U.S. Supreme Court

Gouled v. United States,255U.S. 298 (1921)Gouled v. UnitedStates

No. 250

Argued January 4,1921

Decided February 28,1921

255U.S. 298

CERTIFICATE FROM THE CIRCUIT COURTOF APPEALS

FOR THE SECONDCIRCUIT

Syllabus

1. The Fourth and Fifth Amendments are to be liberallyconstrued. P.255 U. S.303.

2. When a defendant in a criminal case first learns of theGovernment's possession of his document when it is offered againsthim on the trial, his objection that it was obtained by anunreasonable search and seizure should not be overruled as comingtoo late. P.255 U. S.305.

3. An unreasonable search and seizure, in the sense of theFourth Amendment, does not necessarily involve the employment offorce or coercion, but is committed when a representative of anybranch or subdivision of the Government, by stealth, through socialacquaintance, or in the guise of a business call, gains entrance tothe house or office of a person suspected of crime, whether in thepresence or absence of the owner, and, in the owner's absence,searches for and abstracts his papers without his knowledge orconsent. P.255 U. S.305.

4. The admission of a paper so obtained in evidence against andover the objection of the owner when indicted for crime compels himto be a witness against himself, in violation of the FifthAmendment. P.255 U. S.306.

5. The Fourth Amendment permits of searches and seizuresunder

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valid search warrants when justified by an interest of thepublic, or of the complainant, in the property to be seized, or inits possession, or when a lawful exercise of police power rendersits possession by the accused unlawful and provides for itsseizure; and papers, as such, are not immune from such search andseizure. P.255 U. S.308.

6. But papers of no pecuniary value in themselves, which areevidence of criminal fraud against their owner, and are of interestto and are sought by the Government for use as evidence merely, andnot because they have been or may be used to defraud it, as anexecuted contract might be, cannot constitutionally be searched forand seized in their owner's house or office by resort to a searchwarrant. P.255 U. S.310.

7. Papers lawfully obtained under a valid search warrant may beused as evidence by the Government in prosecuting a person for adifferent offense than that charged against him in the affidavitupon which the search warrant was issued. P.255 U. S.311.

8. Where, in the progress of a criminal trial, it becomesprobable that there has been an unconstitutional seizure of papersof the accused, it is the duty of the trial court to entertain anobjection to their admission in evidence against him or a motionfor their exclusion, and to decide the question as then presented,even where a motion to return the papers has been denied beforetrial and by another judge. P.255 U. S.312.

The case is stated in the opinion.

Page 255 U. S. 302

MR. JUSTICE CLARKE delivered the opinion of the Court.

In a joint indictment the plaintiff in error, Gouled, oneVaughan, an officer of the United States Army, and a third, anattorney at law, were charged in the first count with being partiesto a conspiracy to defraud the United States, in violation ofsection 37 of the federal Criminal Code, and, in the second count,with having used the mails to

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promote a scheme to defraud the United States, in violation of §215 of that Code. Vaughan pleaded guilty, the attorney wasacquitted, and Gouled, whom we shall refer to as the defendant, wasconvicted, and thereupon prosecuted error to the Circuit Court ofAppeals, which certifies to this Court six questions which we areto consider.

Of these questions, the first two relate to the admission inevidence of a paper surreptitiously taken from the office of thedefendant by one acting under direction of officers of theIntelligence Department of the Army of the United States, and theremaining four relate to papers taken from defendant's office undertwo search warrants, issued pursuant to the Act of June 15, 1917,c. 30, 40 Stat. 217, 228. It was objected on the trial, and is hereinsisted upon, that it was error to admit these papers in evidencebecause possession of them was obtained by violating the rightssecured to the defendant by the Fourth and Fifth Amendments to theConstitution of the United States.

The Fourth Amendment reads:

"The right of the people to be secure in their persons, houses,papers, and effects, against unreasonable searches and seizures,shall not be violated, and no warrant shall issue, but uponprobable cause, supported by oath or affirmation, and particularlydescribing the place to be searched, and the persons or things tobe seized."

The part of the Fifth Amendment here involved reads:

"No person . . . shall be compelled in any criminal case to be awitness against himself."

