not intend to preserve the old penalties prescribed in § 3257 in addition to the specific provision for punishment made

in the Volstead Act.

unreasonable searches and seizures and self-
incrimination will not be violated if the
Federal prosecuting authorities to whom
incriminating papers stolen by private per-
sons have been delivered, retain them with
a view to their use in a subsequent investi-
gation by a grand jury where such papers
will be part of the evidence against the ac-
cused, and may be used against him upon
trial should an indictment be returned, the
government having had no part in the
wrongful taking.
[For other cases, see Search and Seizure:
Criminal Law, III. b. 2, in Digest Sup. Ct.

We have less difficulty with the other sections of the prior revenue legislation under which the charges, already set forth, are made. We think it was not intended to keep on foot the requirement as to displaying the words "Registered Distillery" in a place intended for the production of liquor for beverage purposes which could no longer be lawfully conducted; nor to require a bond 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 by law.

The questions before us solely concern the construction of the statutes involved, under an indictment pertaining to the production of liquor for beverage purposes, and we think they were correctly answered in the opinion of the court below. It follows that its judgment is affirmed.

[blocks in formation]


use of stolen papers.

2. Constitutional guaranties against Note. As to unreasonable search and seizure-see note to Levy v. Superior Court, 29 L.R.A. 818.

On sufficiency of statutory immunity to satisfy constitutional guaranties against self-incrimination-see notes to Interstate Commerce Commission v. Baird, 48 L. ed. U. S. 860, and Arndstein v. McCarthy, ante, 138.

On admissibility against defendant of document or articles taken from himsee 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, 716.

And see note to this case as reported in 13 A.L.R. 1168.

[No. 646.]

June 1, 1921.

APPEAL from the District Court of

the United States for the Western District of Pennsylvania to review an order for the return of incriminating papers stolen by private persons and delivered to the Federal prosecuting attorneys. Reversed.

The facts are stated in the opinion. Solicitor General Frierson argued the cause and filed a brief for appellant:

Even if it could be said that the company or its representatives stole these papers from the appellee, this would not preclude their use in evidence if they should thereafter come to the hands of the Federal authorities.

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; Boyd v. United States, 116 U. S. 616, 29 L. ed. 746, 6 Sup. Ct. Rep. 524: Adams v. New York, 192 U. S. 585, 48 L. ed. 575, 24 Sup. Ct. Rep. 372; Johnson v. United States, 228 U. S. 457, 57 L. ed. 919, 47 L.R.A.(N.S.) 263, 33 Sup. Ct. Rep. 572; Perlman v. United States, 247 U. S. 7, 62 L. ed. 950, 38 Sup. Ct. Rep. 417.

Mr. E. Lowry Humes argued the cause, and, with Messrs. A. M. Imbrie and Rody P. Marshall, filed a brief for appellee:

The right which the appellee asserted was a right which the court had jurisdiction to recognize and preserve.

Boyd v. United States, 116 U. S. 624, 29 L. ed. 748, 6 Sup. Ct. Rep. 524: Weeks v. United States, 232 U. S. 398, 58 L. ed. 657, L.R.A.1915B, 834, 34 Sup. Ct. Rep. 341, Ann. Cas. 1915C, 1177.

The right of a court of equity to order and decree the return of private property and papers is well recognized.

McGowin v. Remington, 12 Pa. 56, 51 Am. Dec. 584; Pressed Steel Car Co. v. 236 U. S.

Standard Steel Car Co. 210 Pa. 464, 60
Ati. 4; Dock v. Dock, 180 Pa. 15, 57
Am. St. Rep. 617, 36 Atl. 411.

Mr. Justice Day delivered the opinion of the court:

was had before the district judge, who made an order requiring the delivery of the papers to the clerk of the court, together with all copies, memoranda, and data taken therefrom, which 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 of Joseph A. Burdeau, appellant herein, Special Assistant to the Attorney General of the United States.

be sealed and impounded for the period of ten days, at the end of which period they should be delivered to the petitioner or his attorney unless an appeal were taken from the order of the court, in which event, the books, papers, etc., should be impounded until the determination of the appeal. An order was made restraining Burdeau, Special Assistant Attorney General, the Department of Justice, its officers and agents, and the United States Attorney, from presenting to the United States Commissioner, the grand jury, or any official tribunal, any of the books, papers, memoranda, letters, copies of letters, correspondence, etc., or any evidence of any nature whatsoever secured by or coming into their possession as a result of the knowledge obtained from the inspection of such books, papers, memoranda, etc.

