U.S. Supreme Court

Go-Bart Importing Co. v. UnitedStates,282U.S. 344 (1931)Go-Bart Importing Company v. UnitedStates

No. 111

Argued November 25,1930

Decided January 5,1931

282U.S. 344

CERTIORARI TO THE CIRCUIT COURT OFAPPEALS

FOR THE SECONDCIRCUIT

Syllabus

1. A warrant issued by a United States Commissioner, addressedonly to the Marshal and his deputies, and based upon, and recitingthe substance of, a complaint that was verified merely oninformation and belief, and that did not state an offense --held invalid on its face, and no authority to prohibitionofficers to make an arrest. P.282 U. S.355.

2. Acting under color of an invalid warrant of arrest, andfalsely claiming to have a search warrant, prohibition agentsentered the office of a company, placed under arrest two of itsofficers, and made a general search of the premises. They compelledby threats of force the opening of a desk and safe, and seizedtherefrom and from other parts of the office, papers and recordsbelonging to the company and its officers. The officers of thecompany were arraigned before a United States Commissioner, and byhim held on bail further to answer the complaint (U.S.C., Title 18,§ 591), while the seized papers were held under the control of theUnited States Attorney in the care and custody of the prohibitionagent in charge. The company, and its two officers individually,before

Page 282 U. S. 345

an information or indictment had been returned against them,applied to the District Court for an order to enjoin the use of theseized papers as evidence and directing their return. On a ruleagainst the United States to show cause, the United States Attorneyappeared and opposed the motion, and an affidavit of the agent incharge was also filed in opposition. The applications weredenied.

Held:

(1) In the proceedings before him, the Commissioner acted merelya an officer of the District Court in a matter of which it hadauthority to take control at any time. P.282 U.S. 353.

(2) Notwithstanding the order to show cause was addressed to theUnited States alone, the proceeding was in substance and effectagainst the United States Attorney and the prohibition agent incharge, the latter being required by the Prohibition Act to reportviolations of it to the former and being authorized by the statute,subject to the former's control, to conduct such prosecutions; andboth these officers were subject to the proper exertion of thedisciplinary powers of the court. P.282 U. S.354.

(3) The District Court had jurisdiction summarily to determinewhether the evidence should be suppressed and the papers returnedto the petitioners. P.282 U. S.355.

(4) The company being a stranger to the proceedings before theCommissioner, the order of the District Court as to it was finaland appealable. P.282 U. S.356.

(5) There being no information or indictment against theofficers of the company when the application was made, and nothingto show that any criminal proceeding would ever be instituted inthat court against them, it follows that the order was not made inor dependent upon any case or proceeding pending before the court,and therefore the order as to them was appealable.Id.

(6) The Fourth Amendment forbids every search that isunreasonable, and is to be liberally construed. P.282 U. S.356.

(7) Assuming that the facts of which the arresting officers hadbeen previously informed were sufficient to justify the arrestswithout a warrant, nevertheless the uncontradicted evidencerequires a finding that the search of the premises wasunreasonable.Marron v. United States,275 U.S. 192, distinguished. P.282 U. S.356.

(8) The District Court is directed to enjoin the United StatesAttorney and the agent in charge from using the paper as evidenceand to order the same returned to petitioners. P.282 U. S.358.

40 F.2d 593 reversed.

Page 282 U. S. 346

Certiorari, 281 U.S. 719, to review a judgment of the CircuitCourt of Appeals which affirmed in part a judgment of the DistrictCourt denying applications for an order to suppress and returnevidence alleged to have been illegally obtained.

Page 282 U. S. 348

MR. JUSTICE BUTLER delivered the opinion of the Court.

In a criminal proceeding before a United States commissioner inthe Southern District of New York in which Gowen, Bartels, andothers are defendants, the petitioners applied to the districtcourt for an order enjoining the use as evidence of books andpapers alleged to have been seized and taken from petitioners inviolation of the Fourth and Fifth Amendments, and directing theirreturn. The court made an order that the United States show causewhy the relief prayed should not be granted. The United Statesattorney appeared and opposed the motion, and affidavits of W. J.Calhoun, special agent in charge of special agents of the Bureau ofProhibition, and certain of his subordinates were filed inopposition. The district court denied the applications. The CircuitCourt of Appeals affirmed as to the United States attorney and heldthat, as to the special agent in charge, the order to show causeshould have been discharged. 40 F.2d 593.