It would not be possible to add to the emphasis with which theframers of our Constitution and this Court (inBoyd v. UnitedStates,116 U. S. 616, inWeeks v. United States,232 U. S. 383, andinSilverthorne Lumber Co. v. United States,251 U.S. 385) have declared the importance to politicalliberty and to the welfare of our country of the due observance ofthe rights guaranteed under the Constitution

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by these two amendments. The effect of the decisions cited isthat such rights are declared to be indispensable to the "fullenjoyment of personal security, personal liberty and privateproperty"; that they are to be regarded as of the very essence ofconstitutional liberty; and that the guaranty of them is asimportant and as imperative as are the guaranties of the otherfundamental rights of the individual citizen -- the right to trialby jury, to the writ of habeas corpus, and to due process of law.It has been repeatedly decided that these amendments should receivea liberal construction, so as to prevent stealthy encroachment uponor "gradual depreciation" of the rights secured by them, byimperceptible practice of courts or by well intentioned, butmistakenly overzealous, executive officers.

In the spirit of these decisions, we must deal with thequestions before us.

The facts derived from the certificate essential to beconsidered in answering the first two questions are: that, inJanuary, 1918, it was suspected that the defendant, Gouled, andVaughan were conspiring to defraud the government through contractswith it for clothing and equipment; that one Cohen, a private inthe Army, attached to the Intelligence Department, and a businessacquaintance of defendant Gouled, under direction of his superiorofficers, pretending to make a friendly call upon the defendant,gained admission to his office and, in his absence, without warrantof any character, seized and carried away several documents; thatone of these papers, described as "of evidential value only" andbelonging to Gouled, was subsequently delivered to the UnitedStates District Attorney, and was by him introduced in evidenceover the objection of the defendant that possession of it wasobtained by a violation of the Fourth or Fifth Amendment to theConstitution; and that the defendant did not know that Cohen hadcarried away any of his papers until

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he appeared on the witness stand and detailed the facts withrespect thereto as we have stated them, when, necessarily,objection was first made to the admission of the paper inevidence.

Out of these facts arise the first two questions, both relatingto the paper thus seized. The first of these is:

"Is the secret taking, without force, from the house or officeof one suspected of crime, of a paper belonging to him, ofevidential value only, by a representative of any branch orsubdivision of the government of the United States, a violation ofthe Fourth Amendment?"

The ground on which the trial court overruled the objection tothis paper is not stated, but, from the certificate and theargument, we must infer that it was admitted either because itappeared that the possession of it was obtained without the use offorce or illegal coercion or because the objection to it came toolate.

The objection was not too late, for, coming as it did promptlyupon the first notice the defendant had that the government was inpossession of the paper, the rule of practice relied upon, thatsuch an objection will not be entertained unless made before trial,was obviously inapplicable.

The prohibition of the Fourth Amendment is against allunreasonable searches and seizures, and if for a government officerto obtain entrance to a man's house or office by force or by anillegal threat or show of force, amounting to coercion, and then tosearch for and seize his private papers would be an unreasonable,and therefore a prohibited search and seizure, as it certainlywould be, it is impossible to successfully contend that a likesearch and seizure would be a reasonable one if only admission wereobtained by stealth, instead of by force or coercion. The securityand privacy of the home or office and of the papers of the ownerwould be as much invaded and the search and

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seizure would be as much against his will in the one case as inthe other, and it must therefore be regarded as equally inviolation of his constitutional rights.

Without discussing them, we cannot doubt that such decisions asthere are in conflict with this conclusion are unsound, and that,whether entrance to the home or office of a person suspected ofcrime be obtained by a representative of any branch or subdivisionof the government of the United States by stealth, or throughsocial acquaintance, or in the guise of a business call, andwhether the owner be present or not when he enters, any search andseizure subsequently and secretly made in his absence, falls withinthe scope of the prohibition of the Fourth Amendment, and thereforethe answer to the first question must be in the affirmative.

The second question reads:

"Is the admission of such paper in evidence against the sameperson when indicted for crime a violation of the FifthAmendment?"

Upon authority of theBoyd case,supra, thissecond question must also be answered in the affirmative. Inpractice, the result is the same to one accused of crime, whetherhe be obliged to supply evidence against himself or whether suchevidence be obtained by an illegal search of his premises andseizure of his private papers. In either case, he is the unwillingsource of the evidence, and the Fifth Amendment forbids that heshall be compelled to be a witness against himself in a criminalcase.

The remaining four questions relate to three other papers whichwere admitted in evidence on the trial over the same constitutionalobjections as were interposed to the admission of the first paper.One was an unexecuted form of contract between the defendant andone Lavinsky; another was a written contract, signed by thedefendant and one Steinthal; and the third was a bill for

Page 255 U. S. 307

disbursements and professional services rendered by the attorneyat law to the defendant Gouled.

Of these papers, the first was seized in defendant's officeunder a search warrant dated June 17, and the other two under alike warrant dated July 22, 1918, each of which was issued by aUnited States commissioner on the affidavit of an agent of theDepartment of Justice. It is certified that it was averred in thefirst affidavit that there were in Gouled's office

"certain property, to-wit, certain contracts of the said FelixGouled with S. Lavinsky which were used as a means of committing afelony, to-wit, . . . as a means for the bribery of a certainofficer of the United States."

