From Casetext: Smarter Legal Research

Lustig v. United States

U.S.
Jun 27, 1949
338 U.S. 74 (1949)

Summary

holding that hotel manager's consent to police search of a room without a warrant in occupant's absence was unconstitutional

Summary of this case from U.S. v. Bulluck

Opinion

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.

No. 1389, Oct. Term, 1946.

Argued April 19, 1948. Reargued October 19, 1948. Decided June 27, 1949.

Notified by city police and a hotel manager that counterfeiting of currency apparently was being carried on in a hotel room for which petitioner and another were registered under assumed names, a Secret Service Agent went there and looked through the keyhole. He reported to the city police that he saw no evidence of currency counterfeiting but that he was confident that "something was going on." Suspecting that the occupants were counterfeiting race-track tickets and desiring to "get into that room and find out what was in there," city police obtained warrants for their arrest for violations of a city ordinance requiring "known criminals" to register with the police; entered the room in their absence; searched it; and found evidence of currency counterfeiting. The Secret Service Agent was not present when this took place; but he arrived later, examined the evidence, and was present when petitioner and his companion arrived and were arrested and searched by city police, who turned the articles evidencing counterfeiting of currency over to the Secret Service Agent. This evidence was admitted over petitioner's objection in his trial in a federal court and he was convicted for counterfeiting. Held: This evidence should not have been admitted and the conviction is reversed. Pp. 75-80.

159 F.2d 798, reversed.

Petitioner's conviction of counterfeiting was affirmed by the Court of Appeals. 159 F.2d 798. This Court denied certiorari, 331 U.S. 853, but, on rehearing, vacated that order and granted certiorari. 333 U.S. 835. Reversed, p. 80.

Edward Halle argued the cause and filed the briefs for petitioner. Solicitor General Perlman argued the cause for the United States. With him on the brief on the original argument were Assistant Attorney General Quinn, Robert S. Erdahl, Irving S. Shapiro and Philip R. Monahan. With him on the brief on the reargument were Assistant Attorney General Campbell, Mr. Erdahl and Josephine H. Klein.


This is a prosecution under the counterfeiting statutes. Rev. Stat. § 5430, 35 Stat. 1088, 1116, 18 U.S.C. (1946 ed.) § 264 (now § 474). The sole question before us is the correctness of the denial of a pretrial motion, sustained by the Court of Appeals for the Third Circuit, 159 F.2d 798, to suppress evidence claimed to have been seized in contravention of the Fourth Amendment as it is to be applied under the doctrine of Byars v. United States, 273 U.S. 28.

After this Court denied a petition for writ of certiorari, a petition for rehearing was granted. The order entered June 16, 1947, 331 U.S. 853, denying certiorari was vacated and the petition for writ of certiorari to the Court of Appeals for the Third Circuit was granted on February 16, 1948. 333 U.S. 835.

Since the legal issue turns on the precise circumstances of this case they must be stated with particularity.

At about 2 p. m. on Sunday, March 10, 1946, Secret Service Agent Greene received two telephone calls, one from the police of Camden, New Jersey, the other from the manager of a hotel in that city, indicating violations of the counterfeiting statutes being carried on in Room 402 of the hotel. Lustig, the petitioner here, and one Reynolds were registered for this room under assumed names. It is to be noted that the Secret Service is the agency of the Government charged with enforcement of the laws pertaining to counterfeiting. On looking through the keyhole of the suspect room after reaching the hotel, Greene saw Lustig, two brief cases and a large suitcase, but no evidence pertinent to counterfeiting. He questioned the chambermaid whose suspicions had led to this investigation. She recounted the hearing of noises "like glass hitting against glass or metal hitting against metal" emanating from the suspect room. She also remarked that she had seen what looked like money on the table.

