jection of the defendant that possession of it was obtained by a violation of the 4th or 5th Amendment to the Constitution; and that the defendant did not know that Cohen had carried away any of his papers until [305] he appeared on the witness stand and detailed the facts with respect thereto, as we have stated them, when, necessarily, objection was first made to the admission of the paper in evidence.

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

"Is the secret taking, without force, from the house or office of one suspected of crime, of a paper belonging to him, of evidential value only, by a representative of any branch or subdivision of the government of the United States, a violation of the 4th Amendment?"

The ground on which the trial court overruled the objection to this paper is not stated, but, from the certificate and the argument, we must infer that it was admitted, either because it appeared that the possession of it was obtained without the use of force or illegal coercion, or because the objection to it came too late.

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

The prohibition of the 4th Amendment is against all unreasonable searches and seizures; and if for a government officer to obtain entrance to a man's house or office by force or by an illegal threat or show of force, amounting to coercion, and then to search for and seize his private papers, would be an unreasonable, and therefore a prohibited, search and seizure, as it certainly would be, it is impossible to successfully contend that a like search and seizure would be a reasonable one if only admission were obtained by stealth instead of by force or coercion. The security and privacy of the home or office and of the papers of the owner would be as much invaded, and the search and [306] seizure would be as much against his will in the one case as in the other; and it must therefore be regarded as equally in violation of his constitutional rights.

Without discussing them, we cannot doubt that such decisions as there are in conflict with this conclusion are unsound, and that, whether entrance to the

home or office of a person suspected of crime be obtained by a representative of any branch or subdivision of the, government of the United States by stealth, or through social acquaintance, or in the guise of a business call, and whether the owner be present or not when he enters, any search and seizure subsequently and secretly made in his absence falls within the scope of the prohibition of the 4th Amendment, and therefore the answer to the first question must be in the affirmative.

The second question reads:

"Is the admission of such paper in evidence against the same person, when indicted for crime, a violation of the 5th Amendment?"

Upon authority of the Boyd Case, supra, this second question must also be answered in the affirmative. In practice the result is the same to one accused of crime, whether he be obliged to supply evidence against himself, or whether such evidence be obtained by an illegal search of his premises and seizure of his private papers. In either case he is the unwilling source of the evidence, and the 5th Amendment forbids that he shall be compelled to be a witness against himself in a criminal case.

The remaining four questions relate to three other papers which were admitted in evidence on the trial over the same constitutional objections as were interposed to the admission of the first paper. One was an unexecuted form of contract between the defendant and one Lavinsky; another was a written contract, signed by the defendant and one Steinthal; and the third was a bill for [307] disbursements and professional services rendered by the attorney at law to the defendant, Gouled.

Of these papers, the first was seized in defendant's office under a search warrant, dated June 17, and the other two under a like warrant dated July 22, 1918, each of which was issued by a United States commissioner on the affidavit of an agent of the Department of Justice. It is certified that it was averred in the first affidavit that there were in Gouled's office . . . "certain property, to wit: Certain contracts of the said Felix Gouled with S. Lavinsky which were used as a means of committing a felony, to wit as a means for the bribery of a certain officer of the United States." It is also certified that the second affidavit declared that Gouled had at his office "certain letters, papers, documents, and writings which relate to and have been used in the commission

of a felony, to wit: a conspiracy to defraud the United States." Neither the affidavits nor the warrants are given in full in the certificate, but no exception was taken to the sufficiency of either. After the seizure of the papers, a joint indictment was returned, as stated, against Gouled, Vaughan, and the attorney, and before trial a motion was made by Gouled for a return of the papers seized under the search warrants, which was denied, and when the motion was renewed at the trial, but before any evidence was introduced, it was again denied. The denial of this motion is not assigned as error.

The contract of the defendant with Steinthal, which was seized under the warrant, was not offered in evidence, but a duplicate original, obtained from Steinthal, was admitted over the objection that the possession of the seized original must have suggested the existence and the obtaining of the counterpart, and that therefore the use of it in evidence would violate the rights of the defendant under the 4th or 5th Amendment. Silverthorne [308] Lumber Co. v. United States, 251 U. S. 385, 64 L. ed. 319, 40 Sup. Ct. Rep. 182. The unsigned form of contract and the attorney's bill were offered and also admitted over the same constitutional objection. There is no statement in the certificate of the contents of these papers, but it is said of them only, that they belonged to Gouled, that they were without pecuniary value, and that they constituted evidence "more or less injurious to the defendant."

It is apparent from this statement that to answer the remaining four questions involves a consideration of the applicable law of search warrants.

The wording of the 4th Amendment implies that search warrants were in familiar use when the Constitution was adopted, and, plainly, that when issued "upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized," searches and seizures made under them are to be regarded as not unreasonable, and therefore not prohibited by the Amendment. Searches and seizures are as constitutional under the Amendment when made under valid search warrants as they are unconstitutional, because unreasonable, when made without them,-the permission of the Amendment has the same constitutional warrant as the prohibition has, and the definition of the former restrains the scope of the latter.

