Norman v. Boaz, 85 Ky. 557, 560, 4 S. W. 316; Negley v. Henderson Bridge Co. 107 Ky. 414, 54 S. W. 171; Louisville Trust Co. v. Stone, 46 C. C. A. 299, 107 Fed. 305, 309. And if the equitable remedy was available in the state courts, it was not lost by suing in the Federal court. Davis v. Gray, 16 Wall. 203, 221, 21 L. ed. 447, 453; Cowley v. Northern P. R. Co. 159 U. S. 569, 40 L. ed. 263, 16 Sup. Ct. Rep. 127. Nor is the equitable jurisdiction lost because, since the filing of the bill, an adequate legal remedy may have become available. Beedle v. Bennett, 122 U. S. 71, 30 L. ed. 1074, 7 Sup. Ct. Rep. 1090; Busch v. Jones, 184 U. S. 598, 46 L. ed. 707, 22 Sup. Ct. Rep. 511. We have no occasion, therefore, to consider other reasons urged why the legal remedy, if any, would have been inadequate.

Third. The attorney general moved that these suits be abated, relying upon the amendment to § 266 of the Judicial Code by Act of March 4, 1913, chap. 160, 37 Stat. at L. 1013, Comp. Stat. § 1243, 5 Fed. Stat. Anno. 2d ed. p. 984, which declares that if, before the final hearing of an application to restrain the enforcement of a statute or an order made by an administrative board or commission,

"a suit shall have been brought in a court of the state having jurisdiction thereof under the laws of such state [297] to enforce such statute or order, accompanied by a stay in such state court, of proceedings under such statute or order, pending the determination of such suit by such state court, all proceedings in any court of the United States to restrain the execution of such statute or order shall be stayed pending the final determination of such suit in the courts of the state."

The suit pending in the state court was this: A liquor dealer who owned whisky in a distillery warehouse had, prior to the enactment of the statute here in question, caused it to be bottled in bond, and had paid thereon the 2-cent a gallon state tax imposed under the Law of 1917. He claimed the right to withdraw the whisky from bond without payment of the 50-cent a gallon tax; and brought suit in a county court to enjoin the warehouseman from preventing his doing so. The latter set up this 1920 act. Thereupon, the plaintiff, by amended petition, joined the attorney general and the auditor as codefendants, and prayed that they be enjoined from compelling the plaintiff or the warehouseman to pay the 50-cent a gallon tax

on the plaintiff's whisky. A restraining order to that effect issued.

Whether this suit in the county court was of such a character as to entitle the state officials to stay the proceedings in the Federal court we do not decide. Strictly speaking, it was not "brought

to enforce" the statute in question; but it is, at least, arguable that it might have been accepted by the state officials as a means to that end, and so have fulfilled in substance the statutory requirement. See House Report No. 1584, 62d Cong. 3d Sess. But whether this is true or not, it was not "accompanied by a stay in such state court of proceedings under such statute," within the meaning of the Judicial Code. The stay contemplated by Congress is a general one, which would protect, among others, those who had already sought protection in the Federal court. restraining [298] order issued in the purely private litigation between third parties in the county court left the plaintiffs in the suits before us subject to all the danger of irreparable injury against which they had sought protection in the Federal courts. Affirmed.

FELIX GOULED

V.

UNITED STATES.

(See S. C. Reporter's ed. 298-313.)

The

Appeal

objections

when in time evidence wrongfully obtained. evidence in a criminal case of a paper sur2. An objection to the introduction in reptitiously taken from the office of the accused by a representative of the Federal government is in time, though not made before trial, where such objection was made promptly upon the first notice the accused had that the government was in possession of the paper. [For other cases, see Appeal and Error, VI.

c, in Digest Sup. Ct. 1908.]

ing from the plaintiff or his agents or dis7 "You are hereby enjoined from requirtiller in charge payment of the 50-cent per gallon tax on his whiskies described in the petition this court."

until further orders of

absence of force.

3. The secret taking, without force, from the house or office of one suspected of crime, and in his absence, of a paper belonging to him, having evidential value only, by a representative of any branch or subdivision of the Federal government, violates the constitutional guaranty against unreasonable searches and seizures, whether entrance to such house or office be obtained by stealth or through social acquaintance, or in the guise of a business call, and whether the owner be present or not at the time of entry.

[For other cases, see Search and Seizure, in Digest Sup. Ct. 1908.] Search and seizure use of evidence wrongfully obtained — crimination of self.

5. Search warrants may not be used as a means of gaining access to a man's house or office and papers, solely for the purpose of making search to secure evidence to be used against him in a criminal | or penal proceeding, but they may be resorted to only when a primary right to such search and seizure may be found in the interest which the public or the complainant may have in the property to be seized, or in the right to the possession of it, or when a valid exercise of the police power renders possession of the property by the accused unlawful, and provides that it may be taken.

[For other cases, see Search and Seizure Criminal Law, III. b, 2, in Digest Sup. Ct. 1908.]

Note.-As to when exceptions must be taken to be available on review-see note to Phelps v. Mayer, 14 L. ed. U. S. 643.

private property. 6. Contracts may be so used as instruments or agencies for perpetrating frauds upon the government as to give the public an interest in them which would justify the search for and seizure of them under a properly issued search warrant, for the purpose of preventing further frauds. [For other cases, see Search and Seizure, in Digest Sup. Ct. 1908.] Search and seizure to compel selfcrimination.

7. Private papers of no pecuniary value, in which the sole interest of the Federal government is their value as evidence against the owner in a contemplated criminal prosecution, may not, consistently with the constitutional guaranty against unreasonable searches and seizures, be taken from the owner's house or office under a search warrant.

[For other cases, see Search and Seizure; Criminal Law, III. b, 2, in Digest Sup. Ct. 1908.] - use of property seized evidence on trial for other crimes.

