U.S. Supreme Court

Mancusi v. DeForte,392U.S. 364 (1968)Mancusi v. DeForte

No. 844

Argued April 25, 1968

Decided June 17, 1968

392U.S. 364

CERTIORARI TO THE UNITED STATESCOURT OF APPEALS

FOR THE SECONDCIRCUIT

Syllabus

The Nassau County District Attorney issued a subpoenaducestecum to the Union of which respondent was an officer callingfor the production of certain books and records. The Union refusedto comply, and the state officials, without a warrant, seized unionrecords from an office shared by respondent and several other unionofficials despite the protests of respondent, who was present inthe office and had custody of the papers at the time of seizure.The seized materials were admitted at his trial for conspiracy,coercion, and extortion, and he was convicted. The federal DistrictCourt denied a writ of habeas corpus, but the Court of Appealsreversed and directed that the writ issue on the ground thatrespondent's Fourth and Fourteenth Amendment rights were violatedby the search and seizure. and that the materials were inadmissibleunderMapp v. Ohio,367 U. S. 643.Respondent argues for affirmance on this ground alone.

Held:

1. One has standing to object to a search of his office, as wellas of his home, and respondent was entitled to expect that recordsin his custody at his office in union headquarters would not betaken without his permission or that of his union superiors,whether he occupied a "private" office or shared one with otherunion officials. Respondent thus had standing to object to theadmission of the seized papers at his trial.Jones v. UnitedStates,362 U. S. 257. Pp.392 U. S.367-370.

2. The warrantless search of respondent's office wasunreasonable under the Fourth and Fourteenth Amendments, as thesubpoenaduces tecum, issued by the District Attorneyhimself, does not qualify as a valid search warrant, and thissearch comes within no exception to the rule requiring a warrant.Pp.392 U. S.370-372.

379 F.2d 897, affirmed.

Page 392 U. S. 365

MR. JUSTICE HARLAN delivered the opinion of the Court.

In 1959, the respondent, Frank DeForte, a vice-president ofTeamsters Union Local 266, was indicted in Nassau County, New York,on charges of conspiracy, coercion, and extortion, it being allegedthat he had misused his union office to "organize" owners of jukeboxes and compel them to pay tribute. Prior to the return of theindictment, the Nassau County District Attorney's office issued asubpoenaduces tecum to Local 266, calling upon it toproduce certain books and records. The subpoena was served upon theUnion at its offices. When the Union refused to comply, the stateofficials who had served the subpoena conducted a search and seizedunion records from an office shared by DeForte and several otherunion officials. The search and seizure were without a warrant, andtook place despite the protests of DeForte, who was present in theoffice at the time. Over DeForte's objection, the seized materialwas admitted against him at trial. He was convicted.

On direct appeal to the New York courts, [Footnote 1] DeForte unsuccessfully argued,inter alia, that the seized material was constitutionallyinadmissible in state proceedings under the rule laid down inMapp v. Ohio,367 U. S. 643,because the search and seizure occurred without a warrant.[Footnote 2] DeFortesubsequently brought a federal habeas

Page 392 U. S. 366

corpus proceeding, in which he made the same contention. TheUnited States District Court for the Western District of New Yorkdenied the writ, 261 F. Supp. 579, but, on appeal, the Court ofAppeals for the Second Circuit reversed and directed that the writissue. 379 F.2d 897. We granted certiorari, 390 U.S. 903, toconsider the State's [Footnote3] contention that the Court of Appeals erred in upsetting thisstate conviction. Concluding that the Court of Appeals was right,we affirm.

