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Bolger v. Cleary

August 4, 1961

EDWARD BOLGER, PLAINTIFF-APPELLEE
v.
MICHAEL CLEARY, DEFENDANT-APPELLANT.



Author: Clark

Before CLARK and WATERMAN, Circuit Judges, and ANDERSON, District Judge.

Defendant, Michael Cleary, an investigator for the Waterfront Commission of New York Harbor, appeals from an order enjoining him from testifying, in state proceedings against the plaintiff, Edward Bolger, to statements made by plaintiff during his illegal detention by federal officers, and from producing any property illegally seized during their unlawful search of plaintiff's house. Opinion below reported in D.C.S.D.N.Y., 189 F. Supp. 237, sub nom. Bolger v. United States . Order affirmed.

CLARK, C. J.: This case presents the question whether a federal court has the power to enjoin a state official from testifying in a state proceeding to information learned by him as a result of his co-operation with federal officials in an illegal search and seizure and an illegal detention.

The plaintiff, Edward Bolger, is a hiring agent and longshoreman licensed by the Waterfront Commission of New York Harbor and employed on the New York waterfront. On September 12, 1959, some federal customs enforcement officers were on the lookout for theft from the piers, and they observed the plaintiff take a cardboard carton from a deserted pier and place the carton in his car. In the course of their ensuing investigation, they searched plaintiff's New Jersey house in violation of Fed. R. Crim. P. 41, and obtained incriminating admissions from the plaintiff during a detention which violated Fed. R. Crim. P. 5(a). On the authority of Rea v. United States, 350 U.S. 214, the court below enjoined the various officials involved from testifying in state proceedings to the fruits of their illegal activities. To make its decree effective, the court extended the scope of the injunction to include defendant Cleary, an investigator for the Waterfront Commission of New York Harbor. D.C.S.D.N.Y., 189 F. Supp. 237. Cleary was not present at the time of the illegal search and seizure, but, at the invitation of the Customs Service, witnessed the subsequent interrogation of the plaintiff during part of his illegal detention by federal officials. Though Cleary did ont participate in the questioning, he was free to do so had he wished.

The district court enjoined Cleary from testifying, in any Waterfront Commission hearing against plaintiff, with respect to transactions and statements subsequent to 11:00 a.m. on September 12, 1959 (the time that the illegal detention and illegal search and seizure began), and from producing any property illegally seized during the illegal search of plaintiff's New Jersey house. The order also enjoined Cleary from giving any testimony or producing any evidence in state criminal proceedings against the plaintiff with respect to statements obtained by federal officials during plaintiff's illegal detention. The present appeal is taken by defendant Cleary from that part of the district court order pertaining to him. The other defendants do not appeal, and Cleary concedes for purposes of his appeal the illegality of the conduct of the various federal officials.

Defendant's main point on this appeal is that the order below constitutes an unwarranted interference with the administration of criminal justice by the states. A federal court will not enjoin the use in state courts of evidence obtained by an unreasonable search by state police, Stefanelli v. Minard, 342 U.S. 117, or obtained by state police through violation of the Anti-Wire Tapping Act, Pugach v. Dollinger, 365 U.S. 458. On the basis of this line of authority, defendant argues that the order below cannot be sustained.Defendant Cleary, an investigator for the Waterfront Commission of New York Harbor, is an official of a bistate agency of New York and New Jersey. The proceedings in which his testimony is forbidden are a state prosecution for petit larceny and a Waterfront Commission hearing to determine whether plaintiff's license as a hiring agent and his registration as a longshoreman should be revoked. It is urged that a consideration for the proper balance between the state and federal governments requires the federal court to stay its hand in the present case, lest the work of the state courts be unduly disrupted.

The answer to this contention is that the federal courts will make an exception to this principle of noninterference in order to insure that federal officers comply with the requirements of fair criminal law administration as set forth in the Federal Rules of Criminal Procedure. In Rea v. United States, supra, 350 U.S. 214, 217, the Supreme Court directed the district court to enjoin a federal narcotics agent from testifying in a state prosecution with respect to narcotics seized by him in an illegal search. The court could assume jurisdiction in the exercise of its "supervisory powers over federal law enforcement agencies." We think the Rea case compels the conclusion that the order below was proper. In Rea, a federal official was disabled from passing the fruits of his illegal activities on to the state through testimony at trial. In the present case the federal officials attempted to pass the fruits of their illegal activities on to the state by calling in state officials at the time of the illegal detention.If the integrity of the judicial process stated in the Federal Rules of Criminal Procedure is not to be subverted by the former method, it must be similarly protected against subversion through the latter method. The only difference between the two cases is the time at which the federal officials attempt to make the results of their lawbreaking available to the state. We do not think that this difference justifies a distinction in law, or justifies so easy a means of evading federal law for the protection of the accused.

