United States v. Welsh

• Decision Date: 27 December 1917
• Citation: United States v. Welsh, 247 F. 239 (S.D. N.Y. 1917)
• Parties: UNITED STATES v. WELSH.
• Court: U.S. District Court — Southern District of New York

247 F. 239

UNITED STATES v. WELSH.

United States District Court, S.D. New York.

December 27, 1917

Martin Conboy, of New York City, for petitioner.

Francis G. Caffey, U.S. Atty., and James W. Osborne, Second Asst U.S Atty., both of New York City.

AUGUSTUS N. HAND, District Judge.

The defendant, a seaman on board the steamship Celtic, was going ashore when a detective named McGinnis, employed by the steamship company, asked him if he had any letters on his person. He replied that he had not. Thereupon McGinnis searched him, felt papers in his right hip pocket, and asked him to show the papers. Welsh then took a letter out of his pocket and delivered it to McGinnis, but immediately thereafter seized it, tore it in two, and threw it on the ground. McGinnis picked it up and delivered it to one Martin, the customs guard. It was eventually turned over by the Treasury Department to the District Attorney, and upon it the defendant was indicted for unlawfully bringing in the letter. The defendant moves for the return of the letter on the ground that the seizure was contrary to the Fourth and Fifth Amendments of the Constitution.

His counsel argues that under the cases of Weeks v. United States, 232 U.S. 383, 34 Sup.Ct. 341, 58 L.Ed. 652 L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177, and Flagg v United States, 233 F. 481, 147 C.C.A. 367, the evidence thus procured could not be used against the defendant. I do not think the government can rest upon the proposition that it was not liable for the acts of McGinnis, because he was a private detective. Martin, the custom house guard, appears to have asked him to act for him while he was temporarily absent, and in the search he must be regarded as a government official pro hac vice.

But assuming this to be the fact, the cases quoted do not apply to the...