Greene thereupon reported to Detective Arthur of the Camden police at the Camden Police Station that he had seen no evidence of counterfeiting but was confident that "something was going on." Arthur reported the affair by telephone to his superior, Captain Koerner, at his home, who then came to the police station. In his account of the affair, Greene gave to Koerner the names under which the occupants of the room had registered. In reply to inquiry by Captain Koerner, Sergeant Murphy of the Camden police stated that one of the names was that of a "racehorse man or a tout or a bookie." After verifying the names on the hotel register and on the assumption that the occupants of the room "might be trying to counterfeit race-track tickets" rather than currency, Koerner secured warrants for the arrest of persons bearing the names on the register in order to "get into that room and find out what was in there." The offense charged against those bearing the assumed names was the violation of a Camden ordinance requiring "known criminals" to register with the local police within twenty-four hours after their arrival in town. At about four o'clock in the afternoon of the same day, Koerner and three city detectives secured a key from the manager of the hotel and entered Room 402. The police officers proceeded to empty the bags and the drawers of a bureau and thus came upon the evidence sought to be suppressed. What they found indicated counterfeiting of currency rather than of race-track tickets.

During all this time, Greene had remained at police headquarters because he "was curious to see what they would find." On finding what they did find, Koerner sent word to Greene, who came to the hotel and examined the evidence in controversy. When Lustig and Reynolds eventually returned they were arrested and searched by the detectives. As various articles were taken out of their pockets, those deemed to have bearing on counterfeiting currency were turned over to Greene. He observed that the ink on a $100 bill taken from Reynolds had not been tampered with. Greene was trying to discover what had been used to make the impression on the "similitude" found in the room. After the search was completed, Greene and the city police gathered up the articles revealed by the search and carried them to the police station. Some of these articles were given to Greene before he left Room 402; all were eventually turned over to him.

We are confronted by a ruling of the District Court, sustained by the Court of Appeals, admitting the evidence. But the question before us is not foreclosed by the respect to be accorded to a ruling on an issue of fact by the trial court until analysis discloses that the ruling was merely on an issue of fact and that no issue of law was entwined in the ruling. Insofar as what the lower courts found as facts may properly be so regarded, they are to be accepted; but their constitutional significance is another matter.

On the basis of what was before him, the trial judge admitted the evidence because he did not "see any connivance or arrangement on the part of the Federal officers to have an illegal search made to get evidence they could not secure under the Federal law." We therefore accept as a fact that Greene did not request the search, that, beyond indicating to the local police that there was something wrong, he was not the moving force of the search, and that the search was not undertaken by the police to help enforcement of a federal law. But search is a functional, not merely a physical, process. Search is not completed until effective appropriation, as part of an uninterrupted transaction, is made of illicitly obtained objects for subsequent proof of an offense. Greene's selection of the evidence deemed important for use in a federal prosecution for counterfeiting, as part of the entire transaction in Room 402, was not severable, and therefore was part of the search carried on in that room. The uncontroverted facts show that before the search was concluded Greene was called in, and although he himself did not help to empty the physical containers of the seized articles he did share in the critical examination of the uncovered articles as the physical search proceeded. It surely can make no difference whether a state officer turns up the evidence and hands it over to a federal agent for his critical inspection with the view to its use in a federal prosecution, or the federal agent himself takes the articles out of a bag. It would trivialize law to base legal significance on such a differentiation. Had Greene accompanied the city police to the hotel, his participation could not be open to question even though the door of Room 402 had not been opened by him. See Johnson v. United States, 333 U.S. 10. To differentiate between participation from the beginning of an illegal search and joining it before it had run its course, would be to draw too fine a line in the application of the prohibition of the Fourth Amendment as interpreted in Byars v. United States, supra, 273 U.S. 28.

The crux of that doctrine is that a search is a search by a federal official if he had a hand in it; it is not a search by a federal official if evidence secured by state authorities is turned over to the federal authorities on a silver platter. The decisive factor in determining the applicability of the Byars case is the actuality of a share by a federal official in the total enterprise of securing and selecting evidence by other than sanctioned means. It is immaterial whether a federal agent originated the idea or joined in it while the search was in progress. So long as he was in it before the object of the search was completely accomplished, he must be deemed to have participated in it. Where there is participation on the part of federal officers it is not necessary to consider what would be the result if the search had been conducted entirely by State officers. Evidence secured through such federal participation is inadmissible for the same considerations as those which made Weeks v. United States, 232 U.S. 383, the governing principle in federal prosecutions.