Defendant attempts to distinguish the Rea case, 350 U.S. 214, 217, on the ground that, as the Supreme Court there pointed out, "no injunction was sought against a state official." But the defendant Cleary is not being enjoined in his capacity as a state official, but as a witness invited to observe illegal activity by federal agents. If the court can enjoin federal agents from passing on the fruits of their illegal activity to the state, the court has power to make its decree effective by extending the injunction to any third party invited by the federal agents to witness the securing of statements or other evidence. That the third party happens also to be a state official is not, in our view, an excusing circumstance.

The defendant also seeks to distinguish Rea on the ground that there the accused, prior to the commencement of the state prosecution, had been indicted under federal law, and had obtained a suppression order under Fed. R. Crim. P. 41(e) against use of the illegally obtained evidence in that or in any other prosecution. But the majority opinion in Rea nowhere relied on the existence of the prior suppression order, or the fact that a prior federal indictment had been brought. Nor can we see any rational justification for holding that the disability from giving testimony in state proceedings, based on the need to protect the integrity of the process stated in the Federal Rules of Criminal Procedure, depends on the existence of a prior federal indictment or suppression order.Defendant contends that such a narrow construction of Rea is indicated by the recent Supreme Court decision in Wilson v. Schnettler, 365 U.S. 381, sustaining the dismissal of an action to enjoin federal agents from testifying in a state court and from there producing narcotics seized by them. But in Wilson the complaint failed to allege that the seizure was illegal, and this was the basic reason for the court's failure to follow Rea . While the Wilson opinion notes that Rea was different in that earlier federal proceedings had occurred, the opinion declined to rely on this fact as an independent ground for distinguishing Rea, and ultimately rested on the insufficiency of the allegations of the complaint.

We think the Rea case ample authority for holding that the order appealed from is not barred by 28 U.S.C. ยง 2283 as an injunction to stay proceedings in a state court.

We need now to consider whether late developments may not have rendered the injunction unnecessary. When this action was pending in the court below, plaintiff had no adequate remedy in a state court, because the then prevailing doctrine of Wolf v. Colorado, 338 U.S. 25, and Schwartz v. Texas, 344 U.S. 199, permitted the states to receive evidence obtained in an unreasonable search and seizure or in violation of a federal statute. On June 19, 1961, in Mapp v. Ohio, 81 S. Ct. 1684, the Supreme Court overruled Wolf v. Colorado, supra, and held that state courts must exclude evidence obtained in an unreasonable search and seizure. If it were clear that Mapp barred all use by the state of the illegally obtained evidence here involved, the injunction below could properly be dissolved, not so much because of federal-state relations as of the traditional principle that equity will not act where there is an adequate remedy elsewhere. The scope of Mapp is, however, unclear in several regards, such as its application to federal statutory or rule, as well as constitutional, prohibitions or to state administrative proceedings such as those of the Waterfront Commission. Moreover, it is our understanding that a rehearing of Mapp is being sought, thus leaving the question still open for some months. Hence we find no present justification for dissolving the injunction.Should the various problems left unsolved by Mapp be clarified, so that it becomes clear that the injunction is in fact unnecessary, the district court, on application of any party in interest, may order its dissolution.

Order affirmed.

ANDERSON, D. J., dissents: While I agree with the majority that Judge Bryan's order should be affirmed, I am of the opinion that, as a result of the intervening decision of the Supreme Court in Mapp v. Ohio, June 19, 1961, the injunction should now be dissolved. I must, therefore, dissent from that portion of the majority's decision which continues the injunction in effect.

The reason given in the majority opinion for not dissolving the injunction is that equity must act because there is no adequate remedy elsewhere, i.e., in this case, in the state court of New York; and the reason there is no remedy in the state court is that, while Mapp v. Ohio now requires state courts to exclude evidence obtained in violation of the unreasonable search and seizure provision of the Fourth Amendment, the Mapp case is nevertheless, "unclear in several regards, such as its application to federal statutory or rule, as well as constitutional, prohibitions or to state administrative proceedings such as those of the Waterfront Commission." The use of the phrase "as well as constitutional" implies that Mapp is clear enough where the evidence sought to be used in a state court was obtained as the result of an unreasonable search and seizure.In any event, the opinion of the Court in the Mapp case said, "we hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court." This appears to be reasonably explicit. That this is also binding upon the Waterfront Commission is implicit in the Court's discussion in the Mapp case of the protection afforded by the Fourth Amendment to the citizens' rights to privacy. It is also supported by civil cases to which the ...


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