
    BURDEAU v. McDOWELL.
    APPEAL PROM THE DISTRICT COURT OP THE UNITED STATES POR THE WESTERN DISTRICT OF PENNSYLVANIA.
    No. 646.
    Argued April 11, 12, 1921.
    Decided June 1, 1921.
    1. The United.States may retain for use as evidence in the criminal prosecution of their owner, incriminating documents which are turned over to it by private individuals who procured them, without the participation or knowledge of any government official, through a wrongful search of the owner’s private desk and papers .in an office.' P. 474. ; ■ , .
    2. The provision of the Fourth Amendment forbidding unreasonable searches' and seizures refers to governmental action; the Fifth Amendment secures the citizen from compulsory testimony against himself by protecting him from extorted confessions and examinations'in court proceedings by cofnpulsory methods. ,P. 475.
    Reversed.
    Appeal from an order of the District Court Requiring that certain books and papers be impounded with thé clerk and ultimately returned to the appellee, and enjoining officer's of the Department of Justice from using them, or evidence derived through them, in criminal proceedings against him. The facts are stated in the opinion, post, 470.
    
      .The Solicitor General for appellant:
    It was not shown that any book, paper, or other document which was the private property of appellee was delivered to or was ever in the possession of appellant.
    It is difficult to see how it can be said, with any show of reason, that there was any stealing of books and papers in’ this case. Certainly there was no invasion of appellee’s right'of privacy. Everything’ that was taken into possession was foupd in the office of the company itself, with the exception of a few papers which were in the private office of appellee, but which it is admitted related to the business of the company, and were, therefore, such papers as the company was entitled to have delivered to it. They were, in fact, delivered to its auditor by appellee’s representative.
    If the employee has left papers of his own commingled with those of the company, he certainly cannot be said to be the sole judge of whether a particular paper is his or belongs to the company. He has brought about a condition under which the company has the right to inspect everything in the office before allowing anything to be, removed. The inspection, therefore, is entirely lawful, and any information of crime or other matters which may be thus acquired is lawfully acquired and may properly be used. In the present case, appellee’s representative was allowed to be present and make a list or take copies of all papers examined. A paper furnishing evidence of crookedness, in the conduct of thé company’s affairs certainly relates to a matter in which the company is interested; and if the unfaithful employee has left it in the company’s files, or in the company’s office, there is no principle of law under which he can lawfully claim the right to have it returned to him. He has parted with the private possession of it, and his surrender of possession has not been brpught about by any invasion of his constitutional rights.
    Even if it could be said that the company or its representatives stole these papers from the appellee, this would not preclude their use in evidence if they should thereafter come to the hands of the federal authorities. The court found, as the evidence clearly required, that no department of the Federal Government had anything whatever to do with the taking of these papers and that no federal official had any knowledge that an investiga^ tion of any kind was ¿being made, nor did such knowledge come to any federal official until several months later. . It would scarcely be insisted by anyone that, if the Government should discover that someone' has stolen from another a paper which shows that the latter has committed a crime, the thief could not be called as a witness to testify to what he has discovered. If the paper were still in his possession, he could be subpoenaed to attend and produce the paper. The same thing is accomplished when the Government, instead of issuing a subpoena duces tecum, takes the paper and holds it as evidence. The rightful owner, while it is being so held, is ho more entitled to its return than one who has been arrested for carrying a pistol is entitled to have the pistol returned to him pending a trial.
    It must always be remembered that “a party is privileged from producing the evidence but not from its production.” Johnson v. United States, 228 U. S. 457, 458.
    Moreover, the Fourth Amendment protects’ only against searches and seizures which are made under governmental authority, real or assumed, or under color of such authority. If papers have been seized, even though wrongfully, by one not acting under color of authority, and they afterwards cometo the possession of the Government, they may be properly used in evidence. Weeks v. United, States, 232 U. S. 383; Gouled v. United States, 255 IT. S. 298; Boyd v. United States, 116 IT. S. 616; Adams v. New York, 192 IT. S. 585; Johnson v. United States, supra; Perlman v. United States, 247 IT. S. 7.
    
