concurring.
The right of the people under the Fourth Amendment to be secure in their persons, houses, papers and effects against unreasonable searches and seizures applies to those accused of crime as well as to others. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925). Therefore the motion to suppress for use as evidence the unstamped packages of cocaine seized should have been granted by the District Court in the instant case unless the effect of the statutes, Sections 2558(a) and 3116 of 26 U.S.C.A. [53 Stat. 276 and 362(1939)], to subject narcotics to seizure and forfeiture and to forbid the existence of property rights therein deprived the appellant of standing, as a person aggrieved by an unlawful seizure, to move to suppress. It is not in dispute that except for the effect of the statutes referred to the appellant owned the cocaine seized. It is also not in dispute that the officer who seized the cocaine had not secured from a magistrate the warrant to search and seize required by the Fourth Amendment. It is clear also that the exceptional circumstances, such as the danger of immediate harm to or of immediate removal or destruction of the articles seized or the making of a search as an incident to a valid arrest, which have been recognized as relieving officers from the duty to obtain a magistrate’s warrant, Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948); McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948); United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430 (1950), did not exist. Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947) is, I think, distinguishable. There the search and seizure were incident to a lawful arrest. In the instant case the search and seizure were not incident to a lawful arrest, or to any arrest. Jeffers was not present. Moreover, although Jeffers had no standing as an aggrieved person to move to suppress because of the unlawfulness of the search as to him, since he had no interest in the premises, he did have standing to move to suppress, because of the unlawfulness of the seizure without a warrant, unless the effect of the statutes referred to deprived him of standing as an aggrieved person.
The contention of the Government that in view of the statutes cited above the appellant had no rights of ownership or possession in the packages seized, and, therefore, had no standing as a person aggrieved to invoke the protection of the *504Fourth Amendment, omits, in my view, to consider the distinction between a forfeiture proceeding and a criminal proceeding. The provisions of Section 3116 of Title 26, U.S.C.A. do not automatically forfeit property rights in narcotics intended for use in violation of the Internal Revenue laws. A forfeiture proceeding is requisite. 53 Stat. 457 (1939), 26 U.S.C.A. § 3720(a) (1) and 3721; 53 Stat. 460 (1939), 26 U.S.C.A. § 3745(a); 62 Stat. 910 (1948), amended 63 Stat. 100 (1949), 28 U.S.C.A. § 507(a) (4). It is true that the illegality of a seizure will not defeat a forfeiture proceeding. The Government may adopt the seizure with the same effect as if it had originally been made by one duly authorized. United States v. One Ford Coupe, 272 U.S. 321, 47 S.Ct. 154, 71 L.Ed. 279 (1926); Taylor et al. v. United States, 3 How. 197, 11 L.Ed. 559 (U.S.1845); The Caledonian, 4 Wheat. 100, 4 L.Ed. 523 (U.S.1819). But it does not follow from this that illegally seized property may be introduced in evidence in a criminal proceeding. The authorities are clearly to the contrary. Dodge v. United States, 272 U.S. 530, 47 S.Ct. 191, 71 L.Ed. 392 (1926); United States v. Maggio, D.C., 51 F.2d 397 (S.D.N.Y.1931); United States v. Eight Boxes, etc., 105 F.2d 896 (2 Cir.,1929).
