388 F.2d 535 (1st Cir. 1968), 6934, Niro v. United States

Docket Nº:6934, 6954.
Citation:388 F.2d 535
Party Name:Frank A. NIRO, Jr., Defendant, Appellant, v. UNITED STATES of America, Appellee. Edward M. GLYNN, Defendant, Appellant, v. UNITED STATES of America, Appellee.
Case Date:February 02, 1968
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 535

388 F.2d 535 (1st Cir. 1968)

Frank A. NIRO, Jr., Defendant, Appellant,


UNITED STATES of America, Appellee.

Edward M. GLYNN, Defendant, Appellant,


UNITED STATES of America, Appellee.

Nos. 6934, 6954.

United States Court of Appeals, First Circuit.

February 2, 1968

Page 536

Murray H. Falk, by appointment of the Court, with whom Moulton, Looney, Mazzone & Falk, Boston, Mass., was on brief, for appellant Frank A. Niro, Jr.

Chester C. Paris, Wakefield, Mass., with whom Joseph J. Balliro, Boston, Mass., was on brief, for appellant Edward M. Glynn.

Herbert N. Goodwin, Asst. U.S. Atty., with whom Paul F. Markham, U.S. Atty., was on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

ALDRICH, Chief Judge.

Defendants, Niro and Glynn, appeal from convictions under 18 U.S.C. § 659 for knowing possession of stolen goods that had been transported in interstate commerce. Their primary contention is that the district court erred in denying motions to suppress evidence (hereinafter referred to in the singular).

During the evening of September 19, 1966, agents of the FBI commenced surveillance of a garage in Franklin, Massachusetts. The building, roughly 200 feet long and 50 feet wide, originally a carbarn and then a shop or garage, was owned by one Wise. Wise had discontinued active operation and in April 1966 leased the back 50 feet to Niro. Wise at all material times employed a part-time caretaker, Ford, who had a key, and whose duties, to Niro's knowledge included periodic inspection of the entire interior of the building. In May, Ford observed Niro and others, accompanied by a man subsequently identified as Glynn, erect a partition which, when the sliding door was closed, separated the Niro portion from the rest of the building. The Niro portion had a separate entrance.

When the FBI commenced the surveillance they had probable cause to believe the following facts. On September 13, a tractor trailer, description fully known, loaded with vodka and gin was hijacked in Madison, Connecticut. Through a known reliable informant, 1 the hijackers were reported to be Glynn and one Pineau. On September 16, a tractor trailer, description known, loaded with whiskey was hijacked by three men in West Warwick, Rhode Island. The evening of September 19, Ford reported to the local police, and then to the FBE, that both tractor trailers and a quantity of whiskey were in Niro's portion of the garage, and identified a picture of Glynn. The surveillance then began.

Near noon on September 20, two cars believed to be used by Niro and Glynn were seen to enter the rear of the building. At this point the FBI force was increased to twelve men, in three or four cars. A group of three, using a key supplied by Ford, entered the front door. Niro, who had heard the cars and had run to the front portion to see what was happening, was arrested by the door. Glynn, and others not presently involved, were arrested immediately thereafter. The evidence, due to the absence of a chart used at the trial, is not clear, but apparently Glynn, too, was in Wise's retained portion of the premises. One of the tractor trailers protruded through the open doorway in the partition. Through this doorway cartons of whiskey could be seen. Having secured all the occupants, the FBI moved into Niro's portion of the building, where they found, also, the vodka and gin. They thereupon seized the liquor and the tractor trailers.

Page 537

Prior to trial defendants sought to suppress the evidence seized at the garage. The testimony taken revealed the foregoing facts. It further revealed that no warrant for the arrest of any person, or for a search of any kind, had been issued or, so far as appeared, had been sought, at the time of the entry and arrests. The court denied the motion without opinion.

In seeking to support this ruling the government makes a number of contentions. The first is that the defendants lacked standing to object. This contention is based upon an unsound reading of Jones v. United States, 1960, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697. In Jones the defendant sought to suppress a quantity of narcotics seized under an allegedly invalid warrant. The lower courts held that because the defendant failed to establish that he was more than a licensee in the premises or that he was in possession of the narcotics, had no standing to press the motion. A unanimous court reversed on both grounds. The Court rejected the notion that protection of the constitutional right against unreasonable searches and seizures should turn on subtle distinctions borrowed from the law of private property, and concluded, 'Anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him.' 362 U.S. at 267, 80 S.Ct. at 734. The Court further stated that where the 'basis'...

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