U.S. Supreme Court

Adams v. New York,192U.S. 585 (1904)Adams v. New York

No. 604

Argued January 27,1904

Decided February 23,1904

192U.S. 585

ERROR TO THE SUPREMECOURT

OF THE STATE OF NEWYORK

Syllabus

The fact that papers which are pertinent to the issue may havebeen illegally taken from the possession of the party against whomthey are offered is not a valid objection to their admissibility.The court considers the competency of the evidence, and not themethod by which it was obtained.

There is no violation of the constitutional guaranty ofprivilege from unlawful searches and seizures in admitting asevidence in a criminal trial, papers found in the execution of avalid search warrant prior to the indictment, and by theintroduction of such evidence defendant is not compelled toincriminate himself.

It is within the established power of a state to prescribe theevidence which is to be received in its own courts. The provisionsof §§ 344a and 344b of the Penal Code of New Yorkmaking the possession of policy slips by a person other than apublic officer presumption of possession

Page 192 U. S. 586

knowingly in violation of law are not violative of theFourteenth Amendment, are not unconstitutional as depriving acitizen of his liberty or property without due process of law, anddo not, on account of the exception as to public officers, deprivehim of the equal protection of the laws. A suggested constructionof a state statute which would lead to a manifest absurdity andwhich has not and is not likely to receive judicial sanction willnot be accepted by this Court as the basis of declaring the statuteunconstitutional when the courts of the state have given it aconstruction which is the only one consistent with its purposes andunder which it is constitutional.

This is a writ of error to the supreme court of the State of NewYork. The plaintiff in error at the April term, 1903, of thesupreme court of the State of New York, was tried before one of thejustices of that court and a jury, and convicted of the crime ofhaving in his possession, knowingly, certain gambling paraphernaliaused in the game commonly known as policy, in violation of §344a of the Penal Code of the State of New York. Thissection and the one following, section 344b, relating tothe offense in question, are as follows:

"SEC. 344a. Keeping Place to Play Policy. -- A personwho keeps, occupies, or uses, or permits to be kept, occupied, orused, a place, building, room, table, establishment, or apparatusfor policy playing, or for the sale of what are commonly called'lottery policies,' or who delivers or receives money or othervaluable consideration in playing policy, or in aiding in theplaying thereof, or for what is commonly called a 'lottery policy,'or for any writing, paper, or document in the nature of a bet,wager, or insurance upon the drawing or drawn numbers of any publicor private lottery; or who shall have in his possession, knowingly,any writing, paper, or document, representing or being a record ofany chance, share, or interest in numbers sold, drawn, or to bedrawn, or in what is commonly called 'policy,' or in the nature ofa bet, wager, or insurance, upon the drawing or drawn numbers ofany public or private lottery, or any paper, print, writing,numbers, device, policy slip, or article of any kind such as iscommonly used in carrying on, promoting, or playing the gamecommonly called 'policy;' or who is the owner, agent,superintendent, janitor, or caretaker of any place, building, orroom where policy playing

Page 192 U. S. 587

or the sale of what are commonly called 'lottery policies' iscarried on with his knowledge, or, after notification that thepremises are so used, permits such use to be continued, or whoaids, assists, or abets in any manner, in any of the offenses,acts, or matters herein named, is a common gambler and punishableby imprisonment for not more than two years, and in the discretionof the court, by a fine not exceeding one thousand dollars, orboth."

"SEC. 344b. Possession of Policy Slip, etc.,Presumptive Evidence. -- The possession, by any person other than apublic officer, of any writing, paper, or document representing orbeing a record of any chance, share, or interest in numbers sold,drawn, or to be drawn, or in what is commonly called 'policy,' orin the nature of a bet, wager, or insurance upon the drawing ordrawn numbers of any public or private lottery, or any paper,print, writing, numbers, or device, policy slip, or article of anykind, such as is commonly used in carrying on, promoting, orplaying the game commonly called 'policy,' is presumptive evidenceof possession thereof knowingly and in violation of the provisionsof section three hundred forty-foura."

