Weinberg v. United States, 206.

• Decision Date: 11 March 1942
• Docket Number: No. 206.,206.
• Parties: WEINBERG v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

126 F.2d 1004 (1942)

WEINBERG v. UNITED STATES.

No. 206.

Circuit Court of Appeals, Second Circuit.

March 11, 1942.

David Haar, of New York City, for appellant.

Edward J. Behrens, Asst. U. S. Atty., of New York City (Mathias F. Correa, U. S. Atty., of New York City, on the brief), for appellee.

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

CLARK, C. E., Circuit Judge.

This appeal raises the question as to the legality of a search and seizure of property in the Southern District of New York when made pursuant to an order of the District Court of the United States for the Eastern District of Michigan. On argument, however, various jurisdictional objections were raised which tend to overshadow the relatively simple problem as to the seizure itself. That seizure we think was clearly illegal.

So far as the record discloses, it appears that several persons, including Jacob and William Weinberg, were charged in the Eastern District of Michigan with conspiring to transport stolen property in interstate commerce, in violation of 18 U.S. C.A. § 415. Subsequently a district judge for that district issued an order designating "J. Edgar Hoover, Director of the Federal Bureau of Investigation, Department of Justice, and his duly authorized and designated representatives and Special Agents" officers of "this Court," and directing them to seize all the "Ford, Lincoln-Zephyr and/or Mercury automobile parts now located in and upon certain premises." Among the listed premises was "That portion of a building at 653 Eleventh Avenue, New York City, New York, occupied by Weinberg & Company, which company is owned and operated by the defendants, Jacob Weinberg and William Weinberg."

Two special agents of the Federal Bureau of Investigation, armed with a photostatic copy of the above order, went to 653 Eleventh Avenue, New York City, and proceeded to remove numerous auto parts. They were not deterred by the fact that the Universal Automotive Parts, Inc., not named in the Michigan order, also occupied the premises. Nor did they pay attention to the protests of Phoebe Weinberg, petitioner herein and sister of Jacob and William, against a search without a search warrant. Instead, they removed the Ford parts and, according to the affidavit of one of the special agents, these parts were taken "to their ultimate destination." The record does not disclose where they are now.

According to petitioner's affidavit, which has not been questioned in the record, there was then pending in the Southern District of New York a proceeding to remove to the Eastern District of Michigan several of the defendants named in the Michigan charge, including Jacob and William Weinberg. After the seizure, Phoebe Weinberg petitioned for return of the seized property. She asserted ownership of the property by herself and Jacob Weinberg as a partnership and also by the corporation above named, of which she was secretary and treasurer. It is not clear whether she considered her petition ancillary to the removal proceeding or an independent action. Certainly the show-cause order directed to the United States Attorney for the Southern District of New York is styled as part of the removal proceeding. After hearing, the court below denied the petition for return of the property without prejudice to the institution of proceedings in the District Court of the United States for the Eastern District of Michigan.

