United States v. Mounday

Decision Date11 October 1913
Docket Number1,456.
Citation208 F. 186
PartiesUNITED STATES v. MOUNDAY et al.
CourtU.S. District Court — District of Kansas

Fred Robertson, U.S. Atty., of Topeka, Kan.

Bone &amp Briggs, D. R. Hite, and A. B. Quinton, all of Topeka, Kan for petitioner.

POLLOCK District Judge.

The facts as pleaded are: On application of the district attorney a commissioner's warrant was issued commanding the marshal of the court to arrest defendants on the charge of using the mails of the country in carrying into execution a scheme by them devised to defraud, in violation of section 215 of the Criminal Code (Act March 4, 1909, c. 321, 35 Stat 1130 (U.S. Comp. St. Supp. 1911, p. 1653)). This warrant was executed by the marshal by taking defendants into custody. The warrant was executed by the marshal made by the marshal in the office or place of business of the defendants in the city of Topeka. At the time the arrest was made two post office inspectors in the service and employes of the government, accompanied the deputy marshal, who actually made the arrest, to the office or place of business of defendants. After the making of the arrest the inspectors made search of the office of defendants for the purpose of securing, if possible, books, papers, letters, ad other writings which would tend to prove defendants' guilt of the offense for which they had been arrested. This search resulted in the taking and carrying away by the inspectors from said office of defendants a large volume of letters, writings, and documents, the private property of defendants, or private property of others in possession of defendants. Thereafter defendants were bound over to await the action of the grand jury. Meanwhile, pending such action, defendant D.A. MounDay presented to this court his application for a rule on the district attorney to appear and show cause, if any he had, why he should not be ordered to restore such private property of defendants so taken by the inspectors to their possession. A show cause order was issued on this application. The district attorney appeared thereto and filed his response. The issues so framed, coming on for hearing, in the interests of time, it was by the court suggested the papers, writings, and documents so secured should be sealed in the presence of counsel for the respective parties and deposited with the clerk of this court for safe-keeping; any one thereafter desiring to use or obtain possession of such papers and documents should apply to the court for an order on the clerk for the same. This suggestion was adopted by counsel for the respective parties, and a consent order to this effect was entered. The papers were sealed and deposited in pursuance of this order with the clerk. Thereafter defendants, deeming themselves entitled to the return of said papers as a matter of right, applied to the court for an order on the clerk to this effect. In response to this application the district attorney appeared and filed his response, first, denying generally the matters and things charged and stated in the verified application of defendant D.A. MounDay; second, making cross-application, praying the court to inquire into the matter in advance and determine if there should be found among such papers matters material to present to the grand jury to secure an indictment against defendants, or material in the prosecution of defendants if they shall be indicted, and if such matter be found, to further inquire and determine whether such matters, letters, writings, etc., so secured from the possession of the defendants, should be received in evidence on account of the manner in which they were seized by officials of the government. To this cross-application defendant D.A. MounDay has interposed a motion to strike out, based on the ground that, conceding the papers and documents to contain matters material in the presentment and prosecution of defendants, yet the same should be returned to the defendants, and not by the court be permitted to be used by the government in evidence against the defendants.

In view of the fact that the grand jury to which defendants are to be presented meets within the course of a few days from this date, on the suggestion and at the request of the district attorney representing the government, and the defendant, I shall proceed to determine the question presented at this time, assuming for the purposes of decision of the matters presented the manner in which the letters, papers, documents, and writings were obtained is truly stated as detailed in the verified application of defendant D.A. MounDay in this case, and that such papers, letters, etc., are the private property of defendants.

The question thus presented is, Can the plaintiff in a criminal prosecution such as this be permitted to use evidence so obtained for the purpose of securing the indictment and conviction of defendants, where such evidence is in the custody of the court, as in this case, and the question is presented and inquired of, as here, in advance of investigation by the grand jury, or indictment returned? The answer to this question must be found in the effect which shall and must be given the fourth and fifth amendments to the Constitution as applied to the particular facts of this case. The fourth article of amendment to the Constitution provides:

'The right of the people to be secure in their persons, houses, papers, and effects, against
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12 cases
  • State v. McCollum
    • United States
    • Washington Supreme Court
    • March 16, 1943
    ... ... probable cause, that are forbidden. Carroll v. United ... States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 ... A.L.R. 790. That the ... 1426; Flagg v. United States, 2 ... Cir., 233 F. 481; United States v. Mounday, ... D.C., 208 F. 186; United States v. Mills, C.C., ... 185 F. 318; State v ... ...
  • State v. Cardenas-Alvarez
    • United States
    • New Mexico Supreme Court
    • April 30, 2001
    ...this interpretation of the exclusionary rule in Gutierrez, we found "most persuasive" the reasoning of the court in United States v. Mounday, 208 F. 186 (D.Kan.1913). Gutierrez, 116 N.M. at 444, 863 P.2d at 1065. "[S]hall this court wink at the unlawful manner in which the government secure......
  • State v. Cline
    • United States
    • Iowa Supreme Court
    • September 7, 2000
    ...such act? Such is not my conception of the sanctity of rights expressly guaranteed by the Constitution to a citizen. United States v. Mounday, 208 F. 186, 189 (D.Kan.1913). We agree. Judges would become accomplices to the unconstitutional conduct of the executive branch if they allowed law ......
  • State v. Gutierrez
    • United States
    • New Mexico Supreme Court
    • October 27, 1993
    ...out the early state rationales and provide the reasoning we find most persuasive today. Perhaps most illuminating is United States v. Mounday, 208 F. 186 (D.Kan.1913), decided just before Weeks and quoted in its entirety in the appellant's brief in Weeks. After arrest, but prior to grand ju......
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