United States v. Sylvan Scolnick, Sidney Brooks, Kenneth Paull, A/K/A 'Harold Fleishman', Allenrosenberg, Sidney Brooks

FREEDMAN, Circuit Judge

(dissenting).

For me this bizarre case presents the problem whether in a federal prosecution evidence may be used which was obtained by state officers in violation of a state statute which requires a court order to authorize access to a safe deposit box on appropriate notice to the owner, if he can be found.

The state officers did obtain a search warrant from a magistrate and I agree with the majority that the affidavit for it was based on probable cause. However, the government concedes that the police did not comply with the procedure prescribed by the Pennsylvania Act of September 20, 1961, 1 quoted in the majority opinion, for the search and seizure of the contents of the safe deposit box. *328 Although the statute is poorly drawn and on its face might leave some doubt whether it was intended to be mandatory or directory, the legislative history makes it clear that it was designed as a mandatory prohibition against the search by police of a safe deposit box and the seizure of its contents except under authority of a judicial order on notice to the owner, if he could be found and if not, then on an order entered notwithstanding the want of notice. 2

This is a federal trial, subject to our supervisory power over the administration of criminal justice and in my view a federal court should not permit the receipt in evidence of the fruits of a search of a safe deposit box effected by Philadelphia police officers in violation of the Pennsylvania statute.

The decisions in Elkins v. United States, 364 U.S. 206 , 80 S.Ct. 1437 , 4 L.Ed.2d 1669 (1960) and Rios v. United States, 364 U.S. 253 , 80 S.Ct. 1431 , 4 L.Ed.2d 1688 (1960) could readily form the basis of elaborate discussion. I think it is enough simply to record my view that they are not decisive of the present question but leave it open for decision whether as a matter of policy the evidence should be excluded. I read them as dealing with state determinations whether the searches there involved were constitutionally invalid and not as decisive of the question of policy which we have before us.

I see no reason why the policy of the state that there should be a special procedure for the protection of the privacy of safe deposit boxes should not be respected, especially by state officers, sworn to uphold the state’s laws. To allow them to violate the statute and produce to a federal prosecutor the information thus obtained for use in a federal trial is to lend federal encouragement to the violation by state officers of the laws which control their conduct. It constitutes the unspoken expression by federal agencies of approval of the illegal acts of state officers, and its only foundation can be an acceptance of the view that the end justifies the means. It offends fundamentally the position expressed by Mr. Justice Brandeis in his famous dissent in Olmstead v. United States, 277 U.S. 438, 471, 483, 485 , 48 S.Ct. 564 , 72 L.Ed. 944 (1928) which so powerfully describes the evil inherent in the judicial use of the fruits of official illegality. 3 I would therefore hold that the evidence obtained by the search and seizure of the contents of the safe deposit box was erroneously admitted.

I therefore respectfully dissent.

. P.L. 1532, Act No. 651, 19 Purdon’s Pa. Stat. Annot. § 591.

. Statement of Senator Donolow, Legislative Journal — Senate 1964, 1965 (1961); Statement of Rep. Eilberg, Legislative Journal — House 3687 (1961).

. “When the Government, having full knowledge, sought, through the Department of Justice to avail itself of the fruits of these acts in order to accomplish its own ends, it assumed moral responsibility for the officers’ crimes. * * * And if this Court would permit the Government, by means of its officers’ crimes, to effect its purpose of punishing the defendants, there would seem to be present all the elements of a ratification. If so, the Government itself would become a lawbreaker.

* * * * *

“In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. * * * To declare that in the administration of the criminal law the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal— would bring terrible retribution. * * * ’’