1. The United States may retain for use as evidence in the
criminal prosecution of their owner incriminating documents which
are turned over to it by private individuals who procured them,
without the participation or knowledge of any government official,
through a wrongful search of the owner's private desk and papers in
an office. P.
256 U. S.
474.
2. The provision of the Fourth Amendment forbidding unreasonable
searches and seizures refers to governmental action; the Fifth
Amendment secures the citizen from compulsory testimony against
himself by protecting him from extorted confessions and
examinations in court proceedings by compulsory methods. P.
256 U. S.
475.
Reversed.
Appeal from an order of the district court requiring that
certain books and papers be impounded with the clerk and ultimately
returned to the appellee, and enjoining officers of the Department
of Justice from using them, or evidence derived through them, in
criminal proceedings against him. The facts are stated in the
opinion,
post 470.
Page 256 U. S. 470
MR. JUSTICE DAY delivered the opinion of the Court.
J. C. McDowell, hereinafter called the petitioner, filed a
petition in the United States District Court for the Western
District of Pennsylvania asking for an order for the return to him
of certain books, papers, memoranda, correspondence and other data
in the possession of Joseph A. Burdeau, appellant herein, Special
Assistant to the Attorney General of the United States.
In the petition, it is stated that Burdeau and his associates
intended to present to the grand jury in and for the Western
District of Pennsylvania a charge against petitioner of an alleged
violation of § 215 of the Criminal Code of the United States for
the fraudulent use of the mails; that it was the intention of
Burdeau and his associates, including certain post office
inspectors cooperating with him, to present to the grand jury
certain private books, papers, memoranda, etc., which were the
private property of the petitioner; that the papers had been in the
possession and exclusive control of the petitioner in the Farmers'
Bank Building in Pittsburgh. It is alleged that, during the spring
and summer of 1920, these papers were unlawfully seized and stolen
from petitioner by certain persons participating in and furthering
the proposed investigation so to be made by the grand jury, under
the direction and control of Burdeau as special assistant to the
Attorney General, and that such books, papers, memoranda, etc.,
were being held in the possession and control of Burdeau and his
assistants; that, in the taking of the personal private books and
papers, the person who purloined and stole the same drilled the
petitioner's private safes, broke the locks upon his private
Page 256 U. S. 471
desk, and broke into and abstracted from the files in his
offices his private papers; that the possession of the books,
papers, etc., by Burdeau and his assistants was unlawful and in
violation of the legal and constitutional rights of the petitioner.
It is charged that the presentation to the grand jury of the same,
or any secondary or other evidence secured through or by them,
would work a deprivation of petitioner's constitutional rights
secured to him by the Fourth and Fifth Amendments to the
Constitution of the United States.
An answer was filed claiming the right to hold and use the
papers. A hearing was had before the district judge, who made an
order requiring the delivery of the papers to the clerk of the
court, together with all copies, memoranda and data taken
therefrom, which the court found had been stolen from the offices
of the petitioner at rooms numbered 1320 and 1321 in the Farmers'
Bank Building in the City of Pittsburgh. The order further provided
that, upon delivery of the books, papers, etc., to the clerk of the
court, the same should be sealed and impounded for the period of
ten days, at the end of which period they should be delivered to
the petitioner or his attorney unless an appeal were taken from the
order of the court, in which event the books, papers, etc., should
be impounded until the determination of the appeal. An order was
made restraining Burdeau, Special Assistant Attorney General, the
Department of Justice, its officers and agents, and the United
States Attorney from presenting to the United States commissioner,
the grand jury or any official tribunal, any of the books, papers,
memoranda, letters, copies of letters correspondence, etc., or any
evidence of any nature whatsoever secured by or coming into their
possession as a result of the knowledge obtained from the
inspection of such books, papers, memoranda, etc.,
In his opinion, the district judge stated that it was the
Page 256 U. S. 472
intention of the Department of Justice, through Burdeau and his
assistants, to present the books, papers, etc., to the grand jury
with a view to having the petitioner indicted for the alleged
violation of § 215 of the Criminal Code of the United States, and
the court held that the evidence offered by the petitioner showed
that the papers had been stolen from him, and that he was entitled
to the return of the same. In this connection, the district judge
stated that it did not appear that Burdeau, or any official or
agent of the United States, or any of the departments, had anything
to do with the search of the petitioner's safe, files, and desk or
the abstraction therefrom of any of the writings referred to in the
petition, and added that
"the order made in this case is not made because of any unlawful
act on the part of anybody representing the United States or any of
its departments, but solely upon the ground that the government
should not use stolen property for any purpose after demand made
for its return."
