United States v. Peisner

• Decision Date: 26 September 1961
• Docket Number: Crim. A. No. 24744.
• Citation: 198 F. Supp. 67
• Parties: UNITED STATES v. Arthur Abraham PEISNER, Morris Disman.
• Court: U.S. District Court — District of Maryland

198 F. Supp. 67

UNITED STATES v.Arthur Abraham PEISNER, Morris Disman.

Crim. A. No. 24744.

United States District Court D. Maryland.

September 26, 1961.

Joseph D. Tydings, U. S. Atty., and John R. Hargrove, Asst. U. S. Atty., Baltimore, Md., for the Government.

Joseph J. Lyman, Washington, D. C., for defendants.

R. DORSEY WATKINS, District Judge.

Questions Presented

On motion of defendants, jointly indicted for violation of U.S.C. Title 18, section 1465, by knowingly, unlawfully and feloniously causing to be transported in interstate commerce, from Maryland to New Jersey for the purpose of sale and distribution, 1560 paper-bound books, containing obscene, lewd and lascivious material, the matter was removed to this court under the provisions of Rule 21(b) of the Federal Rules of Criminal Procedure,18 U.S.C.Motions to dismiss the indictment and for inspection of the minutes of the indicting Grand Jury were orally denied by this court.A motion for return of property and to suppress evidence was filed by defendant Peisner, defendant Disman joining in the motion to suppress, and evidence with respect thereto was taken on two days, followed by oral argument.Briefs in support of, and in opposition to, said motion have been filed.Incident to the motion is the question raised, argued and briefed, whether or not the United States is required to disclose the name of the informer on the basis of whose tip was begun the investigation out of which the instant proceedings arose.

Facts

Long before the initiation of the instant case, the defendant Peisner had been the object, or subject, of investigation by various authorities as one engaged in the purveying of obscene literature.Accordingly, as background material, it appears that in 1957 a complaint was made to the F.B.I. with respect to the alleged possession and handling of obscene motion picture film by defendant Peisner.An investigation was begun by the F.B.I. and defendant Peisner was interviewed in the early part of 1958.Nothing warranting criminal proceeding was apparently developed.

Shortly thereafter, during an investigation of persons believed by the F.B.I. to be engaged in the manufacture and sale of obscene literature, the F.B.I. learned that the defendant Peisner was associated with these persons, and concluded that he was engaged in the same business.These other persons were David Lerner, his brotherBernard Lerner, and Anthony Carbo.The Lerners had been convicted in the District of Columbia of possession and sale of obscene literature, although their convictions were later reversed, on the ground that the defendants' motion to suppress the evidence should have been granted because the search warrants had been issued without probable cause.Lerner v. United States, D.C.Mun.App.1959, 151 A.2d 184.¹

On May 31, 1958, a Deputy Chief of the Metropolitan Police Department, Washington, D. C. visited an office in the District in response to a complaint that obscene literature had been observed in the hallway of that building.The complaining party also stated that he had heard a printing press running during that and other days, and that two men were occupying the premises.Investigation by this Deputy Chief developed that two men had taken a printing press down in the elevator and removed it from the building on the day he made his investigation.A building employee identified photographs of defendant Peisner and David Lerner as the men he had observed moving a printing press that day.Further investigation disclosed that the printing press had been moved from an office leased to defendant Peisner, listed as, and in fact, an attorney.

In his investigation of the vacated office, the Deputy Chief found scraps of pages from what he considered to be obscene books, and a set of plates for the printing of a book entitled "Kosimo's Wife", also considered to be obscene.This information, and these scraps of paper and plates, were furnished to the F.B.I.

In October 1958, the F.B.I. received information, or a "tip", that defendant Peisner was expected to transport obscene literature from Maryland to New York City on the weekend of October 31 — November 1, 1958, or the following weekend.This informant had on previous occasions given reliable information to the F.B.I. concerning similar matters, although a tip as to an earlier transportation by defendant Peisner had not materialized.

