The opinion of the court was delivered by: WYATT
After careful study, I have concluded that the motion of defendants to suppress evidence (Fed.R.Crim.P. 41(e)) must be denied.
On June 27, 1963, an indictment of the two defendants was returned. There are 85 counts, the first charging both defendants with conspiracy to violate 18 U.S.C. § 1461 -- mailing obscene, etc. matter. The other counts charge Klaw alone with the substantive offense of mailing obscene, etc. matter in violation of 18 U.S.C. § 1461. Pleas of not guilty have been entered.
After return of the indictment, warrants were immediately issued for the arrest of defendants.
That same afternoon (June 27) the warrant for Kramer was delivered to Postal Inspector Quinn who went with another inspector to business premises at 35 Montgomery Street in Jersey City where they found defendant Kramer. They identified themselves, told Kramer they had the warrant, that a Marshal would be there shortly to execute the warrant, that he could meanwhile read the warrant, that he could contact a lawyer to arrange for bail, etc. In a few minutes Deputy Marshal Coppodonna arrived; Quinn gave the warrant to the Deputy Marshal, who showed his credentials, read the warrant to Kramer and arrested him. After Kramer had been arrested, Quinn asked him if samples of the printed material in the premises could be taken; Kramer said this was all right. Quinn then took a small number of photographs, pamphlets and advertising circulars. These were taken from near the place of arrest and from open, visible locations. No doors, closets, desks, or files were opened to secure the material.
Both by affidavit and by testimony in open court subject to cross-examination Quinn says that Kramer consented to the material being taken. No affidavit of Kramer denying such consent is submitted nor did Kramer testify. I am bound to find that consent to a taking of the material was given.
By inspection of the items taken in Jersey City, they appear to be the same type of items claimed in the indictment to be obscene, etc. and mailed in violation of the statute.
On the same June 27 afternoon, Deputy Marshals Caffrey and Watson, with Postal Inspectors Simon, Kresky and Mock went to the business premises at 212 East 14th Street in New York. Caffrey had the warrant. Klaw was in an office there at a desk. The officers were admitted; Caffrey went up to the desk, showed Klaw the warrant and arrested him. The office was of substantial size. There were racks and shelves with some pictures and other items on them and also a quantity of similar items on the floor. The postal inspectors and at least one of the marshals looked at the material in the area generally between the door of entry and Klaw's desk, material visible from the place where Klaw was arrested. They took away a substantial quantity of this material. Choice of items was in most cases left with the postal inspectors. No doors, closets, desks, or files were opened to secure the material. It was open to hand. No consent of Klaw was asked or given. Klaw says in his affidavit that the search 'consumed between 10 and 15 minutes and only covered a small portion of the entire premises'.
My inspection of the material taken from 212 East 14th Street indicates that it consists solely of (1) photographs, booklets and the like of the type claimed in the indictment to be obscene, etc. (2) sales or offering circulars of the items claimed to be obscene, etc., and (3) production material such as lay-outs, original photos and the like used in producing the items described in (1) or to be used in producing such items. My inspection indicates that no personal papers of defendants are included in the material, nor any business papers except to the extent that the items described may be considered business papers.
In determining whether the search here was proper, an attempt must be made to apply the presently valid pronouncements of the Supreme Court, which have been said to be 'the product of an unusually tortuous development'. Kaplan, Search and Seizure: A No-Man's Land in the Criminal Law, 49 Calif.L.R. 474 (1961).
The starting point must be United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430, 94 L. Ed. 653 (1950) where the court rejected as a test the 'practicability' of procuring a search warrant. The court said (339 U.S. at 66, 70 S. Ct. at 435, 94 L. Ed. at 653):
'To the extent that Trupiano v. United States, 334 U.S. 699, 68 S. Ct. 1229, 92 L. Ed. 1663, requires a search warrant solely upon the basis of the practicability of procuring it rather than upon the reasonableness of the search after a lawful arrest, that case is overruled. The relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.'
There was a valid warrant of arrest in Rabinowitz but no indictment and no search warrant. A search was nevertheless upheld as reasonable which was made incident to the arrest of 'desk, safe and file cabinets, all within plain sight of the parties, and all located under respondent's immediate control in his one-room office open to the public'. (339 U.S. at 61, 70 S. Ct. at 433, 94 L. Ed. 653).
Rabinowitz seems to be still good law. Abel v. United States, 362 U.S. 217, 80 S. Ct. 683, 4 L. Ed. 2d 668 (1960); Ker v. California, 374 U.S. 23, 41, 42, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963).
In the case at bar, it seems clear that a search warrant could have been obtained. Fed.R.Crim.P. 41. It was apparent under the circumstances that the articles seized were probably to be found at 35 Montgomery Street in Jersey City and at 212 East 14th Street in New York City. Whatever the reason for failure to obtain a search warrant, it could not have been to avoid establishing probable cause to ...