1. Petitioner was under contract to do experimental work for the
Navy. Pursuant to the terms of the contract and authority delegated
to them under § 10(1) of the Act of July 2, 1926, and § 1301 of the
Second War Powers Act, agents of the Federal Bureau of
Investigation were auditing his books and records at his place of
business during business hours with the consent and cooperation of
his employees. One of the agents requested, and was given by
petitioner's bookkeeper, a certain cancelled check, which was later
admitted in evidence over petitioner's objection in a trial which
resulted in his conviction for defrauding the Government by means
of that check.
Held: this did not violate his rights under the Fourth
and Fifth Amendments. Pp.
328 U. S.
628-630.
2. When petitioner, in order to obtain the Government's
business, specifically agreed to permit inspection of his accounts
and records, he voluntarily waived such claims to privacy which he
otherwise might have had as respects business documents related to
those contracts. P.
328 U. S.
628.
3. The powers of inspection were not transcended, since the
inspection was made during regular hours at the place of business,
with the full cooperation of petitioner's staff, and without force
or threat of force. P.
328 U. S.
628.
4. As a result of its contract with petitioner and the relevant
statutes, the Government had authority to inspect petitioner's
books and records and to utilize agents of the Federal Bureau of
Investigation for this purpose. Pp.
328 U. S.
628-629.
5. The search being lawful, the agents could testify as to the
facts about which they had obtained knowledge, including the facts
disclosed by the check. P.
328 U. S. 629.
6. To require reversal merely because the check itself was
admitted in evidence would be to exalt a technicality to
constitutional levels. P.
328 U. S.
630.
7. It was in the sound discretion of the District Court to admit
the check in evidence. P.
328 U. S.
630.
151 F.2d 100, affirmed.
Page 328 U. S. 625
Petitioner was convicted of defrauding the Government in
violation of § 35(A) of the Criminal Code. The Circuit Court of
Appeals affirmed. 151 F.2d 100. This Court granted certiorari
limited to the question whether books and records relating to his
contract with the Navy Department were properly admitted as
evidence at his trial. 326 U.S. 802.
Affirmed, p.
328 U. S.
630.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This case is here on a petition for a writ of certiorari from a
judgment affirming the conviction of petitioner for violation of §
35(A) of the Criminal Code, 18 U.S.C. § 80. [
Footnote 1] 151 F.2d 100.
Page 328 U. S. 626
Petitioner entered into contracts with the Navy Department under
which he was to do experimental work on airplane wings and to
conduct test flights. He was to be paid on a cost plus fixed fee
basis. He arranged with a pilot to make certain test flights and
paid him about $2,500. Prior to the test flights, he had the pilot
endorse a blank check, telling him that it was to be used to defray
the expenses for the test. He then filled in the test pilot's name
as payee and $4,000 as the amount of the check. The check was
posted in petitioner's books of account as a payment to the test
pilot. Later petitioner presented to the Navy Department a voucher
for work under his contract. Supporting the claim was a document in
which he certified that he had paid the test pilot $4,000.
Congress has provided for the inspection and audit of books and
records of contractors such as petitioner. [
Footnote 2] The
Page 328 U. S. 627
inspection and audit were authorized to be made "by a
governmental agency or officer designated by the President, or by
the Chairman of the War Production Board." [
Footnote 3] Certain officials of the government,
including the Secretary of the Navy, were authorized to exercise
the power, and they were also delegated the power to
"authorize such officer or officers or civilian officials of
their respective departments or agencies to make further
delegations of such powers and authority within their respective
departments and agencies. [
Footnote
4]"
And petitioner's contract with the Navy Department provided:
"The accounts and records of the contractor shall be open at all
times to the Government and its representatives, and such
statements and returns relative to costs shall be made as may be
directed by the Government."
For several weeks in 1942, agents of the Federal Bureau of
Investigation conducted an audit of petitioner's books and records
at his place of business and during business hours. They acted
under the auspices and by the authority of an accountant and a cost
inspector of the Navy Department under whose jurisdiction
petitioner's books and records had been placed for purposes of
audit and inspection. During part of this period, petitioner was
absent. But while he was away, his employees granted the agents
admission and cooperated with them by supplying records and
furnishing information. When petitioner returned to the city, he
made some protest against the examination. But the agents did not
desist, and continued to make the examination with the assistance
of petitioner's employees. The $4,000 check was requested, and it
was given to one of the agents by petitioner's bookkeeper.