It is also certified that the second affidavit declared thatGouled had at his office

"certain letters, papers, documents and writings which relate toand have been used in the commission of a felony, to wit, aconspiracy to defraud the United States."

Neither the affidavits nor the warrants are given in full in thecertificate, but no exception was taken to the sufficiency ofeither.

After the seizure of the papers, a joint indictment wasreturned, as stated, against Gouled, Vaughan, and the attorney,and, before trial, a motion was made by Gouled for a return of thepapers seized under the search warrants, which was denied, and whenthe motion was renewed at the trial, but before any evidence wasintroduced, it was again denied. The denial of this motion is notassigned as error.

The contract of the defendant with Steinthal, which was seizedunder the warrant, was not offered in evidence, but a duplicateoriginal, obtained from Steinthal, was admitted over the objectionthat the possession of the seized original must have suggested theexistence and the obtaining of the counterpart, and that thereforethe use of it in evidence would violate the rights of the defendantunder the Fourth or Fifth Amendment.Silverthorne

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Lumber Co. v. United States,251 U.S. 385. The unsigned form of contract and the attorney'sbill were offered and also admitted over the same constitutionalobjection. There is no statement in the certificate of the contentsof these papers, but it is said of them only that they belonged toGouled, that they were without pecuniary value, and that theyconstituted evidence "more or less injurious to the defendant."

It is apparent from this statement that to answer the remainingfour questions involves a consideration of the applicable law ofsearch warrants.

The wording of the Fourth Amendment implies that search warrantswere in familiar use when the Constitution was adopted and,plainly, that when issued "upon probable cause, supported by oathor affirmation, and particularly describing the place to besearched and the persons or things to be seized," searches, andseizures made under them, are to be regarded as not unreasonable,and therefore not prohibited by the amendment. Searches andseizures are as constitutional under the amendment when made undervalid search warrants as they are unconstitutional, becauseunreasonable, when made without them -- the permission of theamendment has the same constitutional warrant as the prohibitionhas, and the definition of the former restrains the scope of thelatter. All of this is abundantly recognized in the opinions of theBoyd andWeeks cases,supra, in which itis pointed out that, at the time the Constitution was adopted,stolen or forfeited property, or property liable to duties andconcealed to avoid payment of them, excisable articles and booksrequired by law to be kept with respect to them, counterfeit coin,burglars' tools and weapons, implements of gambling "and many otherthings of like character" might be searched for in home or officeand, if found, might be seized, under search warrants, lawfullyapplied for, issued and executed.

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Although search warrants have thus been used in many cases eversince the adoption of the Constitution, and although their use hasbeen extended from time to time to meet new cases within the oldrules, nevertheless it is clear that, at common law and as theresult of theBoyd andWeeks cases,supra, they may not be used as a means of gaining accessto a man's house or office and papers solely for the purpose ofmaking search to secure evidence to be used against him in acriminal or penal proceeding, but that they may be resorted to onlywhen a primary right to such search and seizure may be found in theinterest which the public or the complainant may have in theproperty to be seized, or in the right to the possession of it, orwhen a valid exercise of the police power renders possession of theproperty by the accused unlawful and provides that it may be taken.Boyd case, pp.116 U. S.623-624.

There is no special sanctity in papers, as distinguished fromother forms of property, to render them immune from search andseizure, if only they fall within the scope of the principles ofthe cases in which other property may be seized, and if they beadequately described in the affidavit and warrant. Stolen or forgedpapers have been so seized,Langdon v. People, 133Illinois 382, and lottery tickets, under a statute prohibitingtheir possession with intent to sell them,Commonwealth v.Dana, 2 Metc. 329, and we cannot doubt that contracts may beso used as instruments or agencies for perpetrating frauds upon thegovernment as to give the public an interest in them which wouldjustify the search for and seizure of them, under a properly issuedsearch warrant, for the purpose of preventing further frauds.

With these principles of law in mind, we come to the remainingquestions.

The third question reads:

"Are papers of no pecuniary value but possessing evidentialvalue against persons presently suspected and subsequently indictedunder

Page 255 U. S. 310

Sections 37 and 215 of the United States Criminal Code, whentaken under search warrants issued pursuant to the Act of June 15,1917, from the house or office of the person suspected, seized andtaken in violation of the Fourth Amendment?"