Petitioners' applications to the district court, which are inform affidavits, set forth the following:

Page 282 U. S. 349

June 5, 1929, Calhoun went before the United States commissionerand, in order to have a warrant issued for the arrest of Gowen,Bartels and others, verified and filed a complaint. He alleged,upon information and belief, that, beginning January 1, 1929, andcontinuing down to the filing of the complaint Gowen, Bartels, andother defendants conspired in that district to commit a nuisanceagainst the United States, that is to say, to possess, transport,sell, and solicit and receive orders for intoxicating liquor inviolation of the National Prohibition Act, and that, in pursuanceof the conspiracy and to effect its objects, one Heath purchased anautomobile on May 23, 1929.See 27 U.S.C. §§ 33, 35. Thecomplaint did not specify any building , structure, location, orplace, or set forth any particulars or other overt act or show anyconnection between the purchase of the automobile and any offensereferred to in the complaint. On the same day, the commissionerissued a warrant in the usual form commanding the marshal of thedistrict and his deputies to apprehend the persons so accused andto bring them before the commissioner or some judge or justice ofthe United States to be dealt with according to law.

On the next day Calhoun's subordinates, prohibition agentsO'Brien, Collins, and Sipe, went to the petitioning company'soffice at No. 200 Fifth avenue. Bartels, the secretary-treasurer ofthe company, was there when they entered. O'Brien said he had awarrant to search the premises, and exhibited a paper which hefalsely claimed was such a warrant. The agents arrested Bartels,searched his person, and took papers therefrom. While they werethere, Gowen, the president of the company, came to the office.O'Brien told him that he had a warrant for his arrest and a warrantto search the premises. The agents arrested and searched Gowen andtook papers from him. They took his keys and by threat of forcecompelled him to open a desk and safe, searched and took papersfrom

Page 282 U. S. 350

them, searched other parts of the office, and took therefromother papers, journals, account books, letter files, insurancepolicies, cancelled checks, index cards, and other things belongingrespectively to Gowen, Bartels, and the company. For brevity, thesewill be referred to herein as "papers."

Gowen and Bartels were on the same day arraigned before thecommissioner and held on bail further to answer the complaint. Adate was set for the examination, hearing has been postponed fromtime to time, and no examination has been had. The papers so seizedwere taken to the office of Calhoun in the Subtreasury Building,where they were examined by him and the United States attorney andtheir subordinates, and such papers have since been kept and heldthere, as is later herein shown, under the control of the UnitedStates attorney in the care and custody of the special agent incharge, for use as evidence against Gowen and Bartels.

Soon after the seizures were made, each of the petitionersbrought a suit in equity in the federal court for that districtagainst the special agent in charge and the United States attorney,to enjoin them from using such papers as evidence and to have themreturned. The court dismissed these suits on the ground that theproper remedy was by motion in the criminal proceedings.

Then, Gowen and Bartels, each in his own behalf, and thecompany, acting through Bartels, made these applications. The courtmade its order that the United States show cause why an injunctionshould not issue restraining it and its officers from using asevidence the papers so seized, and why an order should not issuedirecting their return.

In opposition, the affidavit of one Braidwood was submitted. Ittends to show that, in 1927 and 1928, petitioners and others actingtogether engaged in the unlawful sale of intoxicating liquor, that,at the company's office,

Page 282 U. S. 351

they exhibited and took orders for intoxicating liquor some ofwhich was delivered there and some elsewhere, and that, in April,1929, he reported these facts to Calhoun. Calhoun's affidavitstates that Braidwood had so reported, and that, by independentinvestigations, he had corroborated such statements, and thus knewthat a conspiracy unlawfully to sell intoxicating liquors in 1928and 1929 had been entered into and overt acts in furtherancethereof had been performed within the district, and that hebelieved the petitioners had been parties to such conspiracy, that,prior to the day of the arrests, he communicated such statementsand belief to O'Brien and assigned him to further investigate thecase.

O'Brien's affidavit states: from the information given him byCalhoun, he believed petitioners and others had so conspired.Calhoun described to him the company's office in detail, and thepersonal appearance of Gowen and Bartels. On June 6, 1929, he tooka certified copy of the complaint and warrant "for the purpose ofreference as to the names of the various defendants" and went topetitioners' office. It consisted of a suite of three rooms fittedup with office furniture including desks, filing cabinets, and asafe. He told Bartels and Gowen that he was an officer of theUnited States, and placed them under arrest for such conspiracy. Nowarrant was "served" upon either of them. The office was searched,and there were found and taken therefrom approximately a dozenbottles of assorted intoxicating liquor, a large number ofmemoranda, books of account, records, filing cases, and otherpapers all of which pertained to unlawful dealings by Gowen andBartels in intoxicating liquors.

