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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

properly issued search warrant, for the purpose of preventing further frauds. With these principles of law in mind, we come to the remaining questions. The third question reads:

"Are papers of no pecuniary value, but possessing evidential value against persons presently suspected and subsequently indicted under §§ 37 [310] and 215 of the United States Criminal Code, when taken under search warrants issued

pursuant to the Act of June 15, 1917, from the house or office of the person suspected, seized and taken in violation of the 4th Amendment?"

That the papers involved are of no pecuniary value is of no significance. Many papers, having no pecuniary value to others, are of the greatest possible value to the owners, and are property of a most important character (Boyd Case, 116 U. S. 627, 628, 29 L. ed. 749, 750, 6 Sup. Ct. Rep. 524); and since those here involved possessed "evidential value" against the defendant, we must assume that they were relevant to the issue.

ary, but are of evidential, value, and in the sixth question it is recited that they are "of evidential value only," so that it is impossible to say, on the record before us, that the government had any interest in it other than as evidence against the accused; and therefore, as to all three papers, the answer to the question must be in the affirmative.

The fourth question reads:

"If such papers, so taken, are admitted in evidence against the person from whose house or office they were taken, such person being then on trial for the

crime for which he was accused in the affidavit for warrant,-is such admission in evidence a violation of the 5th Amendment ?"

The same papers being involved, the affirmative; for, they having been seized answer to this question must be in the them to be used in evidence would be, in an unconstitutional search, to permit in effect, as ruled in the Boyd Case, to compel the defendant to become a witness against himself.

The fifth question reads:

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

Restraining the questions to the papers described, and first, as to the unexecuted form of contract with Lavinsky, a stranger to the indictment: While the contents of this paper are not given, it is impossible to see how the government could have such an interest in such a paper that, under the principles of law stated, it would have the right to take it into its possession to prevent injury to the public from its use. The government could desire its possession only to use it as evidence against the defendant, and to search for and seize it for such purpose was unlawful. Likewise the public could be interest-probable cause is made out, sufficient to ed in the bill of the attorney for legal services only to the extent that it might be used as evidence, and the seizure of this also was unlawful.

It has never been required that a criminal prosecution should be pending against a person in order to justify search for and seizure of his property under a proper warrant, if a case of crime having been committed and of

satisfy the law and the officer having authority to issue it, and we see no reason why property seized under a valid search warrant, when thus lawfully obtained by the government, may not be used in the prosecution of a suspected person for a crime other than that which may have been described [312] in the af

As to the contract with Steinthal, also a stranger to the indictment: It is not difficult, as we have said, to imagine how an executed written contract might be an important agency or instrumental-fidavit as having been committed by him. ity in the bribing of a public servant, and in perpetrating frauds upon the government, so that it would have a legitimate and important interest in seizing such a paper in order to prevent further frauds, but the facts necessary to give this contract such a character do not appear in the certificate. On the contrary, [311] this third question recites that the papers are all of no pecuni-dence.

The question assumes that the property seized was obtained on a search warrant sufficient in form to satisfy the law; and if the papers to which the question refers had been of a character to be thus obtained, lawfully, it would have been competent to use them to prove any crime against the accused as to which they constituted relevant evi

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.

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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.

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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 premises "for violations of the revenue law;" that thereupon the woman opened in a barrel of peas found a bottle conthe store and the witnesses entered, and taining not quite a half-pint of illicitly distilled whisky, which they called "blockade whisky;" and that they then 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

whisky contained in the same was this day announced in No. 250, Gouled
poured out of one of the two bottles v. United States [255 U. S. 298, ante,
that had been found in defendant's 647, 41 Sup. Ct. Rep. 261].
house on the bed under the quilt, as
stated." On cross-examination both
witnesses testified that they did not have
any warrant for the arrest of the de-
fendant, nor any search warrant to
search his house, and that the search
was made during the daytime, in the
absence of the defendant, who did not
appear on the scene until after the
search had been made.

After these two government witnesses had described how the search was made of defendant's home without warrant either to arrest him or to search his premises, a motion by counsel to strike out their testimony was denied and exception noted.

This statement shows that the trial court denied the petition of the defendant for a return of his property, seized in the search of his home by government agents without warrant of any kind, in plain violation of the 4th [316] and 5th Amendments to the Constitution of the United States, as they have been interpreted and applied by this court in Boyd v. United States, 116 U. S. 616, 29 L. ed. 746, 6 Sup. Ct. Rep. 524, in 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, 1117, and in Silverthorne Lumber Co. v. United States, 251 U. S. 385, 64 L. ed. 319, 40 Sup. Ct. Rep. 182, and also denied his motion to exclude such property and the testimony relating thereto, given by the government agents after both were introduced in evidence against him, when he was on trial for a crime as to which they constituted relevant and material evidence, if competent.

There is nothing in the record to indicate that the allegations of the petition for the return of the property, sworn to by the defendant, were in any respect questioned or denied, and the report of the examination and appropriate cross-examination of the government's witnesses, called to make out its case, shows clearly the unconstitutional character of the seizure by which the property which it introduced was obtained. The facts essential to the disposition of the motion were not and could not be denied; they were literally thrust upon the attention of the court [317] by the government itself. petition should have been granted; but, it having been denied, the motion should have been sustained.

The

The contention that the constitutional rights of defendant were waived when his wife admitted to his home the gov ernment officers, who came, without warrant, demanding admission to make search of it under government authority, cannot be entertained. We need not consider whether it is possible for a wife, in the absence of her husband, thus to waive his constitutional rights, for it is perfectly clear that, under the implied coercion here presented, no such waiver was intended or effected.

It results that the judgment of the District Court must be reversed and the case remanded for further proceedings in accordance with this opinion. Reversed.

UNION PACIFIC RAILROAD COMPANY,
Petitioner,

V.

JAMES J. E. BURKE.

(See S. C. Reporter's ed. 317–323.) Carriers

valuation.

limiting liability

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agreed

A carrier may not, by a valuation

The answer of the government to the elaim that the trial court erred in the two rulings we have described is, that the petition for the return of defendant's property was properly denied because it came too late when presented after the jury was impaneled, and the trial, to that extent, commenced, and that the denial of the motion to exclude the property and the testimony of the government agents relating thereto, after the manner of the search of defendant's home had been described, was justified by the rule that, in the progress of the trial of criminal cases, courts. Generally, on carrier's power to limit will not stop to frame a collateral issue amount of liability in cases of negligence to inquire whether evidence offered, oth-see notes to Ballou v. Earle, 14 L.R.A. erwise competent, was lawfully or unlawfully obtained.

Plainly, the questions thus presented for decision are ruled by the conclusions

Note. On validity of stipulation limiting a carrier's liability to agreed valuation as affected by the Hepburn Actsee note to Bernard v. Adams Exp. Co. 28 L.R.A. (N.S.) 293.

433; New Jersey Steam Nav. Co. v. Mer-
chants' Bank, 12 L. ed. U. S. 465, and
Chicago, M. & St. P. R. Co. v. Solan, 42
L. ed. U. S. 688.

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