#### J. Morgan Smith, Plaintiff, *v.*William Travers Jerome et al., Defendants.

(Supreme Court, Queens Special Term,

April, 1905.)

Searches and seizures — Letters of person arrested — Action to compel return — Injunction.

It is the duty of the police to search the person of one lawfully arrested, the room or place in which he is. arrested, and any other place to which they can obtain lawful access, for articles that may be used in evidence to prove the charge upon which the arrest is made.'-

*23Where the object of an action against a district-attorney is to require him to deliver back to plaintiff certain letters received by him and Iris wife and found upon search of their room and effects at the time of their arrest and seized upon the ground that they tended to prove the accused guilty of the crime charged in the indictment upon which they are held for trial, and the complaint alleges that the indictment charges no crime, and it does not sufficiently appear that the letters do not furnish evidence of their guilt of the crime charged, a motion for a mandatory injunction pending the suit, will be denied.

Suit for mandatory injunction that the defendants, who are the district attorney, and an assistant district attorney, of the county of New York, deliver over to the plaintiff certain letters received by him and his wife, and taken from them by the police. Motion for injunction pending the suit.

Herbert R. Limburger for plaintiff.

Howard S. Gans for defendants.

Gaynor, J.:

The plaintiff and his wife were indicted with another for the crime of conspiracy in the county of Hew York. They were thereafter arrested by the police in Cincinnati as fugitives from justice, and brought back under a requisition of the Governor of the State of Hew York upon such indictment, or else they came back voluntarily, and they are now detained for trial. The head of the Cincinnati police sent to the district attorney of Hew York by mail certain letters addressed to the plaintiff and to his wife which the police of Cincinnati found on a search of their room and effects at the time of their arrest, and which were seized on the ground that they tended to prove the accused guilty of the crime charged in the indictment. The object of this suit is to require the district attorney to give such letters back to the plaintiff.

The police have the power and it is also their duty to search the person of one lawfully arrested, and also the room or place in ivhich he is arrested, and also any other place to which they can get lawful access, for articles that may *24be used in evidence to prove the charge on which he is arrested. We have no statute defining this power or prescribing this duty, but the ends of justice require that they should exist, and they have been exercised under the common law from time immemorial. The authorities on this ■head seem to be few, but only because the thing has seldom if ever been questioned. We have at least one such authority in this state (Houghton v. Bachman, 47 Barb. 388), and there are several in England. This right and duty of search and seizure extend, however, only to articles which furnish evidence against the accused. They do not, for instance, permit the seizure of his money, unless it furnishes evidence of his guilt, and in no other case may a prisoner’s money or other property be taken from him. It does not sufficiently appear that the letters in question are not of such incriminating character. In the time at my disposal I cannot go further into the law of the case, although it has been somewhat abused in recent years and needs to be stated for the guidance of the police. The complaint also fails to state a case for relief by this motion. It alleges that the indictment charges no crime, from which it follows that the plaintiff and his wife have no need to get possession of the letters to prepare for their defence.

The motion is denied.