# Wilson v. United States

> Court of Appeals for the Third Circuit · May 20, 1932 · 59 F.2d 390

URL: https://www.frixlaw.com/law-library/cases/9636046

## Case

- **Full name:** Wilson v. United States
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** May 20, 1932
- **Citations:** 59 F.2d 390; 1932 U.S. App. LEXIS 3373
- **Precedential status:** Published
- **Opinion:** Dissent by McVICAR
- **Judges:** McVicar, McVioar, Dayis, Dickinson, Mevicar
- **Cited by:** 34 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

McVICAR, District Judge
(dissenting).
A member of the Democratic League of Delaware, a social political corporation, told Harold D. Wilson, deputy prohibition administrator for the district of Delaware, that the league was in possession of intoxicating liquor and was maintaining a nuisance on its property located in the city of Wilmington, Del., in violation of the National Prohibition Act. The member gave Wilson a key for, and a diagram of, the building of the league, with directions as to where and how the liquor could be found. Wilson, with several prohibition agents, by virtue of the key furnished by the member, unlocked the locked doors in the building of the league, and, by virtue of the diagram and instructions, found the bar and liquor therein, which they seized without a search warrant. On the basis of this evidence, an information was filed in the United States District Court for the state of Delaware, January 5, 1931, charging the league with the unlawful possession of intoxicating liquor and the maintenance of a nuisance on the premises aforesaid.
January 26,1931, the league presented its petition to the District Court praying that the property seized by the federal prohibition agents be returned, and that the evidence received be suppressed on the ground that the search and seizure, under the circumstances, was a violation of the league’s rights under the Fourth Amendment. A hearing was had on the petition February 18, 1931, at which hearing the above facts were developed. While Wilson was on the witness stand for the government, and after testifying that the key, diagram, and instructions were received from a member, he was asked on cross-examination, “Who was the member?” The government’s attorney objected to the question on the ground (page 69 of the record) “that it is clearly against public policy on the part of an officer of the United States to divulge the source of his information in regard to a violation of the law, particularly of a felony.” The court overruled the- objection and directed the witness to answer the question, which the witness refused to do, stating: “Tour Honor, I will have to tell you that that was given to me in confi- *393 donee and I can not with honor disclose it.” It further appears that Wilson was prohibited from giving such information under paragraph 51 of section VI, Regulations 4, Manual o f Instructions for Officers and Agents in Field, Bureau of Prohibition. The court, after admonishing the witness of the effect of his action, adjudged him guilty of contempt, and committed him to the custody of the United States marshal until he purged himself of his contempt. The ease is now before this court on Wilson's appeal from the aforesaid order. Appellant assigns as error the overruling of the government’s objection to the question aforesaid and the order adjudging him guilty of contempt.
It is well established that it is the duty of every citizen to communicate to the government his knowledge of the violation of its laws, and that such communications are privileged and will be protected on the ground of public policy. In the trial of Thomas Hardy for high treason, 24 State Trials, 199, 808 (1791); Marks v. Beyfus, L. R. 1890, 25 Q. B. D. 494, 498; Vogel v. Gruaz., 119 U. S. 311, 315, 316 , 4 S. Ct 12 , 28 L. Ed. 158 ; In re Quarles et al., 158 U. S. 532, 535 , 15 S. Ct. 959 , 39 L. Ed. 1080 ; Goetz v. United States (C. C. A. 5) 38 F.(2d) 903 ; Froelich v. United States (C. C. A. 8) 33 F.(2d) 680, 663 ; Segurola v. United States (C. C. A. 1) 16 F.(2d) 563, 585 (affirmed on other grounds, 275 U. S. 106 , 48 S. Ct. 77 , 72 L. Ed. 186 ); Mitrovich v. United States (C. C. A. 9) 15 F.(2d) 163 ; Smith v. United States (C. C. A. 9) 9 F.(2d) 386 (certiorari denied, sub nom. Oreb v. United States, 271 U. S. 674 , 46 S. Ct. 488 , 70 L. Ed. 1145 ); Arnstein v. United States, 54 App. D. C. 199, 296 F. 946, 950 ; Elrod v. Moss (C. C. A. 4) 278 F. 123, 127 ; Underhill’s Criminal Evidence (3rd Ed.) § 287, p. 395, and Wigmore on Evidence, Vol. 5, § 2374.
In Re Quarles et al., 158 U. S. 532 , on page 535, 15 S. Ct. 959, 960 , 39 L. Ed. 1080 , it is stated by the Supreme Court: “It is the duty and the right, not only of every peace officer of the United States, but of every citizen, to assist in prosecuting, and in securing the punishment of, any breach of the peace of the United States. It is the right, as well as the duty, of every citizen, when called upon by the proper officer, to act as part of the posse comitafcus in upholding the laws of his country. Tt is likewise his right and his duty to communicate to the executive officers any information which he has of the commission of an offense against those laws; and such information, given by a private citizen, is a privileged and confidential communication, for which no action of libel or slander will lie, and the disclosure of which cannot be compelled without the assent of the government.”