Though state officers preceded Greene in illegally rummaging through the bags and bureau drawers in Room 402, they concerned themselves especially with turning up evidence of violations of the federal counterfeiting laws after Greene joined them. He was an expert in counterfeiting matters and had a vital share in sifting the evidence as the search proceeded. He exercised an expert's discretion in selecting or rejecting evidence that bore on counterfeiting. The fact that state officers preceded him in breach of the rights of privacy does not negative the legal significance of this collaboration in the illegal enterprise before it had run its course. Greene himself acknowledged such participation by his remark about "leaving the room after we had gathered all this evidence together."

Nor is the search here defensible as incidental to a lawful arrest. Greene never made the arrest, he knew that Lustig and Reynolds were not present when he entered their room and he had an active hand in the continuation of the search without warrant before Lustig and Reynolds had returned. The ruling in Davis v. United States, 328 U.S. 582, does not come into play. Neither is it material that Greene may have been informed as to what he was likely to find before he joined the searchers. Vindicated anticipation of what an illegal search may reveal does not validate a search otherwise illegal. Trupiano v. United States, 334 U.S. 699, 708-9. With every respect for the rulings of the lower court, we find that the unquestioned facts disclose that the evidence on which the conviction rests was illicit and the motion to suppress it should have been granted.

Reversed.

MR. JUSTICE BLACK concurs in the judgment of the Court substantially for reasons set out in his dissent in Feldman v. United States, 322 U.S. 487, 494.

MR. JUSTICE MURPHY, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE RUTLEDGE join, concurring.

MR. JUSTICE FRANKFURTER finds it unnecessary to decide whether an illegal search by state officers bars the introduction of the fruits of the search in a federal court. I join in his opinion, and in the judgment of reversal. But my dissenting views in Wolf v. Colorado, ante, p. 25, decided this day, make clear my position on the question he reserves. In my opinion the important consideration is the presence of an illegal search. Whether state or federal officials did the searching is of no consequence to the defendant, and it should make no difference to us.


My understanding of the rule as to the use of evidence in a federal criminal trial obtained by state officers through a search and seizure conducted by them under state authority is this.

"While it is true that the mere participation in a state search of one who is a federal officer does not render it a federal undertaking, the court must be vigilant to scrutinize the attendant facts with an eye to detect and a hand to prevent violations of the Constitution by circuitous and indirect methods." Byars v. United States, 273 U.S. 28, 32. In the Byars opinion this Court went on to say that the federal government had the right "to avail itself of evidence improperly seized by state officers operating entirely upon their own account. But the rule is otherwise when the federal government itself, through its agents acting as such, participates in the wrongful search and seizure." P. 33. This is the rule which the Court reaffirms today.

It is the application of that rule to the facts of this case which causes me to dissent. Although it may seem only a difference of view as to the facts of a particular case, it becomes important in the administration of the criminal law. If federal peace officers are to be restricted in their duties to the extent indicated in the opinion, they should have full warning so that their work in detecting crime will not be frustrated through the officer's inadvertence in accepting evidence turned over to him by state officers. The trial court found that Greene did not participate in the search and seizure. We should accept that finding. If we undertake to reexamine the testimony to see whether there was participation by Greene, I should reach the same conclusion as the lower courts did.

In my view Secret Service Agent Greene did not participate in this search and seizure and the motion to suppress the evidence obtained was properly overruled in the trial court, and the trial court's action was properly sustained in the Court of Appeals for the Third Circuit.

The Court accepts "as a fact that Greene did not request the search, that, beyond indicating to the local police that there was something wrong, he was not the moving force of the search, and that the search was not undertaken by the police to help enforcement of a federal law." The record shows clearly to me that Agent Greene did not participate in the search and seizure.

