Opinion
No. 361.
Decided July 14, 1931.
Appeal from the District Court of the United States for the Eastern District of New York.
Libel by the United States of America against 1013 Crates of Empty Old Smuggler Whisky Bottles and other property, claimed by Glickstein Terner, Inc. From a decree of forfeiture under the National Prohibition Act [ 41 F.2d 945], claimant appeals.
Reversed.
On February 6, 1926, the claimant-appellant, Glickstein Terner, Inc., were conducting a large business in the purchase and sale of old and new bottles, barrels, jars, etc., in Brooklyn, N.Y. It occupied seven buildings and had in stock millions of bottles and other articles.
On the above date a special prohibition agent named Treglia went, with a man named Freede, to the claimant's premises. Freede supposed Treglia was a bootlegger named Lyons who was desirous of buying containers for whisky, and introduced him as such to a Jack Terner, who was employed by the claimant. Freede was not in the employ of the claimant, but was paid a commission on what business he brought in. Terner was told that "Lyons" wanted "to buy some barrels, bottles, labels and other paraphernalia for making up" some William Penn whisky. Terner showed them around and sold "Lyons" the merchandise he wanted for $1,200. At that time the president of the claimant, Edward Glickstein, knew nothing of the transaction, but soon learned of it and signed a check to pay Freede's commission on the sale.
In addition to a large legitimate business in buying and selling old and new bottles etc., the claimant made up and had for sale what it called units and outfits for illegal use in the liquor business. It took used whisky barrels, shaved the inside surfaces, and put the shavings from three such barrels into a fourth barrel, which was then known as a "unit" or a "four in one." When the product which was later to pass for whisky was allowed to stand in such a unit the requisite time, it partook of the color and flavor of the whisky the barrels had originally contained. An "outfit" consisted of a bottle which had the name of a brand of whisky blown in it, imitation revenue stamps, the wrapper, label, and cork. Treglia bought three units; 100 dozen Lawson outfits; 100 dozen Overbolt pints, complete, new; 100 dozen William Penn pints, complete. On February 7, 1926, he paid $200 on the purchase price with money sent him by telegraph from Woonsocket, R.I., and his order was shipped to that place and delivered to him there on February 9th. As early, at least, as February 7th, Glickstein knew of Treglia's purchase, for the two on that day talked about the stamps and discussed the difficulty and danger in getting them.
Treglia reported what he had done to his superior, Golding. On February 11th Golding, accompanied by Treglia and police officers, but without any warrants, went to the claimant's premises, where the business was being conducted as usual, although no sales of "units" or "outfits" were then observed, and, having told Glickstein that "he was under arrest charged with having violated section 37 of the United States Criminal Code" (18 USCA § 88), proceeded to place all the employees except one bookkeeper under arrest — twenty-two in number — and to search the premises. He then announced the seizure of "everything in and on the premises," which included the seven buildings, on which government padlocks were placed. A police "fixed post" was established both inside and outside to make the seizure effective. On February 13th, Golding obtained warrants for the arrest of those he had already arrested. We are not further concerned in this case with that feature of the business. On February 13th and 14th Treglia removed seven truck loads of merchandise which was subjected to another libel, and with that we have nothing now to do. On February 14th an order restraining further removal was served upon Treglia, and then the police "fixed post" was discontinued, though the buildings remained padlocked. Before any decision on the return of this order, and on February 21st, Golding obtained a search warrant under color of which the merchandise remaining in the seven buildings of the claimant was seized, but the government concedes that this seizure was unlawful and places no reliance upon it to establish its right to a decree of forfeiture in this case. It bases its case wholly upon the search and seizure of February 11th, when Glickstein and the others were arrested and some "units" and "outfits" were seized together with all the other property. After an inventory had been made, the merchandise not usable in violation of the National Prohibition Act (27 USCA) was gradually released to the claimant, and what remained and is the subject-matter of this libel was stored in one of the buildings under some arrangement with the claimant. The claimant has had the use of the remainder of its premises, not required for such storage, ever since.
Howard W. Ameli, U.S. Atty., and J. Bertram Wegman, Asst. U.S. Atty., both of Brooklyn, N Y
Harold L. Turk, of Brooklyn, N.Y., for appellant.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
Cases like this involve grave danger. The very natural desire of government officers who try to enforce the law to the best of their ability leads them to adopt the most practical and efficient way to do it whenever by some plausible reasoning they can satisfy themselves that no constitutional rights are contravened. But their zeal for the cause in which they have enlisted so often creates in their minds such an emphasis upon the theory that the virtue in the end will justify the means that the fundamental rights of a liberty loving people will be gradually sapped, undermined, and finally destroyed by a subtle, insidious, and persistent narrowing of vital bedrock principles unless courts are steadfast and firm in the preservation of what has been gained through centuries of struggle. The Fourth Amendment, which prohibits unreasonable searches and seizures, is one of the pillars of liberty so necessary to a free government that expediency in law enforcement must ever yield to the necessity for keeping the principles on which it rests inviolate. In this spirit alone it is safe to attempt to solve the problem which now confronts us.
