United States v. Rosse

Decision Date06 November 1969
Docket NumberDocket 33531.,No. 104,104
Citation418 F.2d 38
PartiesThe UNITED STATES of America, Appellee, v. William Walter ROSSE, Appellant.
CourtU.S. Court of Appeals — Second Circuit

James P. Shanahan, Asst. U. S. Atty. (James M. Sullivan, U. S. Atty., for the Northern District of New York, on the brief), for appellee.

John L. McMahon, Saratoga Springs, N. Y., for appellant.

Before LUMBARD, Chief Judge, and WATERMAN and KAUFMAN, Circuit Judges.

LUMBARD, Chief Judge:

William Rosse, a postman, was found guilty by a jury of stealing $8 from the mails in violation of 18 U.S.C. § 1709 (1964). He was sentenced to a term of thirty days imprisonment on the first count of the two count indictment and two years imprisonment on the second count, with the later term suspended and probation of three years imposed. We affirm.

Rosse first renews his claim, originally advanced before Judge Foley at a pre-trial motion to suppress, that the eight one-dollar bills taken from his possession by postal inspectors at the time of his arrest were illegally seized and so should not have been admitted as evidence at trial. For an understanding of defendant's argument, we must turn to state law.

Postal inspectors, as the government concedes, have not been given the power to arrest by federal law. See Alexander v. United States, 390 F.2d 101, 103-105 (5th Cir. 1968). But it is equally well settled that in the absence of federal authorization, the law of the state where the arrest occurs determines its validity. United States v. DiRe, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948). The government here contends that the postal inspectors made valid citizen's arrests, as authorized by N.Y.Code Crim. Proc. § 183 (1958). Further, it argues the search in which the dollar bills were found was incident to that arrest and, as based on probable cause to believe a felony had been committed, was valid under the settled law of search and seizure. We agree.

Section 183 authorizes a citizen to arrest when "the person arrested has committed a felony, although not in his presence." Concededly, violation of 18 U.S.C. § 1709 (1963) is a felony.1 Defendant argues that since the validity of the arrest turns on whether the person apprehended ultimately is convicted of a felony, evidence seized incident to a citizen's arrest cannot be used to obtain the conviction, lest the arrest's validity is secured by a bootstrap operation.

We fail to see the logic of this argument. Although not specifically authorized by New York statute, searches incident to a citizen's arrest are justified by the same rationale underlying searches incident to any other lawful arrest. See United States v. Viale, 312 F.2d 595, 600 (2d Cir. 1963). Defendant argues, however, that probable cause has been specifically omitted from § 183 and cannot be introduced by judicial implication.2 The principal significance of the omission, however, is in the area of civil actions for false arrest or false imprisonment, where admittedly reasonable cause to believe a felony has been committed has no place as a defense. See People v. Cassone, 20 A.D.2d 118, 245 N.Y.S.2d 843, aff'd, 14 N.Y.2d 798, 251 N.Y.S.2d 33, 200 N.E.2d 214, remittitur amended, 14 N.Y.2d 942, 252 N.Y.S.2d 335, 200 N.E.2d 873, cert. denied, 379 U.S. 892, 85 S.Ct. 167, 13 L.Ed.2d 95 (1963). For criminal purposes, it would seem that an arrest is valid if the man arrested is charged or rearrested for a felony when he is brought before a magistrate or a peace officer as required by § 185, and there was probable cause to make the arrest. Otherwise, the validity of the arrest, as defendant urges, would have to await the completion of the criminal trial, clearly a wholly impractical procedure.

The postal inspectors had probable cause to arrest Rosse. The post office at Saratoga Springs, New York, had within a short period of time received at least nineteen complaints of cash stolen from the mail. Postal inspectors sent six test letters — letters addressed to indicate they were likely to contain cash and containing marked bills — through the Saratoga Springs mail, and two were found missing. Certain that someone in the post office was a thief, they came to Saratoga Springs and, with the assistance of the local Superintendent, compared the fourteen days on which the nineteen letters had been stolen with employee time sheets; only Rosse was working on all these days. Armed with this information, the postal inspectors made up five more test letters, marked the bills they inserted, and noted the serial numbers. They dropped them in mail-boxes along Rosse's collection route and alerted the post office while he picked them up and brought them in. Once there, the letters were sorted, apparently by several employees working together, thereby making a theft unlikely. The foreman, who knew that an investigation of Rosse was under way, supervised the sorting and himself assisted in separating the local mail in which the test letters were included. In Rosse's first collection, one of the three letters was missing; the same procedure was followed on the second, and there one of two was missing. The foreman told the inspectors, and they arrested Rosse. They told him to empty his pockets; among the $84 seized in this disputed search were the eight marked and stolen bills.

The postal inspectors had more than adequate grounds on which to arrest Rosse. With information about the prior thefts directing their attention toward him, the disappearance of the test letters under controlled conditions gave them probable cause to believe he had committed the thefts.

Defendant also argues that the admission of testimony by the postal inspectors at trial about the nineteen previous thefts was reversible error. We find this argument to have considerable merit, for it is difficult to imagine any theory of evidence under which this testimony would be admissible. The prior investigations and attendant thefts may have a place at a probable cause hearing, not at a trial for a completely distinct substantive offense.3 Evidence of such prior crimes is highly prejudicial as it created a suspicion about the defendant although there were many other employees in the Saratoga Springs post office who may have been responsible for the prior thefts. In short such evidence is not sufficiently connected with the defendant to justify its admission on the question of guilt, although it is relevant to explain the reason for the investigation and the method used by the postal inspectors to find who was guilty.

We feel, however, that defendant's counsel did not make timely or proper objection to this testimony, but rather seemed to encourage it. In fact, in his opening statement he adverted to the prior investigations, stating his intention to show that Rosse was not involved in the previous thefts. No objection was made when the government's first witness, Postal Inspector Duquette, described his investigations into the nineteen prior thefts, and on...

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    ...that is in any way comparable to the responsibility exercised by "those who write the laws or regulations." 4. See United States v. Rosse, 418 F.2d 38, 39-40 (C.A.2 1969); United States v. Viale, 312 F.2d 595, 599, 600 (C.A.2 1963). Although many of the cases discussing the right of a priva......
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