C.E.D.N.Y., 1930, 37 F.2d 415; United States v. Marra, D.C.N.D. N.Y., 1930, 40 F.2d 271; United States v. McCunn, D.C.S.D.N.Y., 1930, 40 F.2d 295; United States v. Baldocci, D.C.S.D. Cal., 1930, 42 F.2d 567; United States v. Ruffner, D.C.Md., 1931, 51 F.2d 579; United States v. Hoffenberg......
  • Nelson v. United States, No. 11353-11361
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 2 Julio 1953
    ...Herter v. United States, 9 Cir., 27 F.2d 521. "8 United States v. Novero, D.C., 58 F.Supp. 275; United States v. McCunn, D.C.S.D.N.Y.1930, 40 F. 2d 295. "9 Ray v. United States, 5 Cir., 84 F.2d 654, It is clear from Judd and the many cases discussed therein that consent, like "The fairness ......
  • United States v. Strouth, Crim. No. Cr. 7152.
    • United States
    • United States District Courts. 6th Circuit. Eastern District of Tennessee
    • 23 Abril 1970
    ...separate floors without a search warrant, was held not to be the product of a voluntary consent. United States v. McCunn, D.C.N.Y. (1930), 40 F.2d 295, 296 3. And, where, inter alia, a defendant refused to sign a consent-to-search form without consulting a lawyer and was induced so to do by......
  • Request a trial to view additional results
24 cases
  • Di Bella v. United States, No. 349
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 23 Noviembre 1960
    ...duties." The Court there held "Such a complaint will not support a warrant of arrest. United States v. McCunn, D.C.S.D.N.Y., 1930, 40 F.2d 295; United States ex rel. King v. Gokey, D.C.N.D.N.Y., 1929, 32 F.2d 793; * * * United States v. Pollack, D.C.N.J., 1946, 64 F.Supp. 554; United States......
  • United States v. Page, No. 17404.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 18 Abril 1962
    ...D.C.E.D.N.Y., 1930, 37 F.2d 415; United States v. Marra, D.C.N.D. N.Y., 1930, 40 F.2d 271; United States v. McCunn, D.C.S.D.N.Y., 1930, 40 F.2d 295; United States v. Baldocci, D.C.S.D. Cal., 1930, 42 F.2d 567; United States v. Ruffner, D.C.Md., 1931, 51 F.2d 579; United States v. Hoffenberg......
  • Nelson v. United States, No. 11353-11361
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 2 Julio 1953
    ...Herter v. United States, 9 Cir., 27 F.2d 521. "8 United States v. Novero, D.C., 58 F.Supp. 275; United States v. McCunn, D.C.S.D.N.Y.1930, 40 F. 2d 295. "9 Ray v. United States, 5 Cir., 84 F.2d 654, It is clear from Judd and the many cases discussed therein that consent, like "The fairness ......
  • United States v. Strouth, Crim. No. Cr. 7152.
    • United States
    • United States District Courts. 6th Circuit. Eastern District of Tennessee
    • 23 Abril 1970
    ...separate floors without a search warrant, was held not to be the product of a voluntary consent. United States v. McCunn, D.C.N.Y. (1930), 40 F.2d 295, 296 3. And, where, inter alia, a defendant refused to sign a consent-to-search form without consulting a lawyer and was induced so to do by......
  • 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