      Mr. E. Lowry Humes, with whom Mr. A. M. Imbrie and Mr. Rody P. Marshall were on the brief, for appellee:
    The issue in this proceeding was the title and right of possession of certain private papers alleged to have been stolen. The right to private property can be as effectually asserted against the Government as it can against an individual, and the Government has no greater right to stolen property than the private citizen. The receiver of stolen goods has no right superior to the right of the thief and the officer or agent of the Government who receives stolen goods is in no better position to retain the fruits and advantages of the crime than the humble private citizen. Boyd v: United States, 116 U. S. 616, 624; Weeks v. United States-,■ 232 U. S. 383, 398. The right which the appellee asserted was a right which the court had jurisdiction to recognize and preserve.
    The courts of the United States are open to the citizen for the enforcement of his legal and constitutional rights', and the right to private property may be asserted as a mere legal right or it may be asserted under the guarantees of the Constitution.
    Abuses of individuals involving the deprivation of the right to the possession, use and enjoyment of private-property are adequately redressed by the assertion of the legal rights of the individual in either courts of law or equity. The ‘resort to the limitations of the Constitution may be necessary to curb .the excesses of the Government. ■ .
    In the case at bar there can be no question but that replevin would lie against both the thief and the receiver of the stolen goods to recover the private property of the appellee. But the legal remedy by replevin would have been inadequate as the injury could not be measured, in damages. It was necessary to resort to the equitable powers of the court. The fact that the appellant happened to be an officer or employee of the Government provided no immunity to. him that could prevent the owner of private property fropa asserting his .legal rights in either a court of law or of equity. Quite to the contrary, — -the very fact,that he was an officer of the court, enlarged rather than diminished the authority of the court to exercise control ov§r and. deal with the stolen papers which had come into his possession as such officer of the. court.
    . In this ca.se the proceeding is properly a much more summary proceeding than in a case against a stranger to the court where the formality and difficulty of secur-. ing jurisdiction over both the person and the property might be involved.
    The right of a court of equity to order and decree the return of private property and papers is well recognized, as is illustrated by the following cases. McGowin v. Remington, 12 Pa. St. 56; Dock v. Dock, 180 Pa. St. 14; Pressed Steel Car Co. v. Standard Steel Car Co., 210 Pa. St. 464.
    This is an independent proceeding having for its purpose the recovery of property in equity. The law side of the court provided no adequate remedy. The court in adjudicating the ease properly found that the papers had been stolen; that they - were private and personal papers of the appellee, and that they were. in the hands of an officer of the court, and that the owner was entitled to their return. Up to this point no constitutional question is involved. It is, however, respectfully submitted that had the court below, ref used Tinder the evidence and the facts in this case to order the return of the books and papers, and dismissed the proceeding, and if subsequently, a criminal proceeding had been instituted against the appellee and the stolen books and papers been admitted in evidence over objection, thenappellee would have been denied the constitutional right guaranteed him under the Fifth Amendment to the Constitution in that he would have been “compelled in” a “criminal case to be a witness against himself.” If this conclusion is not correct then a means has been found by which private prosecutors and complainants and those personally interested in the prosecution and persecution of álleged offenders can, by the mere. acquiescence of the Government, deprive citizens of the United States of the constitutional rights guaranteed to them by both the Fourth and Fifth Amendments.
   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 ohe 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 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 tíie knowledge obtained, from the inspection of such books, papers, memoranda, etc.

In his opinion the District Judge stated that it was the 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 companies.. Petitioner was a director in the Cities Service Company and. a director in the Quapaw Gas Company, a subsidiary company, and occupied an office room in the building owned by the Farmers Bank of Pittsburgh. The rooms were leased by the Quapaw Gas Company. McDowell occupied one room for his private office. He was employed by Doherty & Company as the head of the natural gas division of the 'Cities Service Company. Doherty & Company discharged McDowell for alleged unlawful and. fraudulent conduct in the course of the business. An officer of Doherty & Company and the Cities Service Company went to-Pittsburgh in March, 1920, with authority .of the president of the Quapaw Gas Company to take possession of the company’s office. He took possession of room 1320; that room and the adjoining ’ room had McDowell’s name on the door. At various times papers were taken from the safe and desk in the rooms, and the rooms were placed in charge of detectives. 'A large quantity of papers were taken and shipped to the auditor of the Cities Service Company at 60 Wall Street, New York, which was the office of that company,. Doherty & Company and the Quapaw Gas Company. The secretary of McDowell testified that room 1320 was his private office; that practically all the furniture in both rooms belonged to him; that there was a large safe belonging to the Farmers Bank and a small safe belonging to McDowell; that on March 23, 1920, a representative of the company and a detective came to the offices; that the detective was placed in charge of room 1320; that the large safe was opened with a view to selecting papers belonging to the company, and that the representative- of the/éompany took private papers of McDowell’s also! While the rooms were in charge of detectives both safes were blown open. - In the small safe nothing of consequence was found, but in the large safe papers belonging to McDowell were found. The desk was forced open, and all'the papers taken from.it. The papers were placed in cases, and shipped to Doherty & Company, 60 Wall Street, New York.