Expressing his views at the close of the testimony, the Judge
said that there had been a gross violation of the Fourth and Fifth
Amendments to the federal Constitution; that the government had not
been a party to any illegal seizure; that those amendments, in the
understanding of the court, were passed for the benefit of the
states against action by the United States, forbidden by those
amendments, and that the court was satisfied that the papers were
illegally and wrongfully taken from the possession of the
petitioner, and were then in the hands of the government.
So far as is necessary for our consideration, certain facts from
the record may be stated. Henry L. Doherty & Co. of New York
were operating managers of the Cities Service Company, which
company is a holding company, having control of various oil and gas
companies. Petitioner was a director in the Cities Service
Company
Page 256 U. S. 473
and a director in the Quapaw Gas Company, a subsidiary company
and occupied an office room in the building owned by the Farmers'
Bank of Pittsburgh. The rooms were leased by the Quapaw Gas
Company. McDowell occupied one room for his private office. He was
employed by Doherty & Co. as the head of the natural gas
division of the Cities Service Company. Doherty & Co.
discharged McDowell for alleged unlawful and fraudulent conduct in
the course of the business. An officer of Doherty & Co. and the
Cities Service Company went to Pittsburgh in March, 1920, with
authority of the president of the Quapaw Gas Company to take
possession of the company's office. He took possession of room
1320; that room and the adjoining room had McDowell's name on the
door. At various times, papers were taken from the safe and desk in
the rooms, and the rooms were placed in charge of detectives. A
large quantity of papers were taken and shipped to the auditor of
the Cities Service Company at 60 Wall Street, New York, which was
the office of that company, Doherty & Co., and the Quapaw Gas
Company. The secretary of McDowell testified that room 1320 was his
private office; that practically all the furniture in both rooms
belonged to him; that there was a large safe belonging to the
Farmers' Bank and a small safe belonging to McDowell; that, on
March 23, 1920, a representative of the company and a detective
came to the offices; that the detective was placed in charge of
room 1320; that the large safe was opened with a view to selecting
papers belonging to the company, and that the representative of the
company took private papers of McDowell's also. While the rooms
were in charge of detectives, both safes were blown open. In the
small safe nothing of consequence was found, but in the large safe
papers belonging to McDowell were found. The desk was forced open,
and all the papers taken from it.
Page 256 U. S. 474
The papers were placed in cases and shipped to Doherty &
Co., 60 Wall Street, New York.
In June, 1920, following, Doherty & Co., after communication
with the Department of Justice, turned over a letter, found in
McDowell's desk, to the department's representative. Burdeau
admitted at the hearing that, as the representative of the United
States in the Department of Justice, he had papers which he assumed
were taken from the office of McDowell. The communication to the
Attorney General stated that McDowell had violated the laws of the
United States in the use of the mail in the transmission of various
letters to parties who owned the properties which were sold by or
offered to the Cities Service Company; that some of such letters,
or copies of them taken from McDowell's file, were in the
possession of the Cities Service Company, that the Company also had
in its possession portions of a diary of McDowell in which he had
jotted down the commissions which he had received from a number of
the transactions and other data which, it is stated, would be
useful in the investigation of the matter before the grand jury and
subsequent prosecution should an indictment be returned.
We do not question the authority of the court to control the
disposition of the papers, and come directly to the contention that
the constitutional rights of the petitioner were violated by their
seizure, and that, having subsequently come into the possession of
the prosecuting officers of the government, he was entitled to
their return. The amendments involved are the Fourth and Fifth,
protecting a citizen against unreasonable searches and seizures and
compulsory testimony against himself. An extended consideration of
the origin and purposes of these amendments would be superfluous in
view of the fact that this Court has had occasion to deal with
those subjects in a series of cases.