All

of this is abundantly recognized in the opinions of the Boyd Case, 116 U. S. 616, 29 L. ed. 746, 6 Sup. Ct. Rep. 524, and the Weeks Case, 232 U. S. 383, 58 L. ed. 652, L.R.A.1915B, 834, 34 Sup. Ct. Rep. 341, Ann. Cas. 1915C, 1177, in which it is pointed out that, at the time the Constitution was adopted, stolen or forfeited property, or property liable to duties, and concealed to avoid payment of them, excisable articles, and books required by law to be kept with respect to them, counterfeit coin, burglars' tools and weapons, implements of gambling, "and many other things of like character," might be searched for in home or office, and, if found, might be seized, under search warrants lawfully applied for, issued, and executed.

[309] Although search warrants have thus been used in many cases ever since the adoption of the Constitution, and although their use has been extended from time to time to meet new cases within the old rules, nevertheless it is clear that, at common law and as the result of the Boyd and Weeks Cases, supra, they may not be used as a means of gaining access to a man's house or office and papers solely for the purpose of making search to secure evidence to be used against him in a criminal or penal proceeding, but that they may be resorted to only when a primary right to such search and seizure may be found in the interest which the public or the complainant may have in the property to be seized, or in the right to the possession of it, or when a valid exercise of the police power renders possession of the property by the accused unlawful, and provides that it may be taken. Boyd Case, 116 U. S. 623, 624, 29 L. ed. 748, 6 Sup. Ct. Rep. 524.

There is no special sanctity in papers, as distinguished from other forms of property, to render them immune from search and seizure, if only they fall within the scope of the principles of the cases in which other property may be seized, and if they be adequately described in the affidavit and warrant. Stolen or forged papers have been so seized (Langdon v. People, 133 Ill. 382, 24 N. E. 874), and lottery tickets, under a statute prohibiting their possession with intent to sell them (Com. v. Dana, 2 Met. 329), and we cannot doubt that contracts may be so used as instruments or agencies for perpetrating frauds upon the government as to give the public an interest in them which would justify the search for and seizure of them, under a

The sixth question reads:

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

The papers being of "evidential value only," and having been unlawfully seized, this question really is, whether, it having been decided on a motion before trial that they should not be returned to the defendant, the trial court, when objection was made to their use on the trial, was bound to again inquire as to the unconstitutional origin of the possession of them. It is plain that the trial court acted upon the rule, widely adopted, that courts in criminal trials will not pause to determine how the possession of evidence tendered has been obtained. While this is a rule of great practical importance, yet, after all, it is only a rule of procedure, and therefore it is not to be applied as a hard-and-fast formula to every case, regardless of its special circumstances. We think, rather, that it is a rule to be used to secure the ends of justice under the circumstances presented by each case; and where, in the progress of a trial, it becomes probable that there has been an unconstitutional seizure of papers, it is the duty of the trial court to entertain an objection to their admission, or a motion for their exclusion, and to consider [313] and decide the question as then presented, even where a motion to return the papers may have been denied before trial. A rule of practice must not be allowed for any technical reason to prevail over a constitutional right.

In the case we are considering, the certificate shows that a motion to return the papers, seized under the search war rants, was made before the trial and was denied; and that, on the trial of the case before another judge, this ruling was treated as conclusive, although, as we have seen, in the progress of the trial it must have become apparent that the papers had been unconstitutionally seized. The constitutional objection having been renewed, under the circumstances, the court should have inquired as to the origin of the possession of the papers when they were offered in evidence against the defendant.

Each question is answered, Yes.

LAWRENCE AMOS, Plff. in Err.,

V.

UNITED STATES.

(See S. C. Reporter's ed. 313-317.) Search and seizure return of property unlawfully seized. 1. Property seized in the search of a private home by government agents without warrant of any kind, in plain violation of U. S. Const., 4th and 5th Amendments, should have been returned to the owner on jury in a criminal prosecution against him his petition, presented by him after the was impaneled, but before any evidence was offered.

[For other cases, see Search and Seizure, in Digest Sup. Ct. 1908.] Evidence

a

use when wrongfully obcriminal case.

tained 2. The rule that courts will not stop the progress of the trial of a criminal case to frame collateral issue to inquire whether evidence offered, otherwise competent, was lawfully or unlawfully obtained, has no application where it becomes apparent during the trial that there has been an unconstitutional seizure of property of such property and any testimony relating the accused, and the court should exclude thereto, given by the government agents who made the unlawful seizure, on motion of the accused, made after both property and testimony were introduced in evidence against him.

[For other cases, see Evidence, VIII.; Search and Seizure, in Digest Sup. Ct. 1908.] Search and seizure self-crimination

waiver.