That the papers involved are of no pecuniary value is of nosignificance. Many papers, having no pecuniary value to others, areof the greatest possible value to the owners, and are property of amost important character (Boyd case,supra, pp.116 U. S.627-628), and, since those here involved possessed"evidential value" against the defendant, we must assume that theywere relevant to the issue.

Restraining the questions to the papers described, and first asto the unexecuted form of contract with Lavinsky, a stranger to theindictment. While the contents of this paper are not given, it isimpossible to see how the government could have such an interest insuch a paper that, under the principles of law stated, it wouldhave the right to take it into its possession to prevent injury tothe public from its use. The government could desire its possessiononly to use it as evidence against the defendant and to search forand seize it for such purpose was unlawful.

Likewise, the public could be interested in the bill of theattorney for legal services only to the extent that it might beused as evidence and the seizure of this also was unlawful.

As to the contract with Steinthal, also a stranger to theindictment: it is not difficult, as we have said, to imagine how anexecuted written contract might be an important agency orinstrumentality in the bribing of a public servant and inperpetrating frauds upon the government, so that it would have alegitimate and important interest in seizing such a paper in orderto prevent further frauds, but the facts necessary to give thiscontract such a character do not appear in the certificate. On thecontrary,

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this third question recites that the papers are all of nopecuniary, but are of evidential, value, and, in the sixthquestion, it is recited that they are "of evidential value only,"so that it is impossible to say, on the record before us, that thegovernment had any interest in it other than as evidence againstthe accused, and therefore as to all three papers the answer to thequestion must be in the affirmative.

The fourth question reads:

"If such papers so taken are admitted in evidence against theperson from whose house or office they were taken, such personbeing then on trial for the crime for which he was accused in theaffidavit for warrant, is such admission in evidence a violation ofthe Fifth Amendment?"

The same papers being involved, the answer to this question mustbe in the affirmative, for, they having been seized in anunconstitutional search, to permit them to be used in evidencewould be, in effect, as ruled in theBoyd case, to compelthe defendant to become a witness against himself.

The fifth question reads:

"If in the affidavit for search warrant under Act of June 15,1917, the party whose premises are to be searched be charged withone crime and property be taken under the warrant issued thereon,can such property so seized be introduced in evidence against saidparty when on trial for a different offense?"

It has never been required that a criminal prosecution should bepending against a person in order to justify search for and seizureof his property under a proper warrant, if a case of crime havingbeen committed and of probable cause is made out sufficient tosatisfy the law and the officer having authority to issue it, andwe see no reason why property seized under a valid search warrant,when thus lawfully obtained by the government, may not be used inthe prosecution of a suspected person for a crime other than thatwhich may have been described

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in the affidavit as having been committed by him. The questionassumes that the property seized was obtained on a search warrantsufficient in form to satisfy the law, and if the papers to whichthe question refers had been of a character to be thus obtained,lawfully, it would have been competent to use them to prove anycrime against the accused as to which they constituted relevantevidence.

The sixth question reads:

"If papers of evidential value only be seized under a searchwarrant and the party from whose house or office they are taken beindicted; if he then move before trial for the return of saidpapers and said motion is denied -- is the court at trial bound inlaw to inquire as to the origin of or method of procuring saidpapers when they are offered in evidence against the party soindicted?"

The papers being of "evidential value only" and having beenunlawfully seized, this question really is whether, it having beendecided on a motion before trial that they should not be returnedto the defendant, the trial court, when objection was made to theiruse on the trial, was bound to again inquire as to theunconstitutional origin of the possession of them. It is plain thatthe trial court acted upon the rule, widely adopted, that courts incriminal trials will not pause to determine how the possession ofevidence tendered has been obtained. While this is a rule of greatpractical importance, yet, after all, it is only a rule ofprocedure, and therefore it is not to be applied as a hard and fastformula to every case, regardless of its special circumstances. Wethink, rather, that it is a rule to be used to secure the ends ofjustice under the circumstances presented by each case, and where,in the progress of a trial, it becomes probable that there has beenan unconstitutional seizure of papers, it is the duty of the trialcourt to entertain an objection to their admission or a motion fortheir exclusion and to consider

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and decide the question as then presented, even where a motionto return the papers may have been denied before trial. A rule ofpractice must not be allowed for any technical reason to prevailover a constitutional right.

In the case we are considering the certificate shows that amotion to return the papers, seized under the search warrants, wasmade before the trial and was denied, and that, on the trial of thecase before another judge, this ruling was treated as conclusive,although, as we have seen, in the progress of the trial, it musthave become apparent that the papers had been unconstitutionallyseized. The constitutional objection having been renewed, under thecircumstances, the court should have inquired as to the origin ofthe possession of the papers when they were offered in evidenceagainst the defendant.

Each question is answered, Yes.