IIt is desirable at the outset to make clear what is and what isnot involved in this case. The decision below was based solely upona finding that DeForte's Fourth and Fourteenth Amendment rights,see Ker v. California,374 U. S. 23,374 U. S. 30-34,were violated by the search and seizure, and that the seizedmaterial was therefore inadmissible underMapp. It is onthis ground alone that DeForte argues for affirmance. Consequently,there is no occasion to consider whether DeForte might successfullyhave asserted his Fifth Amendment right against self-incriminationwith respect to the use against him of the seized records.Cf.United States v. White,322 U. S. 694;Wilson v. United States,221 U. S. 361. Noris there any need to inquire whether DeForte could have asserted aFourth or Fifth Amendment claim on behalf of the Union, for he didnot do so. Moreover, this is not a case in which it is necessary todecide whether the traditional doctrine that Fourth Amendmentrights

"are personal rights, and . . . may be enforced by exclusion ofevidence only at the instance of one whose own protection wasinfringed by the search and seizure,"

Simmons v. United States,390 U.S. 377, at 389, should be modified.Cf. id. at390 U. S. 390,n. 12. For DeForte claims

Page 392 U. S. 367

that, under the traditional rule, he does have standing tochallenge the admission against him at trial of union recordsseized from the office where he worked. The questions for decision,then, are whether DeForte has Fourth Amendment standing to objectto the seizure of the records and, if so, whether the search wasone prohibited by the Fourth Amendment.

IIWe deal, first, with the question of "standing." The FourthAmendment guarantees that

"The right of the people to be secure in their persons, houses,papers, and effects, against unreasonable searches and seizures,shall not be violated."

The papers which were seized in this case belonged not toDeForte, but to the Union. Hence, DeForte can have personalstanding only if, as to him, the search violated the "right of thepeople to be secure in their . . . houses. . . ." [Footnote 4] This Court has held that the word"houses," as it appears in the Amendment, is not to be takenliterally, and that the protection of the Amendment may extend tocommercial premises.See, e.g., See v. Seattle,387 U. S. 541;Go-Bart Importing Co. v. United States,282 U.S. 344;Silverthorne Lumber Co. v. UnitedStates,251 U. S. 385.

Furthermore, the Amendment does not shield only those who havetitle to the searched premises. It was

Page 392 U. S. 368

settled even before our decision inJones v. UnitedStates,362 U. S. 257,that one with a possessory interest in the premises might havestanding.See, e.g., United States v. Jeffers,342 U. S. 48. InJones, even that requirement was loosened, and we heldthat

"anyone legitimately on premises where a search occurs maychallenge its legality . . . when its fruits are proposed to beused against him."

362 U.S. at362 U. S. 267.[Footnote 5] The Court's recentdecision inKatz v. United States,389 U.S. 347, also makes it clear that capacity to claim theprotection of the Amendment depends not upon a property right inthe invaded place, but upon whether the area was one in which therewas a reasonable expectation of freedom from governmentalintrusion.See 389 U.S. at389 U. S. 352.The crucial issue, therefore, is whether, in light of all thecircumstances, DeForte's office was such a place.

The record reveals that the office where DeForte workedconsisted of one large room, which he shared with several otherunion officials. The record does not show from what part of theoffice the records were taken, and DeForte does not claim that itwas a part reserved for his exclusive personal use. The partieshave stipulated that DeForte spent "a considerable amount of time"in

Page 392 U. S. 369

the office, and that he had custody of the papers at the momentof their seizure. [Footnote6]

We hold that, in these circumstances, DeForte had FourthAmendment standing to object to the admission of the papers at histrial. It has long been settled that one has standing to object toa search of his office, as well as of his home.See, e.g.,Gouled v. United States,255 U. S. 298;United States v. Lefkowitz,285 U.S. 452;Goldman v. United States,316 U.S. 129;cf. Lopez v. United States,373 U. S. 427;Osborn v. United States,385 U. S. 323.Since the Court inJones v. United States, supra,explicitly did away with the requirement that, to establishstanding, one must show legal possession or ownership of thesearched premises,see 362 U.S. at362 U. S.265-267, it seems clear that, if DeForte had occupied a"private" office in the union headquarters, and union records hadbeen seized from a desk or a filing cabinet in that office, hewould have had standing.Cf. Go-Bart Importing Co. v. UnitedStates,282 U. S. 344;Silverthorne Lumber Co. v. United States,251 U.S. 385. In such a "private" office, DeForte would havebeen entitled to expect that he would not be disturbed except bypersonal or business invitees, and that records would not be takenexcept with his permission or that of his union superiors. It seemsto us that the situation was not fundamentally changed becauseDeForte shared an office with other union officers. DeForte stillcould reasonably have expected that only those persons and theirpersonal or business guests would enter the office, and thatrecords would not be touched except with their permission or thatof union higher-ups. This expectation was inevitably defeated bythe entrance of state officials, their conduct of a general search,and their removal of records which were in DeForte's custody. Itis, of course, irrelevant that the

