Mancusi v. DeForte/Opinion of the Court

by John Marshall Harlan II

United States Supreme Court

392 U.S. 364

Mancusi  v.  DeForte

 Argued: April 25, 1968. --- Decided: June 17, 1968

In 1959 the respondent, Frank DeForte, a vice president of Teamsters Union Local 266, was indicted in Nassau County, New York, on charges of conspiracy, coercion, and extortion, it being alleged that he had misused his union office to 'organize' owners of juke boxes and compel them to pay tribute. Prior to the return of the indictment, the Nassau County District Attorney's office issued a subpoena duces tecum to Local 266, calling upon it to produce certain books and records. The subpoena was served upon the Union at its offices. When the Union refused to comply, the state officials who had served the subpoena conducted a search and seized union records from an office shared by DeForte and several other union officials. The search and seizure were without a warrant and took place despite the protests of DeForte, who was present in the office at the time. Over DeForte's objection, the seized material was admitted against him at trial. He was convicted.

On direct appeal to the New York courts, ^[1] DeForte unsuccessfully argued, inter alia, that the seized material was constitutionally inadmissible in state proceedings under the rule laid down in Mapp v. State of Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 because the search and seizure occurred without a warrant. ^[2] DeForte subsequently brought a federal habeas corpus proceeding, in which he made the same contention. The United States District Court for the Western District of New York denied the writ, 261 F.Supp. 579, but on appeal the Court of Appeals for the Second Circuit reversed and directed that the writ issue. 379 F.2d 897. We granted certiorari, 390 U.S. 903, 88 S.Ct. 816, 19 L.Ed.2d 869, to consider the State's ^[3] contention that the Court of Appeals erred in upsetting this state conviction. Concluding that the Court of Appeals was right, we affirm.

It is desirable at the outset to make clear what is and what is not involved in this case. The decision below was based solely upon a finding that DeForte's Fourth and Fourteenth Amendment rights, see Ker v. State of California, 374 U.S. 23, 30-34, 83 S.Ct. 1623, 1628-1633, 10 L.Ed.2d 726, were violated by the search and seizure, and that the seized material was therefore inadmissible under Mapp. It is on this ground alone that DeForte argues for affirmance. Consequently, there is no occasion to consider whether DeForte might successfully have asserted his Fifth Amendment right against self-incrimination with respect to the use against him of the seized records. Cf. United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542; Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 610. Nor is there any need to inquire whether DeForte could have asserted a Fourth or Fifth Amendment claim on behalf of the Union, for he did not do so. Moreover, this is not a case in which it is necessary to decide whether the traditional doctrine that Fourth Amendment rights 'are personal rights, and * * * may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure,' Simmons v. United States, 390 U.S. 377, at 389, 88 S.Ct. 967, at 974, 19 L.Ed.2d 1247, should be modified. Cf. id., at 390, n. 12, 88 S.Ct. at 974. For DeForte claims that under the traditional rule he does have standing to challenge the admission against him at trial of union records seized from the office where he worked. The questions for decision, then, are whether DeForte has Fourth Amendment standing to object to the seizure of the records and, if so, whether the search was one prohibited by the Fourth Amendment.

We deal, first, with the question of 'standing.' The Fourth Amendment guarantees that 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.' The papers which were seized in this case belonged not to DeForte but to the Union. Hence, DeForte can have personal standing only if, as to him, the search violated the 'right of the people to be secure in their * * * houses * * *.' ^[4] This Court has held that the word 'houses,' as it appears in the Amendment, is not to be taken literally, and that the protection of the Amendment may extend to commercial premises. See, e.g., See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943; Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319.

Furthermore, the Amendment does not shield only those who have title to the searched premises. It was settled even before our decision in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, that one with a possessory interest in the premises might have standing. See, e.g., United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59. In Jones, even that requirement was loosened, and we held that 'anyone legitimately on premises where a search occurs may challenge its legality * * * when its fruits are proposed to be used against him.' 362 U.S., at 267, 80 S.Ct. at 734. ^[5] The Court's recent decision in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, also makes it clear that capacity to claim the protection of the Amendment depends not upon a property right in the invaded place but upon whether the area was one in which there was a reasonable expectation of freedom from governmental intrusion. See 389 U.S., at 352, 88 S.Ct., at 511. The crucial issue, therefore, is whether, in light of all the circumstances, DeForte's office was such a place.

