generally, pre-indictment delay is not tested by the speedy trial clause, but by the due process clause
How later courts described this case
- generally, pre-indictment delay is not tested by the speedy trial clause, but by the due process clause
- acknowledging that "a complete absence o 4 evidence might serve to invalidate an indictment"
- affirmed conviction on the basis that allegedly exculpatory evidence withheld from grand jury did not clearly negate guilt or undermine the authority of the grand jury to act
Written by the judges who cited it.
The opinion
MERRILL, Circuit Judge,
dissenting:
I dissent from the judgment and from part I of the opinion. I concur with parts II and III. Even as to part I, I agree with much of Judge East’s discussion. I have no quarrel with the ruling that the federal search warrants were founded on information obtained from sources independent of any tainted examination of the materials improperly seized by the state. I do not question the federal seizures from Romero’s home or Forster’s business office of documents theretofore returned by the state. I do not contend that the invalidity of the seizure conferred upon the seized materials permanent immunity from seizure. Once suppressed material is back in the hands of the defendants in my view it is once more subject to seizure, assuming that the warrant under which it is seized is free from taint and that the basis for the earlier suppression does not continue to exist. My trouble with part I relates only to the search of the office of the state prosecutor and the seizure of materials found there.
I review the facts briefly. State officers seized documents from the defendants’ premises under a defective warrant. The seized evidence was suppressed by court order. The United States then secured a warrant (avoiding the state defects) to *400 search the quarters of the state prosecutor where the suppressed evidence was to be found. The state prosecutor refrained from returning the evidence until federal seizure had been accomplished. In my judgment the order of suppression, carrying with it a duty on the part of the state to return the seized documents, rendered those documents immune from federal seizure so long as they remained in the hands of the state officials.
To me this result is compelled by Elkins v. United States, 364 U.S. 206 , 80 S.Ct. 1437 , 4 L.Ed.2d 1669 (1960). I am unable to distinguish that case as Judge East has done on the ground that the federal warrant there was not free from taint as were the warrants here. The Supreme Court placed no reliance on that fact. However, accepting arguendo that the rationale of Elkins would permit a distinction on that ground, I still adhere to my view that suppressed materials are immune from federal seizure while they remain in the hands of the state.
I find it repugnant to principles of federalism to allow the United States willy-nilly to search state offices and seize from state officials materials held by them as evidence in a state prosecution. Such sharing of evidence certainly should be tolerated only when it comes with the state’s consent and willing co-operation. When the state, under a suppression order, is under a duty to return the evidence it is in no position to consent to such a sharing. Permitting seizure under these circumstances serves to frustrate the state in carrying out its high purpose and the United States should not be a party to such frustration. This was made clear in Elkins , where the Court stated:
“[Wjhen a federal court sitting in an exclusionary state admits evidence lawlessly seized by state agents, it not only frustrates state policy, but frustrates that policy in a particularly inappropriate and ironic way. For by admitting the unlawfully seized evidence the federal court serves to defeat the state’s effort to assure obedience to the Federal Constitution.”
364 U.S. at 221 , 80 S.Ct. at 1446 .
The fact that some state officers may be willing to co-operate with federal officials in frustrating the state purpose (as apparently was the case here) cannot affect the result. Where suppression is ordered the state duty is clear and a knowing disregard of that duty by state officers does not serve to wipe it out or justify a federal disregard of it.
I would reverse.