The assignments of error in this Court are:

"First. That the court erred in holding that, by thereception in evidence of the defendant's private papers seized inthe raid of his premises, against his protest and without hisconsent, which had no relation whatsoever to the game of policy,for the possession of papers used in connection with which saidgame he was convicted, his constitutional right to be secure in hisperson, papers, and effects against unreasonable searches andseizures was not violated, and that he was also thereby notcompelled to be a witness against himself, in contravention of theFourth, Fifth and Fourteenth Articles of Amendment to theConstitution of the United States."

"Second. That the court erred in holding that thestatute, sections 344a, 344b, of the Penal Codeof the State of New York, under which the indictment against theplaintiff in error was found and his conviction was had, did notdeprive him of rights, privileges, and immunities secured to othercitizens of

Page 192 U. S. 588

the United States and of said State of New York, nor of libertyor property, without due process of law, nor of the equalprotection of the laws, in violation of section 1 of the FourteenthArticle of Amendment to the Constitution of the United States."

"Third. That the court erred in affirming the judgmentof conviction, and in refusing to discharge the plaintiff in errorfrom custody."

The game of policy referred to in the sections of the statutequoted is a lottery scheme carried on, as shown in the testimony,by means of certain numbers procured at the shop or place where thegame is played, and consists in an attempt to guess whether one ormore of the series held by the player will be included in a list oftwelve or at times thirteen of the numbers between one andseventy-eight, which are supposed to be drawn daily at theheadquarters of the operators of the game. A person desiring toplay the game causes the numbers to be entered on series of slipsor manifold sheets. One of these pieces of paper containing thecombination played by the person entering the game is kept by himand is known as a policy slip. Drawings are held twice a day, andthe holder of the successful combination receives the money whichgoes to the winner of the game. About 3,500 of these slips werefound in the office occupied by the plaintiff in error, which wassearched by certain police officers holding a search warrant. Theofficers took not only the policy slips, but certain other papers,which were received in evidence against the plaintiff in error atthe trial, against his objection, for the purpose of identifyingcertain handwriting of the defendant upon the slips, and also toshow that the papers belonged to the defendant, and were in thesame custody as the policy slips.

So far as the case presents a federal question, the Court ofAppeals of the State of New York held (176 N.Y. 351) that theFourth and Fifth Amendments to the Constitution of the UnitedStates do not contain limitations upon the power of the states, andproceeded to examine the case in the light of similar provisions inthe Constitution and Bill of Rights of that state.

Page 192 U. S. 594

MR. JUSTICE DAY delivered the opinion of the Court.

We do not feel called upon to discuss the contention that theFourteenth Amendment has made the provisions of the Fourth andFifth Amendments to the Constitution of the United States, so faras they relate to the right of the people to be secure againstunreasonable searches and seizures and protect them against beingcompelled to testify in a criminal case against themselves,privileges and immunities of citizens of the United States of whichthey may not be deprived by the action of the states. Anexamination of this record convinces us that there has been noviolation of these constitutional restrictions, either in anunreasonable search or seizure or in compelling the plaintiff inerror to testify against himself.

No objection was taken at the trial to the introduction of thetestimony of the officers holding the search warrant as to theseizure of the policy slips; the objection raised was to receivingin evidence certain private papers. These papers became importantas tending to show the custody by the plaintiff in error, withknowledge, of the policy slips. The question was not made in theattempt to resist an unlawful seizure of the private papers of theplaintiff in error, but arose upon objection to the introduction oftestimony clearly competent as tending to establish the guilt ofthe accused of the offense charged. In such cases, the weight ofauthority as well as reason limits the inquiry to the competency ofthe proffered testimony, and the courts do not stop to inquire asto the means by which the evidence was obtained. The rule is thuslaid down in Greenleaf, vol. 1, section 254a:

Page 192 U. S. 595

"It may be mentioned in this place that, though papers and othersubjects of evidence may have been illegally taken from thepossession of the party against whom they are offered or otherwiseunlawfully obtained, this is no valid objection to theiradmissibility if they are pertinent to the issue. The court willnot take notice how they were obtained, whether lawfully orunlawfully, nor will it form an issue to determine thatquestion."

