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not intend to preserve the old penalties, unreasonable searches and seizures and seliprescribed in § 3257 in addition to the incrimination will not be violated if the specific provision for punishment made Federal prosecuting authorities to whom in the Volstead Act.

incriminating papers stolen by private perWe have less difficulty with the other a view to their use in a subsequent investi

sons have been delivered, retain them with sections of the prior revenue legislation gation by a grand jury where such papers under which the charges, already set will be part of the evidence against the acforth, are made. We think it was not cused, and may be used against him upon intended to keep on foot the require-trial should an indictment be returned, the ment as to displaying the words “Regis- government having had no part in the tered Distillery” in a place intended for wrongful taking.

[For other

see Search and Seizure ; the production of liquor for beverage Criminal Law, III. b, 2, in Digest Sup. Ct. purposes which could no longer be law- 1908.) fully conducted; nor to require a bond

(No. 646.) for the control of such production; nor to penalize the making of mash in a Argued April 11 and 12, 1921. Decided distillery which could not be authorized

June 1, 1921. by law.

The questions before us solely concern the construction of the statutes in- the United States for the Western volved, under an indictment pertaining District of Pennsylvania to review an to the production of liquor for beverage order for the return of incriminating purposes, and we think they were cor- papers stolen by private persons and derectly answered in the opinion of the livered to the Federal prosecuting attorcourt below. It follows that its judg- neys. Reversed. ment is affirmed.

The facts are stated in the opinion.

Solicitor General Frierson argued the

cause and filed a brief for appellant: (465) JOSEPH A. BURDEAU, Appt., Even if it could be said that the com

pany or its representatives stole these J. C. McDOWELL.

papers from the appellee, this would not

preclude their use in evidence if they (See S. C. Reporter's ed. 465-477.)

should thereafter come to the hands of

the Federal authorities. Search and seizure private action. 1. The security afforded by U. S.

Weeks v. United States, 232 U. S. Const. 4th Amend., against unreasonable 383, 58 L. ed. 652, L.R.A.1915B, 834, 34 search and seizure, applies solely to govern. Sup. Ct. Rep. 341, Ann. Cas. 1915C, mental action. It is not invaded by the un- 1177; Boyd v. United States, 116 U. S. lawful acts of individuals in which the gov- 616, 29 L. ed. 746, 6 Sup: Ct. Rep. 524; ernment has no part.

Adams v. New York, 192 U. S. 585, 48 (For other cases, see Search and Seizure, in L. ed. 575, 24 Sup. Ct. Rep. 372; John

Sup. Search and seizure self-crimination son v. United States, 228 V. S. 457, 57 use of stolen papers.

L. ed. 919, 47 L.R.A.(N.S.) 263, 33 Sup. 2. Constitutional guaranties against Ct. Rep. 572; Perlman v. United States,

247 U. S. 7, 62 L. ed. 950, 38 Sup. Ct. Note.As to unreasonable search and Rep. 417. seizure-see note to Levy v. Superior Court, 29 L.R.A. 818.

Mr. E. Lowry Humes argued the On sufficiency of statutory immunity cause, and, with Messrs. A. M. Imbrie to satisfy constitutional guaranties and Rody P. Marshall, filed a brief for against self-incrimination-see notes to appellee: Interstate Commerce Commission The right which the appellee asserted Baird, 48 L. ed. U. S. 860, and Arndstein was a right which the court had jurisv. McCarthy, ante, 138.

diction to recognize and preserve. On admissibility against defendant of Boyd v. United States, 116 U. S. 624, document or articles taken from him-29 L. ed. 748, 6 Sup. (t. Rep. 524; see notes to State v. Edwards, 59 L.R.A. Weeks v. United States, 232 U. S. 398, 465; State v. Fuller, 8 L.R.A.(N.S.) 762; 58 L. ed. 657, L.R.A.1915B, 834, 34 Sup. People v. Campbell, 34 L.R.A.(N.S.) 58; Ct. Rep. 341, Ann. Cas. 1915C, 1177. Weeks v. United States, L.R.A.1915B, The right of a court of equity to or834, and Blacksburg v. Beam, L.R.A. der and decree the return of private 1916E, 716.

property and papers is well recognized. And see note to this case as reported McGowin v. Remington, 12 Pa. 56, 51 in 13 A.L.R. 1168.