In June, 1920, followiiig, Doherty & Company, after communication with, the Department of Justice, turned over a letter, found in "McDowell’s desk, tg the Department’s representative. Burdeau admitted at the hearing that as the representative of the United States in the Department of Justice he had papers which he assumed were taken from the office of McDowell., The communication to the Attorney General stated that McDowell had violated the laws of the United States in the use of the mail in the transmission of various letters to partieswho owned the properties which were sold by or offered to the Cities Service Company; that some of such letters, or copies of them taken from McDowell’s file, were in the possession , of the Cities Service Company, that the Company also had in its possession portions of a diary of McDowell in which he had jotted down the commissions which he had received from a number of the transactions, and other data which, it is stated, would be useful in the investigation of the matter before the grand jury and subsequent prosecution should an indictment be returned.

We do not question the authority of the court to control the disposition of tlje papers, and come directly to the contention that the constitutional rights , of the petitioner were violated by their seizure, and that having subsequently come into the possession of the prosecuting officers of. the. Government, he was entitled to their return. The Amendments involved are the Fourth and Fifth, protecting a citizen against unreasonable searches and seizures, and compulsory testimony against himself. An extended consideration of the origin and purposes of these Amendments would be superfluous in view of the fact that this court has had occasion to deal with those subjects in. a series of cases. Boyd v. United States, 116 U. S. 616; Adams v. New York, 192 U. S. 585; Weeks v. United States, 232 U. S. 383; Johnson v. United States, 228 U. S. 457; Perlman v. United States, 247 U. S. 7; Silverthorne Lumber Co. v. United States, 251 U. S. 385; and Gouled v. United States, 255 U. S. 298.

The Fourth Amendment giyes protection against unlawful searches and seizures, and as shown in the previous cases, its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies; as against such authority it was the purpose of the Fourth Amendment to secure the citizen in the right of unmolested occupation of his dwelling and the possession of his property, subject to the right of seizure by process duly issued.

In the present case the record clearly shows' that no official of the Federal Government had anything to do with the wrongful seizure of the petitioner’s property, or any knowledge thereof until several months after the property had been taken from him and was in the possession of the Cities Service Company. It is manifest that there was no invasion of the security afforded by the Fourth Amendment against unreasonable search and seizure, as whatever wrong was done was the act of individuals in taking the property of another. A portion of the property so taken and held was tinned over to the prosecuting officers of the Federal Government. We assume that petitioner has an unquestionable right of redress against those'who illegally and wrongfully took his private property' under the circumstances herein disclosed, but with such remedies we are not now concerned.

The Fifth Amendment, as its terms import is intended to secure the citizen from compulsory testimony against himself. If protects from extorted confessions, or examinations in court proceedings by compulsory methods.

The exact question to be decided here is: May the Government retain incriminating papers, coming to it in the manner described; with a view to their use in a subsequent investigation by a grand jury where such papers will be part of the evidence, against the accused, and may be used against him upon trial should an indictment' be returned?

We know of no constitutional principle which requires the Government to surrender the papers under such circumstances. Had it learned that such incriminatory .papers,- tending to show a violation of federal law, were in the hands of a person other than the accused, it having had no part in wrongfully obtaining them, we know of no reason why a subpoena might not issue for the. production of the papers as evidence. Such production wduld require no- unreasonable search or seizure,' nor would, it amount to compelling the accused to testify against himself.

The papers having come into the possession of the Government without a violation of petitioner’s rights by governmental , authority, we see no reason why the fact that, individuals., unconnected with the Government,, may have wrongfully taken them,^should prevent them from being held .for use in prosecuting an offense where the documents aré of an incriminatory character.

It follows that the District Court erred in making the order appealed from, and the same is

Reversed.

Mr. Justice Brandéis dissenting, with whom Mr. Justice Holmes concurs.

Plaintiff’s private papers were stolen. The thief, to further his own ends, delivered them to the law officer of the United States. He, knowing them to have been stolen, retains, them for use against the plaintiff. Should the court permit him to do so?

That the court would restore the papers to plaintiff if they were still in the thief’s possession is not questioned. That it has power to control the disposition óf these stolen papers, although they have passed into the possession of the law officer, is also not questioned. But it is said that no provision of the Constitution requires their surrender and that the papers could have been subpoenaed. This may be true.. Still I cannot' believe that action of a publie official is necessarily lawful, because it does not violate constitutional prohibitions and because the same result might have been attained by other and proper means. At the foundation of our civil liberty lies the principle which denies to government officials an exceptional position before the law and which subjects them to the same rules of conduct that are commands to the citizen. And in the development of our liberty insistence upon procedural regularity has been a large factor. Respect for law. will not be advanced by resort, in its enforcement, to means which shock the common man’s sense of decency and fair play.  