The author is supported by numerous cases. Of them, perhaps, theleading one isCommonwealth v. Dana, 2 Met. 329, in whichthe opinion was given by Mr. Justice Wilde, in the course of whichhe said:

"There is another conclusive answer to all these objections.Admitting that the lottery tickets and materials were illegallyseized, still this is no legal objection to the admission of themin evidence. If the search warrant were illegal, or if the officerserving the warrant exceeded his authority, the party on whosecomplaint the warrant issued, or the officer, would be responsiblefor the wrong done; but this is no good reason for excluding thepapers seized as evidence if they were pertinent to the issue, asthey unquestionably were. When papers are offered in evidence, thecourt can take no notice how they were obtained, whether lawfullyor unlawfully; nor would they form a collateral issue to determinethat question. This point was decided in the cases ofLegatt v.Tollervey, 14 East 302, andJordan v. Lewis, 14 East306, note, and we are entirely satisfied that the principle onwhich these cases were decided is sound and well established."

This principle has been repeatedly affirmed in subsequent casesby the Supreme Judicial Court of Massachusetts -- among others,Commonwealth v. Tibbetts, 157 Mass. 519. In that case, apolice officer, armed with a search warrant calling for a searchfor intoxicating liquors upon the premises of the defendant'shusband, took two letters which he found at the time. Of thecompetency of this testimony, the court said:

"But two points have been argued. The first is that thecriminatory articles and letters found by the officer in thedefendant's possession were not admissible in evidence because

Page 192 U. S. 596

the officer had no warrant to search for them, and his onlyauthority was under a warrant to search her husband's premises forintoxicating liquors. The defendant contends that, under suchcircumstances, the finding of criminatory articles or papers canonly be proved when, by express provision of statute, thepossession of them is itself made criminal. This ground ofdistinction is untenable. Evidence which is pertinent to the issueis admissible although it may have been procured in an irregular oreven in an illegal manner. A trespasser may testify to pertinentfacts observed by him, or may put in evidence pertinent articles orpapers found by him while trespassing. For the trespass he may beheld responsible civilly, and perhaps criminally, but his testimonyis not thereby rendered incompetent."

Commonwealth v. Acton, 165 Mass. 11;Commonwealthv. Smith, 166 Mass. 370.

To the same effect areChastang v. State, 83 Ala. 29;State v. Flynn, 36 N.H. 64. In the latter case, it washeld:

"Evidence obtained by means of a search warrant is notinadmissible either upon the ground that it is in the nature ofadmissions made under duress or that it is evidence which thedefendant has been compelled to trade and commerce; that theevidence has been unfairly or illegally obtained, even if itappears that the search warrant was illegally issued."

State v. Edwards, 51 W.Va. 220;Shields v.State, 104 Ala. 35;Bacon v. United States, 97 F. 35;State v. Atkinson, 40 S.C. 363,;Williams v.State, 100 Ga. 511;State v. Pomeroy, 130 Mo. 489;Gindrat v. People, 138 Ill. 103;Trask v. People,151 Ill. 523;Starchman v. State, 62 Ark. 538.

In this Court, it has been held that, if a person is broughtwithin the jurisdiction of one state from another, or from aforeign country, by the unlawful use of force which would renderthe officer liable to a civil action or in a criminal proceedingbecause of the forcible abduction, such fact would not prevent thetrial of the person thus abducted in the state wherein he hadcommitted an offense.Ker v. Illinois,119 U.S. 436;Mahon v. Justice,127 U.S. 700. The case most relied upon in argument byplaintiff in error is the leading one of

Page 192 U. S. 597

Boyd v. United States,116 U.S. 616. In that case, a section of the customs andrevenue laws of the United States authorized the court in revenuecases, on motion of the government's attorney, to require theproduction by the defendant of certain books, records, and papersin court, otherwise the allegation of the government's attorney asto their contents to be taken as true. It was held that the act wasunconstitutional and void as applied to a suit for a penalty or aforfeiture of the party's goods. The case has been frequently citedby this Court, and we have no wish to detract from its authority.That case presents the question whether one can be compelled toproduce his books and papers in a suit which seeks the forfeitureof his estate on pain of having the statements of government'scounsel as to the contents thereof taken as true and used astestimony for the government. The Court held, in an opinion by Mr.Justice Bradley, that such procedure was in violation of both theFourth and Fifth Amendments; the Chief Justice and Justice Millerheld that the compulsory production of such documents did not comewithin the terms of the Fourth Amendment as an unreasonable searchor seizure, but concurred with the majority in holding that the lawwas in violation of the Fifth Amendment. This case has been citedand distinguished in many of the cases from the state courts whichwe have had occasion to examine.

