It is a firmly established rule in the federal courts, that evidence obtained by an illegal search and seizure, within the purview of the Fourth Amendment to the Constitution of the United States, is not admissible providing timely steps are taken for its exclusion or return. However, that rule is limited in its application to federal officers or agents, so that quite generally it may be said, that evidence obtained by private,mdividuals or municipal or state officers, acting as such, is admissible in federal courts, regardless of the manner in which it is obtained

Marquis, Marion A.

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Washington Law Review Volume 3 Number 4 10-1-1928 Admissibility in Federal Courts of Evidence Wrongfully Obtained by Persons Other Than Federal Officers or by Cooperation Between Such Persons and Federal Officers Marion A. Marquis Follow this and additional works at: https://digitalcommons.law.uw.edu/wlr  Part of the Evidence Commons Recommended Citation Marion A. Marquis, Notes and Comments, Admissibility in Federal Courts of Evidence Wrongfully Obtained by Persons Other Than Federal Officers or by Cooperation Between Such Persons and Federal Officers, 3 Wash. L. Rev. 189 (1928). Available at: https://digitalcommons.law.uw.edu/wlr/vol3/iss4/3 This Notes and Comments is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington Law Review by an authorized editor of UW Law Digital Commons. For more information, please contact cnyberg@uw.edu. WASHINGTON LAW REVIEWPublished Quarterly by the Law School of the University of WashingtonFounded by John T. Condon, First Dean of the Law SchoolSUBSCRIPTION PRICE $2-50 PER ANNUM, SINGLE COPIES $1.00Advwsory BoardDEAN ALFRED J. ScHWEPPE, PRoFEssoRs LESLIE J. ATER, CLARK P. BIsSETT,IVAN W GoOD ER, HAnVRY LANTZ, RUDoLF H. NOTTELmAN,3. GRATToN O'BRYAq and LIBRARIAN ARTmmU S. BEARDSLEYEditorial BoardBRYANT BRADY, PresidentALFRED E. HAnSCH, Article Editor WnLraAM E. EVENSON, Case EditorFnANK P. WEAVER, Note Editor RICHARD S. STRONG, Book EditorGEORGE F ABEL RAY L. JOHNSONWESLEY S. GLENN MAURICE W KINZELEL ER GOERING MARION A. MARQUISJ. GORDON GOSE H. S. SANFORDGORDON METCALFE, Business ManagerNOTES AND COMMENTADmISSIBILITY IN FEDERAL COURTS OF EVIDENCE WRONGFULLYOBTAINED BY PERSONS OTHER TAN FEDERAL OFFICERS OR BYCOOPERATION BETWEEN SUCH PERSONS AND FEDERAL OFFICERS--It is a firmly established rule in the federal courts, that evidenceobtained by an illegal search and seizure, within the purview ofthe Fourth Amendment to the Constitution of the United States,is not admissible providing timely steps are taken for its exclusionor return.' However, that rule is limited in its application tofederal officers or agents, so that quite generally it may be said,that evidence obtained by private,mdividuals or municipal or stateofficers, acting as such, is admissible in federal courts, regardlessof the manner in which it is obtained.Thus in Weeks v. United States2 it was held that lottery ticketsand papers secured through an illegal search and seizure by aUnited States marshal, were not admissible in evidence, when aIBoyd v. U. S., 116 U. S. 616, 29 L. ed. 746, 6 Sup. Ct. 524 (1886)Weeks v. U. S., 232 U. S. 383, 58 L. ed. 652, 34 Sup. Ct. 341, L. R. A. 1915 B,834, Ann. Cas. 1915 C, 1177 (1913).See Note 1, supra.WASHINGTON LAW REVIEWseasonable application was made for their return. But papersseized by police officers in the same manner, were competent evi-dence, because "the Fourth Amendment is not directed to in-dividual misconduct of such officials. Its limitations reach theFederal Government and its agencies."In Burdeau v. McDowell,3 which is the leading case on thispoint, papers stolen by private citizens and later turned over tothe Attorney General, were held to be competent evidence. Noofficers or agents of the United States Government took any partin securing the papers nor did they know of it until after thepapers were turned over to them. The court says, therefore, thatthere was no invasion of the security afforded by the FourthAmendment, since its origin and history show that it was intendedas a restraint upon the activities of sovereign authority and wasnot intended as a limitation upon other than governmental agencies.Likewise where a private diary of the defendant was seized byBritish authorities at Capetown, South Africa, and turned over toUnited States authorities, the diary was admissible in evidence.'It would seem that this doctrine afforded a comfortable methodof circumventing the Fourth Amendment, by enabling federalofficers to make arrangements with state or municipal officers tosearch for evidence in any manner whatsoever, to be turned overimmediately to the federal authorities for prosecution. And thisseems to have been done, especially with reference to liquor, butthe courts promptly interfered with such a practice whenever itcould be shown that the state or municipal officers were in any wayacting as agents of the federal government in making the searchand seizure, and, if so, the evidence so secured was subjected tothe same scrutiny as if it had been obtained by federal officers.Thus in Flagg v. United States5 police officers made an illegalseizure of defendant's papers and turned them over immediatelyto the Postal authorities. The court held that the evidence was notadmissible, because the officers must have been acting as accreditedagents of the United States and so the search was made by theUnited States, through its agents, in