37 F.R.D. 215 (S.D.N.Y. 1965), United States v. Cowan

Citation:37 F.R.D. 215
Opinion Judge:WEINFELD, District Judge.
Party Name:UNITED STATES of America, v. Robert W. COWAN, Defendant.
Attorney:Robert M. Morgenthau, U.S. Atty., for the Southern Dist. of New York, New York City, for United States, Robert L. Latchford, Asst. U.S. Atty., of counsel. Irving Younger, New York City, for defendant.
Case Date:April 14, 1965
Court:United States District Courts, 2nd Circuit, Southern District of New York
 
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37 F.R.D. 215 (S.D.N.Y. 1965)

UNITED STATES of America,

v.

Robert W. COWAN, Defendant.

United States District Court, S.D. New York.

April 14, 1965

Prosecution for unlawful possession of property stolen from interstate commerce. The defendant filed a motion to suppress certain items of personal property as evidence. The District Court, Weinfield, J., held that failure of United States Commissioner to afford defendant a preliminary hearing within reasonable time did not entitle defendant to dismissal of indictment where scheduled preliminary hearings were adjourned by government in absence of and without consent of defendant and without action by commissioner but defendant who was being held as a state parole violator was not prejudiced by lack of timely hearing which he made no effort to secure.

Motion denied.

Robert M. Morgenthau, U.S. Atty., for the Southern Dist. of New York, New York City, for United States, Robert L. Latchford, Asst. U.S. Atty., of counsel.

Irving Younger, New York City, for defendant.

WEINFELD, District Judge.

The defendant, charged with unlawful possession of property stolen from interstate commerce, moves under Rule 41(e) of the Federal Rules of Criminal Procedure to suppress as evidence two pieces of baggage, some clothing and certain personal articles. He advances two grounds: First, violation of his Fourth Amendment right in that the items were searched and seized without his consent while in the physical possession of another, when the investigators had no warrant and had made no arrest; second, violation of his right to a preliminary hearing before the United States Commissioner, as required by Rule 5(c) of the Federal Rules of Criminal Procedure, he not having waived his right thereto.

I

Testimony was taken with respect to the issues which developed the following:

On March 23, 1963 the defendant, under the name Robert Kelly, registered at the Sutton East Hotel in mid-Manhattan and was assigned Room 503 on a daily

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basis. He was in arrears in the payment of rent by March 27. On March 28 the hotel manager, upon learning the room had been unoccupied the previous night, plugged the lock. On March 29 the room still was unoccupied and unpaid for; thereupon the manager entered the room, placed the guest's personal effects into open suitcases, and removed the bags, seven in all, to the hotel office.

Later that day Federal agents, who several days earlier had received information that a Robert Kelly living at the Sutton East Hotel was trying to sell items stolen from Idlewild International Airport, called upon the hotel manager. With the manager's consent the agents— who had no warrant— examined the contents of the unlocked bags which had been removed from Room 503. Upon checking certain identifying marks with the airlines, the agents had probable cause to believe that some of the items Kelly had left behind in Room 503 had been stolen from Idlewild. He was not arrested until April 8.

The defendant concedes that at the time of the search by Federal agents he had already been evicted from his room and the hotel had acquired a lien on the baggage for unpaid rent.1 He argues, however, that the hotel manager's interest was limited, that his right to examine the bags in order to comply with the statutory requirement of public notice before sale2 did not empower him to consent to their search by others, any more than his unquestioned right to inspect the room of a paid-up guest empowers him to consent to its search by police.3

This argument has three flaws. First, at the time of the search the defendant, by reason of nonpayment of rent, had already forfeited his right to possession of the bags; when the hotel exercised...

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