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BURDEAU v. MCDOWELL

June 1, 1921

BURDEAU
v.
MCDOWELL



APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF PENNSYLVANIA

McKenna, Holmes, Day, Van Devanter, Pitney, McReynolds, Brandeis, Clarke

Author: Day

[ 256 U.S. Page 470]

 MR. JUSTICE DAY delivered the opinion of the court.

J. C. McDowell, hereinafter called the petitioner, filed a petition in the United States District Court for the Western District of Pennsylvania asking for an order for the return to him of certain books, papers, memoranda, correspondence and other data in the possession of Joseph A. Burdeau, appellant herein, Special Assistant to the Attorney General of the United States.

In the petition it is stated that Burdeau and his associates intended to present to the grand jury in and for the Western District of Pennsylvania a charge against petitioner of an alleged violation of § 215 of the Criminal Code of the United States in the fraudulent use of the mails; that it was the intention of Burdeau and his associates, including certain post-office inspectors cooperating with him, to present to the grand jury certain private books, papers, memoranda, etc., which were the private property of the petitioner; that the papers had been in the possession and exclusive control of the petitioner in the Farmers Bank Building in Pittsburgh. It is alleged that during the spring and summer of 1920 these papers were unlawfully seized and stolen from petitioner by certain persons participating in and furthering the proposed investigation so to be made by the grand jury, under the direction and control of Burdeau as special assistant to the Attorney General, and that such books, papers, memoranda, etc., were being held in the possession and control of Burdeau and his assistants; that in the taking of the personal private books and papers the person who purloined and stole the same drilled the petitioner's private safes, broke the locks upon his private

[ 256 U.S. Page 471]

     desk, and broke into and abstracted from the files in his offices his private papers; that the possession of the books, papers, etc., by Burdeau and his assistants was unlawful and in violation of the legal and constitutional rights of the petitioner. It is charged that the presentation to the grand jury of the same, or any secondary or other evidence secured through or by them, would work a deprivation of petitioner's constitutional rights secured to him by the Fourth and Fifth Amendments to the Constitution of the United States.

An answer was filed claiming the right to hold and use the papers. A hearing was had before the District Judge, who made an order requiring the delivery of the papers to the clerk of the court, together with all copies memoranda and data taken therefrom, which the court found had been stolen from the offices of the petitioner at rooms numbered 1320 and 1321 in the Farmers Bank Building in the City of Pittsburgh. The order further provided that upon delivery of the books, papers, etc., to the clerk of the court the same should be sealed and impounded for the period of ten days, at the end of which period they should be delivered to the petitioner or his attorney unless an appeal were taken from the order of the court, in which event, the books, papers, etc., should be impounded until the determination of the appeal. An order was made restraining Burdeau, Special Assistant Attorney General, the Department of Justice, its officers and agents, and the United States Attorney from presenting to the United States Commissioner, the grand jury or any judicial tribunal, any of the books, papers, memoranda, letters, copies of letters, correspondence, etc., or any evidence of any nature whatsoever secured by or coming into their possession as a result of the knowledge obtained from the inspection of such books, papers, memoranda, etc.

In his opinion the District Judge stated that it was the

[ 256 U.S. Page 472]

     intention of the Department of Justice, through Burdeau and his assistants, to present the books, papers, etc., to the grand jury with a view to having the petitioner indicted for the alleged violation of § 215 of the Criminal Code of the United States, and the court held that the evidence offered by the petitioner showed that the papers had been stolen from him, and that he was entitled to the return of the same. In this connection the District Judge stated that it did not appear that Burdeau, or any official or agent of the United States, or any of the Departments, had anything to do with the search of the petitioner's safe, files and desk, or the abstraction therefrom of any of the writings referred to in the petition, and added that "the order made in this case is not made because of any unlawful act on the part of anybody representing the United States or any of its Departments but solely upon the ground that the Government should not use stolen property for any purpose after demand made for its return." Expressing his views, at the close of the testimony, the judge said that there had been a gross violation of the Fourth and Fifth Amendments to the Federal Constitution; that the Government had not been a party to any illegal seizure; that those Amendments, in the understanding of the court, were passed for the benefit of the States against action by the United States, forbidden by those Amendments, and that the court was satisfied that the papers were illegally and wrongfully taken from the possession of the petitioner, and were then in the hands of the Government.

So far as is necessary for our consideration certain facts from the record may be stated. Henry L. Doherty & Company of New York were operating managers of the Cities Service Company, which company is a holding company, having control of various oil and gas ...


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