The record reveals that the office where DeForte worked consisted of one large room, which he shared with several other union officials. The record does not show from what part of the office the records were taken, and DeForte does not claim that it was a part reserved for his exclusive personal use. The parties have stipulated that DeForte spent 'a considerable amount of time' in the office, and that he had custody of the papers at the moment of their seizure. ^[6]

We hold that in these circumstances DeForte had Fourth Amendment standing to object to the admission of the papers at his trial. It has long been settled that one has standing to object to a search of his office, as well as of his home. See, e.g., Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647; United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877; Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322; cf. Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462; Osborn v. United States, 385 U.S. 323, 87 S.Ct. 439, 17 L.Ed.2d 394. Since the Court in Jones v. United States, supra, explicitly did away with the requirement that to establish standing one must show legal possession or ownership of the searched premises, see 362 U.S., at 265-267, 80 S.Ct., at 733-734, it seems clear that if DeForte had occupied a 'private' office in the union headquarters, and union records had been seized from a desk or a filing cabinet in that office, he would have had standing. Cf. Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182. In such a 'private' office, DeForte would have been entitled to expect that he would not be disturbed except by personal or business invitees, and that records would not be taken except with his permission or that of his union superiors. It seems to us that the situation was not fundamentally changed because DeForte shared an office with other union officers. DeForte still could reasonably have expected that only those persons and their personal or business guests would enter the office, and that records would not be touched except with their permission or that of union higher-ups. This expectation was inevitably defeated by the entrance of state officials, their conduct of a general search, and their removal of records which were in DeForte's custody. It is, of course, irrelevant that the Union or some of its officials might validly have consented to a search of the area where the records were kept, regardless of DeForte's wishes, for it is not claimed that any such consent was given, either expressly or by implication.

Our conclusion that DeForte had standing finds strong support in Jones v. United States, supra. Jones was the occasional occupant of an apartment to which the owner had given him a key. The police searched the apartment while Jones was present, and seized narcotics which they found in a bird's nest in an awning outside a window. Thus, like DeForte, Jones was not the owner of the searched premises. Like DeForte, Jones had little expectation of absolute privacy, since the owner and those authorized by him were free to enter. There was no indication that the area of the apartment near the bird's nest had been set off for Jones' personal use, so that he might have expected more privacy there than in the rest of the apartment; in this, it was like the part of DeForte's office where the union records were kept. Hence, we think that our decision that Jones had standing clearly points to the result which we reach here.

The remaining question is whether the search of DeForte's office was 'unreasonable' within the meaning of the Fourth Amendment. The State does not deny that the search and seizure were without a warrant, and it is settled for purposes of the Amendment that 'except in certain carefully defined classes of cases, a search of private property without proper consent is 'unreasonable' unless it has been authorized by a valid search warrant.' Camara v. Municipal Court, 387 U.S. 523, 528-529, 87 S.Ct. 1727, 1731, 18 L.Ed.2d 930. ^[7] We think it plain that the state officials' possession of a district attorney's subpoena of the kind involved here ^[8] does not bring this case within one of those 'carefully defined classes.' The State has not attempted to justify the search and seizure on that ground, and the New York courts have themselves said as a matter of state law that '(a district attorney's) subpoena duces tecum confers no right to seize the property referred to in the subpoena * * *.' Amalgamated Union, Local 224 v. Levine, 31 Misc.2d 416, 417, 219 N.Y.S.2d 851, 853. ^[9]

Moreover, the subpoena involved here could not in any event quality as a valid search warrant under the Fourth Amendment, for it was issued by the District Attorney himself, ^[10] and thus omitted the indispensable condition that 'the inferences from the facts which lead to the complaint '* * * be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.' Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436.' Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503. In Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, a corporate office was searched for papers which the corporation had refused to deliver in response to a New York District Attorney's subpoena, apparently similar to the one in this case. Speaking for the Court, Mr. Justice Holmes not only held that the seizure of the papers was unjustified but characterized it as 'an outrage.' Id., at 391, 40 S.Ct. 182. The objections of both the corporation and the officer were sustained. Thus, there can be no doubt that under this Court's past decisions ^[11] the search of DeForte's office was 'unreasonable' within the meaning of the Fourth Amendment. ^[12]

The judgment of the Court of Appeals is affirmed.