Page 392 U. S. 370

Union or some of its officials might validly have consented to asearch of the area where the records were kept, regardless ofDeForte's wishes, for it is not claimed that any such consent wasgiven, either expressly or by implication.

Our conclusion that DeForte had standing finds strong support inJones v. United States, supra. Jones was the occasionaloccupant of an apartment to which the owner had given him a key.The police searched the apartment while Jones was present, andseized narcotics which they found in a bird's nest in an awningoutside a window. Thus, like DeForte, Jones was not the owner ofthe searched premises. Like DeForte, Jones had little expectationof absolute privacy, since the owner and those authorized by himwere free to enter. There was no indication that the area of theapartment near the bird's nest had been set off for Jones' personaluse, so that he might have expected more privacy there than in therest of the apartment; in this, it was like the part of DeForte'soffice where the union records were kept. Hence, we think that ourdecision that Jones had standing clearly points to the result whichwe reach here.

IIIThe remaining question is whether the search of DeForte's officewas "unreasonable" within the meaning of the Fourth Amendment. TheState does not deny that the search and seizure were without awarrant, and it is settled for purposes of the Amendment that,

"except in certain carefully defined classes of cases, a searchof private property without proper consent is 'unreasonable' unlessit has been authorized by a valid search warrant."

Camara v. Municipal Court,387 U.S. 523,387 U. S.528-529. [Footnote7] We

Page 392 U. S. 371

think it plain that the state officials' possession of adistrict attorney's subpoena of the kind involved here [Footnote 8] does not bring this casewithin one of those "carefully defined classes." The State has notattempted to justify the search and seizure on that ground, and theNew York courts have themselves said, as a matter of state law,that "[a district attorney's] subpoenaduces tecum confersno right to seize the property referred to in the subpoena. . . ."Amalgamated Union, Local 22 v. Levine, 31 Misc.2d 416,417, 219 N.Y.S.2d 851, 853. [Footnote 9]

Moreover, the subpoena involved here could not, in any event,qualify as a valid search warrant under the Fourth Amendment, forit was issued by the District Attorney himself, [Footnote 10] and thus omitted theindispensable condition that

"the inferences from the facts which lead to the complaint ' . .. be drawn by a neutral and detached magistrate, instead of beingjudged by the officer engaged in the often competitive enterpriseof ferreting out crime.'Johnson v. United States,333 U. S.10,333 U. S. 14."

Giordenello v. United States,357 U.S. 480,357 U. S. 486.InSilverthorne Lumber Co. v. United States,251 U.S. 385, a corporate office was searched for papers whichthe corporation had refused to deliver in response to a New YorkDistrict Attorney's subpoena, apparently similar to the one in thiscase. Speaking for the Court, Mr. Justice Holmes not only held thatthe seizure of the papers was unjustified, but characterized it as"an outrage."Id. at251 U. S.391.

Page 392 U. S. 372

The objections of both the corporation and the officer weresustained. Thus, there can be no doubt that, under this Court'spast decisions, [Footnote11] the search of DeForte's office was "unreasonable" withinthe meaning of the Fourth Amendment. [Footnote 12]

The judgment of the Court of Appeals is

Affirmed.

[Footnote 1]

Those appeals culminated in a petition for certiorari to thisCourt, which was deniedsub nom. De Grandis v. New York,375 U.S. 868.

[Footnote 2]

DeForte's petition for certiorari following direct appeal wasdenied in 1963, more than two years after the Court's decision inMapp v. Ohio. Under the rule laid down inLinkletterv. Walker,381 U. S. 618,DeForte is entitled to invoke the exclusionary principleestablished inMapp.See 381 U.S. at381 U. S. 622and n. 5.