Only state police entered the room of Lustig, opened his brief cases and found all the articles useful in counterfeiting. It was not until after all the articles were found that were offered in evidence that Agent Greene was called. It was stated thus in the brief for appellant: "When he arrived at the hotel, all of the material that had been taken out of the brief case was on the bed. Capt. Koerner and Sgt. Murphy then put the exhibits back in the brief cases." This was Greene's testimony. Greene examined the articles that had been taken by the state police from the satchels. He then left the room and returned as Lustig and his companion Reynolds were in the act of opening the door to Room 402 where the state officers were. The state officers then arrested Reynolds and Lustig on a warrant for a state offense. The prisoners were searched. On Reynolds a $100 bill was found that was shown to Agent Greene by Captain Koerner. The $100 bill had not been tampered with, was not evidence against Lustig and has nothing to do with the case against him.

Testimony of Captain Koerner:
"Q. After you discovered these articles, what did you do?
"A. I called agent Greene, of the United States Secret Service.
. . . . .
"Greene came over in the neighborhood of five o'clock after we made a thorough search and found all this evidence I have presented."
Testimony of Sergeant Murphy:
"Q. When did Mr. Greene come there?
"A. After we searched the room, seeing what was in it, and finding the three notes, I talked to Captain Koerner and I told him we had enough to charge him with a Federal violation, and I called Mr. Greene from the hotel and explained to him over the telephone just about what we had found, and he came over later."

Testimony of Agent Greene:
"Q. There was a hundred dollar bill found on Mr. Reynolds?
"A. Well, a new one.
"Q. Did you match the hundred dollar bill with that impression?
"A. No, sir. I observed that the ink on this new hundred dollar bill had not been tampered with. In other words, the bill was new in appearance and I concluded it was not the pattern bill from which this hundred dollars was made.
"Q. You gave the hundred dollars did you to Mr. Reynolds?
"A. No, sir. At the time I looked at the bill it was in Captain Koerner's possession."

Unless the fact that Agent Greene looked at the evidence secured by the state police before it was removed from the room involves the United States in the search and seizure, the lower courts were correct in holding that Agent Greene had no part in the search and seizure. Greene did not "share in the critical examination of the uncovered articles as the physical search proceeded." The search had ended before he came into the room. The subsequent arrest, examination, and the $100 bill found on Reynolds had nothing to do with the alleged unlawful search and seizure. The search and seizure had run its course and we should not hold that the appearance of a federal officer at the place of unlawful search and seizure after evidence has been found makes him a participant in the act. This evidence should not be suppressed and the conviction of Lustig should be affirmed.

Opinion of MR. JUSTICE FRANKFURTER, ante, p. 78.


Summaries of

Lustig v. United States

U.S.
Jun 27, 1949
338 U.S. 74 (1949)

holding that hotel manager's consent to police search of a room without a warrant in occupant's absence was unconstitutional

Summary of this case from U.S. v. Bulluck

holding that suppression was proper in a federal case when a federal officer arrived after local police began an unconstitutional search and the federal officer participated in examining and selecting evidence relevant to counterfeiting

Summary of this case from State v. Perry

In Lustig v. United States, 338 U.S. 74, the petitioner argued that an exclusionary rule should apply to the fruit of an unreasonable search by state officials solely because they acted in concert with federal officers (see Weeks v. United States, 232 U.S. 383; Byars v. United States, 273 U.S. 28). The Court ordered reargument on the question raised in a then pending case, Wolf v. Colorado, 338 U.S. 25: applicability of the Fourth Amendment to the States.

Summary of this case from United States v. O'Brien

In Lustig the manager of a hotel allowed police to enter and search a room without a warrant in the occupant's absence, and the search was held unconstitutional.

Summary of this case from Stoner v. California

In Lustig v. United States, 338 U.S. 74, decided that day, the prevailing opinion carefully left open the question of the continuing validity of the admissibility rule.

Summary of this case from Elkins v. United States

In Lustig, state officers illegally searched a hotel room after obtaining, but before executing, an arrest warrant for the hotel guest.

Summary of this case from Bunch v. United States

In Lustig, the Court held that when federal and state agents jointly participate in a search that is illegal by federal standards, a motion to suppress should be granted in a federal prosecution.

Summary of this case from U.S. v. Josleyn

defining similitude under 18 U.S.C. § 474

Summary of this case from U.S. v. Wethington

In Lustig, a federal agent, acting on a tip from local police, investigated possible counterfeiting activities taking place in a hotel room.

