# Cleary v. Bolger/Dissent Douglas

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Goldberg
* Dissenting Opinions Douglas Brennan
United States Supreme Court
371 U.S. 392
Cleary v. Bolger
Argued: Nov. 14 and 15, 1962. --- Decided: Jan 14, 1963
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE concurs, dissenting.
I would agree with the judgment of the Court if we had here nothing but a question concerning the use of evidence obtained in violation of the Fourth Amendment. That question can now be raised in the state prosecution as a result of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. My difficulties stem from a flagrant violation by federal officers of Rule 5(a) of the Federal Rules of Criminal Procedure and the threatened use of the fruits of that violation by a state official in state cases. If the Court, as is strongly suggested, makes unreviewable here any adverse state determination on that claim, the only opportunity to correct the abuse of federal authority is here and now.
Federal customs agents suspected that thefts of liquor were occurring on the New York waterfront. Two agents stopped respondent Bolger on suspicion of theft at about 8 a.m. on Saturday, September 12, 1959. Their search of Bolger's car produced only a couple of windshield wipers and six spark plugs stamped 'made in England,' items that easily could have been purchased in New York. But, in response to the agents' questioning, Bolger admitted that he had at his home several bottles of liquor purchased from seamen. On the basis of this information the agents arrested Bolger at 9 a.m. Instead of taking him before a Commissioner as required by Rule 5(a), Federal Rules of Criminal Procedure, they took him to headquarters for further questioning. There, after refusing his request to consult a lawyer and by employing trickery, the agents got Bolger to consent to a search of his home. The ensuing search, conducted at about 11 a.m., produced several items tending to incriminate Bolger. Upon returning to headquarters, further questioning produced damaging statements from him. Petitioner Cleary, an investigator for the Waterfront Commission of New York Harbor, was present at this later questioning at the invitation of the federal agents. Though he did not participate in this questioning, he was free to do so.
No federal prosecution was ever brought against Bolger. New York, however, instituted both a criminal prosecution and an administrative proceeding to revoke his license as a hiring agent. Bolger brought suit in the Federal District Court to enjoin the federal agents and Cleary from producing any of the material seized from him or testifying as to any of his statements in either of the state proceedings.
The District Court granted the relief requested with respect to all statements obtained after 11 a.m., at which time a Federal Commissioner was in his office a few blocks from headquarters, and also all evidence obtained at Bolger's home. It held that the statements obtained both prior to and after the search were in violation of Rule 5(a), and that the search and seizure violated both the Fourth Amendment and Rule 41(a). 189 F.Supp. 237. The District Court relied on Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233, insofar as the federal agents were concerned; and it added that if the remedy did not extend to Cleary, whom it characterized as a 'human recorder,' federal agents would be free to flout the strictures imposed on them by Rea and the Federal Rules. The District Court concluded, 'Cleary will be restrained not in his capacity as a state official but because he participated as a witness in the unlawful acts of the federal officers acting on behalf of the United States.' D.C., 189 F.Supp., at 256.
Only Cleary appealed; and the Court of Appeals affirmed on the authority of Rea v. United States, supra. 2 Cir., 293 F.2d 368. It said that the only difference between this case and Rea 'is the time at which the federal officials attempt to make the results of their lawbreaking available to the state.' Id., at 369.
I think the Court of Appeals was correct in saying that 'the Rea case (is) ample authority for holding that the order appealed from is not barred by 28 U.S.C. § 2283 (28 U.S.C.A. § 2283) as an injunction to stay proceedings in a state court.' Id., at 370. The proceedings themselves are not enjoined. Enjoining a state agent from offering as a witness unlawfully obtained evidence has no different effect on the 'proceedings in a state court' than enjoining a federal officer. To be sure, in Rea there had been an earlier suppression order in a federal prosecution; and so it is now said that the injunction against testifying was necessary to protect or effectuate that suppression order. That answer proves too much, for it would enable federal agents themselves to violate the Federal Rules and, without fear of a federal injunction, produce all their illegally obtained evidence in a state prosecution.
A state agent should be enjoined from producing, as a witness in a state court proceeding, evidence he acquired solely as a result of federal agents' violation of the Federal Rules.
Such an injunction should issue lest federal agents accomplish illegal results by boosting Oliver Twists through windows built too narrow by those Rules for their own ingress. It is no answer to say that the state agent was merely a nonparticipating observer, or that Oliver Twist was an innocent child. The result produced, viz., the Oliver Twist method of obtaining evidence in violation of the Federal Rules, is illegal and should not go unchecked.
'Free and open cooperation between state and federal law enforcement officers is to be commended and encouraged. Yet that kind of cooperation is hardly promoted by a rule that implicitly invites federal officers * * * (to violate the provisions of the Federal Rules). If, on the other hand, it is understood that the fruit of * * * unlawful * * * (conduct) by * * * (federal) agents will be inadmissible in a * * * (state) trial, there can be no inducement to subterfuge and evasion with respect to federal-state cooperation in criminal investigation'-to paraphrase an earlier opinion in a related area. See Elkins v. United States, 364 U.S. 206, 221-222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669. Unless a federal court can enjoin a state agent under the facts of this case, the provisions of the Federal Rules will be subverted and an unhealthy form of statefederal cooperation will be encouraged.
What is involved is not an attempt by a federal court to interject itself into a state criminal prosecution to protect a defendant's federal rights against state infringement, as was the case in Pugach v. Dollinger, 365 U.S. 458, 81 S.Ct. 650, 5 L.Ed.2d 678, and Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138. In both of those cases the unlawfully obtained evidence had been obtained by state police. Here the evidence was obtained by federal agents in violation of the Federal Rules. It therefore involves no entrenchment on principles of federalism to hold that a Federal District Court may enjoin the production of such evidence in a state proceeding, regardless of who seeks to introduce it. The federal courts, rather than the state courts, have the responsibility of assuring that federal law-enforcement officers adhere to the procedures prescribed by the Federal Rules. This responsibility cannot be met if the federal courts' power can be thwarted by federal employment of a state Oliver Twist.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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