[Footnote 3]

The petitioner, Mancusi, is the warden of the New York Stateprison in which DeForte is confined.

[Footnote 4]

The fact that the seized papers belonged to the Union does notimply, of itself, that an individual could never have personalstanding to object to their admission against him. For example,state officers conceivably might have seized the papers during asearch of DeForte's home, and, in that event, we think it clearthat he would have had standing.Wilson v. United States,221 U. S. 361, isby no means to the contrary, for, in that case, there was nophysical search at all. The only Fourth Amendment standing questioninWilson was whether a corporate officer had personalstanding to object to a subpoenaduces tecum addressed tothe corporation, on the ground that it was overbroad.See221 U.S. at221 U. S.375-376.

[Footnote 5]

The petitioner contends that this holding was not intended tohave general application, but that it was devised solely to solvethe particular dilemma presented inJones: that of adefendant who was charged with a possessory offense, andconsequently might have to concede his guilt in order to establishstanding in the usual way. However, this limited reading ofJones overlooks the fact that, inJones, standingwas held to exist on two distinct grounds:

"(1) [The circumstance that] possession both convicts andconfers standing, eliminates any necessity for a preliminaryshowing of an interest in the premises searched or the propertyseized. . . . (2)Even were this not a prosecution turning onillicit possession, the legally requisite interest in thepremises was here satisfied. . . ."

362 U.S. at362 U. S. 263.(Emphasis added.) Thus, the second branch of the holding, withwhich we are here concerned, was explicitly stated to be of generaleffect.

[Footnote 6]

See Joint Appendix 51-52.

[Footnote 7]

See also Stoner v. California,376 U.S. 483;United States v. Jeffers,342 U. S.48;McDonald v. United States,335 U.S. 451;Agnello v. United States,269 U. S.20.

[Footnote 8]

A copy of the subpoena appears in the Joint Appendix, at 22. Thesubpoena was signed by the District Attorney and directed to theUnion as a witness in a criminal action. It ordered the Union toappear before the District Attorney forthwith, and to bring with itspecified union records. The subpoena appears to have been issuedunder the authority of N.Y.Code Crim.Proc. §§ 609-613.

[Footnote 9]

See also In re Atlas Lathing Corp., 176 Misc. 959, 29N.Y.S.2d 458; Hagan, Impounding and the Subpoena Duces Tecum, 26Brooklyn L.Rev.199, 210-211 (1960).

[Footnote 10]

Seen8,supra.

[Footnote 11]

The Court's opinion inDavis v. United States,328 U. S. 582,does contain dicta to the effect that there is a lesser right toprivacy when government officials have a "right" to inspect theseized items.See, e.g., id. at328 U. S. 593.However, the only holding inDavis was that there had beena valid consent to the search; the case "did not involve a searchwarrant issue."See v. City of Seattle,387 U.S. 541,387 U. S. 545,n. 7.

[Footnote 12]

It is, of course, immaterial that the State might have been ableto obtain the same papers by means which did not violate the FourthAmendment. As Mr. Justice Holmes stated inSilverthorne LumberCo. v. United States, supra, at251 U. S.392:

"[T]he rights . . . against unlawful search and seizure are tobe protected even if the same result might have been achieved in alawful way."

MR. JUSTICE BLACK, with whom MR. JUSTICE STEWART joins,dissenting.

Until this case was decided just now, it has been the law inthis country, since the federal Fourth Amendment exclusionary rulewas adopted in 1914, that a defendant on trial for a crime has nostanding or substantive right to object to the use of papers anddocuments against him on the ground that those papers, belonging tosomeone else, had been taken from the owner in violation of theFourth Amendment. Heretofore, successful objection to use of suchpapers as evidence has been left to the owner whose constitutionalrights had been invaded. InWilson v. United States,221 U. S. 361,decided in 1911, this Court, in an exhaustive opinion by Mr.Justice Hughes, later Chief Justice, applied that principle bydenying the benefit of the Fourth and Fifth Amendments to acorporate

Page 392 U. S. 373

officer, even one who had helped to prepare the corporate paperssummoned to be produced. [Footnote2/1] InUnited States v. White,322 U.S. 694, decided in 1944, this Court applied the sameprinciple in rejecting a claim of a union officer that the use ofunion papers and documents against him under a subpoenaducestecum would incriminate him. And, indeed, the Court, in todaycreating its new rule, is unable to cite a single previous opinionof this Court holding to the contrary.