O'Brien's affidavit also states that the papers so seized are ofsuch quantity and bulk that it is impracticable to attach copies tothe affidavit, that such papers are

"specifically incorporated herein by reference and made a parthereof, and are further made available for inspection at

Page 282 U. S. 352

any time, if desired by the Court, in connection with theconsideration of this order to show cause."

In reply to O'Brien's affidavit, petitioners submittedaffidavits of Gowen, Bartels and other defendants who were arrestedat the company's office on that occasion and affidavits of otherpersons who were present during some part of the time that theprohibition agents were there. These affidavits show that O'Briensaid he had a warrant of arrest, and produced a paper which severalof these affiants say they read and believe to be the warrantissued by the commissioner, a copy of which was filed with themoving papers. As to these details, there is no conflict in theevidence.

The district court refused to sustain the contention that no usewas made of the warrant, and accepted the statements that O'Brienclaimed to have warrants for the arrests and searches. The CircuitCourt of Appeals did not definitely express opinion as to thatmatter. We have examined the evidence. It requires a finding thatO'Brien did so claim, that he had the warrant issued by thecommissioner or a copy of it, and that, when he arrested Gowen andBartels, he claimed and purported to act under the warrant. Nowarrant for the search of the premises was issued.

The orders dismissing petitioners' suits in equity are notbefore us. The question whether the district court had jurisdictionsummarily to deal with petitioner's applications, while not broughtforward by the parties, arises upon the record, was considered bythe Circuit Court of Appeals, and suggested during the argumenthere.

United States commissioners are inferior officers. [Footnote 1]United States v.Allred,155 U. S. 591,155 U. S. 594;Rice v.Ames,

Page 282 U. S. 353

180 U. S. 371,180 U. S.377-378.Cf.38 U. S. 13Pet. 230,38 U. S. 257,et seq.,. The Act of May 28, 1896, 29 Stat. 184, abolishedcommissioners of the circuit courts, authorized each district courtto appoint United States commissioners, gave to them the samepowers and duties that commissioners of the circuit courts had,required such appointments to be entered of record in the districtcourts, provided that the commissioners should hold their officesubject to removal by the court appointing them (28 U.S.C. § 526),and required them to keep records of proceedings before them incriminal cases and deliver the same to the clerks of the courts onthe commissioners' ceasing to hold office.Id., § 529.They are authorized by statute in respect of numerous matters,[Footnote 2] and the relationsbetween them and the district courts vary, as do their officialacts.Cf. United States v. Allred, ubi supra; Grin v.Shine,187 U. S. 181,187 U. S. 187;Todd v. United States,158 U. S. 278,158 U. S. 282;Collins v. Miller,252 U. S. 364,252 U. S. 369;United States v. Berry, 4 F. 779;Ex partPerkins, 29 F. 900;The Mary, 233 F. 121.

We need not consider what power the district court may exertover the commissioners dealing with matters unlike

Page 282 U. S. 354

that now before us. Here the commissioner acted under Rev.St. §1014, which provides that, for any crime or offense against theUnited States, the offender may by any justice or judge of theUnited States or by any commissioner of the circuit court to takebail (now United States commissioner) be arrested and imprisoned,or bailed, as the case may be, for trial before such court of theUnited States as by law has cognizance of the offense. 18 U.S.C. §591. All the commissioner's acts and the things done by theprohibition officers in respect of this matter were preparatory andpreliminary to a consideration of the charge by a grand jury and,if an indictment should be found, the final disposition of the casein the district court. The commissioner acted not as a court, or asa judge of any court, but as a mere officer of the district courtin proceedings of which that court had authority to take control atany time.Todd v. United States, ubi supra; Collins v. Miller,ubi supra; United States v. Berry, supra; United States v.Casino, 286 F. 976, 979.

