Petitioner was indicted for the unlawful acquisition of marihuana in violation of 26 U.S.C. § 2593(a), 26 U.S.C.A. § 2593(a). The indictment, found in September 1953, was based on evidence obtained by a search warrant issued by a United States Commissioner, as authorized by Rule 41(a) of the Rules of Criminal Procedure, 18 U.S.C.A., in August 1953. Petitioner moved under Rule 41(e) to suppress the evidence on the ground that the search warrant was improperly issued under Rule 41(c) in that it was insufficient on its face, no probable cause existed, and the affidavit was based on unsworn statements. The District Court granted the motion to suppress and, on the Government's later motion, dismissed the indictment. No motion for return of the evidence was made. The evidence seized was indeed contraband. Since the crime charged was a violation of a provision of the Internal Revenue Code, 28 U.S.C. § 2463, 28 U.S.C.A. § 2463, was applicable. That section provides against the return of the property in the following words:
'All property taken or detained under any revenue law of the United States shall not be repleviable, but shall be deemed to be in the custody of the law and subject only to the orders and decrees of the courts of the United States having jurisdiction thereof.' And see 26 U.S.C. § 2598, 26 U.S.C.A. § 2598.
After the District Court suppressed the evidence, a federal narcotics agent swore to a complaint before a New Mexico judge and caused a warrant for petitioner's arrest to issue. Petitioner has now been charged with being in possession of marihuana in violation of New Mexico law and awaits trial in the state court. The case against petitioner in the state court will be made by testimony of the federal agent based on the illegal search and on the evidence seized under the illegal federal warrant. That at least is the basis of the motion in the District Court to enjoin the federal narcotics agent from testifying in the state case with respect to the narcotics obtained in the illegal search and, if the evidence seized is out of the custody of the United States, to direct the agent to reacquire the evidence and destroy it or transfer it to other agents. The District Court denied the motion and the Court of Appeals affirmed. 10 Cir., 218 F.2d 237. The case is here on a petition for certiorari which we granted because of the importance in federal law enforcement of the question presented. 348 U.S. 958, 75 S.Ct. 450.
The briefs and oral argument have been largely devoted to constitutional questions. It is said, for example, that while the Fourth Amendment, as judicially construed, would bar the use of this evidence in a federal prosecution, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, our decision in Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, would permit New Mexico to use the evidence in its prosecution of petitioner. Moreover, it is said that to suppress the use of the evidence in the state criminal proceedings would run counter to our decision in Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138.
We put all the constitutional questions to one side. We have here no problem concerning the interplay of the Fourth and the Fourteenth Amendments nor the use which New Mexico might make of the evidence. The District Court is not asked to enjoin state officials nor in any way to interfere with state agencies in enforcement of state law. Cf. Boske v. Comingore, 177 U.S. 459, 20 S.Ct. 701, 44 L.Ed. 846. The only relief asked is against a federal agent, who obtained the property as a result of the abuse of proccess issued by a United States Commissioner. The property seized is contraband which Congress has made 'subject only to the orders and decrees of the courts of the United States having jurisdiction thereof,' as provided in 28 U.S.C. § 2463, 28 U.S.C.A. § 2463, already quoted. In this posture we have then a case that raises not a constitutional question but one concerning our supervisory powers over federal law enforcement agencies. Cf. McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819.
A federal agent has violated the federal Rules governing searches and seizures-Rules prescribed by this Court and made effective after submission to the Congress. See 327 U.S. 821 et seq. The power of the federal courts extends to policing those requirements and making certain that they are observed. As stated in Wise v. Henkel, 220 U.S. 556, 558, 31 S.Ct. 599, 600, 55 L.Ed. 581, which involved an order directing the district attorney to return certain books and papers unlawfully seized: