United States v. Christophe

• Decision Date: 14 December 1972
• Docket Number: No. 251,Dockets 72-1807,1867.,274,72-1866,268,251
• Citation: 470 F.2d 865
• Parties: UNITED STATES of America, Appellee, v. Nicholas CHRISTOPHE et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

470 F.2d 865 (1972)

UNITED STATES of America, Appellee, v. Nicholas CHRISTOPHE et al., Defendants-Appellants.

Nos. 251, 268, 274, Dockets 72-1807, 72-1866, 1867.

United States Court of Appeals, Second Circuit.

Argued October 31, 1972.

Decided December 14, 1972.

Walter J. Higgins, Jr., Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty. for Southern District of New York, and Peter F. Rient, Asst. U. S. Atty., on the brief), for appellee.

John L. Pollok, New York City (Lenefsky, Gallina, Mass, Berne & Hoffman and Jeffrey C. Hoffman, New York City, on the brief), for appellant Nicholas Christophe.

James M. LaRossa, New York City (Gerald L. Shargel, New York City, on the brief), for appellant Albert Pierro.

Jay Goldberg, New York City (Gretchen White Oberman, New York City, on the brief), for appellant Victor Panica.

Before LUMBARD, FEINBERG and OAKES, Circuit Judges.

LUMBARD, Circuit Judge:

Nicholas Christophe, Victor Panica, and Albert Pierro appeal from judgments of conviction entered against them on June 20, 1972, in the Southern District of New York. They were prosecuted under a two count indictment alleging (1) possession, with the intent to distribute, of a narcotic drug, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(A), and (2) conspiracy to violate these sections. Panica was found guilty after a four day jury trial, commencing April 26, 1972, at which Judge Gagliardi presided.¹ On May 25, 1972 Christophe and Pierro, whose trial had been severed from Panica's, were convicted following a non-jury trial before Judge Gagliardi. Panica and Pierro were sentenced to 20 years imprisonment on each count, the sentences to run concurrently, and to six years of special parole commencing immediately thereafter. Christophe received concurrent terms of imprisonment of seven and one half years on each count and a three year term of special probation. We affirm the convictions.

I. The Government's Case²

In late December, 1971, agents of the Federal Bureau of Narcotics and Dangerous Drugs received information from a "close friend" of the Pierro family that defendant Albert Pierro, a convicted narcotics offender, and Joe "Patsy" Malizia, a fugitive under indictment for a federal narcotics violation, were partners in the narcotics trade and that by watching Albert Pierro they could locate "Patsy" Malizia. Soon after, the Pierro house in Palisades Park, New Jersey, was placed under surveillance by the Bureau. At about 10:15 P.M. on the night of January 26, 1972, Agents Harrington and Grant, from a vantage point about 50 yards south of the Pierro residence, observed Frank DeSimone and Albert Pierro leave the house. DeSimone got into his car and drove away, while Pierro returned to the house. Approximately 15 minutes later, a 1970 brown Cadillac Eldorado drove up the street and stopped in the middle of the road opposite the Pierro house. Someone drew back the curtain from a second story window and waved, and then the car parked. Pierro came out, and he and the driver carried inside a number of bundles from the car's trunk. The driver matched the fugitive's general description, and the agents thought at the time that he might be Malizia. However, it later developed that the driver was the defendant Christophe.

At about 11:00 P.M., Pierro left the house again, this time carrying a large blue valise. He looked up and down the street and then, accompanied by Christophe, placed the blue valise in the trunk of the Cadillac. Pierro returned to the house, and Christophe drove off.

The agents, still thinking Christophe was Malizia, followed the Cadillac to the parking lot of the Plaza Diner in Fort Lee, New Jersey. Frank DeSimone and defendant Victor Panica were in the parking lot, and they immediately went over to Christophe. The agents recognized Panica as a previously convicted narcotics violator. After a few minutes of conversation, Christophe got back into the Cadillac and Panica joined him on the passenger side. DeSimone went to his car and both vehicles left the diner.

The agents chose to continue their surveillance of the Cadillac. They followed the vehicle across the George Washington Bridge into Manhattan, down the Harlem River Drive and onto the F.D.R. Drive. As the cars neared the 116th Street exit of the F.D.R. Drive, the agents attempted to stop the Cadillac to determine whether the driver was in fact the fugitive Malizia and to investigate the activities they had observed earlier. They put a flashing red light on the dashboard of their unmarked car, flashed their headlights, and sounded the horn — all to no avail. The Cadillac kept right on going, exiting F.D.R. Drive at 116th Street, then racing north along First Avenue at speeds up to 70 miles per hour and running several red lights.

With the agents close behind, Christophe drove across the Willis Avenue Bridge into the Bronx, then doubled back along Bruckner Boulevard toward the Willis Avenue Bridge again. Under the bridge the car came to a sudden stop. Christophe and Panica jumped out, leaving the doors open and the engine running. Agent Harrington, yelling "Federal Agents, Stop," pursued Christophe up the street and around a corner, where Christophe was finally apprehended by a New York City policeman — one of a number who had joined in the chase. Harrington brought Christophe back to the abandoned Cadillac, where Agent Grant searched him and took from him the key to the Cadillac's trunk. Agent Harrington, taking another New York City patrolman with him, went into the bar nearby into which he had seen Panica flee. Harrington went up to Panica and asked him to step outside. Panica protested "I've been here an hour and a half," but eventually agreed to go with Harrington. By the time they had returned to the abandoned Cadillac, its trunk had already been opened revealing a large blue valise containing 39.8 pounds of heroin and a small white bag containing $150,000 in cash. Both Christophe and Panica were then formally placed under arrest.

At approximately 2:00 A.M. on the morning of January 27 a group of federal agents went to Palisades Park, New Jersey and arrested Albert Pierro. The agents seated Mr. and Mrs. Pierro in the living room of their house and then conducted a cursory examination of the premises to make sure that no other adults were present. By 5:00 A.M. a search warrant had been obtained and the agents began a thorough search. In the garage they found approximately 39 pounds of heroin hidden in a cardboard Taittanger Champagne box.

II. The Search of the Cadillac

All three defendants contend that Judge Gagliardi erroneously denied their motion to suppress the heroin discovered in the warrantless search of the Cadillac automobile in which Christophe and Panica were riding. Because of the ease with which an automobile can be moved from one place to another, law enforcement officials have long been permitted to search, without a warrant, an automobile stopped or abandoned on the highway when they have probable cause to believe that it contains contraband. See Carroll v. United States, 267 U.S. 132, 153, 155-156, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L. Ed.2d 419 (1970); United States v. Carneglia, 468 F.2d 1084 (2d Cir. 1972). Cf. Coolidge v. New Hampshire, 403 U.S. 443, 458-464, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). We agree with Judge Gagliardi that the federal agents had probable cause in this case to search the Cadillac. They had received information that Albert Pierro, a previous narcotics violator, was currently engaged in the narcotics trade. On the night of January 26 Agents Harrington and Grant observed suspicious activity at the Pierro residence. The Cadillac driven by Christophe approached the house in a cautious fashion and parked only after receiving a signal from someone inside the house. One half hour later Pierro was seen transferring, in a furtive manner, a large blue valise from the house to the car. The agents followed the car to a meeting at the Plaza Diner between Panica (who had a prior narcotics conviction), DeSimone (who had left the Pierro house just before the Cadillac arrived), and Christophe (who the agents still thought to be Malizia). When the agents later attempted to halt the automobile, Christophe drove at high speed through East Harlem and into the Bronx. The car finally stopped under the Willis Avenue Bridge, and Christophe and Panica, ignoring calls to stop by Agent Harrington, tried to escape on foot but were quickly apprehended. The information possessed by the agents, when combined with the furtive activity at the Pierro house, the meeting at the diner, the high speed chase and the attempted flight constituted probable cause to search the Cadillac.³

Since Christophe's sole ground of appeal is the alleged illegality of the search of the Cadillac, we affirm his conviction.

Our holding that there was probable cause for the search also disposes of Pierro's claim that the...