In Vogel v. Gruaz, 110 U. S. 311, 316 , 4 S. Ct. 12, 15 , 28 L. Ed. 158 , the Supreme Court approved the following statement of the Supreme Judicial Court of Massachusetts, in Worthington v. Scribner, 109 Mass. 487, 488 , 12 Am. Rep. 736 : “It is the duty of every citizen to communicate to his government any information which he has of the commission of an offense against its laws.” To encourage him in performing this dutywiikout fear of consequences, the law holds such information to he among the secrets of state, and leaves the question how far and under what circumstances the names of the informers and the channel of communication shot! be suffered to be known, to the absolute discretion of the government, to be exercised according to its views of what the interests of the public require.
Under this rule, the name of the member of the league communicating the alleged violation of the National Prohibition Act to Wilson, the deputy prohibition administrator, was a privileged confidential communication, disclosure of which cannot be compelled without the assent of the government.
Some authorities have recognized an exception to, or qualification of, the above rule, where the name of the informer might establish, or tend to establish, in a criminal ease, the innocence of tho accused. Underhill’s Criminal Evidence (3d Ed.) § 287, p. 395; Wigmore on Evidence, vol. 5, § 2374; Marks v. Beyfus, L. R. (1890) 25 Q. B. D. 494; Regina v. Richardson, 3 Fost. & F. 693; United States v. Moses, 4 Wash. C. C. 726 , Fed. Cas. No. 15825; People v. Davis, 52 Mich. 569 , 18 N. W. 362 ; People v. Laird, 102 Mich. 135 , 60 N. W. 457 ; Smith v. United States, 9 F.(2d) 386 (C. C. A. 9), and United States v. Biich, 45 F.(2d) 627 (D. C. Wyoming).
The rule is stated in Underhill’s Criminal Evidence (3d Ed.) § 287, p. 395, thus: “But when the question arises in a criminal trial, and the information is material to determine the defendant’s innocence, it would seem both reasonable and just that the necessity and desirability of the disclosure and the question whether tho public interests would be benefited or would suffer, should be solely for the judicial discretion upon tho circumstances of the ease.”
The rule of privilege is based on public *394 policy. The qualification or exception is also based on the public policy that an innocent defendant should not lose his liberty by the withholding of the name of the informer where that is material to his innocence. This qualification would therefore seemingly apply only to individual defendants and not to a corporate defendant, which has no personal liberty to lose. Our attention has not been called to any ease where this qualification to the general rule has been applied in favor of a corporation;
This qualification of the rule of privilege, requiring the name of the informer to be given, applies only when “the information is material to determine the defendant’s innocence.” Was the name of the informer material to determine the league’s innocence when it was asked of Wilson, “Who was the member?” I think not. When Wilson was asked this question, it already appeared from the uncontroverted evidence taken at the hearing that Wilsoh and the prohibition agents, who entered the league’s property, were not members of the league; that no persons but members were entitled to admission to its property; that Wilson and the agents did not enter by invitation of any member, or under any pretense that they were granted any right or privilege from the league, or any person or persons authorized to represent the league; they entered -as they knew, by the use of a key which they'had no legal right to possess or use; their entry was a trespass; srnd they were trespassers from the time they entered upon the league’s property until they left the same, and their acts were a violation of the fights of the league under the Fourth Amendment.
In the ease of Fraternal Order of Eagles v. United States (C. C. A.) 57 F.(2d) 93, 94 , opinion by Davis-, Circuit Judge, filed March 1, 1932, entrance was gained to the property of the Fraternal Order of Eagles by the use of false membership cards. This entry was held to be a violation of the rights of the organization under the Fourth Amendment. In the opinion of the court it is seated: “A search made as the result of an entry by' physical force is not necessary in order to violate the Fourth Amendment. That amendment was designed to protect the individual against the abuse of official authority. A search and seizure following an entry into the house or office of a person suspected of crime by means of fraud, stealth, social acquaintance, or under the guise of. a business call are unreasonable and violate the Fourth Amendment. Weeks v. United States, 232 U. S. 383 , 34 S. Ct. 341 , 58 L. Ed. 652 , L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Silver-thorne Lumber Co., Inc. v. United States, 251 U. S. 385 , 40 S. Ct. 182 , 64 L. Ed. 319 [24 A. L. R. 1426]; Gouled v. United States, 255 U. S. 298 , 41 S. Ct. 261 , 65 L. Ed. 647 ; Amos v. United States, 255 U. S. 313 , 41 S. Ct. 266 , 65 L. Ed. 654 .”
When the name of the informer was asked, the uncontroverted evidence disclosed that the league’s rights under the Fourth Amendment had been violated, and that the evidence received as a result of the search and seizure would have to be suppressed. It was therefore immaterial to the issue then before the Court whether the key, diagram, and instructions were furnished by a stranger or by a member, and, if the latter, what his name was.
Under the general rule of privilege stated above, it was Wilson’s right and duty to not disclose the name of the informer. The qualified rule, if applicable to a corporation, did not apply because the name of the in-! former was not material to the determination of the league’s innocence. I would therefore reverse the order of the District Court adjudging Wilson guilty of contempt.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9636046. Public record. Not legal advice.