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December 6, 1950

Application of ROSENBERG

The opinion of the court was delivered by: BYERS

This is a motion by the above-named Rosenberg to suppress all evidence obtained by Agents of the United States Customs Service on September 24, 1950, at the residence of the petitioner, or by any other government official, as the result of an alleged illegal search and seizure.

David Rosenberg is a citizen of Israel, engaged in the diamond business, who says that he arrived in the United States on May 7, 1950, under a passport, but his purpose in being here is not disclosed. On the day of the search, he says he occupied a furnished apartment at 232 Hewes Street, Brooklyn.

On September 23, 1950, two Customs Agents, Duncan and Turner, intercepted the departure for Brazil by airplane of one Louis Feirst whose luggage (three pieces) was found to contain, secreted under the lining, gold bullion in sheet form aggregating not less than 34 1/2 pounds of gold. Feirst told the Agents that he had been hired by Rosenberg to transport and deliver the gold; it also was stated that his companion, Kahan, had accompanied Rosenberg in removing these three bags from Rosenberg's said apartment to the residence of Feirst. These happenings took place between about 11:30 P.M. on September 23d and 1:45 A.M. September 24th, when the Agents and Feirst and Kahan arrived at the Appraiser's Stores, 201 Varick Street, Manhattan.

 Then Customs Agents Eisenberg and Turner were ordered to visit Rosenberg's residence, and they arrived there at approximately 3:30 A.M. The immediately subsequent happenings are material to this motion.

 Rosenberg's petition alleges that he does not speak, and cannot understand, the English language, but his signatures to the petition and the attached verification are in well formed English letters, compatible with his calling as a dealer in diamonds for fifteen years. However, the Agent Eisenberg deposes that he speaks and understands Yiddish fluently and that he conducted in that medium the conversations with Rosenberg which the Government asserts, and Rosenberg denies, constituted an invitation to enter the apartment and a consent to the search which brought to light the papers and documents, etc., to which this motion is directed.

 Where the truth lies as to the extent to which Rosenberg in fact understood what was said to him, and knowingly agreed to the search, would be difficult enough to decide if the participants were to be examined in person before the Court, in the light of cross-examination and the help of a competent interpreter; to reach a satisfactory conclusion on the subject merely in reliance upon what the affidavits say, pro and con, is impossible.

 It is not argued that a valid consent could not have been given under any circumstances whatever, and of course there are no decisions cited to sustain so extreme a contention.

 Eisenberg swears that he told Rosenberg that it was desired to speak to him about the three bags which Feirst had in his possession, and that Rosenberg at once asked: 'Did he (Feirst) say I gave him the bags?' to which Eisenberg replied: 'I want to let you know that last night Louis Feirst was arrested at LaGuardia Airport after three bags which he had were found to contain gold, and he said you gave him the bags. We will talk about that a little later.'

 If the foregoing dialogue did in fact occur, it might well have created in Rosenberg's mind an awareness that his alleged complicity in the exportation of the gold was known to the authorities, and that discretion would dictate cooperation with them rather than the reverse. That alleged incident would require demonstration by convincing evidence, if any understanding of what took place is to be arrived at.

 The petitioner's argument seeks to preserve his negative version of the episode, but to rely more upon several legal propositions based upon decisions in other cases, than upon his ability to demonstrate that the Agents have been untruthful in their sworn narratives.

 It is urged that, since there was no arrest, the search and seizure could not have been incidental to an arrest, and the question of probable cause to believe that a crime had been or was being committed did not arise.

 The first branch of this objection (arrest) presents a barrier to present understanding since the position of both parties on this subject is equivocal:

 The petition recites that Rosenberg's arrest was illegal, and since the only reference therein is to the events of September 24, 1950, he perhaps has in mind his accompanying the Agents to 201 Varick Street, which the Agents say they 'desired' him to do, and that he did. However, his brief asserts that there was no arrest. There is no clear statement, in the papers as a whole, of when Rosenberg was apprehended or taken into custody, or his present status as a litigant, civil or criminal. In view of this nebulous state of the record, the Court cannot characterize his legal position as at the filing of this motion.

 There is attached to the Government's brief what is called a copy of a complaint captioned in this Court, 'filed herein * * September 25, 1950', entitled 'United States of America, Plaintiff, against David Rosenberg, Louis Feirst, and Samuel Kahan, Defendants', in which Agent Duncan swears that the defendants between September 1 and 25, 1950, did 'confederate, agree and conspire to violate the Gold Reserve Act of 1934 as amended' in that they conspired to acquire, transport and export gold bullion without ...

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