Notwithstanding the order to show cause was addressed to theUnited States alone, this is in substance and effect a proceedingagainst the United States attorney and the special agent in charge.The special agent in charge was the prosecuting witness. It was hisduty under the statute to report violations to the United Statesattorney.Donnelley v. United States,276 U.S. 505. And he was authorized, subject to the control ofthe United States attorney, to "conduct the prosecution at thecommitting trial for the purpose of having the offenders held forthe action of a grand jury." 27 U.S.C. § 11. It is immaterialwhether he intended or was personally to conduct the prosecutionbefore the commissioner. As the United States attorney had controlof the prosecution before the commissioner, whether conducted byhis assistants or prohibition agents, the papers were held subjectto his control and direction although in the immediate care andcustody

Page 282 U. S. 355

of the prohibition officers. He and they voluntarily came beforethe court to defend the seizure, the retention and proposed use ofthe papers, and so, in effect, became parties to the proceeding. Bymaking the papers a part of O'Brien's affidavit, they brought thepapers within the power of the court, and constructively into itspossession, if indeed the papers had not already come within itsreach. Insofar as it purports to run against the United States, theform of the order may be treated as a mere irregularity.

The United States attorney and the special agent in charge, asofficers authorized to conduct such prosecution and having controland custody of the papers for that purpose, are, in respect of theacts relating to such prosecution, alike subject to the properexertion of the disciplinary powers of the court. And, on the factshere shown, it is plain that the district court had jurisdictionsummarily to determine whether the evidence should be suppressedand the papers returned to the petitioners.Weeks v. UnitedStates,232 U. S. 383,232 U. S. 398;Wise v. Henkel,220 U. S. 556,220 U. S. 558;Silverthorne Lumber Co. v. United States,251 U.S. 385,251 U. S. 390;Cogen v. United States,278 U. S. 221,278 U. S. 225;United States v. Mills, 185 F. 318;United States v.McHie, 194 F. 894, 898;United States v. Lydecker,275 F. 976, 980;United States v. Kraus, 270 F. 578, 580.Cf. Applybe v. United States, 32 F.2d 873, 874.

The Government concedes that the warrant did not authorizeO'Brien or other prohibition agents to make the arrests. Thecomplaint, which in substance is recited in the warrant, wasverified merely on information and belief, and does not state factssufficient to constitute an offense.Ex parteBurford, 3 Cranch 448,7 U. S. 453;Rice v. Ames, supra,180 U. S. 374;Byars v. United States,273 U. S. 28;United States v. Cruikshank,92 U. S.542,92 U. S. 558;United States v. Hess,124 U. S. 483;United States v. Ruroede, 220 F. 210,

Page 282 U. S. 356

212, 213. The warrant was improvidently issued, and invalid onits face. It does not purport to authorize anyone other than themarshal and his deputies.

The company is not mentioned in the complaint or warrant, and isa stranger to the proceeding before the commissioner.Unquestionably the order of the district court as to it was finaland appealable.Cogen v. United States, ubi supra; Ex parteTiffany,252 U. S. 32;Savannah v. Jesup,106 U. S. 563;Gumbel v. Pitkin,113 U. S. 545.When the application was made, no information or indictment hadbeen found or returned against Gowen or Bartels. There was nothingto show that any criminal proceeding would ever be instituted inthat court against them.Post v. United States,161 U. S. 583,161 U. S. 587.And, as above shown, the complaint does not state an offense. Itfollows that the order of the district court was not made in ordependent upon any case or proceeding there pending, and thereforethe order as to them was appealable.Cogen v. United States,ubi supra; Perlman v. United States,247 U. S.7,247 U. S. 13;Burdeau v. McDowell,256 U. S. 465.

Without pausing to consider the matter, we assume, as held bythe lower courts, that the facts of which Calhoun and O'Brien hadbeen informed prior to the arrests are sufficient to justify theapprehension without a warrant of Gowen and Bartels for theconspiracy referred to in Braidwood's affidavit and on that basiswe treat the arrests as lawful and valid.

No question is here raised as to the search of the persons.There remains for consideration the question whether the search ofthe premises, the seizure of the papers therefrom and theirretention for use as evidence may be sustained. The first clause ofthe Fourth Amendment declares:

"The right of the people to be secure

Page 282 U. S. 357

in their persons, houses, papers, and effects, againstunreasonable searches and seizures, shall not be violated."

It is general and forbids every search that is unreasonable; itprotects all, those suspected or known to be offenders as well asthe innocent, and unquestionably extends to the premises where thesearch was made and the papers taken.Gouled v. UnitedStates,255 U. S. 298,255 U. S. 307.The second clause declares:

"And no Warrants shall issue, but upon probable cause, supportedby Oath or affirmation, and particularly describing the place to besearched, and the persons or things to be seized."