Page 328 U. S. 628
It appears that the check was retained by the agent, [
Footnote 5] and was introduced at the
trial. The trial judge denied a motion to suppress the evidence. At
the trial, petitioner did not object to the admission of the check
in evidence, but later moved to have it stricken on the ground that
it had been illegally obtained. The single question to which we
limited the grant of the petition for a writ of certiorari is the
propriety of the action of the District Court in allowing the check
to be admitted.
As we have pointed out in
Davis v. United States, ante,
p.
328 U. S. 582, the
law of searches and seizures as revealed in the decisions of this
Court is the product of the interplay of the Fourth and Fifth
Amendments. But those rights may be waived. And when petitioner, in
order to obtain the government's business, specifically agreed to
permit inspection of his accounts and records, he voluntarily
waived such claim to privacy which he otherwise might have had as
respects business documents related to those contracts. Whatever
may be the limits of that power of inspection, they were not
transcended here. For the inspection was made during regular hours
at the place of business. No force or threat of force was employed.
Indeed, the inspection was made with the full cooperation of
petitioner's staff. There is some suggestion that the search was
unreasonable because made by agents of the Federal Bureau of
Investigation who were not persons authorized to conduct those
examinations. But they acted under the auspices and with the
authority of representatives of the Navy Department who were
authorized to inspect. The inspection was nevertheless an
inspection by the Navy, though its officials were aided by agents
of another department. [
Footnote
6] Moreover, the right to inspect
Page 328 U. S. 629
granted by the contracts was not limited to inspections by the
Navy, but extended to inspections by any authorized representatives
of the government among whom the agents of the Federal Bureau of
Investigation are included.
The agents therefore were lawfully on the premises. They
obtained by lawful means access to the documents. That much, at
least, was granted by the contractual agreement for inspection.
They were not trespassers. They did not obtain access by force,
fraud, or trickery. Thus, the knowledge they acquired concerning
petitioner's conduct under the contract with the government was
lawfully obtained. Neither the Fourth nor Fifth Amendment would
preclude the agents from testifying at the trial concerning the
facts about which they had lawfully obtained knowledge.
See
Paper v. United States, 53 F.2d 184, 185;
In re Sana
Laboratories, Inc., 115 F.2d 717, 718. Even though it be
assumed in passing that the taking of the check was unlawful, that
would not make inadmissible in evidence the knowledge which had
been legally obtained.
United States v. Lee, 274 U.
S. 559,
274 U. S. 563.
The agents did not become trespassers
ab initio when they
took the check.
See McGuire v. United States, 273 U. S.
95. Had the check been returned to petitioner on the
motion to suppress, a warrant for it could have been immediately
issued. [
Footnote 7] Or, during
the inspection, the agents could have taken photostats or made
copies of the check and offered them in evidence without producing
the originals.
Lisansky v. United States, 31 F.2d 846,
850, 851.
Darby v. United States, 132 F.2d 928, 929. The
agreement to allow an inspection carried consequences at least so
great. The question therefore is a narrow one. It is whether the
check itself could be introduced at the trial.
Page 328 U. S. 630
Weeks v. United States, 232 U.
S. 383, held that private property obtained as a result
of an unlawful search and seizure could not be used as evidence in
a criminal prosecution of the owner. As explained in
Silverthorne Lumber Co. v. United States, 251 U.
S. 385,
251 U. S. 392,
the evidence so obtained is suppressed on the theory that the
government may not profit from its own wrongdoing. But, as stated
in
McGuire v. United States, supra, 273 U.S. at
273 U. S.
99,
"A criminal prosecution is more than a game in which the
Government may be checkmated and the game lost merely because its
officers have not played according to rule."