violation of the FourthAmendment. And where state officers made an unlawful searchand turned the evidence over to federal officers, in accordancewith their general practice, it was held that the evidence was notadmissible, because in effect, the officers were recognized federalagents and their acts had to be governed by the limitations im-posed by the federal constitution. And In re Schuetze' the courtsays that to make the search in effect one by the federal governmen,it is not necessary that the police have specific orders to make the1256 U. S. 465, 41 Sup. Ct. 574, 65 L. ed. 1048, 13 A. L. R. 1159 (1921).Mr. Justice Holmes and Mr. Justice Brandeis dissented.Pedersen et al. v. U. S., 271 Fed. 187 (1921)233 Fed. 481 (1916)U. S. v. Fafloco, 277 Fed. 75 (1922).'299 Fed. 827 (1924).NOTES AND COMMENTsearch in question, it being sufficient if there is a general arrange-ment or express or implied understanding that the police will makesearches and then turn the evidence over to the federal officers. 8Then in Gambino et al v. United States9 the Supreme Court madea further extension of the agency rule. State troopers in New Yorkmade an unlawful search and seizure of defendants' car and theevidence was turned over to federal officers. The search was notmade in co-operation with or as agents of, federal officials, but atthat time the state enforcement act had been repealed and the stateofficers believed that they were required by law to aid in enforcingthe National Prohibition Act. They made the arrest and search solelyfor the purpose of aiding federal prosecution. It was held thatthe evidence was not admissible as the wrongful search and seizurewas made solely on behalf of the United States. This case was dis-tiguished from the Weeks' case'0 and Burdeau v. McDowell" inthat in neither of those two cases did it appear that the search andseizure were made for the purpose alone, of aiding the UnitedStates in the enforcement of its laws.The next question arises as to the admissibility of evidence se-cured by an illegal search in which both federal, and state ormunicipal officers or private citizens participate. These cases,more than the preceding ones, are decided so much on the facts ofeach case, that an extended review of the cases will not be made,but merely an outline given of the tendency of the decisions.The courts have taken several views. One is that in such casesthe federal officers may be participating m the search in thecapacity of private citizens, so that regardless of the validity of thesearch, the evidence is competent in a federal court. This is prob-ably the basis of the decision in Crawford v. United States12 whereevidence secured by police accompanied by a federal prohibitionagent was held admissible. The court stresses the fact that therewas no display of federal authorityBut the best view would seem to be that the participation offederal officers in an illegal search and seizure, of itself, rendersthe evidence incompetent m a federal court, and this is supportedby some of the later cases. It seems a quibble to say that thefederal officer is concerned solely as a private citizen, for obviouslyin almost every case his presence on a search is requested solely forthe reason that violations of federal laws are likely to be observed.And it would be impossible to say, that a certain portion of ev-dence was secured by a federal officer and therefore not competent,but that another portion of the evidence secured by the searchingISee the same rule expressed in U. S. v. Dosss, 12 Fed (2nd) 956 (1926),and V. S. v. Costanzo et al., 13 Fed (2nd) 259 (1926), where the federalprohibition agent had made an arrangement whereby police entered homeswithout a search warrant and turned the evidence over to him.- U. .S- 48 Sup. Ct. 137, 72 L. ed. - (1927)."'See Note 1, supra.1 See Note 3, supra."2 5 Fed. (2nd) 672 (1925).WASHINGTON LAW REVIEWparty was obtained by state officers and therefore competent.Hence the general rule may be laid down, that where federal offi-cers participate in a wrongful search and seizure, with state ormunicipal officers or private citizens, the evidence so secured willnot be admissible in a federal court, providing of course, that time-ly steps are taken for its exclusion or return.1 3Thus, in Legman v. United States14 a conviction was reversed,since it was based in part upon evidence secured through an illegalsearch by government officials working in cooperation with stateofficers. This case indicates that it might be possible to usesuch evidence as was secured by the state officers alone, or in otherwords, as mentioned above, that the evidence might be sub-dividedand that which was secured solely through the efforts of the stateofficers admitted in evidence. But this is obiter dictum for thepurposes of this case, and it would seem that it is wholly impractic-able to try and make any such refined division of evidence securedon a search conducted jointly by both state and federal officers.Who can say, how much of the evidence is secured, without somehelp, direct or indirect from the otherslAnd this theory of segregation of the evidence, if it may becalled that, is impliedly rejected in the case of Byars v UnitedStates."' The prosecution was based on counterfeit stamps, securedby an illegal search conducted by municipal officers, and a fed-eral agent. Some of the stamps were found by the federal agentin one room, and some by the police in another room and turnedover to the federal officer while they