Am. Dec. 584; Pressed Steel Car Co. v.

V.

Standard Steel Car Co. 210 Pa. 464, 60 was had before the district judge, who Ati. 4; Dock v. Dock, 180 Pa. 15, 57 made an order requiring the delivery of Am. St. Rep. 617, 36 Atl. 411.

the papers to the clerk of the court, to

gether with all copies, memoranda, and Mr. Justice Day delivered the opinion data taken therefrom, which the court of the court:

found had been stolen from the offices J. C. McDowell, hereinafter called the of the petitioner at rooms numbered petitioner, filed a petition in the United 1320 and 1321 in the Farmers' Bank States district court for the western dis- Building, in the city of Pittsburgh. trict of Pennsylvania, asking for an The order further provided that, upon order for the return to him of certain delivery of the books, papers, etc., to books, papers, memoranda, correspond- the clerk of the court, the same should ence, and other data in the possession be sealed and impounded for the period of Joseph A. Burdeau, appellant herein, of ten days, at the end of which period Special Assistant to the Attorney Gen- they should be delivered to the petieral of the United States.

tioner or his attorney unless an appeal In the petition it is stated that Bur- were taken from the order of the court, deau and his associates intended to pre-in which event, the books, papers, etc., sent to the grand jury in and for the should be impounded until the determiwestern district of Pennsylvania a nation of the appeal. An order was charge against petitioner of an alleged made restraining Burdeau, Special Asviolation of $ 215 of the Criminal Code sistant Attorney General, the Departof the United States for the fraudulent ment of Justice, its officers and agents, use of the mails; that it was the inten- and the United States Attorney, from tion of Burdeau and his associates, in- presenting to the United States Commiscluding certain postoffice inspectors co-sioner, the grand jury, or any official operating with him, to present to the tribunal, any of the books, papers, memgrand jury certain private books, pa-oranda, letters, copies of letters, correpers, memoranda, etc., which were the spondence, etc., or any evidence of any private property of the petitioner, that nature whatsoever secured by or coming the papers had been in the possession into their possession as a result of the and exclusive control of the petitioner knowledge obtained from the inspection in the Farmers' Bank Building, in Pitts- of such books, papers, memoranda, etc. burgh. It is alleged that during the In his opinion the district judge statspring and summer of 1920 these papersed that it was the [472] intention of were unlawfully seized and stolen from the Department of Justice, through Burpetitioner by certain persons participat-deau and his assistants, to present the ing in and furthering the proposed in- books, papers, etc., to the grand jury vestigation so to be made by the grand with a view to having the petitioner injury, under the direction and control of dicted for the alleged violation of § 215 Burdeau as Special Assistant to the At-! of the Criminal Code of the United torney General, ond that such books, States, and the court held that the papers, memoranda, etc., were being evidence offered by the petitioner held in the possession and control of showed that the papers had been stolen Burdeau and his assistants; that in the from him, and that he was entitled taking of the personal private books and to the return of the same. In this conpapers, the person who purloined and nection the district judge stated that it stole the same drilled the petitioner's did not appear that Burdeau, or any private safes, broke the locks upon his official or agent of the United States, private [471] desk, and broke into and or any of the Departments, had anyabstracted from the files in his offices thing to do with the search of the his private papers; that the possession petitioner's safe, files, and desk, or the of the books, papers, etc., by Burdeau abstraction therefrom of any of the and his assistants, was unlawful and in writings referred to in the petition, violation of the legal and constitutional and added that "the order made in rights of the petitioner. It is charged this case is not made because of any that the presentation to the grand jury unlawful act on the part of anybody of the same, or any secondary or other representing the United States or any evidence secured through or by them, of its Departments, but solely upon would work a deprivation of petitioner's the ground that the government should constitutional rights secured to him by not use stolen property for any purpose the 4th and 5th Amendments to the Con- after demand made for its return." Exstitution of the United States.