The property covered by this libel is contraband. Danovitz v. United States, 281 U.S. 389, 50 S. Ct. 344, 74 L. Ed. 923. It was in the possession of the government when the libel was filed. But we do not consider whether, even though the seizure was illegal, the government might have adopted it and proceeded to forfeit the property, because, by the stipulation of the parties, the sole question submitted for determination was the legality of the search and seizure, and, in the event that that issue was determined in favor of the claimant, the decree was to be for it.
As unreasonable searches and seizures are the only kind which violate the Constitution, we are to examine the validity of the one which is relied upon to give jurisdiction here in the light of its reasonableness. As it was made without a search warrant, the government must needs support it by showing circumstances which made it reasonable without one. Obviously, in dealing with contraband housed in buildings not capable of escape from the officers and the jurisdiction by their mobility, as are automobiles, cases like Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A.L.R. 790, holding searches without a warrant but upon probable cause to believe contraband is present in vehicles, are not conclusive. These officers had a reasonable opportunity to obtain a search warrant. No reason for their failure to do that can be perceived except the wholly inadequate one that it was, perhaps, less troublesome to them to proceed without it.
We are urged to hold that they had the right to search and seize as they did without a warrant because they made arrests in the premises. No other justification for such conduct is advanced. It was assumed upon the argument that the arrests were lawful, and we shall take that for granted. This calls up for consideration the effect of the undoubted right of an officer to search the person of him whom he lawfully arrests, Weeks v. United States, 232 U.S. 383, 392, 34 S. Ct. 341, 58 L. Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177; and contemporaneously with the arrest to search the place in which it was made, Marron v. United States, 275 U.S. 192, 199, 48 S. Ct. 74, 72 L. Ed. 231; Carroll v. United States, supra at page 158 of 267 U.S. 45 S. Ct. 280, Agnello v. United States, 269 U.S. 20, 30, 46 S. Ct. 4, 70 L. Ed. 145, 51 A.L.R. 409; United States v. Kirschenblatt, 16 F.2d 202, 203 (C.C.A. 2). Such searches are reasonable when they are fairly within the category of mere incidents of the arrest for the purpose of securing the safety of the officers, as when concealed weapons may be possessed, or for getting the subject-matter or evidence of the crime for which the arrest has been made. They are unreasonable and, because so, unlawful, when the arrest may fairly be said to have been but an excuse for a general exploratory search. Such searches are uniformly without the law, whether conducted under the pretended authority of a search warrant or in the guise of a mere incident of a lawful arrest. Go-Bart Co. v. United States, 282 U.S. 344, 51 S. Ct. 153, 75 L. Ed. 374. As was pointed out at length in Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746, the prohibition of the Fourth Amendment must be applied to concrete cases in the light of the evils it was intended to prevent. One of the things, which no great study of the history of the times which led to the adoption of this amendment will reveal, is an abhorrence of searches and seizures based on nothing but the desire to bring to light and into the clutches of the law whatever may, by chance, be found. No period of freedom from such an evil, however long it may be, should lull us into a false sense of security and lead us to permit this always necessary safeguard of liberty to be weakened in exchange for the temporary advantage of more thorough or certain enforcement of some law, however beneficial.
In the instance before us, seven warehouses were ransacked to their heart's content by officers who were looking for nothing in particular but for everything in general. The utter futility of trying to reconcile such conduct with the provisions of the Fourth Amendment seems perfectly plain. It was a high-handed piece of business, however good the intent behind it may have been.
It is conceivable that these twenty-two persons may have been arrested at different times and in different places throughout these seven large buildings, and that a reasonable search at the time and place of each arrest would have included all that was done. That is not apparent from the record, and there is no occasion to put anything upon the possibility.
In the light of the circumstances disclosed, and every case must turn on its own special facts, this search and seizure was unreasonable and so forbidden by the Fourth Amendment. Federal Trade Commission v. American Tobacco Co., 264 U.S. 298, 44 S. Ct. 336, 68 L. Ed. 696, 32 A.L.R. 786; Go-Bart Co. v. United States, supra.
Decree reversed.