In the petition it is stated that Burdeau and his associates intended to present to the grand jury in and for the western district of Pennsylvania a charge against petitioner of an alleged violation of § 215 of the Criminal Code of the United States for the fraudulent use of the mails; that it was the intention of Burdeau and his associates, including certain postoffice inspectors cooperating with him, to present to the grand jury certain private books, papers, memoranda, etc., which were the private property of the petitioner; that the papers had been in the possession and exclusive control of the petitioner in the Farmers' Bank Building, in Pittsburgh. It is alleged that during the In his opinion the district judge statspring and summer of 1920 these papers ed 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, and 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 that the presentation to the grand jury of the same, or any secondary or other evidence secured through or by them, would work a deprivation of petitioner's constitutional rights secured to him by the 4th and 5th Amendments to the Constitution of the United States.

An answer was filed, claiming the right to hold and use the papers. A hearing

this case is not made because of any unlawful act on the part of anybody representing the United States or any of its Departments, but solely upon the ground that the government should not use stolen property for any purpose after demand made for its return." Expressing his views, at the close of the testimony, the judge said that there had been a gross violation of the 4th and 5th

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 dea 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 were 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 Methe 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 proseenthe 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 name on the door. At various times papers were taken from the safe and desk in the rooms, and the rooms were placed in charge of detectives. A large quantity of papers were taken and shipped to the auditor of the Cities Service Company at 60 Wall street, New York, which was the office of that company, Doherty & Company, and the Quapaw Gas Company. The secretary of McDowell testified that room 1320 was his private office; that practically all the furniture in both rooms belonged to him; that there was a large safe belonging to the Farmers' Bank and a small safe belonging to McDowell; that on March 23, 1920, a representative of the company and a detective came to the offices; that the detective was placed in charge of room 1320; that the large safe was opened with a view to selecting papers belonging to the company, and that the representative of the company

the papers, and come directly to the contention that the constitutional rights of the petitioner were violated by their seizure, and that having subsequently come into the possession of the prosecuting officers of the government, he was entitled to their return. The Amendments involved are the 4th and 5th, protecting a citizen against unreasonable searches and seizures, and compulsory testimony against himself. An extended consideration of the origin and purposes of these Amendments would be superfluous in view of the fact that this court has had occasion to deal with those subjects in a series of cases. Boyd v. United States, 116 U. S. 616, 29 L. ed. 746, 6 Sup. Ct. Rep. 524; Adams v. New York, 192 U. S. 585, 48 L. ed. 575, 24 Sup. Ct. Rep. 372; Weeks V. [475] United States, 232 U. S. 383, 58 L. ed. 652, L.R.A.1915B, 834, 34 Sup. Ct. Rep. 341, Ann. Cas. 1915C, 1117; Johnson

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United States, 228 U. S. 457, 57 L. ed. 919, 47 L.R.A.(N.S.) 263, 33 Sup. Ct. Rep. 572; Perlman v. United States, 247 U. S. 7, 62 L. ed. 950, 38 Sup. Ct. Rep. 417; Silverthorne Lumber Co. v. United States, 251 U. S. 385, 64 L. ed. 319, 40 Sup. Ct. Rep. 182; and Gouled v. United States, decided February 28th, this term [255 U. S. 298, ante, 647, 41 Sup. Ct. Rep. 261].

The 4th Amendment gives protection against unlawful searches and seizures, and, as shown in the previous cases, its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies; as against such authority it was the purpose of the 4th Amendment to secure the citizen in the right of unmolested occupation of his dwelling and the posses sion of his property, subject to the right of seizure by process duly issued.

In the present case the record clearly shows that no official of the Federal government had anything to do with the wrongful seizure of the petitioner's property, or any knowledge thereof until several months after the property had been taken from him and was in the possession of the Cities Service Company. It is manifest that there was no invasion of the security afforded by the 4th Amendment against unreasonable search and seizure, as whatever wrong was done was the act of individuals in taking the property of another. A portion of the property so taken and held was turned over to the prosecuting of ficers of the Federal government. We assume that petitioner has an unquestionable right of redress against those who illegally and wrongfully took his private property under the circumstances herein disclosed, but with such remedies we are not now concerned.

The 5th Amendment, as its terms import, is intended to secure the citizen from compulsory testimony against himself. It protects from extorted confessions, or examinations in court proceedings by compulsory methods.

The exact question to be decided here is: May the [476] government retain incriminating papers, coming to it in the manner described, with a view to their use in a subsequent investigation by a grand jury, where such papers will be part of the evidence against the accused, and may be used against him upon trial should an indictment be returned?

We know of no constitutional principle which requires the government to

surrender the papers under such circumstances. Had it learned that such incriminatory papers, tending to show a violation of Federal law, were in the hands of a person other than the accused, it having had no part in wrongfully obtaining them, we know of no reason why a subpoena might not issue for the production of the papers as evidence. Such production would require no unreasonable search or seizure, nor would it amount to compelling the accused to testify against himself.

