United States of America Ex Rel. James Nickens v. J. Edwin Lavallee, as Warden of Auburn State Prison, Auburn, New York ( 1968 )

MOORE, Circuit Judge

(concurring and dissenting):

Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), and Stoner v. State of California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964), seem to be dispositive as to the material seized subsequent to the arrest and without a warrant. I, therefore, concur on this issue.

As to the newspaper clippings seized during the execution of the warrant and used upon the trial, during cross-examination, I dissent and agree with Judge Murphy’s conclusion that the clippings were legally seized. Despite the comments in Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927) with respect to specificity, in my opinion Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) supports the seizure and use of clippings. Stanford v. State of Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965) is not to the contrary. There the decision was based upon the extreme generality of the warrant.