United States v. Poller, No. 393.

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtL. HAND, SWAN, and AUGUSTUS N. HAND, Circuit
Citation43 F.2d 911
Docket NumberNo. 393.
Decision Date28 July 1930
PartiesUNITED STATES v. POLLER.

43 F.2d 911 (1930)

UNITED STATES
v.
POLLER.

No. 393.

Circuit Court of Appeals, Second Circuit.

July 28, 1930.


Charles H. Tuttle, U. S. Atty., of New York City (Alvin McKinley Sylvester, Asst. U. S. Atty., of New York City, of counsel), for appellant.

Horace G. Marks, of New York City, for appellee.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Circuit Judge.

Poller was a bonded truckman, doing business in the city of New York, under a license of the Treasury, which allowed him to take imported goods from the local customs authorities. These had suspected that Swiss watch movements were being imported in fraud of the customs, manifested as chocolate

43 F.2d 912
sweets, and that a case of this sort had been shipped, marked "L. A. B. #2," which would be so manifested. They also learned that Poller had filed an "in transit" permit for this case, which would allow it to be taken and carried in bond to Philadelphia, where it would first be examined. The ship's manifest showed that the case was consigned to Poller; the permit, that he had entered it and that it would be taken by his truck. Upon its arrival they opened the case, found that it contained watch movements, and closed it again. It remained two days on the wharf, no one coming to get it, though one of Poller's truckmen had originally called for it before it was unladen

A customs agent then went to Poller's place of business, a small shanty a few feet square, and asked him why he had not called for the case. Poller said that he had had a "tip" not to go near it. Two more agents then entered, to whom Poller refused to say any more, upon which he was placed under arrest. The agents then searched the shanty and seized the documents here in question. These consisted of a carrier's customs manifest for the case, to be shipped by Poller to Philadelphia, a letter of his to the delivery clerk of the steamer asking delivery to his truckman, an "in transit" entry made by him for the case in bond, a notification by the French Line to him that the case was manifested to him, a bill of lading from him as agent for one, Bieshuns, to a Philadelphia forwarding company, a letter from Bieshuns notifying him that the case would arrive, an invoice of the case to him from the French consignor, and a statement of the charges of the customs broker. Some invoices and "in transit" entries in Poller's name for earlier cases of chocolates were also seized, and a time book, a memorandum book, a cheque book, a note book bearing another name and some indifferent correspondence. Poller was arraigned before a commissioner and held to bail. The papers having come into the possession of the district attorney, he obtained an order to show cause why they should not be returned, and, before the case was finally submitted, he was indicted. The District Judge held that the arrest was lawful, but that the papers should be returned, on the ground that our decision in U. S. v. Kirschenblatt (C. C. A.) 16 F.(2d) 202, 51 A. L. R. 416, was controlling, and had not been overruled by Marron v. U. S., 275 U. S. 192, 48 S. Ct. 74, 72 L. Ed. 231. The United States appealed, and the questions involved are three: Whether the order was appealable; whether the arrest was lawful; whether the papers could be seized, and, if so, how many of them.

If this proceeding had been concluded before indictment found, the order would certainly have been appealable. Perlman v. U. S., 247 U. S. 7, 38 S. Ct. 417, 62 L. Ed. 950; Burdeau v. McDowell, 256 U. S. 465, 41 S. Ct. 574, 65 L. Ed. 1048, 13 A. L. R. 1159. The point here taken is that Poller was indicted before final submission of the proceeding; that immediately upon indictment found, it became a part of the prosecution. Or, if that be not true, then in any event that Poller was arraigned before a commissioner and held to bail before the proceeding was even started. As to the second objection, it is enough to say that the proceedings before the commissioner were in no event part of the prosecution, nor...

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58 practice notes
  • Di Bella v. United States, No. 349
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 23, 1960
    ...this case, that a defendant may appeal to this Court from an order denying his motion to suppress. United States v. Poller, 2 Cir., 1930, 43 F.2d 911, 74 A.L.R. 1382; Cheng Wai v. United States, 2 Cir., 1942, 125 F.2d 915; cf. United States v. Klapholz, 2 Cir., 1956, 230 F.2d 494; United St......
  • National Super Spuds, Inc. v. New York Mercantile Exchange, Nos. 343
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 17, 1979
    ...Carroll v. United States, 354 U.S. 394, 403 & n. 14, 77 S.Ct. 1332, 1 L.Ed.2d 1442 (1957), and by this court, United States v. Poller, 43 F.2d 911 (1930); In re Cudahy Packing Co., 104 F.2d 658 (2 Cir. 1939), had stressed the "independence" of Perlman's motion from the criminal proceedings.......
  • People v. Frank
    • United States
    • United States State Supreme Court (California)
    • June 6, 1985
    ...man's privacy which consists in rummaging about among his effects to secure evidence against him." (United States v. Poller (2d Cir.1930) 43 F.2d 911, " ' "Even a particular[ized] warrant to seize [incriminating] papers alone, without mentioning the titles of them, may prove highly detrimen......
  • Hayden v. Warden, Maryland Penitentiary, No. 10061.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • April 21, 1966
    ...what does. Nevertheless, limitations upon the fruit to be gathered tend to limit the quest itself * *." United States v. Poller, 43 F.2d 911, 914, 74 A.L.R. 1382 (2d Cir. 1930) (Emphasis added.)363 F.2d 654 From time to time the line has wavered in the adjudication of the lawfulness of sear......
  • Request a trial to view additional results
57 cases
  • Di Bella v. United States, No. 349
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 23, 1960
    ...this case, that a defendant may appeal to this Court from an order denying his motion to suppress. United States v. Poller, 2 Cir., 1930, 43 F.2d 911, 74 A.L.R. 1382; Cheng Wai v. United States, 2 Cir., 1942, 125 F.2d 915; cf. United States v. Klapholz, 2 Cir., 1956, 230 F.2d 494; United St......
  • National Super Spuds, Inc. v. New York Mercantile Exchange, Nos. 343
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 17, 1979
    ...Carroll v. United States, 354 U.S. 394, 403 & n. 14, 77 S.Ct. 1332, 1 L.Ed.2d 1442 (1957), and by this court, United States v. Poller, 43 F.2d 911 (1930); In re Cudahy Packing Co., 104 F.2d 658 (2 Cir. 1939), had stressed the "independence" of Perlman's motion from the criminal proceedings.......
  • People v. Frank
    • United States
    • United States State Supreme Court (California)
    • June 6, 1985
    ...man's privacy which consists in rummaging about among his effects to secure evidence against him." (United States v. Poller (2d Cir.1930) 43 F.2d 911, " ' "Even a particular[ized] warrant to seize [incriminating] papers alone, without mentioning the titles of them, may prove highly detrimen......
  • Hayden v. Warden, Maryland Penitentiary, No. 10061.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • April 21, 1966
    ...what does. Nevertheless, limitations upon the fruit to be gathered tend to limit the quest itself * *." United States v. Poller, 43 F.2d 911, 914, 74 A.L.R. 1382 (2d Cir. 1930) (Emphasis added.)363 F.2d 654 From time to time the line has wavered in the adjudication of the lawfulness of sear......
  • Request a trial to view additional results
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