Summary of this case from United States v. Comstock

applying the standard to a § 474 case

Summary of this case from United States v. Cantwell

suppressing evidence produced by joint venture of federal and local officers prior to incorporation of Fourth Amendment

Summary of this case from United States v

In Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949), the Court found a joint endeavor when a federal officer joined the search party before the arrival of defendants who were arrested and searched in his presence.

Summary of this case from United States v. Rose

In Lustig v. United States, 1949, 338 U.S. 74, 79, 69 S.Ct. 1372, 1374, 93 L.Ed. 1819, 1923, the Court refined the Byars test, and held that so long as the federal officer participated in the search "... before the object of the search was completely accomplished, he must be deemed to have participated in it". Under the Byars-Lustig test, the presence and participation of Agent Baden and Agent Bautista sufficed to render the search here a federal search and to make applicable to the search warrant and the search conducted under it the requirements of Rule 41(a).

Summary of this case from United States v. Hanson

In Lustig, Mr. Justice Frankfurter explicitly stated that a "search is a search" by an official if he had a hand in it. 338 U.S. at 78, 69 S.Ct. at 1377.

Summary of this case from United States v. West

In Lustig, Secret Service Agent Greene had reason to suspect two defendants of violations of the counterfeiting statutes, but, upon looking through the keyhole of the suspects' room, could see no evidence of any violation and reported this fact to the local police.

Summary of this case from Stonehill v. United States

In Lustig v. United States, 338 U.S. 74, 76 (1949), the Court held that the search of the hotel room was not incident to an arrest because the occupants of the room were never present in the room.

Summary of this case from U.S. v. Mullikin

In Lustig, as in Corngold, the federal agent participated with the city police in the search which yielded the evidence.

Summary of this case from United States v. Echols

In Lustig, a plurality of the Court found that a federal law enforcement officer's participation in a state investigation was sufficient to invoke suppression in federal court.

Summary of this case from Commonwealth v. Britton

In Lustig v. United States, 338 U.S. 74, 78-79, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949), the Court stated what has come to be known as the "silver platter" doctrine: "The crux of that doctrine [Byars] is that a search is a search by a federal official if he had a hand in it; it is not a search by a federal official if evidence secured by state authorities is turned over to the federal authorities on a silver platter."

Summary of this case from State v. Harms

In Lustig, the officer came upon the scene while the search was in progress and, therefore, "before the object of the search was completely accomplished."

Summary of this case from State v. Johnson

In Lustig, a Federal Secret Service Agent was involved in an illegal search of a hotel room by local police and the Court considered the degree of federal involvement in a state investigation necessary to exclude illegally seized evidence from a federal proceeding.

Summary of this case from Commonwealth v. Dembo

In Lustig the manager of a hotel allowed police to enter and search a room without a warrant in the occupant's absence, and the search was held unconstitutional.

Summary of this case from State v. Nicholas

In Lustig the manager of a hotel allowed police to enter and search a room without a warrant in the occupant's absence, and the search was held unconstitutional.

Summary of this case from State v. Nicholas

In Lustig v. United States, 338 U.S. 74 (1949), the Supreme Court considered the question of how much participation by federal officers will render a search which initially does not violate the fourth amendment unlawful.

Summary of this case from Commonwealth v. Kozak

In Lustig v. United States, 338 U.S. 74 (1949) the Court said of the Byars holding: "The crux of that doctrine is that a search is a search by a federal official if he had a hand in it; it is not a search by a federal official if evidence secured by state authorities is turned over to the federal authorities on a silver platter."

Summary of this case from Herbert v. State
Case details for

Lustig v. United States

Case Details

Full title:LUSTIG v . UNITED STATES

Court:U.S.

Date published: Jun 27, 1949

Citations

338 U.S. 74 (1949)
69 S. Ct. 1372
93 L. Ed. 1819

Citing Cases

Saldana v. State

Otto, 9 Cal.Rptr.2d 596, 831 P.2d 1178. Telephone conversations between the murder victim's wife and her…

Houser v. Comm'r of Internal Revenue

The instant case parts company with Frazier, Black Forge, and Guzzetta in that, in the instant case,…