Boyd v. United
States, 116 U. S. 616;
Adams v. New York, 192 U. S. 585;
Weeks v.
Page 256 U. S. 475
United States, 232 U. S. 383;
Johnson v. United States, 228 U.
S. 457;
Perlman v. United States, 247 U. S.
7;
Silverthorne Lumber Co. v. United States,
251 U. S. 385;
Gouled v. United States, 255 U. S. 298.
The Fourth Amendment gives protection against unlawful searches
and seizures, and, as shown in the previous cases, its protection
applies to governmental action. Its origin and history clearly show
that it was intended as a restraint upon the activities of
sovereign authority, and was not intended to be a limitation upon
other than governmental agencies; as against such authority, it was
the purpose of the Fourth Amendment to secure the citizen in the
right of unmolested occupation of his dwelling and the possession
of his property, subject to the right of seizure by process duly
issued.
In the present case, the record clearly shows that no official
of the federal government had anything to do with the wrongful
seizure of the petitioner's property or any knowledge thereof until
several months after the property had been taken from him and was
in the possession of the Cities Service Company. It is manifest
that there was no invasion of the security afforded by the Fourth
Amendment against unreasonable search and seizure, as whatever
wrong was done was the act of individuals in taking the property of
another. A portion of the property so taken and held was turned
over to the prosecuting officers of the federal government. We
assume that petitioner has an unquestionable right of redress
against those who illegally and wrongfully took his private
property under the circumstances herein disclosed, but with such
remedies we are not now concerned.
The Fifth Amendment, as its terms import, is intended to secure
the citizen from compulsory testimony against himself. It protects
from extorted confessions, or examinations in court proceedings by
compulsory methods.
The exact question to be decided here is: may the
Page 256 U. S. 476
government retain incriminating papers coming to it in the
manner described with a view to their use in a subsequent
investigation by a grand jury where such papers will be part of the
evidence against the accused, and may be used against him upon
trial should an indictment be returned?
We know of no constitutional principle which requires the
government to surrender the papers under such circumstances. Had it
learned that such incriminatory papers, tending to show a violation
of federal law, were in the hands of a person other than the
accused, it having had no part in wrongfully obtaining them, we
know of no reason why a subpoena might not issue for the production
of the papers as evidence. Such production would require no
unreasonable search or seizure, nor would it amount to compelling
the accused to testify against himself.
The papers having come into the possession of the government
without a violation of petitioner's rights by governmental
authority, we see no reason why the fact that individuals,
unconnected with the government, may have wrongfully taken them
should prevent them from being held for use in prosecuting an
offense where the documents are of an incriminatory character.
It follows that the district court erred in making the order
appealed from, and the same is
Reversed.
MR. JUSTICE BRANDEIS dissenting with whom MR. JUSTICE HOLMES
concurs.
Plaintiff's private papers were stolen. The thief, to further
his own ends, delivered them to the law officer of the United
States. He, knowing them to have been stolen, retains them for use
against the plaintiff. Should the court permit him to do so?
Page 256 U. S. 477
That the court would restore the papers to plaintiff if they
were still in the thief's possession is not questioned. That it has
power to control the disposition of these stolen papers, although
they have passed into the possession of the law officer, is also
not questioned. But it is said that no provision of the
Constitution requires their surrender, and that the papers could
have been subpoenaed. This may be true. Still I cannot believe that
action of a public official is necessarily lawful because it does
not violate constitutional prohibitions and because the same result
might have been attained by other and proper means. At the
foundation of our civil liberty lies the principle which denies to
government officials an exceptional position before the law and
which subjects them to the same rules of conduct that are commands
to the citizen. And, in the development of our liberty, insistence
upon procedural regularity has been large factor. Respect for law
will not be advanced by resort, in its enforcement, to means which
shock the common man's sense of decency and fair play.