United States v. Thomson, 7227

• Decision Date: 17 July 1940
• Docket Number: No. 7227,7230.,7227
• Citation: 113 F.2d 643
• Parties: UNITED STATES v. THOMSON. SAME v. CRAIG.
• Court: U.S. Court of Appeals — Seventh Circuit

113 F.2d 643 (1940)

UNITED STATES v. THOMSON.

SAME v. CRAIG.

Nos. 7227, 7230.

Circuit Court of Appeals, Seventh Circuit.

July 5, 1940.

Rehearing Denied July 17, 1940.

Harold Lindley, of Danville, Ill., and Harry I. Hannah and Thomas R. Figenbaum, both of Mattoon, Ill., for appellants.

Arthur Roe, U. S. Atty., and Ray M. Foreman, Asst. U. S. Atty., both of Danville, Ill., and Carl W. Feickert, of East St. Louis, Ill., for appellee.

Before EVANS, MAJOR, and KERNER, Circuit Judges.

EVANS, Circuit Judge.

Defendants were charged with, and convicted of, the crime of devising a scheme to defraud and using the mails in furtherance thereof and also with a conspiracy to violate Section 338, Title 18, United States Code, 18 U.S.C.A. § 338. They were tried together, and imprisonment sentences pronounced on both. Each appealed separately. The questions presented on both appeals are in some respects alike and one opinion will dispose of both appeals.

Defendants ask us to review and reverse the ruling of the District Court made on their motion to suppress evidence secured through an allegedly illegal search of their property and possessions.

The issue is a narrow one. Were two searches made by post office inspectors reasonable?

Post office inspectors without search warrants made two searches, one August 3, 1938, and one August 16, 1938. The Government's answer to the asserted illegality of the first search is that defendants consented thereto.

Its justification of the August 16th search was that it was made on the occasion of the arrest of the defendants pursuant to warrants issued on the indictment returned in this case. No search warrant was necessary.

On this second search, seventeen mail bags of books, papers and documents were taken in the course of a two hour search made by the post office inspectors while the marshal stood by and the defendants were making arrangements for bail.

The District Court heard oral evidence and ruled against the defendants' motion.

Defendants were in the business of merchandising cosmetics and did so by means of hundreds of solicitors with whom agency contracts were executed. The alleged fraud set forth in each of the many counts of the indictment arose out of these agency contracts. Deposits taken from the solicitors were not repaid, or only rarely. Salaries earned, due to impossible requirements as to hours of service, daily reports, etc., of the agency contract, could not be, or at least were not, collected.

Defendant Thomson had successfully promoted several cosmetic companies, either alone or in partnership. Complaints about him and his ways reached the post office inspectors, who, on August 3, without warrant, called at defendants' place of business to investigate the facts and obtain the names and addresses of the agents so that they might correspond with them. One inspector testified he asked for the names of various agents. He testified that defendant went through his files and gave them to him voluntarily. Thomson, on the other hand, denied granting permission to the inspector to withdraw such records.

The District Court heard oral evidence on the fact issues arising out of defendants' motion to suppress the evidence obtained from this and the other search and reached the conclusion, which we think is well supported by the evidence, that Thomson not only waived his right to object to the use of this evidence, but invited the post office inspector to examine the same and "get any information he desired." This disposes of defendants' objections to the first — the August 3d search.

The testimony respecting the search on the 16th of August is not free from dispute.

The investigation of the post office inspector, following the August 3d visit, resulted in the presentation of evidence to the Grand Jury and the return of an indictment against the defendants.

On August 16th the marshal and his deputy arrived at the defendants' place of business with a warrant for their arrest. At the same time two post office inspectors appeared, and, after the arrest was made, the inspectors proceeded to search the premises. They went through defendants' files and records and removed a great many documents. Thomson stated he protested against the removal of his papers and asked leave to telephone his attorney. The inspectors told him they had the legal right to search and seize whenever the Government was making an arrest. They advised him to arrange for his bail. While the marshal was not active in making the search, he was present and the accused was also there during the entire period of the search.

Statements of the law of search and seizure in somewhat analogous cases have been announced by the Supreme Court in the following cases: Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L. Ed. 647; Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, 51 A. L.R. 409; Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231; GoBart Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877, 82 A.L.R. 775.

In the face of these decisions it is hardly helpful to cite decisions of inferior courts, which are out of harmony with the holdings of these cases. Differences of opinion may well exist over the weight of the reasons upon which the conclusions expressed in these opinions rest, but our duty is clear. It is to apply these decisions to the facts of each case. So doing, we must reverse the judgment in this case.

In thus disposing of this case we assume: (a) That neither the length of the search at the time of the arrest, nor the volume of the evidence seized has anything to do with the validity of the search. One single bit of evidence, no larger than a half carat diamond, may be all...