The opinion of the court was delivered by: BYERS
This is a defendant's motion made in this court on October 2, 1957, under Fed.Rules Crim.Proc. rule 41(e), 18 U.S.C.A., for the return and suppression for use as evidence, of any and all property seized on June 21, 1957 in Room 839 of the Hotel Latham (Manhattan) because, as alleged, such property was illegally seized without warrant and contrary to the Fourth and Fifth Amendments to the Constitution.
Hearings were conducted in open court on October 8 and 9, by way of supplementing the original affidavit of the defendant verified September 13, 1957, which was filed as part of a special proceeding in the Southern District. Pursuant to the opinion of Judge Ryan of that court dated October 2, that proceeding was dismissed with leave to the defendant to move in this court.
By affidavit filed October 8, the defendant's chief counsel thus succinctly states the issue:
'The defendant maintains that the true objective of the Department of Justice in conducting the search and seizure at the Hotel Latham on June 21, 1957 was to obtain any espionage material possessed by a suspected Soviet agent in Room 839;
'The Government, in the affidavits most recently submitted in its behalf, apparently denies this contention.'
On June 21, 1957 the defendant was arrested at his room in the said hotel at about 7:30 a.m. by agents of the Immigration and Naturalization Service (which is an integral part of the Department of Justice), pursuant to a warrant of arrest issued by the Department of Justice (Immigration and Naturalization Service), bearing date June 20, 1957; at that time there was served upon him an order to show cause in which it is recited that it appears that he is in the United States in violation of law in that he is not a citizen or national of the United States but is a national of Russia, namely, the Union of Soviet Socialist Republics, and that he entered the United States at an unknown point across the border from Canada, in 1949.
That he failed to notify the Attorney General of his address during January of 1956 and during January of 1957; that he did not furnish notice of his address because he feared that by so doing he would disclose his illegal presence in the United States; that he is subject to being taken into custody and deported pursuant to Section 241(a) 5 (8 U.S.C.A. § 1251) of the Immigration and Nationality Act, having failed to furnish notification of his address in compliance with Section 265 of that Act (8 U.S.C.A. § 1305), and had not established that such failure was reasonably excusable or was not wilful. The defendant was named in both the warrant and the order to show cause as Martin collins alias Emil R. Goldfuss.
All papers used in the Southern District are new before this court on this motion.
At the request of the defendant a hearing was conducted on October 8 and 9 for the purpose of taking the oral testimony of the Government agents whose affidavits had originally been filed in opposition to the motion.
The following witnesses testified:
Robert E. Schoenenberger, a Supervisory Investigator with the Immigration and Naturalization Service, U.S. Department of Justice;
Edward J. Farley, a Supervisory Investigator with the Immigration and Naturalization Service;
Lennox Kanzler, Divisional Investigator with the Immigration and ...