United States v. Olmstead, 7 F.2d 760 (W.D. Wash. 1925)

*761 *762 Thomas P. Revelle, U. S. Atty., and C. T. McKinney, Asst. U. S. Atty., both of Seattle, Wash.

J. L. Finch, of Seattle, Wash., for defendants.

NETERER, District Judge (after stating the facts as above).

A submission to search or arrest will not impair the constitutional right (U. S. v. Slusser [D. C.] 270 F. 819; Youman v. Commonwealth, 189 Ky. 152, 224 S.W. 864, 13 A. L. R. 1303; Amos v. U. S., 255 U.S. 313, 41 S. Ct. 266, 65 L. Ed. 654), and courts will not consider the constitutional rights waived by not contesting by force the assumed right of official conduct, nor can a search unlawful at inception, become lawful by what has been found (Veeder v. U. S., 252 F. 414, 164 C. C. A. 338; U. S. v. Slusser, supra; Garske v. U. S. [C. C. A.] 1 F.[2d] 620). The Fourth Amendment insures the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizure, and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. The maxim that every man's house is his castle has always been given high value, and no man's house can be forcibly entered and his papers and effects seized without warrant of law, and this procedure is made applicable to letters and sealed packages in the United States mail in Ex Parte Jackson, 96 U.S. 727 at page 733, 24 L. Ed. 877. "Such matter could only be opened and examined upon warrants issued on oath or affirmation particularly describing the things to be seized." See, also, Weeks v. U. S., 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Boyd v. U. S., 116 U.S. 746, 6 S. Ct. 524, 29 L. Ed. 746. Section 7, art. 1, State Constitution, has no application.

The finding of probable cause is a judicial function. Veeder v. U. S., supra. Section 25, tit. 2, National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138½m), expressly authorizes the seizure upon search warrant issued under the provisions of Espionage Act, tit. 11 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 10496¼a-10496¼v), but expressly limits the right to search a dwelling house occupied as such when used for the unlawful sale of intoxicating liquor, or used in part for business, such as a store, shop, saloon, restaurant, hotel, or boarding house. The application and affidavit for search warrant show probable cause of sale of liquor. The grounds were not controverted. Section 10496¼o, Comp St. 1918, Comp. St. Ann. Supp. 1919. See U. S. ex rel. Finch v. Elliott (D. C.) 3 F.(2d) 496, affirmed 5 F.(2d) 292.

The agent "heard orders given and taken for sale of intoxicating liquor from said premises," "heard one of said above occupants state that they had intoxicating liquor on said premises for sale," "heard Elsie Olmstead state there was intoxicating liquor on said premises," "heard Roy Olmstead state that he had papers and documents relating to the sale and possession of intoxicating liquor on said premises," and states "that on recent and numerous prior occasions, and particularly within the last 30 days he has seen persons enter said premises sober and emerge intoxicated, has seen large number of automobiles come to said premises and leave at late hours at night; that he has *763 recognized some of the persons entering and leaving said premises as well-known dealers in intoxicating liquor in Seattle; that he has within the past 30 days heard orders given and taken at said premises for the sale of intoxicating liquor. * * *"

These statements appear to come well within the Fourth Amendment and within the holding of the Supreme Court in Hester v. U. S., 265 U.S. 57, 44 S. Ct. 445, 68 L. Ed. 898; Steele v. U. S., 45 S. Ct. 414, 69 L. Ed. 757 (April 13, 1925). See, also, U. S. v. Lepper (D. C.) 288 F. 136.

The serious question before the court is the assertion that the defendants' rights under the Fifth Amendment have been violated in that "no person * * * shall be compelled in any criminal case to be a witness against himself." In neither of the applications for search warrant or the supporting affidavits are any papers, documents, or instruments of any character described. The application must describe with reasonable particularity the thing for which the search is to be made. Search was sought because of a violation of the National Prohibition Act, primarily for intoxicating liquor, a misdemeanor. None being found, the papers and documents were seized and are now sought to be used against the defendants on a felony charge, conspiracy. This may not be done. The Adams Case^[1] does not sustain the contention. In that case the search warrant was to find the gambling paraphernalia policy slips a felony under the state statute, and the documents and papers submitted were found with the policy slips and had relation to them. In the instant case the papers, etc., seized, were not the means of committing a felony (section 2, tit. 11, Espionage Act [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10496¼b]), or designed in themselves to violate any penal law of the United States. They are merely evidence that a crime may have been committed, and the taking was clearly violative of the Fifth Amendment to the Constitution. The liquor sought was not in the residence of Olmstead, nor was it in the office of Finch; hence the papers could not be seized under the search warrant upon any theory, not being described therein. It follows that the papers and documents taken from the residence of Olmstead may not be used as evidence against him, and to that extent the Olmstead motion is granted. Whether any of the papers taken from the safe in Finch's office may be used against Olmstead must be determined upon trial. The papers belonging to Finch, taken from his safe, may not be used as evidence against Finch, and to that extent his motion is granted.

Each motion of Olmstead and Finch with relation to telephonic conversation overheard by wire tapping is denied. The confidential relation of attorney and client cannot prevail. Section 1214, Rem. Comp. Stat. Wash. Finch is not testifying to any confidential relation. A third person is not forbidden to relate a confidential conversation heard by him. Wire tapping is not a national offense, nor made so by the statutes of the state of Washington; even so, it would not violate any constitutional right of the defendants to receive the testimony. The conversation is not a property right. If, as stated, the defendants Finch, Olmstead, with others, were conspiring to violate the laws of the United States, they could not seek protection under the confidential relation status. If the conversation referred to had been carried on in the home of the defendant Olmstead, between him and his attorney, and the conversation had been heard by trespassers upon the premises, it would be competent testimony in support of the criminal charge. I know of no rule of law or evidence which would exclude it, and no decision which, even by inference, sustains the contention of the defendant. The constitutional guaranty is a personal privilege. See Hale v. Henkel, 201, U. S. 43, 26 S. Ct. 370, 50 L. Ed. 652; Daniels v. U. S., 294 F. 769; Schwartz v. U. S. (C. C. A.) 294 F. 528; Lusco v. U. S. (C. C. A.) 287 F. 69. There are many other defendants, and, if the documents are of evidentiary value, they may be received as against such other defendants.

The return of the papers and documents is denied.

[1] Adams v. New York, 192 U.S. 585, 24 S. Ct. 372, 48 L. Ed. 575.