Cleary v. Bolger

LOCATION: Beaumont Mills

DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 371 US 392 (1963)
ARGUED: Nov 14, 1962 / Nov 15, 1962
DECIDED: Jan 14, 1963

Facts of the case


Media for Cleary v. Bolger

Audio Transcription for Oral Argument - November 15, 1962 in Cleary v. Bolger

Audio Transcription for Oral Argument - November 14, 1962 in Cleary v. Bolger

Earl Warren:

Number 57, Michael Cleary, Petitioner, versus Edward Bolger.

Mr. Malchman.

Irving Malchman:

May it please the Court.

This case is here upon a writ of certiorari to review a judgment of the Court of Appeals for the Second Circuit.

The order of the District Court in this case which was affirmed by the Second Circuit enjoins the petitioner who is an investigator for the Waterfront Commission of New York Harbor and who was therefore a state officer from testifying or producing any evidence against the respondent Bolger in one, a state criminal prosecution by New York against Bolger for petty larceny and in two, proceedings by the Waterfront Commission to revoke Bolger's license as the hiring agent and to revoke Bolger's registration as a longshoreman.

As shall appear, Bolger has no -- rather petitioner has no evidence to produce against Bolger therefore the only part of the order of the District Court which is at issue in this case is that part of the order enjoining the petitioner from testifying against Bolger.

Both New York's criminal prosecution and the Commission's revocation proceedings had been instituted and were pending at the time that the present action was commenced in the District Court.

The facts in this case are contained in the opinion of the District Court which was rendered after a trial.

On a Saturday morning in September 1959, when the piers along the New York Waterfront are not normally being worked, certain Customs officers were watching certain piers along the Hudson or North River in Manhattan on the lookout for thefts.

At about 8 o'clock that morning, these Customs officers saw Bolger enter a deserted pier, take from the pier a cardboard carton and placed the carton in a car, in Bolger's car, that have been parked in front of the pier.

The Customs officers searched Bolger in the car and they found some sparkplugs and some windshield wipers stamped marked in Eng -- stamped “Made in England”.

Also, Bolger told the Customs officers that he had some liquor at home that he had obtained from the ship's crew.

The Customs officers took Bolger into custody and they took him to an office of Customs in Manhattan.

At the office of Customs, Bolger told the Customs officers that he had some merchandise at home including some liquor that he had obtained from seamen according to him.

Bolger's home was in Keansburg, New Jersey about an hours drive from Manhattan.

Bolger signed a written consent to a search of his home by the Customs officers which however the District Court found to be invalid because Bolger had not freely and intelligently signed the consent in that the Customs officers had misrepresented to Bolger that they could sign his -- that they could search his house without his consent.

At about 11 o'clock, the Customs officers left with Bolger or Bolger's home in Keansburg, New Jersey.

In this connection, the District Court found that the United States Commissioner was in attendance nearby in the United States courthouse in Foley Square from 11 a.m. to 1 p.m.

The Customs officers search Bolger's home for about two hours and they turned up some apparently contraband merchandise including a Stenorette tape recorder that had been manufactured in West Germany.

The Customs officers returned with Bolger to the office of Customs in Manhattan taking back with them this apparently contraband merchandise.

It will be noted that the petitioner was not present here and therefore did not participate in any of these events.

However, Customs works in close cooperation with the Waterfront Commission and Customs had notified the Commission of the fact of Bolger's detention so that upon Bolger's return from his home in Keansburg, New Jersey the petitioner was present at the office of Customs.

The petitioner ascertained that Bolger had a key to a basement room in an apartment in Manhattan which Bolger said that he used as a tool room to repair pier equipment.

The petitioner decided to investigate this story and he -- a Customs officer and Bolger drove to this basement room which was searched.

However, nothing of any incrimination -- of any incriminating nature was turned up in this search and therefore this search of the basement tool room is not a factor in the case.

The petitioner returned with Bolger to the office of Customs at about 5:45 p.m.

Byron R. White:

Where in the record, do you know in the (Inaudible)

Irving Malchman:

The opinion of the District Court is the record in this case, Your Honor.

Byron R. White:

You mean that's all there is.