U.S. Supreme Court COGEN v. UNITED STATES, 278 U.S. 221 (1929)

[Page 278 U.S. 221, 226]

the motion, although entitled in the criminal case, is not filed until after the criminal prosecution has been disposed of, as where under the National Prohibition Act a defendant seeks, after acquittal, to regain possession of liquor seized. [Footnote 2] And the independent character of a summary proceeding for return of papers may be so clear, that it will be deemed separate and distinct, even if a criminal prosecution against the movant is pending in the same court. This was true in Essgee Co. of China v. United States, 262 U.S. 151, 43 S. Ct. 514, where the petition was entitled as a separate matter and was referred to by the court as a special proceeding.

Motions for the return of property, made in connection with a motion to quash a search warrant issued under the National Prohibition Act, may be independent proceedings, but are not necessarily so. By Act of October 28, 1919, c. 85, title 2, 25, 41 Stat. 315 (27 USCA 39), and Espionage Act, June 15, 1917, c. 30, title 11, 16, 40 Stat. 229 (18 USCA 626), Congress made specific provision, by an independent proceeding, for the vacation of a warrant wrongfully issued and for return of the property. [Footnote 3] Dumbra v. United States, 268 U.S. 435, 45 S. Ct. 546, was such a case. Steele v. United States (No. 1) 267 U.S. 498, 45 S. Ct. 414, was also, so far as disclosed by the record in this court. [Footnote 4] Because it appeared to be such, the order therein denying the application was held in Steele v. United States (No. 2) 267 U.S. 505, 45 S. Ct. 417, to be res judicata, on the trial of the information filed after the seizure for un-

[Page 278 U.S. 221, 227]

lawful possession of the liquor. [Footnote 5] But a motion for the return of property, although connected with a motion to quash a search warrant, may, if made in the same court in which a criminal proceeding is pending, be so closely associated with the criminal proceeding as to be deemed a part of it. Thus, where the motion to quash the search warrant and for return of the property is made by a party to the cause is filed in the cause and seeks suppression of the evidence at the trial, it is apparent that the motion to quash the search warrant is an incident merely; that the real purpose of the application is to suppress evidence; and that it is but a step in the criminal case preliminary to the trial thereof. Circumstances may make this clear, even if the motion does not specifically pray for suppression of the evidence. In all such cases the order made on the motion is interlocutory merely. [Footnote 6]

Where in cases arising under the National Prohibition Act a defendant seeks to obtain, by motion in advance of trial, return of property which was not seized under a search warrant, the interlocutory character of the order entered thereon is ordinarily clear. [Footnote 7] This is true of the order here in question. The motion was not for the return of papers seized under a search warrant. It was filed in the criminal case after the indictment and before

[Page 278 U.S. 221, 228]

trial. It seeks not only return of the papers, but the suppression of all evidence obtained therefrom. And such suppression of evidence appears to be its main, if not its only purpose. The appeal was properly dismissed by the Circuit Court of Appeals.

Affirmed. Footnotes

Footnote 1 Also Murby v. United States (C. C. A.) 293 F. 849, 851; Bell v. United States (C. C. A.) 9 F.(2d) 820. Compare Giles v. United States (C. C. A.) 284 F. 208, 209; Shields v. United States, 26 F.(2d) 993, 58 App. D. C. 215.

Footnote 2 In re Brenner (C. C. A.) 6 F.(2d) 425, Dickhart v. United States, 16 F.(2d) 345, 57 App. D. C. 5. See Mellet & Nichter Brewing Co. v. United States (C. C. A.) 296 F. 765, 770.

Footnote 3 See Gallagher v. United States (C. C. A.) 6 F.(2d) 758; United States v. Casino (D. C.) 286 F. 976.

Footnote 4 The fact that, on the docket of the District Court, the motion to vacate the search warrant appears to have been filed in the criminal case and to have been disposed of there, has been brought to our attention through the diligence of Cogen's counsel. But this fact was not disclosed by the records or briefs in either of the Steels Cases.

Footnote 5 Voorhies v. United States (C. C. A.) 299 F. 275; In re No. 191 Front St. (C. C. A.) 5 F.(2d) 282; In re Hollywood Cabaret (C. C. A.) 5 F.( 2d) 651; United or briefs in either of the Steele Cases. 51 A. L. R. 416- are cases of the same character. The motion filed in the criminal case passed on in Dowling v. Collins (C. C. A.) 10 F.(2d) 62, was assumed by the Circuit Court of Appeals to be so. Compare Veeder v. United States (C. C. A.) 252 F. 414.

Footnote 6 See Coastwise Lumber & Supply Co. v. United States (C. C. A.) 259 F. 847; United States v. Broude (C. C. A.) 299 F. 332; Jacobs v. United States (C. C. A.) 8 F.(2d) 981. Compare Jacobs v. United States, 24 F.(2d) 890, 58 App. D. C. 62.

Footnote 7 See United States v. Maresca (D. C.) 266 F. 713, 719; United States v. Marquette (C. C. A.) 270 F. 214; United States v. Mattingly, 285 F. 922, 52 App. D. C. 188. Compare Crooker v. Knudsen (C. C. A.) 232 F. 857; Fries v. United States (C. C. A.) 284 F. 825.