Hastie, Freedman and Seitz, Circuit Judges. Freedman, Circuit Judge (dissenting).
The appellant ("defendant") appeals from his conviction by a jury for rescuing a safe deposit box seized by the Internal Revenue Service ("Service") in violation of 26 U.S.C. § 7212(b); larceny from a federally insured bank contrary to 18 U.S.C. § 2113(b); and conspiracy to commit the aforementioned acts (18 U.S.C. § 371). Three other individuals were indicted with the defendant, but only the defendant stood trial.
A complete summation of the bizarre events which culminated in defendant's conviction is necessary to understand the ultimate disposition of this appeal. They appear as part of the evidence introduced by the Government either at the hearing on the motion to suppress or at the trial.
Defendant was arrested by officers of the Philadelphia Police Department on the morning of April 13, 1965, while he was operating a motor vehicle. The arrest was made pursuant to a warrant charging him with a burglary of jewelry committed in January 1964. As a result of a search made as an incident to the arrest, a safe deposit box key was found among the keys on a key ring attached to the key inserted in the vehicle's ignition switch. One of the arresting officers seized the keys. The legality of this action is not challenged here.
The police ascertained that the safe deposit box to which the seized key belonged had been rented to one identifying himself as Howard Davis. The Davis rental application gave as the applicant's address what was later determined to be the residence address of defendant's brother. A warrant to search the safe deposit box was then sought by the Philadelphia Police. An affidavit dated April 13, 1965, purporting to fulfill the requirement of showing "probable cause," accompanied the petition for the warrant. It is not necessary at this point to delineate the petition's contents except to note that they indicated that the police reasonably believed that defendant might have placed the stolen jewelry in the box.
The search warrant was issued by the magistrate late in the afternoon of April 13, 1965. The following morning, pursuant to the directive of the warrant, the Philadelphia Police Department using the seized key and assisted by bank personnel using the bank's master key, opened the safe deposit box. The box was found to contain $100,000 in United States currency and other miscellaneous items. No jewelry was found.
Not finding the stolen jewelry, the police closed the safe deposit box without removing any of its contents. However, on the same day they notified the Service of the existence of the $100,000 cash in the box. Later that day the Service, through its agents, caused an assessment in the sum of $100,000 to be made against defendant. Thereafter on the same day a Notice of Termination of Tax Year as well as a demand for $100,000 in unpaid and due taxes (26 U.S.C. § 6851(a)) were served on defendant at the Philadelphia Detention Center. Defendant accepted the notice and demand and informed the agents that he would contact his attorney. Still later the same day the Service caused a Notice of Levy, Notice of Federal Tax Lien and Notice of Seizure pursuant to 26 U.S.C. § 6331 (a) to be served on the bank in which the box was located. A seal was placed upon the box warning anyone attempting to gain admission thereto that it was seized for federal income tax purposes. Subsequent to such seizure, the Philadelphia Police turned over to the Service the key to the box which it had taken at the time of defendant's arrest.
In order to prevent the Service from removing the contents of the box, the defendant secured from the Federal District Court a temporary injunction dated April 27, 1965, prohibiting the bank from turning over the box or its contents to the Service. On December 24, 1965, pursuant to a plan adopted by the defendants, another safe deposit box was rented in order to be able to gain admission to the vault containing the seized safe deposit box. On December 30, 1965, after being unsuccessful in previous attempts to secure the bank's master key, the conspirators decided that if a disturbance was created while one of the conspirators was inside the vault they might obtain the master key. They then put their plan into effect. The defendant, who was outside the bank, hurled a rock through the front window. In the confusion that followed the conspirator inside the vault seized the bank's master key. By using it in conjunction with a duplicate key which defendant had retained and provided him, he carried from the bank the entire safe deposit box which had been seized by the Service. Later that evening defendant and the other conspirators divided the money and disposed of the box. Testimony revealed that defendant received $80,000.
After indictment but prior to the trial defendant moved to suppress evidence concerning the search of the safe deposit box and its contents on the ground that the search of the safe deposit box by the Philadelphia Police was without probable cause and therefore in violation of his constitutional rights, or in the alternative, that the search was in violation of a Pennsylvania statute hereinafter discussed. The district court denied the motion.
Thereafter the defendant stood trial. Evidence was offered by the Government as to the contents of the box through state agents, bank personnel and the defendant's alleged co-conspirators. Defendant's counsel objected to the introduction of the evidence for the same reasons given in support of his motion defendant's brother. A warrant to ruled. The defendant was convicted and it is not disputed that defendant's counsel properly preserved his objections for appeal purposes.
Defendant's primary contention is that the search conducted by the Philadelphia Police Department of the safe deposit box was without probable cause or, in the alternative, constituted a violation of a Pennsylvania statute dealing specifically with searches of safe deposit boxes. In consequence, he says that any testimony regarding the seizure of the box and its contents was inadmissible in this federal criminal proceeding because of the provisions of the Fourth Amendment.
The decision in Elkins v. United States, 364 U.S. 206, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 (1960), interred the "silver platter" doctrine. Thus, evidence used in a federal criminal trial, even though obtained originally by state authorities, must be judged by the requirements of the Fourth Amendment.*fn1 The admissibility of evidence obtained by a search by state officers and thereafter sought to be used in a federal trial is to be judged as though the search had been made by federal officers. If the evidence obtained by the state officers would have been inadmissible in a federal trial had it been obtained by federal officers because of a violation of the Fourth ...