As a result of this tip the F.B.I. caused a surveillance of Peisner's home in Silver Spring, Maryland to be made just before November 1, 1958.On that date, at approximately noon, an F.B.I. agent observed both defendants loading some packages wrapped in plain brown paper and sealed with gum tape, into defendant Peisner's 1954 green Buick, which was parked in front of the Peisner residence.After some nine packages had been loaded, an automobile titled in the name of David Lerner's wife arrived, and Lerner helped the two defendants load additional packages into Peisner's Buick.At about 1:40 P.M. the two defendants left, driving toward Baltimore.On the way, they stopped in Catonsville, Maryland, for several hours, where defendant Peisner removed a package entirely different in appearance from those mentioned above.This material, and intermission, were entirely innocent in character.Thereafter, defendants drove to a point near the 300 block West Baltimore Street, out of the direct route for traffic bound for New York, and entered a book store in this block.From past investigations the F.B.I. knew this as a place the proprietor of which had been arrested for, and one of his clerks convicted of, the sale of obscene literature and pictures, in 1957 or 1958.

After leaving this book store, defendants drove north on Route 40, stopping at Aberdeen, Maryland for dinner at about 7 P.M.Thereafter they left the main road, taking many unmarked side roads and making "U" turns for about one-half hour, suddenly slowing and increasing speeds.As a result, the following F.B.I. auto lost contact, but this was re-established when the Peisner automobile returned to Route 40 north of the Susquehanna River Bridge.It then proceeded on Route 40 through Delaware across the Delaware Memorial Bridge into the New Jersey Turnpike, where it was stopped at milepost 15 by the New Jersey Turnpike Police.

On October 31, and November 1, 1958 the Baltimore office of the F.B.I., in charge of the case, communicated information to the Newark office of the F.B.I., and asked that that office "alert" the New Jersey State Police.²The Newark office in turn communicated by telephone with the branch of the New Jersey State Police in charge of the New Jersey Turnpike.The information given was that an obscene literature carrier was en route from Baltimore to New York; Peisner's name was given, and a description of his Buick automobile; that the F.B.I. had been interested in these people for a considerable period of time and had very good reason to believe that obscene literature was then in the car enroute to New York, and that some agents of the F.B.I. had watched the material being loaded into the car.A description of Peisner and his automobile, and a statement that it was supposed to contain obscene literature, was relayed to the uniformed personnel on the Turnpike.

The Buick automobile containing the two defendants was stopped, on the Turnpike by a uniformed Turnpike policeman, partly because of the alert, and partly because of a traffic violation.³The policeman went to the driver's side and asked for the driver's license and registration.While he was talking, he noticed some packages and loose books in the back of the automobile; asked the occupants to get out of the car; reached in the car, picked up a book, read a paragraph or two, and then informed the defendants that they were under arrest for possession of obscene literature.

The defendants were taken to the State Police Station, and the Newark office of the F.B.I. was notified.Agents promptly came to the Police Station, examined the literature, talked to a representative of the United States Attorney's office in New Jersey and on his authorization and with the consent of the New Jersey police took the defendants into custody, and the next morning appeared before a United States Commissioner and executed affidavits upon which arrest warrants were issued.On November 10, 1958, a "probable cause" hearing was had before the United States Commissioner, at the conclusion of which the Commissioner refused to quash the warrants.

Discussion

A.The validity of the search.

In Elkins et al. v. United States, 1960, 364 U.S. 206, 80 S.Ct. 1437, 80 S.Ct. 1453, 4 L.Ed.2d 1669, a majority of the court held that evidence obtained by state officers during a search which, if conducted by federal officers, would have been unreasonable under the Fourth Amendment, was inadmissible over timely objection in a criminal trial in a federal court, even although there had been no participation by federal officers in the search and seizure.The court concluded (364 U.S. at pages 223-224, 80 S.Ct. at page 1447):

"For these reasons we hold that evidence obtained by state officers during a search which, if conducted by federal officers, would have violated the defendant's immunity from unreasonable searches and seizures under the Fourth Amendment is inadmissible over the defendant's timely objection in a federal criminal trial.16 In determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry * * * The test is one of federal law * * *."⁴

Under this test, the court is of the opinion that the search and seizure herein were not unreasonable.

1.Applying literally the text "evidence obtained by state officers during a search which, if conducted by federal officers, would have violated the defendant's immunity", there can be no question but that the search was valid.The information possessed by...