The United States Attorney makes no defense on the merits. We do not see how he can. With very few exceptions, United States district judges possess no extraterritorial jurisdiction. Toland v. Sprague, 12 Pet. 300, 328-330, 9 L.Ed. 1093; Employers Reinsurance Corp. v. Bryant, 299 U.S. 374, 377, 57 S.Ct. 273, 81 L.Ed. 289; Barrett v. United States, 169 U.S. 218, 221, 18 S.Ct. 327, 42 L.Ed. 723; Mitchell v. Dexter, 1 Cir., 244 F. 926, 930; Primos Chemical Co. v. Fulton Steel Corp., D.C.N.D.N.Y., 254 F. 454, 458; Horn v. Pere Marquette R. Co., C.C.E.D.Mich., 151 F. 626, 631; Evans, Problems in the Enforcement of Federal Judgments, 4 Mo.L.Rev. 19, 37-38. In the Horn case, Judge, later Mr. Justice, Lurton observed: "Federal courts of different states are undoubtedly foreign courts as to each other in as full sense as are state courts of different jurisdictions." It is conceded that Congress may extend a district court's geographical jurisdiction in civil cases, Continental Illinois Nat. Bank & Trust Co. v. Chicago, R. I. & P. Ry. Co., 294 U.S. 648, 683, 55 S.Ct. 595, 79 L.Ed. 1110; and this has been done in a limited number of cases, such as those involving restraint of trade and insurance inter-pleader. Nothing has been attempted, however, in criminal matters, presumably because of the limitations of the Constitution, which by Art. III, § 2, requires trial of all crimes in the state, and by the Sixth Amendment, in the state and district where committed. Though these provisions refer only to the trial, no one has yet attempted to separate process from trial and make the former extend beyond the district. Hence, even though the statute, 18 U.S.C.A. § 611, authorizing the issuance of search warrants, does not contain an express limitation of the district court's power to its own district, that seems clearly understood, in view of the constitutional provisions and the general rule of territorial limitation. We, therefore, cannot hold silence to mean that search warrants may be used anywhere in the country. See Mitchell v. Dexter, supra, for application of the rule to arrest without the district for criminal contempt.

Even had the order in question been issued by the district court here, it would still be invalid. The Fourth Amendment and the legislation governing search warrants, 18 U.S.C.A. §§ 611-625, circumscribe the freedom with which government officers may search and seize. This protection of the citizen would be frittered away if a district judge, by simply designating a law enforcement agency as officers of his court, could obviate the necessity of following the strict procedure for obtaining a warrant. To make a search in the Southern District of New York, it is necessary to obtain a warrant from the proper official having authority there, "upon probable cause, supported by affidavit, naming or describing the person and particularly describing the property and the place to be searched," 18 U.S.C.A. §§ 611, 613; and the warrant itself must state the probable cause for its issue, and the names of the persons whose affidavits were taken in support of it, ibid., § 616, and "particularly describing the place to be searched, and the persons or things to be seized." Amendment IV. This document, described as an "Order Impounding Certain Evidence," does none of these things. We can find no warrant for it in law, nor have we been cited to any. Other difficulties also appear, such as lack of inventory or receipt for the property, or of hearing thereafter. 18 U.S.C.A. §§ 622-626. The gross illegality of the whole proceeding is obvious.

But as noted, the United States Attorney does not address himself to the validity of the search. Instead, he raises jurisdictional questions. These questions all stem from the rule that summary jurisdiction in cases of this sort rests on the "fact that the person in possession is an officer of the court." Cogen v. United States, 278 U.S. 221, 225, 49 S.Ct. 118, 120, 73 L.Ed. 275. It is for this reason, presumably, that the judge below left petitioner to her remedies in the Michigan federal court. The district judge in Michigan could discipline the special agents, for he has made them officers of his court. For the same jurisdictional reason the United States Attorney, an officer of the Southern District of New York, questions his own connection with the case. He relies on Weinstein v. Attorney General of the United States, 2 Cir., 271 F. 673, which held that the United States Attorney is not responsible for an illegal search and seizure by an executive officer acting for an executive department, and that in such a case the United States Attorney could not be required to return papers not in his possession. But within the spirit of that decision and the direct holding of Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 — where papers illegally seized in a criminal proceeding before a United States Commissioner were ordered returned summarily — we think the proceeding pending below for the removal of the accused from this district gave sufficient authority for an order to return the property. And if it did, we ought not to force petitioner to go to Michigan to seek her property illegally taken from her here.

As petitioner's affidavit shows, the arrest of the two accused was prior to the search and seizure, and the proceedings for removal had been adjourned, at the request of the United States Attorney, to a date several days later than that of the affidavit, "which proceedings still remain undetermined." The United States Attorney is therefore engaged in conducting that action. As an officer of the court he obviously cannot and should not be disciplined for this...