To require reversal here would be to exalt a technicality to
constitutional levels. The search and the discovery were wholly
lawful. A search warrant would be merely the means of insuring the
production in court of the primary source of evidence otherwise
admissible. Though consent to the inspection did not include
consent to the taking of the check, there was no wrongdoing in the
method by which the incriminating evidence was obtained. The waiver
of such rights to privacy and to immunity as petitioner had
respecting this business undertaking for the Government made
admissible in evidence all the incriminating facts. We cannot
extend the rule of the
Weeks case so far as to bar
absolutely the check itself. It was in the sound discretion of the
District Court to admit it.
Affirmed.
MR. JUSTICE JACKSON took no part in the consideration or
decision of this case.
[
Footnote 1]
"Whoever shall make or cause to be made or present or cause to
be presented, for payment or approval, to or by any person or
officer in the civil, military, or naval service of the United
States, or any department thereof, or any corporation in which the
United States of America is a stockholder, any claim upon or
against the Government of the United States, or any department or
officer thereof, or any corporation in which the United States of
America is a stockholder, knowing such claim to be false,
fictitious, or fraudulent; or whoever shall knowingly and
willfully, falsify or conceal or cover up by any trick, scheme, or
device a material fact, or make or cause to be made any false or
fraudulent statements or representations, or make or use or cause
to be made or used any false bill, receipt, voucher, roll, account,
claim, certificate, affidavit, or deposition, knowing the same to
contain any fraudulent or fictitious statement or entry in any
matter within the jurisdiction of any department or agency of the
United States or of any corporation in which the United States of
American is a stockholder, shall be fined not more than $10,000 or
imprisoned not more than ten years, or both."
[
Footnote 2]
Sec. 10(1) of the Act of July 2, 1926, 44 Stat. 787, 10 U.S.C. §
310(1) provides:
"The manufacturing plant and books of any contractor for
furnishing or constructing aircraft, aircraft parts, or
aeronautical accessories for the War Department or the Navy
Department, or such part of any manufacturing plant as may be so
engaged, shall at all times be subject to inspection and audit by
any person designated by the head of any executive department of
the Government."
Title XIII, § 1301 of the Second War Powers Act of March 27,
1942, 56 Stat. 185, 50 U.S.C. App.Supp. IV, § 643, provides:
"The provisions of section 10(1) of an Act approved July 2, 1926
(44 Stat. 787; 10 U.S.C. § 310(1)) (giving the Government the right
to inspect the plant and audit the books of certain Contractors),
shall apply to the plant, books, and records of any contractor with
whom a defense contract has been placed at any time after the
declaration of emergency on September 8, 1939, and before the
termination of the present war:
Provided, That, for the
purpose of this title, the term 'defense contract' shall mean any
contract, subcontract, or order placed in furtherance of the
defense or war effort:
And provided further, That the
inspection and audit authorized herein, and the determination
whether a given contract is a 'defense contract' as defined above,
shall be made by a governmental agency or officer designated by the
President, or by the Chairman of the War Production Board."
See H.Rep. No.1765, 77th Cong., 2d Sess., pp. 12, 13;
S.Rep. No.989, 77th Cong., 2d Sess. p. 9.
[
Footnote 3]
See § 1301,
supra, note 2
[
Footnote 4]
Executive Order No. 9127, issued April 10, 1942, 7 Fed.Reg.
2753.
[
Footnote 5]
We accept that version of the episode. The other version is that
the check was obtained under a search warrant. But the warrant was
admittedly defective. So we treat the case as one where the check
was seized without a warrant.
[
Footnote 6]
See Cravens v. United States, 62 F.2d 261, 265.
[
Footnote 7]
The Search Warrant Act, 40 Stat. 228, 18 U.S.C. § 612, permits
the issuance of a search warrant for property used "as the means of
committing a felony."
MR. JUSTICE FRANKFURTER, with whom MR. JUSTICE MURPHY and MR.
JUSTICE RUTLEDGE concur, dissenting.
The views expressed in my dissenting opinion in
Davis v.
United States, decided this day, p.
328 U. S. 582,
likewise compel me to dissent in this case.