The papers having come into the possession of the government without a violation of petitioner's rights by governmental authority, we see no reason why the fact that individuals, unconnected with the government, may have wrongfully taken them, should prevent them from being held for use in prosecuting an offense where the documents are of an incriminatory character.

It follows that the District Court erred in making the order appealed from, and the same is reversed.

Mr. Justice Brandeis dissenting, with whom Mr. Justice Holmes concurs:

Plaintiff's private papers were stolen. The thief, to further his own ends, delivered them to the law officer of the United States. He, knowing them to have been stolen, retains them for use against the plaintiff. Should the court permit him to do so?

[477] That the court would restore the papers to plaintiff if they were still in the thief's possession is not questioned. That it has power to control the disposition of these stolen papers, although they have passed into the possession of the law officer, is also not questioned. But it is said that no provision of the Constitution requires their surrender, and that the papers could have been subpoenaed. This may be true. Still I cannot believe that action of a public official is necessarily lawful because it does not violate constitutional prohibitions, and because the same result might have been attained by other and proper means. At the foundation of our civil liberty lies the principle which denies to government officials an exceptional position before the law, and which subjects them to the same rules of conduct that are commands to the citizen. And in the development of our liberty insistence upon procedural regularity has been a large factor. Respect for law will not be advanced by resort, in its enforcement, to means which shock the common man's sense of decency and fair play.


ARCHIE J. McLAREN, Administrator, ing out of conflicting applications to en

etc., Petitioner,



(See S. C. Reporter's ed. 477-482.)


departmental construction
entry after cancel-

— public lands ation.

ter a quarter section of land under the Homestead Law. While the land was public and unappropriated one Rider made a homestead entry of it, and later it was included, with other lands, in a first-form reclamation withdrawal. The withdrawal did not extinguish Rider's entry, but, while in force, prevented the initiation of other claims. It was largely provisional, and whenever, in the judgment of the Secretary of the Interior, any of the lands were not required for the purpose for which the withdrawal was made, they were to be restored to public entry. While the withdrawal [479] was in force, one Fleischer instituted a contest against Rider's entry, at his own cost collected and presented evidence establishing its invalidand procured its cancelation. Rider acquiesced in that decision, and is not concerned in the present controversy. Fleischer had no claim to the land prior to the contest, and in instituting and carrying it through acted as a common informer, which was admissible under 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

1. The long-continued, practical construction by the Land Department of the provision of the Act of May 14, 1880, that "in all cases where any person has contested, paid the land office fees, and procured the cancelation of any pre-emption, homestead, or timber-culture entry, he shall be notified by the register of the land office of the district in which such land is situated of such cancelation, and shall be allowed thirty days from date of such notice to enter said lands," as giving a successful contestant, when, at the date of the notice, the land, by reason of an existing withdrawal,ity, is not open to entry, thirty days after the land is restored to entry within which to exercise his preferred right of entry,-will not be disturbed by the courts. [For other cases, see Statutes, II. e. 2, in Digest Sup. Ct. 1908.]

Courts dicta.

rules of decision obiter

Sup. Ct. 1908.]

[No. 291.]

Fed. Stat. Anno. 2d ed. p. 597:

"In all cases where any person has contested, paid the land office fees, and procured the cancelation of any pre

Argued April 26 and 27, 1921. Decided emption, homestead, or timber-culture

June 1, 1921.

ON WRIT of Certiorari


entry, he shall be notified by the register of the land office of the district in which 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, and stating trust in land patented under the Homestead Laws. Affirmed.

See same case below, 181 Cal. 607,

185 Pac. 967.

The facts are stated in the opinion. Mr. Samuel Herrick argued the cause, and, with Mr. Henry M. Willis, filed a brief for petitioner.

Mr. Patrick H. Loughran argued the cause and filed a brief for respondent.

that he would be allowed thirty days after the tract was restored to public entry within which to enter it in the exercise of his preferred right as a successful contestant. The notice was dated February 11, 1909. Afterwards the Secretary of the Interior issued an order whereby the lands included in the withdrawal were restored to settlement on

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:

This case presents a controversy arisNote.-On conclusiveness of decisions or findings of the Land Department-see note to Whitehill v. Victorio Land & Cattle Co. L.R.A.1918D, 597.

on this tract, and on the later date both Fleischer and McLaren applied at the

1 The withdrawal was made under the

provision embodied in the first six lines of 32 Stat. at L. 388, Comp. Stat. § 4702, 9 § 3 of the Act of June 17, 1902, chap. 1093, Fed. Stat. Anno. 2d ed. p. 1366.

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