The opinion of the court was delivered by: MOSCOWITZ
This is an application for an order restraining the Commandant of the Third Naval District and any of his staff or assistants, the Collector of Customs of the Port of New York, the United States Attorney for this district and his associates, at any trial, hearing or proceeding against petitioner, from using or introducing or referring to any evidence directly or indirectly obtained as a result of what is alleged to have been an unlawful search of the petitioner's home at 338 Burns Street, Forest Hills, Long Island, and to suppress all matter alleged to have been illegally seized upon such unlawful search.
The petitioner is a Lieutenant Commander in the United States Naval Reserve, presently a prisoner at large under technical arrest awaiting disciplinary action by the Commandant of the Third Naval District. It appears from the papers submitted upon the application that petitioner is suspected of misconduct involving theft, embezzlement or misappropriation of vast quantities of property belonging to the United States, British and French governments, of attempts to evade United States Customs regulations, of violation of United States Navy directives relating to the retention and shipment of captured enemy equipment, of improper taking and shipping of live ammunition and explosives endangering naval vessels and the lives of naval personnel, and of other offenses of a serious nature.
In an affidavit in opposition to the order to show cause by which this application was initiated, the United States Attorney states that 'there is no proceeding or any matter of any kind pending or contemplated before this, the United States District Court, Eastern District of New York, and the property is not in the possession of any officer of this Court.'
To pose the question here involved seems to furnish the answer. No proceeding of any kind is pending in this court and apparently none is even contemplated. A member of the United States Navy is being investigated in respect to his United States naval duties and obligations, which may involve proceedings before bodies known as a Board of Investigation, a Court of Inquiry or a United States Naval Court-Martial. These are agencies of the executive branch of the government and cannot, by the widest stretch of the imagination, be considered parts of the judicial system. They have been provided for by Congressional enactment under Article I, Section 8 of the Constitution which authorizes the Congress to 'make Rules for the Government and Regulation of the land and naval forces.' Where the accused is properly under Navy supervision, the civil courts have no power or jurisdiction to restrain or to interfere with the normal processes of the administration of naval justice and discipline. Dynes v. Hoover, 1858, 20 How. 65, 61 U.S. 65, 15 L. Ed. 838; Reaves v. Ainsworth, 1911, 219 U.S. 296, 31 S. Ct. 230, 55 L. Ed. 225; United States ex rel. Wessels v. McDonald, D.C.N.Y., 1920, 265 F. 754; Winthrop, Military Law and Precedents, 2nd Ed. (1920), p. 49.
Since the application is apparently designed to restrain the Navy Court-Martial and the preliminary inquiries and investigation, the application is denied.
Where it has been held that a summary proceeding for the return of illegally seized property may be entertained prior to the institution of a criminal prosecution, jurisdiction was based on the property being in the custody of an officer of the court in which the summary proceeding was brought. Weinstein v. Attorney General of the United States, 2 Cir., 1921, 271 F. 673; In re Behrens, 2 Cir., 1930, 39 F.2d 561; Applybe v. United States, 9 Cir., 1929, 32 F.2d 873; American Dealers Service v. Goldman, D.C.N.Y., 1943, 49 F.Supp. 933, affirmed 2 Cir., 135 F.2d 398. This is not a proceeding for the return of the property and the United States Attorney has averred by affidavit that the property is not in his possession.
It appears that the claimed constitutional rights of the petitioner will be adequately protected in any event within the naval procedure itself. No rule on the admissibility before a Court-Martial of evidence procured by an illegal search and seizure has been drawn to the court's attention as being specifically set forth in Chapter III of Naval Courts and Boards (1937), which regulates the conduct of the proceeding. But Section 146 thereof provides that: 'If a question of evidence which cannot be determined by a reference to the above rules (those specifically set forth) confronts a court it should then look to the rules of evidence applied by the federal court and follow them if applicable.' Pursuant to this and equivalent predecessor provisions, General Courts-Martial have followed the federal rule on search and seizure and have held that evidence illegally procured may not be admitted on a court-martial trial and a finding of guilt where such evidence has been admitted will be reversed. See C.M.O. 11 -- 1929, p. 11 and C.M.O. 3 -- 1943, p. 47.