BYARS v. U. S.(1927)
Mr. Claude R. Porter, of Des Moines, Iowa, for petitioner.
Mr. Gardner P. Lloyd, of New York City, for the United States.
Mr. Justice SUTHERLAND delivered the opinion of the Court.
Petitioner was convicted in the federal District Court for the Southern District of Iowa upon two counts for unlaw- [273 U.S. 28, 29] fully having in his possession with fraudulent intent certain counterfeit strip stamps of the kind used upon whisky bottled in bond. The stamps were admitted in evidence over the objection of petitioner that they had been obtained by an unlawful search and seizure. A timely motion previously made by the petitioner to return or impound the stamps was overruled. The judgment of conviction was affirmed by the Circuit Court of Appeals. 4 F.( 2d) 507.
The stamps were found in executing a search warrant issued by the judge of a state municipal court and addressed to 'any peace officer of Des Moines, Polk county, Iowa,' directing search for intoxicating liquors and instruments and materials used in the manufacture of such liquors. The information upon which the search warrant was issued states only that affiant 'has good reason to believe and does believe the defendant has in his possession' such intoxicating liquors, instruments and materials. The warrant clearly is bad if tested by the Fourth Amendment and the laws of the United States. Chapter 30, tit. 11, 3-6, 40 Stat. 217, 228, 229 ( Comp. St. 10496 1/4 c-10496 1/4 f); chapter 85, tit. 2, 2, 41 Stat. 305, 308 (Comp. St. 10138 1/2 a). See Ripper v. United States (C. C. A.) 178 F. 24, 26; United States v. Borkowski (D. C.) 268 F. 408, 410, 411; United States v. Kelly (D. C.) 277 F. 485, 486-489. Whether it is good under the state law it is not necessary to inquire, since in no event could it constitute the basis for a federal search and seizure, as, under the facts hereinafter stated, it is insisted this was.
Nor is it material that the search was successful in revealing evidence of a violation of a federal statute. A search prosecuted in violation of the Constitution is not made lawful by what it brings to light; and the doctrine has never been recognized by this court, nor can it be tolerated under our constitutional system, that evidences of crime discovered by a federal officer in making a search without lawful warrant may be used against the victim of [273 U.S. 28, 30] the unlawful search where a timely challenge has been interposed. Weeks v. United States. 232 U.S. 383, 393 , 34 S. Ct. 341, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Gouled v. United States, 255 U.S. 298, 306 , 41 S. Ct. 261; Amos v. United States, 255 U.S. 313 , 41 S. Ct. 266; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391 , 40 S. Ct. 182; Agnello v. United States, 269 U.S. 20, 33 , 46 S. Ct. 4.
The warrant directs the officer to search certain described premises and, if any of the liquors, instruments or materials set forth in the information are found, to seize the same and keep them until final action be had thereon. It was put into the hands of Mr. Densmore, a local officer in charge of the night liquor bureau of the police station in Des Moines, Iowa, and he, together with three others, proceeded to make the search in circumstances which can best be shown by quoting from the testimony given upon the hearing of the motion to impound or return the property seized. Mr. Densmore testified as follows:
Mr. Adams, the federal prohibition agent, testified:
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. Constitutional provisions for the security of person and property are to be liberally construed, and 'it is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.' Boyd v. United States, 116 U.S. 616, 635 , 6 S. Ct. 524, 535 (29 L. Ed. 746); Gouled v. United States, 255 U. S. page 304, 41 S. Ct. 261, supra.
The attendant facts here reasonably suggest that the federal prohibition agent was not invited to join the state squad as a private person might have been, but was asked to participate and did participate as a federal enforcement officer, upon the chance, which was subsequently realized, that something would be disclosed of official interest to him as such agent. The house to be searched contained only four rooms-a dining room, a kitchen, and two bedrooms. We are not prepared to accept the view that the local officer thought a force of four men would be insufficient to search these limited premises; and it is significant in that connection that he did not ask his superior officer for additional help, but inquired particularly for Adams, who, he knew, was the federal agent. The stamps found were not within the purview of the state search warrant, nor did they relate in any way to a violation of state law. Those found by the agent were held by him as of right and without question; those found by the state officer were considered by both the local officer [273 U.S. 28, 33] in charge and the federal agent as things which concerned the federal government alone and then and there were surrendered to the exclusive possession of the federal agent-a practical concession that he was present in his federal character. We cannot avoid the conclusion that the participation of the agent in the search was under color of his federal office and that the search in substance and effect was a joint operation of the local and federal officers. In that view, so far as this inquiry is concerned, the effect is the same as though he had engaged in the undertaking as one exclusively his own. Similar questions have been presented in a variety of forms to the lower federal courts, but nothing is to be gained by attempting to review the decisions, since each of them rests, as the present case does, upon its own peculiar facts. But see and compare Flagg v. United States (C. C. A.) 233 F. 481, 483; United States v. Slusser (D. C.) 270 F. 818, 820; United States v. Falloco (D. C.) 277 F. 75, 82; Legman v. United States (C. C. A.) 295 F. 474, 476-478; Marron v. United States (C. C. A.) 8 F.(2d) 251, 259; United States v. Brown (D. C.) 8 F.(2d) 630, 631.
We do not question the right of the federal government 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. To hold the contrary would be to disregard the plain spirit and purpose of the constitutional prohibitions intended to secure the people against unauthorized official action. The Fourth Amendment was adopted in view of long misuse of power in the matter of searches and seizures both in England and the colonies; and the assurance against any revival of it, so carefully embodied in the fundamental law, is not to be impaired by judicial sanction of equivocal methods, [273 U.S. 28, 34] which, regarded superficially, may seem to escape the challenge of illegality but which, in reality, strike at the substance of the constitutional right.
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