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 racetrack
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.
this evidence should not have been admitted, and
the conviction is reversed. Pp. 338 U. S.
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. 338 U. S.
Page 338 U. S. 75
MR. JUSTICE FRANKFURTER announced the judgment of the Court and
an opinion in which MR. JUSTICE DOUGLAS, MR. JUSTICE MURPHY and MR.
JUSTICE RUTLEDGE join.
This is a prosecution under the counterfeiting statutes.
Rev.Stat. § 5430, 35 Stat. 1116, 18 U.S.C. § 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
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
Page 338 U. S. 76
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 racetrack 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
Page 338 U. S. 77
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 racetrack 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
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
Page 338 U. S. 78
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
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
Page 338 U. S. 79
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
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 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
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
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
Page 338 U. S. 80
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.
, 334 U. S.
-709. 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.
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
322 U. S.
* 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.
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.
p. 338 U. S. 25
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
MR. JUSTICE REED, with whom THE CHIEF JUSTICE, MR. JUSTICE
JACKSON and MR. JUSTICE BURTON join, dissenting.
My understanding of the rule as to the use of evidence in a
federal criminal trial obtained by state officers through
Page 338 U. S. 81
a search and seizure conducted by them under state authority is
"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.
, 273 U. S. 32
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
273 U.S. at 273 U. S. 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.
Page 338 U. S. 82
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. [Footnote 1
] It was stated thus in the brief for
"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
Page 338 U. S. 83
Koerner. [Footnote 2
$100 bill had not been tampered with, was not evidence against
Lustig, and has nothing to do with the case against him.
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." [Footnote 3
] 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
Testimony of Captain Koerner:
"Q. After you discovered these articles, what did you do?"
"A. I called agent Greene, of the United States Secret
"* * * *"
"Greene came over in the neighborhood of five o'clock after we
made a thorough search and found all this evidence I have
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
"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
Court opinion, ante,
p. 338 U. S.