Affirmed.

Mr. Justice BLACK, with whom Mr. Justice STEWART joins, dissenting.

Notes

1. Those appeals culminated in a petition for certiorari to this Court, which was denied sub nom. De Grandis v. New York, 375 U.S. 868, 84 S.Ct. 91, 11 L.Ed.2d 95.
2. DeForte's petition for certiorari following direct appeal was denied in 1963, more than two years after the Court's decision in Mapp v. State of Ohio. Under the rule laid down in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, DeForte is entitled to invoke the exclusionary principle established in Mapp.
3. The petitioner, Mancusi, is the warden of the New York State prison in which DeForte is confined.
4. The fact that the seized papers belonged to the Union does not imply of itself that an individual could never have personal standing to object to their admission against him. For example, state officers conceivably might have seized the papers during a search of DeForte's home, and in that event we think it clear that he would have had standing. Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771, is by no means to the contrary, for in that case there was no physical search at all. The only Fourth Amendment standing question in Wilson was whether a corporate officer had personal standing to object to a subpoena duces tecum addressed to the corporation, on the ground that it was overbroad. See 221 U.S., at 375-376, 31 S.Ct., at 542.
5. The petitioner contends that this holding was not intended to have general application, but that it was devised solely to solve the particular dilemma presented in Jones: that of a defendant who was charged with a possessory offense and consequently might have to concede his guilt in order to establish standing in the usual way. However, this limited reading of Jones overlooks the fact that in Jones standing was held to exist on two distinct grounds: '(1) (The circumstance that) possession both convicts and confers standing, eliminates any necessity for a preliminary showing of an interest in the premises searched or the property seized * * *. (2) Even were this not a prosecution turning on illicit possession, the legally requisite interest in the premises was here satisfied * * *.' 362 U.S., at 263, 80 S.Ct., at 732. (Emphasis added.) Thus, the second branch of the holding, with which we are here concerned, was explicitly stated to be of general effect.
6. See Joint Appendix 51-52.
7. See also Stoner v. State of California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856; United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93; McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153; Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145.
8. A copy of the subpoena appears in the Joint Appendix, at 22. The subpoena was signed by the District Attorney and directed to the Union as a witness in a criminal action. It ordered the Union to appear before the District Attorney forthwith, and to bring with it specified union records. The subpoena appears to have been issued under the authority of N.Y.Code Crim.Proc. §§ 609 613.
9. See also In re Atlas Lathing Corp., 176 Misc. 959, 29 N.Y.S.2d 458; Hagan, Impounding and the Subpoena Duces Tecum, 26 Brooklyn L.Rev. 199, 210-211 (1960).
10. See n. 8, supra.
11. The Court's opinion in Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453, does contain dicta to the effect that there is a lesser right to privacy when government officials have a 'right' to inspect the seized items. See, e.g., id., at 593, 66 S.Ct. at 1261. However, the only holding in Davis was that there had been a valid consent to the search; the case 'did not involve a search warrant issue.' See v. City of Seattle, 387 U.S. 541, 545, n. 7, 87 S.Ct. 1737, 1741, 18 L.Ed.2d 943.
12. It is, of course, immaterial that the State might have been able to obtain the same papers by means which did not violate the Fourth Amendment. As Mr. Justice Holmes stated in Silverthorne Lumber Co. v. United States, supra, 251 U.S. at 392, 40 S.Ct. at 183: '(T)he rights * * * against unlawful search and seizure are to be protected even if the same result might have been achieved in a lawful way.'