249 F.Supp. 199 (E.D.N.Y. 1966), Crim. A. 64-CR-302, United States v. McCarthy

Docket Nº:Crim. A. 64-CR-302
Citation:249 F.Supp. 199
Party Name:United States v. McCarthy
Case Date:January 11, 1966
Court:United States District Courts, 2nd Circuit, Eastern District of New York

Page 199

249 F.Supp. 199 (E.D.N.Y. 1966)



Aedan Charles McCARTHY, Defendant.

Crim. A. No. 64-CR-302.

United States District Court, E.D. New York

Jan. 11, 1966

Page 200

Joseph P. Hoey, U.S. Atty., for Eastern Dist. of N.Y. by Lewis L. Douglass, Asst. U.S. Atty., for the United States.

Howard A. Jacobs and Ira Grudberg, New Haven, Conn., for defendant.

MISHLER, District Judge.

Defendant moves to suppress evidence (Rule 41(e)) on the ground that such evidence was obtained in violation of defendant's rights under the Fourth and Fifth Amendments, and to dismiss the indictment 'on the grounds that all the evidence * * * was obtained as a result of, and pursuant to, an illegal attempt to arrest the defendant. * * *' (Defendant's notice of motion).

Defendant is charged in this two-count indictment with assault on a Special Agent of the F.B.I. (18 U.S.C. § 111), and an attempt to escape from custody of F.B.I. Agents, after having been placed under lawful arrest (18 U.S.C. § 751) pursuant to the unlawful flight statute (18 U.S.C. § 1073).

The relief available under Rule 41(e) is '* * * for the return of the property and to suppress for the use as evidence * * *' anything obtained as a result of an unlawful search and seizure.

Page 201

There is no claim of an unlawful search or a seizure of property; nor is there a claim that any evidence, in the hands of the prosecutor, flowed from an unlawful search or seizure. In defendant's brief (p. 6) he urges in the caption of point III of his argument that 'evidence of any alleged scuffle at the time of the unlawful arrest must be suppressed.' The concept is without support in law or logic. A confession made while under illegal arrest does not, ipso facto, render the confession inadmissible. Wong Sun v. United States, 1963, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; Brinegar v. United States, 1949, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879. Certainly, then, are voluntary acts, while under unlawful arrest, subject to proof.

The motion to dismiss both counts in the indictment is based on the claimed illegality of the arrest. The first attack on the arrest is directed to the sufficiency of the complaint upon which the warrant of arrest was issued.

The complaint made by F.B.I. Agent Maceys and upon which the Commissioner issued a warrant of arrest stated only that it was 'based on information obtained by investigators of the New Haven Office, F.B.I.' Rule 4(a) of the Rules of Criminal Procedure provides in part:

'If it appears from the complaint that there is probable cause to believe that an offense has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall issue to any officer authorized by law to execute it.'

In Giordenello v. United States, 1958, 357 U.S. 480, 486, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503, 1 the Court said the Commissioner 'should not accept without question the complainant's mere conclusion that the person whose arrest is sought has committed a crime.' The complaint in Giordenello did not provide 'any basis * * * under Rule 4 that probable cause existed.' See also Aguilar v. State of Texas, 1964, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. While 'technical requirements of elaborate specificity * * * have no proper place in this area,' United States v. Ventresca, 1965, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, the complaint must, nevertheless, comply with Rule 4(a) in showing a basis for the Commissioner's determination of probable cause. The complaint in the instant case was insufficient and the warrant issued thereon invalid.

The arrest, however, was lawful if probable cause is shown. Giordenello v. United States, supra; Di Bella v. United States, 1960, 2d Cir., 284 F.2d 897, order vacated on other grounds, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614.

A person in custody under lawful arrest is required to submit to the arresting authority, while one under unlawful arrest may resist. United States v. Di Re, 1948, 332 U.S. 581, 594, 68 s.Ct. 222, 228, 92 L.Ed. 210; Foster v. United States, 1962, 5th Cir., 296 F.2d 65, 67.

Resistance, and the use of force or violence against the assailants, even though they are police officers, is privileged if such force or violence is not more than sufficient to prevent the commission of an offense against the person. People v. Dreares, 1961, 1st Dep't, 15 App.Div.2d 204, 221 N.Y.S.2d 819, aff'd mem., 1962...

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