pressing his views, at the close of the An answer was filed, claiming the right testimony, the judge said that there had to hold and use the papers. A hearing been a gross violation of the 4th and 5th

were

Amendments to the Federal Constitu- took private papers of McDowell's also. tion; that the government had not been While the rooms were in charge of de. a party to any illegal seizure; that those tectives both safes were blown open. In Amendments, in the understanding of the small safe nothing of consequence the court, were passed for the benefit of was found, but in the large safe papers the states against action by the United belonging to McDowell

found. States—forbidden by those Amend. The desk was forced open, and all the ments, and that the court was satisfied papers taken from it. [474] The pathat the papers

were illegally and pers were placed in cases, and shipped wrongfully taken from the possession of to Doherty & Company, 60 Wall street, the petitioner, and were then in the New York. hands of the government.

In June, 1920, following. Doherty & So far as is necessary for our consid- Company, after communication with the eration, certain facts from the record Department of Justice, turned over a may be stated. Henry L. Doherty & letter, found in McDowell's desk, to the Company of New York were operating Department's representative. Burdeau managers of the Cities Service Com- admitted at the hearing that, as the reppany, which company is a holding com- resentative of the United States in the pany, having control of various oil and Department of Justice, he had papers gas companies. Petitioner was a direc- which he assumed were taken from the tor in the Cities Service Company [473] office of McDowell. The communication and a director in the Quapaw Gas Com- to the Attorney General stated that Mepany, a subsidiary company, and occu- Dowell had violated the laws of the pied an office room in the building owned United States in the use of the mail in by the Farmers' Bank of Pittsburgh. the transmission of various letters to The rooms were leased by the Quapaw parties who owned the properties which Gas Company. McDowell occupied one were sold by or offered to the Cities room for his private office. He was Service Company; that some of such letemployed by Doherty & Company as ters, or copies of them, taken from Mcthe head of the natural gas division Dowell's file, were in the possession of of the Cities Service Company. Do- the Cities Service Company; that the herty & Company discharged McDowell company also had in its possession porfor alleged unlawful and fraudulent tions of a diary of McDowell in which conduct in the course of the business. he had jotted down the commissions An officer of Doherty & Company and which he had received from a number the Cities Service Company went to of the transactions, and other data Pittsburgh in March, 1920, with au- which, it is stated, would be useful in thority of the president of the Quapaw the investigation of the matter before Gas Company, to take possession of the grand jury and subsequent prosecnthe company's office. He took posses- tion should an indictment be returned. sion of room 1320; that

room and

We do not question the authority of the adjoining room had McDowell's the court to control the disposition of

on the door. At various times the papers, and come directly to the conpapers were taken from the safe and tention that the constitutional rights of desk in the rooms, and the rooms were the petitioner were violated by their seizplaced in charge of detectives. A large ure, and that having subsequently come quantity of papers taken and into the possession of the prosecuting shipped to the auditor of the Cities | officers of the government, he was enService Company at 60 Wall street, titled to their return. The Amendments New York, which was the office of that involved are the 4th and 5th, protecting company, Doherty & Company, and the a citizen against unreasonable searches Quapaw Gas Company. The secretary and seizures, and compulsory testimony of McDowell testified that room 1320 against himself. An extended considwas his private office; that practically eration of the origin and purposes of all the furniture in both rooms belonged these Amendments would be superfluous to him; that there was a large safe be- in view of the fact that this court has longing to the Farmers' Bank and a had occasion to deal with those subjects small safe belonging to McDowell; that in a series of cases. Boyd v. United on March 23, 1920, a representative of States, 116 l: S. 616, 29 L. ed. 746, 6 the company and a detective came to Sup. ('t. Rep. 524; Adams r. New York, the offices; that the detective was placed 192 U. S. 585, 48 L. ed. 575, 24 Sup. Ct. in charge of room 1320; that the large Rep. 372; Weeks [475] United safe was opened with a view to selecting States, 232 U. S. 383, 58 L. ed. 652, papers belonging to the company, and L.R.A.1915B, 834, 34 Sup. Ct. Rep. 341, that the representative of the company! Ann. Cas. 1915C, 1117; Johnson r.

name

were

United States, 228 U. S. 457, 57 L. ed. surrender the papers under such circum. 919, 47 L.R.A.(N.S.) 263, 33 Sup. Ct. stances. Had it learned that such inRep. 572; Perlman v. United States, 247 criminatory papers, tending to show a U. S. 7, 62 L. ed. 950, 38 Sup. Ct. Rep. violation of Federal law, were in the 417; Silverthorne Lumber Co. v. United hands of a person other than the acStates, 251 U. S. 385, 64 L. ed. 319, 40 cused, it having had no part in wrongSup. Ct. Rep. 182; and Gouled v. United fully obtaining them, we know of no States, decided February 28th, this term reason why a subpæna might not issue [255 U. S. 298, ante, 647, 41 Sup. Ct. for the production of the papers as Rep. 261].

evidence. Such production would reThe 4th Amendment gives protection quire no unreasonable search or seizure, against unlawful searches and seizures, nor would it amount to compelling the and, as shown in the previous cases, its accused to testify against himself. protection applies to governmental ac- The papers having come into the postion. Its origin and history clearly show session of the government without a vithat it was intended as a restraint upon olation of petitioner's rights by governthe activities of sovereign authority, mental authority, we see no reason why and was not intended to be a limitation the fact that individuals, unconnected upon other than governmental agencies; with the government, may have wrongas against such authority it was the pur- fully taken them, should prevent them pose of the 4th Amendment to secure the from being held for use in prosecuting citizen in the right of unmolested occu- an offense where the documents are of pation of his dwelling and the posses. an incriminatory character. sion of his property, subject to the right It follows that the District Court erred of seizure by process duly issued. in making the order appealed from, and

In the present case the record clearly the same is reversed. shows that no official of the Federal government had anything to do with the Mr. Justice Brandeis dissenting, with wrongful seizure of the petitioner's whom Mr. Justice Holmes concurs: property, or any knowledge thereof un- Plaintiff's private papers were stolen. til several months after the property The thief, to further his own ends, dehad been taken from him and was in the livered them to the law officer of the possession of the Cities Service Com- United States. He, knowing them to pany. It is manifest that there was no have been stolen, retains them for use invasion of the security afforded by the against the plaintiff. Should the court 4th Amendment against unreasonable permit him to do so? search and seizure, as whatever wrong [477] That the court would restore was done was the act of individuals in the papers to plaintiff if they were still taking the property of another. A por- in the thief's possession is not question of the property so taken and held tioned. That it has power to control the was turned over to the prosecuting of- disposition of these stolen papers, alficers of the Federal government. We though they have passed into the possesassume that petitioner has an unques- sion of the law officer, is also not questionable right of redress against those tioned. But it is said that no provision who illegally and wrongfully took his of the Constitution requires their surrenprivate property under the circum-i der, and that the papers could have been stances herein disclosed, but with such subpænaed. This may be true. Still I remedies we are not now concerned. cannot believe that action of a public

The 5th Amendment, as its terms im- official is necessarily lawful because it port, is intended to secure the citizen does not violate constitutional prohibifrom compulsory testimony against him- tions, and because the same result might self. It protects from extorted confes have been attained by other and proper sions, or examinations in court proceed- means. At the foundation of our civil ings by compulsory methods.

liberty lies the principle which denies The exact question to be decided here to government officials an exceptional is: May the [476] government retain position before the law, and which subincriminating papers, coming to it in the jects them to the same rules of conduct manner described, with a view to their that are commands to the citizen. And use in a subsequent investigation by a in the development of our liberty insistgrand jury, where such papers will be ence upon procedural regularity has part of the evidence against the accused, been a large factor. Respect for law and may be used against him upon trial will not be advanced by resort, in its should an indictment be returned ? enforcement, to means which shock the

We know of no constitutional princi- common man's sense of decency and fair ple which requires the government to play.

v.