In creating this new rule against the use of papers anddocuments which speak truthfully for themselves, the Court isputting up new hurdles and barriers bound to save many criminalsfrom conviction. I should not object to this new rule, however, ifI thought it was or could be justified by the Fourth or any otherconstitutional amendment. But I do not think it can. Theexclusionary rule itself, even as it applies to the exclusion ofthe defendant's own property when illegally seized, has had only aprecarious tenure in this Court.See Adams v. New York,192 U. S. 585(1904);Weeks v. United States,232 U.S. 383 (1914), and my concurring opinion inMapp v.Ohio,367 U. S. 643,367 U. S. 661(1961). I wish to repeat here what I have indicated before, thatthis seems to me a rather inopportune time to create a single rulemore than the Constitution plainly requires to block conviction ofguilty persons by keeping out probably the most reliable kind ofevidence that can be offered.

A corporate or union official suffers no personal injury whenthe business office he occupies as an agent of the

Page 392 U. S. 374

corporation or union is invaded and when records he has preparedand safeguarded as an agent are seized. The invasion by theGovernment may disrupt the functioning of the office, preventemployees from performing their duties, and result in disclosure ofbusiness matters the company or union wished to keep secret. Butall these are injuries only to the corporation or union as such.The organization has every right to challenge such intrusionswhenever they occur -- if the seizure is illegal, the recordsobtained can be suppressed in a prosecution against theorganization, and if no prosecution is initiated, the organizationcan obtain return of all the documents by bringing a civil action.See, e.g., Go-Bart Importing Co. v. United States,282 U. S. 344(1931). Such intrusions, however, involve absolutely no invasion ofthe "personal privacy" or security of the agent or employee as anindividual, and he accordingly has no right to seek suppression ofrecords that the corporation or union itself has made no effort toregain.

The cases decided by this Court have, until today, uniformlysupported this view, and rejected the sweeping new exclusionaryrule now advanced by the Court. Nor, in my judgment, does any oneof the cases relied on by the Court provide support for itsholding. The Court's basic premise is that, if the union papers hadbeen taken directly from a desk used by DeForte in a union officeused only by him, his standing would have been clear, withoutregard to any other circumstances. I have found no past decision bythis Court to that effect. NeitherSilverthorne Lumber Co. v.United States,251 U. S. 385(1920), norGo-Bart Importing Co. v. United States,282 U. S. 344(1931), mentions the question of standing at all, and it is hard tosee how the Court's inference can be drawn from these cases, sincein both the party seeking suppression of the documents was, infact, the owner of

Page 392 U. S. 375

them. Although, inSilverthorne, the objections hadbeen raised by both the corporation and one of its officers,standing was never even mentioned from the beginning to the end ofthe opinion, and the Court treated both parties as the "owners" ofthe documents. 251 U.S. at251 U. S. 391. Consequently, the Court's use of Mr.Justice Holmes' reference to "outrage" in no way supports theCourt's holding today, directly or indirectly.

Jones v. United States,362 U.S. 257 (1960), also fails to sustain the Court'sposition. In that case, the petitioner had been arrested in afriend's apartment and was charged with possession of narcoticsfound there. This Court was troubled about the "dilemma" that wouldbe created by requiring the petitioner, in order to securesuppression of the narcotics, to swear that they were taken fromhis possession, thus confessing his guilt of the very offensecharged against him. To avoid this situation, the Court held thatpetitioner could make his motion to suppress without swearing topossession, either because of the dilemma itself or because as aguest in the apartment he had the "legally requisite interest inthe premises." 362 U.S. at362 U. S. 263. The Court today puts great stress on thestatement inJones that

"anyone legitimately on premises where a search occurs maychallenge its legality . . . when its fruits are proposed to beused against him."