Search and seizure

8. Property seized under a valid search warrant may be used in the prosecution of a suspected person for a crime other than that which may have been described in the affidavit for the warrant as having been committed by him.

[For other cases, see Search and Seizure; Evidence, IV. v, in Digest Sup. Ct. 1908.] Evidence use when wrongfully obtained criminal case -effect of previous denial of motion to return.

9. If, in the progress of a criminal trial, it becomes probable that there has been an unconstitutional seizure of the papers of the accused, of evidential value only, it is the duty of the trial court to entertain an objection to the admission of such papers in evidence, or a motion for their exclusion, and to consider and decide the question as then presented, even where a motion to return the papers may have been denied before trial.

[For other cases, see Evidence, VIII: Search

and Seizure, in Digest Sup. Ct. 1908.]

[No. 250.]

28, 1921.

1916E, 715; Weeks v. United States,

L.R.A.1915B, 834; People v. Campbell, 34 L.R.A.(N.S.) 58; State v. Fuller, 8 L.R.A. (N.S.) 762, and State v. Edwards, 59 L.R.A. 465.

On sufficiency of statutory immunity to satisfy constitutional guaranties against self-incrimination-see notes to Interstate Commerce Commission v. Baird, 48 L. ed. U. S. 860, and Arndstein v. McCarthy, ante, 138.

As to unreasonable search and seizure -see note to Levy v. Superior Ct. 29 L.R.A. 818.

ONA CERTIFICATE from the United

States Circuit Court of Appeals for the Second Circuit, presenting the questions whether there had been an unlawful search and seizure, whether the admission of the property seized in evidence was unlawful, whether the property seized could be introduced in evidence on a trial for a different offense, and whether the court at the trial was bound to entertain an objection to the admissibility of the evidence. Each question answered in the affirmative.

The facts are stated in the opinion.

v. State, 120 Tenn. 61, 17 L.R.A.(N.S.) 451, 109 S. W. 1149, 15 Ann. Cas. 1201. Private papers are property whether they possess pecuniary value or not. Boyd v. United States, 116 U. S. 616, 29 L. ed. 746, 6 Sup. Ct. Rep. 524.

An act of Congress which authorizes a search warrant for property which has been used in the commission of a felony is not subject to constitutional objections. Ibid.; Adams v. New York, 192 U. S. 585, 48 L. ed. 575, 24 Sup. Ct. Rep. 372.

Mr. Justice Clarke delivered the opinion of the court:

In a joint indictment the plaintiff in error, Gouled, one Vaughan, an officer of the United States Army, and a third, an attorney at law, were charged, in the first count, with being parties to a conspiracy to defraud the United States, in violation of § 37 of the Federal Criminal Code, and, in the second count, with having used the mails to [303] promote a scheme to defraud the United States, in violation of § 215 of that Code. Vaughan pleaded guilty, the attorney was acquitted, and Gouled, whom we shall refer to as the defendant, was convicted, and thereupon prosecuted error to the circuit court of appeals, which certifies to this court six questions which we are to consider.

Of these questions, the first two relate to the admission in evidence of a paper surreptitiously taken from the office of the defendant by one acting under direction of officers of the Intelligence Department of the Army of the United States, and the remaining four relate to papers taken from defendant's office under two search warrants, issued pursuant to the Act of June 15, 1917 (40 Stat. at L. 217, 228, chap. 30, Comp. Stat. § 10,496 a, Fed. Stat. Anno. Supp. 1918, pp. 120, 128). It was objected on the trial, and is here insisted upon, that it was error to admit these papers in evidence because possession of them was obtained by violating the rights secured to the defendant by the 4th and 5th Amendments to the Constitution of the United States.

The 4th Amendment reads:

"The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The part of the 5th Amendment here involved reads: "No person shall be compelled

in any criminal case to be a witness against himself."

It would not be possible to add to the emphasis with which the framers of our Constitution and this court (in Boyd v. United States, 116 U. S. 616, 29 L. ed. 746, 6 Sup. Ct. Rep. 524, in Weeks v. United States, 232 U. S. 383, 58 L. ed. 652, L.R.A.1915B, 834, 34 Sup. Ct. Rep. 341, Ann. Cas. 1915C, 1177, and in Silverthorne Lumber Co. v. United States, 251 U. S. 385, 64 L. ed. 319, 40 Sup. Ct. Rep. 182) have declared the importance to political liberty and to the welfare of our country of the due observance of the rights guaranteed under the Constitution [304] by these two Amendments. The effect of the decisions cited is: that such rights are declared to be indispensable to the "full enjoyment of personal security, personal liberty, and private property;" that they are to be regarded as of the very essence of constitutional liberty; and that the guaranty of them is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen,-the right to trial by jury, to the writ of habeas corpus, and to due process of law. It has been repeatedly decided that these Amendments should receive a liberal construction, SO as to prevent stealthy encroachment upon or "gradual depreciation" of the rights secured by them, by imperceptible practice of courts, or by well-intentioned but mistakenly over-zealous executive officers.

In the spirit of these decisions we must deal with the questions before us. The facts derived from the certificate, essential to be considered in answering the first two questions, are: that in January, 1918, it was suspected that the defendant, Gouled, and Vaughan, were conspiring to defraud the government through contracts with it for clothing and equipment; that one Cohen, a private in the Army, attached to the Intelligence Department, and a business acquaintance of defendant, Gouled, under direction of his superior officers, pretending to make a friendly call upon the defendant, gained admission to his office, and, in his absence, without warrant of any character, seized and carried away several documents; that one of these papers, described as "of evidential value only," and belonging to Gouled, was subsequently delivered to the United States district attorney, and was by him introduced in evidence over the ob