In Dodge v. United States, a motor boat seized by a police officer acting without authority later came into the custody of a federal prohibition director and was subjected to a condemnation proceeding in the United States District Court for the District of Rhode Island. That court at the instance of the owners of the motor boat dismissed the libel because of the unlawful seizure. That dismissal was reversed by the Circuit Court of Appeals for the First Circuit and the decision of the Court of Appeals was affirmed by the Supreme Court. That Court in an opinion written by Mr. Justice Holmes said:
. . . The owner of the property suffers nothing.that he would not have suffered.if the seizure had been authorized. However effected, it brings the object within the power of the Court, which is an end that the law seeks to attain, and justice to the owner is as safe in the one case as in the other. The jurisdiction of the Court was secured by the fact that the res was in the possession of the prohibition director when the libel was filed. The Richmond, 9 Cr. [Cranch] 102 [3 L.Ed. 670], The Merino, 9 Wheat. 391, 403 [6 L.Ed. 118]. The Underwriter [2 Cir.], 13 F.(2d) 433, 434. We can see no reason for doubting the soundness of these principles when the forfeiture is dependent upon subsequent events any more than when it occurs at the time of the seizure, although it was argued that there was a difference. They seem to us to embody good sense. [272 U.S. at 532, 47 S.Ct. at 192]
But the Court went on to say:
The exclusion of evidence obtained by an unlawful search and seizure stand on a different ground. If the search and seizure are unlawful as invading personal rights secured by the Constitution those rights would be infringed yet further if the evidence were allowed to be used. [272 U.S. at 532, 47 S.Ct. at 192]
In United States v. Maggio, Maggio and another were charged in the United States District Court for the Western District of New York with knowingly transporting intoxicating liquor fit for beverage purposes. The liquor and a truck had been seized, concededly, without probable cause, and the defendants filed a motion to suppress and for the return of both the alcohol and the truck. The court ruled that the evidence must be suppressed and the truck returned to them. There was left in the case for determination the question whether or not the alcohol should be returned. The court ruled that it should not, that retention of the liquor by the Government was not in violation either of the Fourth or the Fifth Amendment to the Constitution, and that “suppression of the evidence of the seizure prevents proof of all acts growing out of such seizure and thus affords full protection given by the Fourth Amendment.” The court thus clearly recognized that the liquor was subject to-forfeiture, even though illegally seized, and that because subject to forfeiture it should not be returned; but it recognized also, that such property because illegally seized; could not be introduced in evidence in a-criminal proceeding -against those fronu whom it was taken. The ruling of the-court was made under Section 25 of Title-2 of the National Prohibition Act, 41 Stat. 315 (1919), 27 U.S.C.A. § 39 (1927), providing that “It shall be unlawful to have- or possess any liquor or property designed' for the manufacture of liquor intended for-use in violating this title or which has been, so used, and no property rights shall exist in any such liquor or property.” That: *505statute parallels Section 3116 of Title 26, U.S.C.A., applicable in the instant case.
In United States v. Eight Boxes, goods subject to forfeiture because imported contrary to Section 593(b) of the Tariff Act of 1930, 46 Stat. 751 (1930), 19 U.S.C.A. § 1593(b) (1927), were seized by a customs agent under a search warrant later quashed because issued without a showing of probable cause. At the time the warrant was quashed the court directed the return of the property seized so far as it consisted of books, records and papers, but denied, because of the pendency of a libel to obtain its forfeiture, an application for the return of merchandise. In the libel proceeding, in the United States District Court for the Southern District of New York, it was contended for the owner of the goods, by a trustee in bankruptcy, that the court never, acquired jurisdiction of the res for forfeiture purposes because the original seizure was under a warrant granted in violation of the Fourth Amendment. The District Court overruled that contention and its ruling was affirmed on appeal. The Court of Appeals (Circuit Judges Learned Hand, Augustus N. Hand and Chase), in an opinion written for the court by Judge Augustus N. Hand, said:
. . . the United States chose to adopt the seizure and therefore the court had jurisdiction of the merchandise and could properly declare it forfeited under Section 593 of the Tariff Act as smuggled and contraband goods. [105 F.2d at 898]
The court then further said:
There is a clear distinction between the use in a criminal proceeding of evidence obtained by illegal search and seizure and the filing'of a libel to forfeit property obtained by like unlawful means. Neither papers nor property may be used as evidence in a criminal proceeding, Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654, but, as Justice Brandeis said in United States v. One Ford Coupe, 272 U.S. 321, 325, 47 S.Ct. 154, 155, 71 L.Ed. 279, 47 A.L.R. 1025: “It is settled that, where property declared by a federal statute to be forfeited, because used in violation of federal law, is seized by one having no authority to do so, the United States may adopt the seizure with the same effect as if it had originally been made by one duly authorized. The Caledonian, 4 Wheat. 99 [100] 101, 4 L.Ed. 523; Taylor v. United States, 3 How. 197, 205, 11 L.Ed. 559. See United States v. One Studebaker Seven-Passenger Sedan [9 Cir.], 4 F.2d 534.” [105 F.2d at 898]
He
The Fourth Amendment furnishes protection to the bankrupt against the use of the evidence obtained by the unlawful search and seizure but does not enable it to secure immunity against forfeiture of merchandise proved to have been imported contrary to law. [105 F.2d at 900]
In accordance with the foregoing, and also upon the grounds stated by Judge Fahy, I concur in his view that the motion to suppress .filed in the District Court in the instant case should have been granted by that court and that, it having been denied, there must be a reversal.