362 U.S. at362 U. S. 267.With deference, I must point out that this sweeping dictum is takensomewhat out of context, and cannot possibly have the literalmeaning attributed to it. It would be quite a hyperbole, I think,to say that theJones opinion suggested that just anyperson who happened to be in a house against which an unreasonablesearch was perpetrated could ask to have all evidence obtained bythat search excluded from evidence against him. As was asked by thecourt below, would that dictum enable a

Page 392 U. S. 376

janitor to escape the use of evidence illegally seized from hisboss? The Court apparently recognizes this problem even now, forDeForte clearly was "legitimately on [the] premises," and thus hisstanding should be obvious, under its reading ofJones,without the Court's extended discussion of "reasonable expectation"and the related limiting tests. This reasoning in terms of"expectations," however, requires conferring standing withoutregard to whether the agent happens to be present at the time ofthe search or not, a rather remarkable consequence of the statementinJones. In fact, the Court's opinion indicates to methat the Court is preparing the way to useJones toeliminate entirely the requirement for standing to raise a searchand seizure question and to permit a search to be challenged at anytime, at any place, and under all circumstances, regardless of thedefendant's relationship to the person or place searched or to thethings seized. Any such step would elevate the Fourth Amendment toa position of importance far above that of any other constitutionalprovision,compare Flast v. Cohen, ante, p.392 U. S. 83, andwould make it more difficult for the government to convict guiltypersons who can make no claim to redress in any form, since theysuffered no invasion of any kind by the search itself. I wouldprefer to return toJones itself, where we made quiteclear throughout the opinion that, while common law concepts ofproperty ownership were not controlling, standing was notautomatically conferred on "anyone legitimately on [the] premises."We stressed:

"In order to qualify as a 'person aggrieved by an unlawfulsearch and seizure,' one must have been a victim of a search orseizure, one against whom the search was directed, as distinguishedfrom one who claims prejudice only through the use of evidencegathered as a consequence of a search or seizure directed atsomeone else."

362 U.S. at362 U. S.261.

Page 392 U. S. 377

In the present case, I think it is entirely clear that thesearch was not "directed" against DeForte personally, but wasaddressed to and aimed at the Union and designed to secure from theUnion papers belonging to the Union. The search occurred in a largeroom, which DeForte shared with a number of others, and the recordswere not taken from files and drawers used exclusively by him forhis own private purposes. The police had been investigating a largeconspiracy perpetrated through the Union, and, at the time, wereprimarily interested in getting more information about theoperation of the Union. The records taken were those that had beenlisted in a subpoena addressed to the Union itself, and, since theUnion had raised no objection to the subpoena, it was under a dutyto turn over the records.Compare Hale v. Henkel,201 U. S. 43(1906).

Undoubtedly, I suppose, even if the Union's papers here shouldbe returned either to the Union or to the defendant, the Statecould, on a new trial, summon the papers and get them and use them.[Footnote 2/2] A rule whichencourages such circumvention as that is hardly the kind ofprinciple to which this great Court should give birth. I disclaimany responsibility whatever for the new rule.

[Footnote 2/1]

See also Hale v. Henkel,201 U. S.43 (1906);Grant v. United States,227 U. S.74 (1913);Essgee Co. v. United States,262 U. S. 151(1923);Goldstein v. United States,316 U.S. 114 (1942);Davis v. United States,328 U. S. 582(1946);Wong Sun v. United States,371 U.S. 471 (1963);Wild v. Brewer, 329 F.2d 924(C.A. 9th Cir.1964).

[Footnote 2/2]

Since the State had obtained a subpoena for these documents evenbefore the search, the new subpoena would not be an invalid "fruit"of the illegal seizure.Compare Silverthorne, supra.

MR. JUSTICE WHITE, dissenting.

Although the Fourth Amendment perhaps protects the individual'sprivate desk in a union office shared with other officers oremployees, I dissent from the Court's extension of the protectedarea to the office door.