(dissenting).
While I agree with the majority that Judge Bryan’s order should be affirmed, I am of the opinion that, as a result of the intervening decision of the Supreme Court in Mapp v. Ohio, 81 S.Ct. 1684, 1691, the injunction should now be dissolved. I must, therefore, dissent from that portion of the majority’s decision which continues the injunction in effect.
*371The reason given in the majority opinion for not dissolving the injunction is that equity must act because there is no adequate remedy elsewhere, i. e., in this case, in the state court of New York; and the reason there is no remedy in the state court is that, while Mapp v. Ohio now requires state courts to exclude evidence obtained in violation of the unreasonable search and seizure provision of the Fourth Amendment, the Mapp case is, nevertheless, “unclear in several regards, such as its application to federal statutory or rule, as well as constitutional, prohibitions or to state administrative proceedings such as those of the Waterfront Commission.” The use of the phrase “as well as constitutional” implies that Mapp is clear enough where the evidence sought to be used in a state court was obtained as the result of an unreasonable search and seizure. In any event, the opinion of the Court in the Mapp case said, “we hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.” This appears to be reasonably explicit. That this is also binding upon the Waterfront Commission is implicit in the Court’s discussion in the Mapp case of the protection afforded by the Fourth Amendment to the citizens’ rights to privacy. It is also supported by civil cases to which the Fourth Amendment has been held to apply. Rogers v. United States, 1 Cir., 1938, 97 F.2d 691; Ex parte Jackson, D.C.D.Mont.1920, 263 F. 110; Schenck ex rel. Chow Fook Hong v. Ward, D.C.D.Mass.1938, 24 F.Supp. 776, 778; Tovar v. Jarecki, D.C.N.D.Ill.1948, 83 F.Supp. 47. See also Silverthorne Lumber Co. v. United States, 251 U.S. 385, at page 392, 40 S.Ct. 182, 64 L.Ed. 319.
There is no question that in the present case Bolger’s confession was procured through violations of Rule 5(a) F.R.Crim. P. and of the Fourth Amendment. Judge Bryan said, “It needs no further discussion to demonstrate that the incriminating statement was the result of a clear violation of Rule 5(a) of the Federal Rules of Criminal Procedure * * * and of the illegal search and seizure, and I so find.” 189 F.Supp. at page 254 (emphasis added).
As the procurement of Bolger’s confession was in violation of the Fourth Amendment, the decision in Mapp v. Ohio requires the state court of New York to hold it inadmissible in evidence; Bolger, therefore, has his remedy in the state court, and the injunction issued by the court below is now unnecessary and should be dissolved.
There may be some concern lest the New York court find that the Fourth Amendment does not render the confession inadmissible here, because Cleary, the state officer, did not actually participate in the illegal search and seizure and only participated in getting the confession, by his presence, though other state agents had questioned Bolger. But it would take some lively sophistry on the evidence adduced here to find that the confession was not a fruit of the illegal search and seizure. That “fruits” are proscribed by the Mapp case is apparent from the discussion on page 1693 of 81 S.Ct. and by the references on page 1688 of 81 S.Ct. to Silverthorne Lumber Co. v. United States, 1920, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319; see also Nardone v. United States, 1939, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307; Somer v. United States, 2 Cir., 1943, 138 F.2d 790.
The reasoning of the majority seems to be that, because there is a risk that the state court may not apply Mapp to the facts of this case, and because Mapp is “unclear” as to whether or not it compels the states to follow federal statutes and rules enacted to implement and preserve constitutional rights, the doctrine of Rea v. United States, 1955, 350 U.S. 214, 76 S.Ct. 292, 293, 100 L.Ed. 233, should be extended to cover a state official testifying in a state court prosecution, to preserve the integrity of federal rules and statutes.
