U.S. v. Tortorello

• Decision Date: 01 April 1976
• Docket Number: D,No. 775,775
• Citation: 533 F.2d 809
• Parties: UNITED STATES of America, Appellant, v. Dominic TORTORELLO, Defendant-Appellee. ocket 75-1376.
• Court: U.S. Court of Appeals — Second Circuit

Page 809

533 F.2d 809

UNITED STATES of America, Appellant, v. Dominic TORTORELLO, Defendant-Appellee.

No. 775, Docket 75-1376.

United States Court of Appeals, Second Circuit.

Argued Jan. 30, 1976.

Decided April 1, 1976.

Ronald L. Garnett, Asst. U. S. Atty., New York City (Thomas J. Cahill, U. S. Atty., and James A. Moss and John D. Gordan, III, Asst. U. S. Attys., of counsel), for appellant.

Irving Anolik, New York City (Joseph P. Carrozza, New York City, of counsel), for defendant-appellee.

Before HAYS, MULLIGAN and GURFEIN, Circuit Judges.

GURFEIN, Circuit Judge:

The United States appeals, pursuant to 18 U.S.C. § 3731, from an order of the United States District Court for the Southern District of New York, Lloyd F. MacMahon, Judge, suppressing certain stolen coffee as well as certain statements of the defendant Dominic Tortorello ("Tortorello") as evidence against him at trial.

On April 25, 1973, Frank Hoffman ("Hoffman") and Tortorello, while driving a van containing some 50 boxes of allegedly stolen coffee, were apprehended in Brooklyn by New York City police officers. The next day both suspects gave statements in the Brooklyn House of Detention to FBI agent Lester Hay after being informed of their rights and executing waiver forms. They were subsequently released.

On the morning of April 30, 1973, Hay and three other agents, without search or arrest warrants, went to 2258 Hermany Avenue in the Bronx, where Hoffman lived on the first floor with his family. Hoffman's parents-in-law, who are also parents of Tortorello, resided on the second floor. At the back of the two-family house is a detached three-car garage connected to the street by a driveway. The house has a basement. Although Tortorello formerly lived in this house, he moved out in August 1972, when he was married.

As Agent Hay approached the front door, other agents walked down the driveway to the back of the house and looked into the garage through a window. They saw some fifty boxes of coffee and told Hay of their discovery. Hay met with Hoffman and advised him that the agents had seen coffee in the garage. The agents obtained permission from Hoffman to conduct a search of his residence on the first floor of the house. The search turned up nothing. The agents and Hoffman then went to the garage, and, with Hoffman's consent, the agents entered and examined the cartons of coffee. Hay, thereupon, asked Hoffman for permission to search the second floor of the house, but Hoffman refused, saying that it would upset his parents-in-law who were ill. The agents also asked Hoffman for his consent to search the basement. Hoffman refused to consent on the ground that he had no authority to allow such a search. The agents then requested Mrs. Hoffman to telephone her brother, defendant Tortorello, to come over. Tortorello arrived at the house some fifteen minutes later. The agents asked Tortorello to come into their car. There they advised him of his constitutional rights and asked his permission to search the basement. The agents informed Tortorello that they had seen the coffee in the garage, and that they felt they could get a search warrant for the basement if he refused to consent to the search. Tortorello then signed a written consent to the search of the basement. The agents were taken to the basement by Tortorello where they found 250 boxes of coffee.

On July 23, 1975, defendants Hoffman and Tortorello were indicted. The indictment charged that on April 23, 1973, they unlawfully received, concealed and stored 250 boxes of coffee (presumably the coffee which was found in the basement during the April 30, 1973 search), moving as part of an interstate shipment, knowing the same to have been stolen, in violation of 18 U.S.C. § 2315.

On August 14, 1975, Hoffman and Tortorello moved to suppress: (a) certain statements made by them; (b) the 50 boxes of coffee found in the van they were driving when they were stopped by the New York City police on April 25, 1973; (c) the 50 boxes of coffee found on April 30, 1973 in the garage adjacent to the Hermany Avenue house; and (d) the additional 250 boxes of coffee seized the same day by the agents in the basement of the house.