This prevents the issue of warrants on loose, vague or doubtfulbases of fact. It emphasizes the purpose to protect against allgeneral searches. Since before the creation of our government, suchsearches have been deemed obnoxious to fundamental principles ofliberty. They are denounced in the constitutions or statutes ofevery State in the Union.Agnello v. United States,269 U. S. 20,269 U. S. 33.The need of protection against them is attested alike by historyand present conditions. The Amendment is to be liberally construed,and all owe the duty of vigilance for its effective enforcement,lest there shall be impairment of the rights for the protection ofwhich it was adopted.Boyd v. United States,116 U.S. 616,116 U. S. 623.Weeks v. United States, supra,232 U. S.389-392.

There is no formula for the determination of reasonableness.Each case is to be decided on its own facts and circumstances. Itis not, and could not be, claimed that the officers saw conspiracybeing committed. And there is no suggestion that Gowen or Bartelswas committing crime when arrested. In April, 1929, Braidwoodreported to Calhoun the existence of a conspiracy, and that, inpursuance of it, sales and deliveries of intoxicating liquor hadbeen made in 1927 and 1928. The record does not show

Page 282 U. S. 358

any criminal overt act in 1929. Calhoun's description to O'Brienof the company's office in detail and of Gowen and Bartels showsthat he knew the place and offenders. Notwithstanding he had anabundance of information and time to swear out a valid warrant, hefailed to do so. O'Brien falsely claimed to have a warrant for thesearch of the premises, and he made the arrests under color of theinvalid warrant. By pretension of right and threat of force, hecompelled Gowen to open the desk and the safe and, with the others,made a general and apparently unlimited search, ransacking thedesk, safe, filing cases, and other parts of the office. It was alawless invasion of the premises and a general exploratory searchin the hope that evidence of crime might be found.FederalTrade Commission v. American Tobacco Co.,264 U.S. 298,264 U. S.306.

Plainly, the case before us is essentially different fromMarron v. United States,275 U. S. 192.There, officers executing a valid search warrant for intoxicatingliquors found and arrested one Birdsall, who, in pursuance of aconspiracy, was actually engaged in running a saloon. As anincident to the arrest, they seized a ledger in a closet where theliquor or some of it was kept, and some bills beside the cashregister. These things were visible and accessible, and in theoffender's immediate custody. There was no threat of force orgeneral search or rummaging of the place.

The uncontradicted evidence requires a finding that here thesearch of the premises was unreasonable.Silverthorne LumberCo. v. United States, supra; Marron v. United States, supra,275 U. S. 199.United States v. Kirschenblatt, 16 F.2d 202. The judgmentsbelow must be reversed, and the case remanded to the district courtwith directions to enjoin the United States attorney and thespecial agent in charge from using the papers as evidence and toorder the same returned to petitioners.

Reversed.

[Footnote 1]

As to the office of United States commissioner,seeSection 4, Act of March 2, 1793, 1 Stat. 334; Section 1, Act ofFebruary 20, 1812, 2 Stat. 679; Act of March 1, 1817, 3 Stat. 350;sections 1, 2, Act of August 23, 1842, 5 Stat. 516; Rev. St. § 627;sections 19, 20 and 21, Act of May 28, 1896, 29 Stat. 184.United States v. Maresca, 266 F. 713, 719.

[Footnote 2]

The powers and duties of United States commissioners include: toarrest and imprison, or bail, for trial (18 U.S.C. § 591;seealso §§ 593-597), and, in certain cases, to take recognizancesfrom witnesses on preliminary hearings (28 U.S.C. § 657); to issuewarrants for and examine persons charged with being fugitives fromjustice (18 U.S.C. § 651); to hold to security of the peace and forgood behavior (28 U.S.C. § 392); to issue search warrants (18U.S.C. §§ 611-627; 26 U.S.C. § 1195); to take bail and affidavitsin civil causes (28 U.S.C. § 758); to discharge poor convictsimprisoned for nonpayment of fines (18 U.S.C. § 641); to instituteprosecutions under laws relating to the elective franchise andcivil rights and to appoint persons to execute warrants thereunder(8 U.S.C. §§ 49, 50); to enforce arbitration awards of foreignconsuls in disputes between captains and crews of foreign vessels(28 U.S.C. § 393); to summon master of ship to show cause whyprocess should not issue against it for seamen's wages (46 U.S.C. §603); to take oaths and acknowledgments. 5 U.S.C. § 92. 28 U.S.C. §525.