(dissenting). I cannot agree with my learned associates that the case should be sent back for a new trial. Flynn, being without counsel, requested the court to protect his rights. The record shows, I think, that the District Court did competently and sufficiently protect Flynn’s rights. I am not satisfied that the motion to quash, made by the respondent, should be construed into a motion to suppress the evidence of an illegal seizure. The motion was clearly directed to the question of quashing the indictment. The respondent had sufficient time in advance of the trial with the aid of his counsel to present the motion to suppress evidence. He waited until the evidence was offered at the trial before making any effort to suppress. At the trial the learned judge found upon inquiry of the respondent that he had had counsel “up to now.” He therefore had counsel at the time he should have prepared a proper motion to suppress.
In Segurola v. United States, 275 U. S. 106, 48 S. Ct. 77, 79, 72 L. Ed. 186, in speaking for the court, Chief Justice Taft said:
“Except where there has been no opportunity to present the matter in advance of trial, * * * a court, when engaged in trying a criminal case, will not take notice of the manner in which witnesses have possessed themselves of papers or other articles of personal property, which are material and properly offered in evidence, because the court will not in trying a criminal cause permit a collateral issue to be raised as to the source of competent evidence. To pursue it would be to halt in the orderly progress of a cause and consider incidentally a question which has happened to cross the path of such litigation and which is wholly independent of it. In other words, in order to raise the question of illegal seizure, and an absence of probable cause in that seizure, the defendants should have moved to have the whiskey and other liquor returned to them as their property and as not subject to seizure or use as evidence. To preserve their rights under the Fourth Amendment, they must at least have seasonably objected to the production of the liquor in court. This they did not do, but waited until the liquor had been offered and admitted and then for the first time raised the question of legality of seizure and probable cause as a ground for withdrawing the liquor from consideration of the jury. This was too late.”
In the instant case I think the respondent should not be allowed to escape the punishment required in the orderly administration of justice by his plea that he did not receive suitable protection from the District Court. A careful reading of the record induces me to believe that he did receive such protection.
There may be grounds for holding that a certain affidavit was defective and insufficient on its face to justify the issuance of the search warrant; but I find other competent and sufficient evidence relating to the same facts covered by the evidence claimed to be incompetent. Daley and Nolan, the respondent’s coconspirators, testified from their own knowledge as participants. Their testimony was competent and convincing. It seems clear to me that there was sufficient evidence to justify the verdict.
Upon the whole, I think the verdict of the jury should not be disturbed, and that the judgment of the District Court should not be vacated.