Opinion
C.E. Luckey, U.S. Atty., Portland, Or., for plaintiff.
Walter H. Evans, Jr., Portland, Or., for defendants.
EAST, District Judge.
In the above entitled cause the defendants were convicted by a jury of the charges in the indictment submitted to it. Thereupon, the Court entered its judgment of conviction on May 21, 1957, finding and imprisoning each of the defendants. Subsequently, the cause was appealed to the United States Court of Appeals for the Ninth Circuit and was affirmed (266 F.2d 588). Thereafter, said defendants filed their writ of certiorari to, and which was allowed by, the Supreme Court of the United States.
The Supreme Court, in its 5-4 opinion entered in Elkins et al. v. United States, 1960, 364 U.S. 206, at page 224, 80 S.Ct. 1437, at page 1447, 1453, 4 L.Ed.2d 1669, opined:
As stated in the majority opinion of the Supreme Court:
The opinion continues:
The 'silver platter' label stems from a phrase first turned in the prevailing opinion in Lustig v. United States, 1949, 338 U.S. 74, 78-79, 69 S.Ct. 1372, 1374, 93 L.Ed. 1819:
As pointed out in the minority opinion of Elkins v. United States, supra, 364 U.S. at page 233, 80 S.Ct. at page 1453:
as a dictate to the United States District Courts in dealing with the problem here involved.
In declining to rule upon the defendants' motion to suppress under the silver platter doctrine, this Court did not have the temerity of prognosticating what the Supreme Court might hold if it were to review an order either sustaining or denying the motion for suppression, but instead applied the federal law of 50-years' standing of its Circuit and the United States Supreme Court, which, in the language of Mr. Justice Harlan, had:
The Supreme Court has plainly and simply instructed this Court under its remand for 'further proceedings consistent with' its opinion to make 'an independent inquiry' and ruling upon the defendants' original motion and any supplemental motions to suppress, irrespective of how any prior inquiry of the subject by any state court may have turned out.
It has been stipulated by the parties and their respective counsel of record that the matter should be submitted to the Court upon the record made upon the defendants' motion to suppress without further evidence on behalf of either party. However, the defendants did file herein their amended and supplemental motion to suppress as evidence the above mentioned articles seized by the state officers, wherein the defendants state, inter alia:
enumerated articles.
From the foregoing admission of the defendants it is clear, and this Court is of the opinion, that both of the defendants have 'standing.'
See note 16, Elkins v. United States, supra, 364 U.S. at page 223, 80 S.Ct. at page 1447.
Where persons claiming ownership of property (Elkins) had entrusted its possession to another (Clark), the latter being the one from whom the property was actually seized, the law is clear that ownership without possession is a sufficient interest to entitle one to object to the seizure. United States v. Jeffers, 1951, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59; Pielow v. United States, 9 Cir., 1925, 8 F.2d 492, and United States v. Lester, D.C.W.D.Pa.1957, 21 F.R.D. 376.
and therefore had a right to pursue the provisions of Rule 41(e) of the F.R.Crim.P., 18 U.S.C. which inter alia, provide:
Which Rule gives vitality and 'teeth' to the Fourth Amendment to the United States Constitution, which provides:
It is self-evident that the search warrant issued and which the state officers were executing (and for the purposes of this case, following the dictates of Elkins v. United States, supra, the substituted federal officers), did not particularly describe the 'things to be seized,' and which were actually seized and herein moved to be suppressed as evidence. Therefore, it is self-evident that the articles seized and admitted in evidence in this case were unlawfully seized by virtue of the search warrant in and of itself. Elkins v. United States, supra.
In view of the holding ultimately to be made in this opinion, it is unnecessary to give a reason for or explain this Court's opinion, which apparently is contra to the opinions of the two state courts mentioned above, that the 'substituted federal officers' were lawfully within the premises of Clark for the purpose of lawfully searching for the things described in the warrant to be seized. In other words, this Court would find from the evidence submitted during the hearing upon the motion to suppress and at the trial that the warrant in question was issued upon 'probable cause.'
Being of this opinion, this Court now inquires as to whether the 'substituted federal officers,' being lawfully within the premises of Clark, could not legally seize instruments or articles connected with another offense being actually committed on the premises entered and discovered by the searching 'federal officers,' or of articles of a contraband nature found by the 'substituted federal officers.' See 4 Wharton's Criminal Law and Procedure, 1569 (1957). See also, 169 A.L.R.1419, 1424 (1947).
It is manifest that the articles seized by the 'substituted federal officers' and used as evidence in this case are not 'articles of a contraband nature.' It is also manifest that the five reels of electronic recordings and the written memoranda explaining and describing the contends of the electronic recordings were evidence of unlawful interception of telephonic communications found by the 'substituted federal officers' while lawfully within the premises of defendant Clark. However, the mere unlawful interception of telephonic conversations between third parties does not fully constitute the crime prohibited by 47 U.S.C.A. 501, 605. The crime prohibited by these sections consists of two components; first, the unlawful interception of the telephonic conversation and, second, an unauthorized divulgence thereof. It therefore follows that the second element of the crime of unlawful divulgence of the unlawful interception was not had in the presence of the 'substituted federal officers.' Hence, the crime for which the defendants were indicted, tried, and found guilty, was not committed within the presence of the 'substituted federal officers' while lawfully within the premises of the defendant Clark. See Marron v. United States, 1927, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231; Harris v. United States, 1947, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399. As to the trend of the Supreme Court of the United States reversing long-established dictates to the United States District Courts on unlawful searches and seizures, see Mapp v. Ohio, 81 S.Ct. 1684, at page 1690, decided June 19, 1961.
It necessarily follows that under the dictates of Elkins v. United States, supra, the defendants' original motion and amended and supplemental motion to suppress, as aforesaid, should be sustained, and that therefore each of the defendants was convicted upon evidence illegally seized under the Fourth Amendment to the United States Constitution, and this Court is of the opinion that the unlawfully seized articles must be returned to the owners, and it is for them to divide and partition the same between themselves as to their own conscience as being fruits of their nefarious acts of unlawfully invading the privacy of other
persons. The judgment of conviction herein must be set aside and held for naught and each of the defendants granted a new trial under the indictment on file herein.
This Court having heard multiple weeks of testimony upon the original motion to suppress and upon the trial of the cause resulting in the conviction of the defendants, is unable to refrain from quoting from the opinion of Plazola v. United States, 9 Cir., 291 F.2d 56:
'During the course of these state proceedings federal officers, acting under a federal search warrant, obtained the articles from the safe deposit box of a local bank where the state officials had placed them. Shortly after the state case was abandoned, a federal indictment was returned, and the instant prosecution followed.' Elkins v. United States, 364 U.S. 206, 207, note 1, 80 S.Ct. 1437, 1438, 1453, 4 L.Ed.2d 1669.