An evidentiary hearing on the motion was held on August 26, 1975. On August 27, Judge MacMahon announced from the bench that the search of the garage and the basement at 2258 Hermany Avenue had been illegal and that the coffee so discovered and any statements taken then or thereafter would be suppressed. An order to this effect was filed on September 3, 1975. The Government conceded, at that time, that since Tortorello was charged with a possessory crime, he had standing, under the "automatic standing" rule of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), to move to suppress any evidence seized in violation of the Constitution. Judge MacMahon, quite understandably, accepted this concession at the time as a correct statement of the governing law.

On October 2, 1975, the Government moved to reargue the suppression motion as to Tortorello on the ground that he lacked standing to complain of the search of the garage and that it was the illegality of the garage search that had impelled the District Court to suppress the coffee later found in the basement, together with Tortorello's later statements. In a written opinion, on November 14, 1975, Judge MacMahon indicated that he now agreed with the Government's present position that Tortorello did not have standing to challenge the search of the garage and that, with respect to the coffee found in the search of the basement, Tortorello had voluntarily consented to that search. He found, however, that the Government's motion for reargument was not timely made.

The appeal is from Judge MacMahon's original order of September 3, 1975, which granted defendants' motion to suppress, and with which Judge MacMahon later disagreed in his careful opinion of November 14, written for the benefit of this court. ¹

We agree with Judge MacMahon's later opinion that appellee Tortorello lacked standing to challenge the search of the garage and that he had voluntarily consented to the search of the basement. Accordingly, we reverse the original suppression order of the District Court.

I

Appellee initially contends that the Government may not argue before the Court of Appeals that Tortorello lacked standing because it had agreed in the District Court that appellee did have standing to challenge the legality of the searches. We disagree. The only "concession" on Tortorello's standing was made in the context of rebutting an argument that Tortorello's consent was unavailing because he had no authority to consent to the search of the basement. In any event, whether Tortorello has standing to challenge the legality of the searches is a question of law. A concession by the Government on a question of law is not binding on the court. See United States v. Lisk, 522 F.2d 228, 231 n. 8 (7 Cir. 1975) (Stevens, J.). See also Estate of Sanford v. Commissioner, 308 U.S. 39, 51, 60 S.Ct. 51, 59, 84 L.Ed. 20, 26 (1939). The Government is free to argue in this court that appellee has no standing to suppress the coffee found in the garage.

II

The law regarding standing to suppress materials derived from an illegal search in the case of an offense where possession is an essential element has been evolving in recent years. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), held that a person charged with possession of property that had been seized illegally had "automatic standing," as a "person aggrieved" within Fed.R.Crim.P. 41(e), to challenge its admissibility, even though the defendant testified that the property seized was not his and that the place of arrest was not his home. ² The court fixed upon an "automatic" standing rule, in such cases, to avert the unfairness of the dilemma to which the defendant would otherwise be put, that to achieve standing he must claim possession, even though his admission of possession would deal him a fatal blow at trial. Judge Learned Hand in Connolly v. Medalie, 58 F.2d 629, 630 (2 Cir. 1932), had recognized the dilemma but held, nevertheless, that a defendant could not "secure the remedies of a possessor, and avoid the perils of the part." Jones avoided Judge Hand's dilemma by holding that standing will be presumed if the defendant would have to prove his guilt of the crime in order to establish his standing. Although the Jones Court reached this result in possession cases, it indicated that in cases not involving an offense of "possession" the defendant must establish "that he himself was the victim of an invasion of privacy." 362 U.S. at 261, 80 S.Ct. at 731, 4 L.Ed.2d at 702.

In 1968, the Court prohibited the prosecution from using the testimony of a defendant on the suppression hearing at his subsequent trial. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). While Simmons did not itself involve a "possessory" crime, its exclusionary rule tended to extricate the defendant from the dilemma which had concerned the Jones Court, as well as this court, in the "possession" cases.

The Court, thereafter, in Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973), recognized that the Jones dilemma had been diluted by the Simmons exclusionary rule.

When arrested with a truck full of stolen goods, the appellants in Brown confessed that they had stolen other goods two months earlier, and had sold them to one Knuckles. The police searched Knuckles' store on a defective warrant, while the appellants were not present but in custody, and found the goods which had been stolen two months earlier. Knuckles moved to suppress the evidence against him, successfully, but the District Court denied appellants' motion for lack of standing, and the stolen merchandise seized from Knuckles' store was later received in evidence.

The offense charged in...