The Rea case stands for the proposition that the district courts have a duty to enjoin federal law enforcement agents from testifying in a state court prosecution concerning evidence illegally gained. This ruling was made in a case where it was perfectly clear that the federal agent, balked by the federal rules from using the *372illegally gained evidence in the district court, where the evidence was suppressed, with the specific intent of using it in the state court, himself “swore to a complaint before a New Mexico judge and caused a warrant for petitioner’s arrest to issue.” To bring the present case within the “fall-out” area of Rea the majority say “the federal officials attempted to pass the fruits of their illegal activities on to the state by calling in state officials at the time of the illegal detention.” This finding of intent and purpose was never made by the trial court. The most said by the trial court in its finding was, “The Waterfront Commission, which worked in close cooperation with the Customs Seiwice, had been informed of Bolger’s detention.” 189 F.Supp. 244. Later in its discussion the trial court said, “He (Cleary) was present at the questioning as a representative of the Waterfront Commission * * * This was the result of the commendable cooperation between the Customs Service and the Commission who were both concerned with law enforcement on the waterfront,” and later, “Cleary was present at the questioning by invitation of the Customs Service.” Nowhere is there anything to indicate that this invitation and cooperation was part of an evil purpose of the federal agents to “attempt to pass the fruits of their illegal activities on to the state” to promote a prosecution there, which could not be carried out in the federal court. There is nothing to show that Cleary’s presence came about as the result of anything more than what the Supreme Court referred to in Elkins v. United States, 364 U.S. 206, at page 211, 80 S.Ct. 1437, 1440, 4 L.Ed.2d 1669 as “ * * * the entirely commendable practice of state and federal agents to cooperate with each other in the investigation and detection of criminal activity.” Cleary was not present at the confession merely as a casual by-stander or as a witness or as a “human recorder”; he was a law enforcement officer of the State of New York, present in the course of his official duties.
There was good reason at the time of the issuance of the injunction by the trial court, before the Supreme Court’s holding in Mapp v. Ohio, supra, to include within its reach, Cleary, the state official, to prevent a violation of Bolger’s constitutional rights, for Bolger then had no other recourse. To continue it now is, in effect, saying that, though the state court is now bound to protect Bolger’s rights under the Fourth Amendment, Mapp does not make it clear that the state courts are bound to protect Bolger against a violation of Rule 5(a) F.R.Crim.P., and the federal courts must, therefore, enjoin a state agent from testifying in a state court to insure the integrity of the application of that federal rule. This, to by mind, is an unwarranted invasion of the rights and powers of the states.
To attempt to base a rule on the degree or weight of the state agent’s participation in a joint enforcement endeavor is wholly impractical. Either the law should be that the use in the state courts of all evidence obtained by state agents, illegally under federal rules or statutes, shall be enjoined by the district courts where, in procuring that evidence, the state agents have been assisted in whole or in part by federal agents; or the law should be that the admissibility of such evidence in the state courts shall be left wholly in the power of the state courts. The majority decision which leans toward the former principle means that in every case where there has been any degree of “commendable cooperation” between federal and state enforcement officers, and there are involved federal constitutional rights which the states must recognize, the states are also bound to recognize and apply federal statutes or rules of procedure, made to implement and preserve them, or have their state proceedings disrupted by a federal court’s injunction, if they fail to do so. To require the states to follow and apply congressional enactments and the rules of the federal courts in this fashion would constitute a long step toward the destruction of the division of powers. It is directly contrary to Pugach v. Dollinger, 1961, 365 U.S. 458, 81 S.Ct. 650, 5 L.Ed.2d 678.
Moreover, the practical consequence would be that in nearly all cases where there had been any contact at all between *373federal and state enforcement officers, leading to a state prosecution, a question would be raised in the district courts by-means of a petition for an injunction to determine whether or not such federal statutes or rules had been complied with. Meanwhile, the district court would be compelled to stay the state court proceedings until it had had an opportunity to hear and decide the matter. It takes no major prophet to envisage the “insupportable disruption” which would result. Stefanelli v. Minard, 1951, 342 U.S. 117, 123-125, 72 S.Ct. 118, 96 L.Ed. 138.
I must disagree with this extension of the holding in the Rea case. The plaintiff’s rights under the Fourth Amendment must now, in the light of Mapp v. Ohio, supra, be protected by the courts of the State of New York. He has his remedy there, and the injunction issued by the federal court should now be dissolved.