were still in the house. Thecourt says, that evidence secured by a wrongful search and seizure,in which the federal government, through its agents, participates,cannot be used in a federal court in a prosecution against thosedefendants. The court does not say that only the evidence securedby the federal agent was incompetent, while that found by thepolice was competent, but that all of the evidence was inadmiss-ible.In this case and in Thompson v. United States6 the court in anobiter dictum says, that the mere participation of a federal agentin an illegal search, does not render evidence secured incompetentin a federal court, but neither court gives us any indication ofwhat "mere participation" would be. As stated above, it wouldbe difficult to conceive of a case where a federal officer partici-pates in any search, merely as a disinterested private citizen.In summary, the situation in the federal courts seems to be this.Evidence secured by federal officers acting alone or in conjunc-tion with state or municipal officers or private citizens, by meansof an illegal search and seizure, will not be admitted in evidence,if the proper procedural steps are taken for its suppression or re-"Marrow et al. v. U. S., 8 Fed. (2nd) 251 (1925) Thompson v. U S.,22 Fed (2nd) 134 (1927).11295 Fed. 474 (1924).273 U. S. 28, 47 Sup. Ct. 248, 71 L. ed. 520 (1926)"See Note 13, supra.RECENT CASESturn. Evidence secured by private citizens or officers of otherjurisdictions, is admissible regardless of the manner in which it isobtained, unless they were acting under express orders from federalofficers on that occasion or unless they acted in accordance with ageneral understanding with federal officers, or unless they intendedto act solely on behalf of the federal government, even if there wasno previous understanding, express or implied, that they shoulddo so.MIARIoN A. MARQUIs.RECENT CASESCoNnrroNAL SALES-SIGNATURE OF VEiNDOR. A salesman for the vendorsecured an order for certain machinery. The order was made out on aconditional sale contract form which provided that the contract was sub-ject to the approval of the vendbr at its home office. The name of thevendor corporation was printed beneath the signature of the salesman,and appeared again at the end of the form accompanied by blanks for thepersonal signature of the proper approving officer. No such signature wasever entered, but the goods were delivered and the form filed withinten days. In this action by the vendor to recover the goods from thevendee's receiver after default in payments, held, that the sale was abso-lute as to the receiver, there being no signature by the vendor as requiredby Rem. Comp. Stat. sec. 3790. State ex rel. Yates American MachiLne Co.v. Superior Court, 47 Wash. Dec. 244, 266 Pac. 134 (1928).The rule of the case is not new in this state. Jennings v. Schwartz, 82Wash. 209, 144 Pac. 39 (1914) Kennery v. Northwestern Junk Co., 108Wash. 656, 185 Pac. 636, 190 Pac. 330 (1919) Rychen 'v. Tacoma Farmers'Creamery, 127 Wash. 359, 220 Pac. 780 (1923) Seymour v. Landon, 128Wash. 682, 224 Pac. 3 (1924). The decision rests solely on the doctrine ofstare decisis, and Justice Tolman concurring specially denounces it asillogical in light of the Statute of Frauds cases and recommends that thecourt unite in a reversal of the rule so often laid down.It must be conceded that handwriting is not the. only valid form ofsignature. Stamped, printed or typewritten names have been consistentlyrecognized as proper signatures. 36 Cyc. 448. It is necessary only thatthe signer adopt such symbols as his signature. Weston v. Myers, 33 Ill.424 (1864) Midkiff v. Johnson County Savtngs Bank, 144 S. W 705 (Tex.1912).In the principal case, there being nothing to indicate express adoption,it must appear if at all by implication from the facts of delivery of thegoods and filing of the document. Delivery might be referable to an abso-lute sale, but the filing would seem to be sufficiently conclusive evidenceof adoption of the printed name as a signature binding on the vendor.Opposed to this there is only the suggestion arising from the blanks thatthe instrument is to be completed in a certain way. In this respect theStatute of Frauds cases and those involving wills and commercial paperare distinguishable, but there seems no very good reason why the vendormay not waive provisions inserted solely for its own benefit. The Wash-ington cases cited proceed on the theory that policy demands a stricterrule in conditional sales cases to protect third persons. However, it wouldseem that an examination of the records would certainly apprise a thirdperson of sufficient facts as to the vendee's interest in the property.Directly opposed to the doctrine of the principal case is In re Coving-ton Lumber Co., 225 Fed. 444 (1914), decided in the local federal courtshortly prior to the first of the Washington cases. In the later case of Inre Frankel, 225 Fed. 129 (1915), the same court seems to explain its formerdecision on the ground that the contract was signed by the salesman. This

Admissibility in Federal Courts of Evidence Wrongfully Obtained by Persons Other Than Federal Officers or by Cooperation Between Such Persons and Federal Officers

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Admissibility in Federal Courts of Evidence Wrongfully Obtained by Persons Other Than Federal Officers or by Cooperation Between Such Persons and Federal Officers

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