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ARCHIE J. McLAREN, Administrator, |ing out of conflicting applications to enetc., Petitioner,

ter a quarter section of land under the

Homestead Law. While the land was L. G. FLEISCHER.

public and unappropriated one Rider (See S. C. Reporter's ed. 477-482.)

made a homestead entry of it, and later

it was included, with other lands, in a Statutes departmental construction first-form reclamation withdrawal. The

public lands entry after cancel- withdrawal did not extinguish Rider's ation. 1. The long-continued, practical con

entry, but, while in force, prevented the struction by the Land Department of the initiation of other claims. It was largeprovision of the Act of May 14, 1880, that ly provisional, and whenever, in the "in all cases where any person has contest. judgment of the Secretary of the Interied, paid the land office fees, and procured or, any of the lands were not required the cancelation of any pre-emption, home for the purpose for which the withstead, or timber-culture entry, he shall be drawal was made, they were to be re. notified by the register of the land office of stored to public entry. While the withthe district in which such land is situated drawal [479] was in force, one Fleischof such cancelation, and shall be allowed

er instituted a contest against Rider's thirty days from date of such notice to enter said lands," as giving a successful con

entry, at his own cost collected and pretestant, when, at the date of the notice, the sented evidence establishing its invalidland, by reason of an existing withdrawal, ity, and procured its cancelation. Rider is not open to entry, thirty days after the acquiesced in that decision, and is not land is restored to entry within which to concerned in the present controversy. exercise his preferred right of entry,-will Fleischer had no claim to the land prior not be disturbed by the courts.

to the contest, and in instituting and (For other cases, see Statutes, II. e. 2. in Digest Sup. Ct. 1908.)

carrying it through acted as a common Courts rules of decision obiter informer, which was admissible under dicta.

the Public Land Laws. To encourage 2. Observations in the opinion of a the elimination of unlawful entries by court as to rights on which no claim was such contests Congress had declared in based in that case, the decision rendered the Act of May 14, 1880, chap. 89, 21 being affirmed on other grounds, are nei. Stat. at L. 140; Comp. Stat. § 4536, S ther authoritative nor persuasive. (For other cases, see Courts, VII. b, in Digest Fed. Stat. Anno. 2d ed. p. 597: Sup. Ct. 1908. ]

"In all cases where any person has (No. 291.]

contested, paid the land office fees, and

procured the cancelation of any preArgued April 26 and 27, 1921. Decided emption, homestead, or timber-culture June 1, 1921.

entry, he shall be notified by the register

of the land office of the district in which N WRIT of Certiorari to the such land is situated of such cancelation,

Supreme Court of the State of Cal- and shall be allowed thirty days from ifornia to review a judgment which af- date of such notice to enter said lands." firmed a judgment of the Superior Court

When Rider's entry was canceled the of Riverside County, in that state, dis-register sent to Fleischer a written nomissing the bill in a suit to establish a tice informing him thereof, aná stating trust in land patented under the Home that he would be allowed thirty days stead Laws. Affirmed.

after the tract was restored to public See same case below, 181 Cal. 607, entry within which to enter it in the 185 Pac. 967.

exercise of his preferred right as a sucThe facts are stated in the opinion.

cessful contestant. The notice was dated Mr. Samuel Herrick argued the cause, February 11, 1909. Afterwards the and, with Mr. Henry M. Willis, filed a Secretary of the Interior issued an order brief for petitioner.

whereby the lands included in the withMr. Patrick H. Loughran argued the

drawal were restored to settlement on cause and filed a brief for respondent. April 18, 1910, and to public entry on

May 18 following. 'On the earlier date Mr. Justice Van Devanter delivered one McLaren made homestead settlement the opinion of the court:

on this tract, and on the later date both This case presents a controversy aris- Fleischer and McLaren applied at the

Note.-On conclusiveness of decisions 1 The withdrawal was made under the or findings of the Land Department-see provision embodied in the first six lines of note to Whitehill v. Victorio Land & 32 Stat. at L. 388, Comp. Stat. § 4702, 9

§ 3 of the Act of June 17, 1902, chap. 1093, Cattle Co. L.R.A.1918D, 597.

Fed. Stat. Anno. 2d ed. p. 1366.

ON WRIT

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