3. The constitutional rights of a person to be secure against unreasonable searches and seizures and self-crimination were not waived when his wife admitted to his home Federal officers, who came without search of it under government authority, warrant, demanding admission to make even assuming that it is possible for a wife, in the absence of her husband, thus to waive his constitutional rights, since, under the implied coercion here presented,

no such waiver was intended or effected. [For other cases. see Search and Seizure; Criminal Law, III. b, 2, in Digest Sup. Ct. 1908.]

Note.-On unreasonable search and seizure-see note to Levy v. Superior

Ct. 29 L.R.A. 818.

document or articles taken from him— On admissibility against defendant of see notes to State v. Edwards, 59 L.R.A. 465; State v. Fuller, 8 L.R.A.(N.S.) 762; People v. Campbell, 34 L.R.A.(N.S.) 58; Weeks v. United States, L.R.A.1915B, 834, and Blacksburg v. Beam, L.R.A. 1916E, 715.

As to constitutional guaranties against unreasonable searches and seizures as applied to search for, or seizure of, intoxicating liquor-see note to State v. Marxhausen, 3 A.L.R. 1514.

There can be no dispute as to the fact that the bottles of whisky testified about by the government's witnesses were seized by them, as revenue officers, during the search of the defendant's store and home, during his absence, and when they did not have a search warrant describing the places to be searched and the property for which search was to be made, as their authority to make such search and seizure, because the witnesses themselves admit the same. Such being the admitted fact, the testimony was clearly incompetent and should not have been admitted over defendant's objection; or, if admitted, should have been stricken out upon the defendant's motion.

Weeks v. United States, 232 U. S. 383, 58 L. ed. 652, L.R.A.1915B, 834, 34 Sup. Ct. Rep. 341, Ann. Cas. 1915C, 1177; Silverthorne Lumber Co. v. United States, 251 U. S. 385, 64 L. ed. 319, 40 Sup. Ct. Rep. 182.

Likewise, such property having been so obtained, and it so appearing from the records of the court, the petition of the defendant should have been granted and the property returned.

Ibid.

Mr. W. C. Herron argued the cause, and, with Solicitor General Frierson,

filed a brief for defendant in error:

The petition was properly overruled because not filed until after the trial had begun.

Weeks v. United States, 232 U. S. 383, 388, 393, 58 L. ed. 652, 653, 655, L.R.A. 1915B, 834, 34 Sup. Ct. Rep. 341, Ann. Cas. 1915C, 1177; Adams v. New York, 192 U. S. 585, 48 L. ed. 575, 24 Sup. Ct. Rep. 372.

No prejudice accrued to plaintiff in error from the denial of the petition.

Weeks v. United States, 232 U. S. 383, 58 L. ed. 652, L.R.A.1915B, 834, 34 Sup. Ct. Rep. 341, Ann. Cas. 1915C, 1177; Com. v. Tucker, 189 Mass. 457, 7 L.R.A. (N.S.) 1056, 76 N. E. 127; Grim v.

Robinson, 31 Neb. 540, 48 N. W. 388; Smith v. McDuffee, 72 Or. 276, 142 Pac. 558, 143 Pac. 929, Ann. Čas. 1916D, 947; State v. Griswold, 67 Conn. 290, 33 L.R.A. 227, 34 Atl. 1046.

Mr. Justice Clarke delivered the opinion of the court:

The plaintiff in error, whom we shall designate defendant, as he was in the court below, was tried on an indictment containing six counts. He was found not guilty on the first four counts, but guilty on the fifth, which charged him with having removed whisky on which the revenue tax had not been paid to a place other than a government warehouse, and also on the sixth, which charged him with having sold whisky on which the tax required by law had not been paid.

After the jury was sworn, but before any evidence was offered, the defendant presented to the court a petition, duly sworn to by him, praying that there be returned to him described private property of his which it was averred the district attorney intended to use in evidence at the trial, and which had been seized by P. J. Coleman and C. A. Rector, officers of the government, in a search of defendant's house and store "within his curtilage," made unlawfully and without warrant of any kind, in violation of his rights under the 4th and 5th Amendments to the Constitution of the United States.

Upon reading of this petition and hearing of the application [315] it was denied, and, exception being noted, the trial proceeded.

Coleman and Rector were called as witnesses by the government and testified: that, as deputy collectors of internal revenue, they went to defendant's finding a woman who said she was his home, and, not finding him there, but wife, told her that they were revenue officers, and had come to search the law; " that thereupon the woman opened premises "for violations of the revenue in a barrel of peas found a bottle conthe store and the witnesses entered, and taining not quite a half-pint of illicitly "blockade whisky;" and that they then distilled whisky, which they called went into the home of defendant, and, on searching, found two bottles under the quilt on the bed, one of which contained a full quart and the other a little over a quart of illicitly distilled whisky. The government introduced in evidence a pint bottle containing whisky, which the witness Coleman stated “was not one of the bottles found by him, but that the