The Supreme Court of the State of New York, before which thedefendant was tried, was not called upon to issue process or makeany order calling for the production of the private papers of theaccused, nor was there any question presented as to the liabilityof the officer for the wrongful seizure, or of the plaintiff inerror's right to resist with force the unlawful conduct of theofficer, but the question solely was were the papers found in theexecution of the search warrant, which had a legal purpose in theattempt to find gambling paraphernalia, competent evidence againstthe accused? We think there was no violation of the constitutionalguaranty of privilege from unlawful search or seizure in theadmission of this testimony. Nor do we think the accused wascompelled to incriminate himself. He did not take the witness standin his

Page 192 U. S. 598

own behalf, as was his privilege under the laws of the State ofNew York. He was not compelled to testify concerning the papers ormake any admission about them.

The origin of these amendments is elaborately considered in Mr.Justice Bradley's opinion in theBoyd case,supra. The security intended to be guaranteed by theFourth Amendment against wrongful search and seizures is designedto prevent violations of private security in person and propertyand unlawful invasion of the sanctity of the home of the citizen byofficers of the law, acting under legislative or judicial sanction,and to give remedy against such usurpations when attempted. But theEnglish and nearly all of the American cases have declined toextend this doctrine to the extent of excluding testimony which hasbeen obtained by such means if it is otherwise competent. InBoyd's case, the law held unconstitutional virtuallycompelled the defendant to furnish testimony against himself in asuit to forfeit his estate, and ran counter to both the Fourth andFifth Amendments. The right to issue a search warrant to discoverstolen property or the means of committing crimes is too longestablished to require discussion. The right of seizure of lotterytickets and gambling devices such as policy slips under suchwarrants requires no argument to sustain it at this day. But thecontention is that if, in the search for the instruments of crime,other papers are taken, the same may not be given in evidence. Asan illustration, if a search warrant is issued for stolen property,and burglars' tools be discovered and seized, they are to beexcluded from testimony by force of these amendments. We think theywere never intended to have that effect, but are rather designed toprotect against compulsory testimony from a defendant againsthimself in a criminal trial, and to punish wrongful invasion of thehome of the citizen or the unwarranted seizure of his papers andproperty, and to render invalid legislation or judicial procedurehaving such effect.

It is further urged that the law of the State of New York §344b, which makes the possession by persons other than apublic officer of papers or documents, being the record of chancesor slips in what is commonly known as

Page 192 U. S. 599

policy, or policy slips, or the possession of any paper, print,or writing commonly used in playing or promoting the game of policypresumption of possession thereof knowingly in violation of section344a is a violation of the Fourteenth Amendment to theConstitution of the United States in that it deprives a citizen ofhis liberty and property without due process of law. We fail toperceive any force in this argument. The policy slips are propertyof an unusual character, and not likely, particularly in largequantities, to be found in the possession of innocent parties. Likeother gambling paraphernalia, their possession indicates their useor intended use, and may well raise some inference against theirpossessor in the absence of explanation. Such is the effect of thisstatute. Innocent persons would have no trouble in explaining thepossession of these tickets, and, in any event, the possession isonlyprima facie evidence, and the party is permitted toproduce such testimony as will show the truth concerning thepossession of the slips. Furthermore, it is within the establishedpower of the state to prescribe the evidence which is to bereceived in the courts of its own government.Fong Yue Ting v.United States,149 U. S. 698,149 U. S.729.

It is argued lastly that section 344b isunconstitutional because the possession of the policy tickets ispresumptive evidence against all except public officers, and it isurged that public officials, from the governor to notaries public,would thus be excluded from the terms of the law which apply to allnonofficial persons. This provision was evidently put into thestatute for the purpose of excluding the presumption raised bypossession where such tickets or slips are seized and are in thecustody of officers of the law. This was the construction given tothe act by the New York courts, and is the only one consistent withits purposes. The construction suggested would lead to a manifestabsurdity, which has not received, and is not likely to receive,judicial sanction. We find nothing in the record before us towarrant a reversal of the conclusions reached in the New York Courtof Appeals, and its

Judgment will be affirmed.