Page 328 U. S. 631
The petitioner is an aeronautical engineer. He made a contract
with the Navy Department to perform experimental work. In June,
1942, the Navy agreed that Zap should carry out test flights to
determine the value of his experimental work. The tests were to be
paid for by the Navy on a cost-plus-a-fixed fee basis. Zap
estimated that the cost of these flights would be $4,000, but he
made arrangements for the tests at a fee of $2,500. Prior to the
flights, the test pilot indorsed a blank check which he returned to
the petitioner. The petitioner's auditor instructed the bookkeeper
to make the check for $4,000 and deposit it in the petitioner's
account. The check was posted on the petitioner's books for payment
to the pilot, though in fact the pilot received only $2,500.
In October, 1942, petitioner presented a voucher to the Navy for
reimbursement for the money laid out in making the tests. The
voucher was supported by a reference to the check for $4,000. From
October 20, to December 1, 1942, two FBI agents conducted an audit
of the petitioner's books and papers, under the auspices of an
accountant and inspector of the Navy. During this investigation,
one of the FBI agents demanded and received the cancelled check for
$4,000 made out to the pilot and endorsed by him. The agent
retained the check. On December 1, 1942, one of the agents swore
out an affidavit on the basis of which a search warrant was issued
for the books and papers of the petitioner, and these books and
papers were taken under the warrant. The warrant, it is conceded,
was defective, inasmuch as the affidavit failed to show the
necessary probable cause for the belief that the petitioner had
committed an offense to warrant the seizure.
The petitioner was convicted of defrauding the government.
Criminal Code, § 35(A), 35 Stat. 1088, 1095, 40 Stat. 1015, 48
Stat. 996, 52 Stat. 197, 18 U.S.C. § 80. He made a timely motion to
suppress the cancelled check
Page 328 U. S. 632
and other records. The motion was denied, the documents were
admitted in evidence, conviction and its affirmance followed. 151
F.2d 100. The sole question before us is the validity of the
seizure.
I agree that the government had authority, as a result of its
contract with the petitioner and the relevant statutes, to inspect
the petitioner's books and records, 44 Stat. 780, 787, 10 U.S.C. §
310(1), 56 Stat. 176, 185, 50 U.S.C. App. § 643, and that the Navy
Department could utilize members of the FBI for this purpose.
Accordingly, the search was legal and the inspectors could testify
to what they had gleaned from the inspection. But, as is pointed
out in my dissent in
Davis v. United States, ante, p.
328 U. S. 594,
the Constitutional prohibition is directed not only at illegal
searches. It likewise condemns invalid seizures. And that is the
issue here. The legality of a search does not automatically
legalize every accompanying seizure.
The Government argues very simply that the seizure was
authorized, since the seized items were uncovered in a lawful
search. But this is to overlook what we ruled in
Marron v.
United States, 275 U. S. 192,
275 U. S.
196:
"The requirement that warrants shall particularly describe the
things to be seized makes general searches under them impossible
and prevents the seizure of one thing under a warrant describing
another. As to what is to be taken, nothing is left to the
discretion of the officers executing the warrant."
If where a search instituted under the legal process of a
warrant, which also authorizes seizure, does not permit seizure of
articles other than those specified, statutory and contractual
authority merely to search cannot be considered sufficient to grant
that power. The Government relies on a doctrine quite inapposite
here. If, in the course of a valid search, materials are uncovered
the very possession or concealment of which is a crime, they may be
seized. But to seize for evidentiary use
Page 328 U. S. 633
papers the possession of which involves no infringement of law
is a horse of a different color.
Petitioner's right to possession was clearly recognized by the
agents when they sought a warrant for the purpose of securing the
evidence. That warrant was defective, however, and could not
authorize the seizure. The Government deems this a "technical
error." It is a "technicality" of such substance that this Court
has frequently announced the duty to suppress evidence obtained by
such defective warrants.
Cf. United States v. Berkeness,
275 U. S. 149;
Grau v. United States, 287 U. S. 124;
Sgro v. United States, 287 U. S. 206;
Nathanson v. United States, 290 U. S.
41. The fact that this evidence might have been secured
by a lawful warrant seems a strange basis for approving seizure
without a warrant. The Fourth Amendment stands in the way.
I would reverse the judgment.