Cali v. United States, 6309.

• Citation: 338 F.2d 974
• Decision Date: 08 December 1964
• Docket Number: No. 6309.,6309.
• Parties: Phillip M. CALI, Defendant, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

338 F.2d 974 (1964)

Phillip M. CALI, Defendant, Appellant, v. UNITED STATES of America, Appellee.

No. 6309.

United States Court of Appeals First Circuit.

December 8, 1964.

Daniel F. Featherston, Jr., Boston, Mass., with whom Choate, Hall & Stewart, Boston, Mass., was on brief, for appellant.

William J. Koen, Asst. U. S. Atty., with whom W. Arthur Garrity, Jr., U. S. Atty., was on brief, for appellee.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

WOODBURY, Chief Judge.

After a jury waived trial the appellant was found guilty and sentenced for receiving and possessing whiskey valued in excess of $100 knowing the same to have been stolen from an interstate shipment of freight in violation of Title 18 U.S.C. § 659. The only issue on this appeal is whether there was probable cause for the appellant's arrest which led up to the search that produced the evidence on which his conviction rests. A timely motion to suppress the evidence was made and denied by the District Court. The facts are not in dispute.

On Saturday, September 10, 1960, the Boston Office of the Federal Bureau of Investigation learned that there had been a theft of cartons containing quart bottles of Seagrams Seven Crown whiskey in Somerville, a suburb of Boston, from an interstate shipment by truck. Special Agents attached to the Boston office began an investigation. On the next day, Sunday, September 11, as the result of a telephone call, Special Agent Kehoe of the Federal Bureau of Investigation went to the police station in Winthrop, another Boston suburb, and was told by the Winthrop police that at about 6:00 P.M. that day they had received an anonymous telephone call from a man who reported that there were 200 cases of stolen liquor at 38 Franklin Street, Winthrop, that some of the liquor had been removed that day and that the rest of it was supposed to go out that night. Agent Kehoe with a detective and an officer of the Winthrop police, then drove in Kehoe's car to the area of 38 Franklin Street which proved to be a private dwelling house in a residential area. Another Special Agent of the FBI, McDonald, with a detective of the Somerville police, also drove to the same area at the same time in another car. The officers arrived at their destination not long after 6:00 P.M.

Sometime after 7:00 P.M. the officers saw a station wagon drive up and stop in front of 38 Franklin Street. Soon thereafter Agent Kehoe left his car and walked along the sidewalk toward that address. It was then dusk, but not yet dark, and it was raining. On two occasions as Kehoe walked along the sidewalk he saw a man come out of an alleyway leading to the side entrance of 38 Franklin Street and pass a carton, described by Kehoe at the trial as about the size and shape of the cartons in which Seagrams Seven Crown quarts were packed for shipment, to a man standing at the rear of the station wagon who put the cartons in the vehicle. Kehoe approached the station wagon from the rear and saw the tailgate put up when he was about 15 feet away. Kehoe continued to approach the station wagon but he could not see what was in it from behind because of rain on the back window and because the contents of the vehicle were covered by a blanket or canvas. Looking into the vehicle through a side window, however Kehoe saw several cartons marked "Seagrams Seven Quarts."

Agent Kehoe then saw the appellant walking back down the alleyway toward the side entrance to 38 Franklin Street and called to him. The appellant returned and Kehoe asked the appellant his name. The appellant said "Philip Cali" and then Kehoe asked Cali what he knew about the liquor in the station wagon to which Cali replied: "I don't know anything about it." Kehoe then showed his credentials and placed Cali under arrest and advised him that he had the right to consult an attorney, the right not to say anything, and that anything he might say could be used against him in a court of law. At about this time, but it does not appear whether before or after Cali's arrest, the man who had been seen putting cartons into the station wagon fled, pursued unsuccessfully by one of the local police officers.

While Kehoe was walking toward the station wagon Agent McDonald drove his car to the scene and parked it in front of the station wagon. He then got out and joined Kehoe and Cali while they were standing on the sidewalk near the back of the station wagon talking. McDonald also saw that the station wagon contained cartons labelled "Seagrams Seven Crown Quarts." Neither agent asked Cali whether he owned the station wagon — it later appeared that it had been stolen — or anything about the vehicle.

After his arrest Cali was told by Agent Kehoe that he and Agent McDonald would like to search Cali's house but that he had the right to refuse. Cali, however, consented and agreed to sign a waiver. McDonald in his own handwriting then prepared the document quoted in full in the margin,¹ which he read to Cali and had Cali read back. McDonald asked Cali to sign the document which he did and the agents witnessed it. Cali and the agents then entered Cali's house where they found 44 cases of quart bottles of Seagrams Seven Crown whiskey in plain sight in the cellar. Later this whiskey was seized and the station wagon was driven to the Somerville police station where it was searched about 10:00 P.M. and 15 more cases of quarts of Seagrams Seven Crown whiskey in it were seized. The serial numbers on all 59 cartons matched the numbers on cartons which were part of the interstate shipment stolen in Somerville.

The defendant concedes that a search of reasonable scope made incidental to a lawful arrest is valid without a search warrant.² And he does not argue that the search in the...