Carlo v. United States

• Decision Date: 09 February 1961
• Docket Number: No. 248,Docket 26499.,248
• Citation: 286 F.2d 841
• Parties: John CARLO, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Second Circuit

286 F.2d 841 (1961)

John CARLO, Appellant, v. UNITED STATES of America, Appellee.

No. 248, Docket 26499.

United States Court of Appeals Second Circuit.

Argued January 20, 1961.

Decided February 9, 1961.

George J. Todaro, New York City, for appellant.

Paul J. Curran, Asst. U. S. Atty., New York City (S. Hazard Gillespie, Jr., U. S. Atty., for Southern District of New York, David Klingsberg, Jonathan L. Rosner and Arthur I. Rosett, Asst. U. S. Attys., New York City, on the brief), for appellee.

Before LUMBARD, Chief Judge, and MEDINA and SMITH, Circuit Judges.

MEDINA, Circuit Judge.

On May 24, 1960 certain agents of the Bureau of Narcotics of the United States Treasury Department entered John Carlo's Apartment Number 8 at 313 East 118th Street, New York City, and seized a brown paper bag containing six glassine envelopes within which were six ounces of heroin and two cardboard boxes containing 1¼ kilos of heroin. With the narcotics in one of the cardboard boxes was $20,100 of United States currency in a tightly wrapped brown paper bag.

After the arrest and arraignment of John Carlo on a charge of violation of the Narcotics Laws, but before his indictment, he initiated this proceeding to suppress the evidence thus seized and to compel the return of the property to him on the ground that there had been an unreasonable search and seizure in violation of his constitutional rights under the Fourth Amendment. After a hearing at which witnesses for the respective parties testified to contradictory versions of the attendant circumstances, Judge Murphy reviewed the testimony and held, "we accept the government agents' testimony and reject the testimony of petitioner, his brother, Joseph DiCarlo, his wife, Matilda Carlo, and his daughter, Mildred." The petition was denied and John Carlo appeals.

The agents entered the Carlo apartment at about 7:15 P.M.; they had no warrant either for the arrest of any person or for the search of the premises. As we are concerned here with one of the most fundamental and significant of the provisions of the Bill of Rights, we must scrutinize the evidence with meticulous care to make sure that no determination made by us in this case shall constitute any watering down or erosion of the rights guaranteed by the Fourth Amendment.

On the basis of the testimony by Agents Gabriel Dukas and James M. Burke, and disregarding the testimony of appellant and his witnesses as not credible, as did Judge Murphy, we shall now state the facts in chronological sequence. We are concerned with the following persons: Robert Brown, an "undercover agent" of the Bureau of Narcotics, Anna Paul Davenport, an alleged distributor of narcotics in small lots, arrested on May 24, 1960, charged with violation of the Narcotics Laws, Matilda Carlo, arrested on May 24, 1960, charged with violation of the Narcotics Laws, Joseph DiCarlo, brother of appellant, arrested on May 24, 1960, charged with violation of the Narcotics Laws, and appellant John Carlo, the husband of Matilda, the lessee of Apartment Number 8 at 313 East 118th Street, and the last of the group to be arrested on May 24, 1960, charged with violation of the Narcotics Laws.

The first contact any of the government agents had with any of the persons arrested on May 24, 1960 was some sort of a narcotics transaction between Matilda Carlo, Davenport and Brown on February 1, 1960. The agents had never seen Matilda before, they did not know who she was or where she lived. She was followed, but apparently to no purpose as the agents did not ascertain her place of residence. She was not kept under surveillance and she was seen again by the agents on May 24, 1960.

Joseph DiCarlo comes into the picture on February 17, 1960. On that day Brown and Davenport arrived by automobile at 125th Street and Park Avenue, New York City, about 12:20 P.M. After parking the car, Davenport got out and after some walking around met the man who later turned out to be Joseph DiCarlo. As agent Dukas had them under observation, he saw Davenport give DiCarlo "a small brown paper bag," and DiCarlo handed "her another brown paper bag that he carried under his arm." Davenport sold the contents of the brown paper bag to Brown, and it was later ascertained that the bag contained narcotics. None of the agents at that time knew the identity of DiCarlo. Dukas followed him and saw him enter the building at 313 East 118th Street. It was not until May 24, 1960, that the government agents knew that Apartment Number 8 was of interest to them, or that the woman who turned out to be Matilda Carlo lived in that apartment.

Things came to a head on May 24, 1960. At about 1 P.M. Davenport and Brown appeared in an automobile at 173rd Street and Third Avenue in the Bronx. At this point Davenport got out of the car and started walking down the street; she met Matilda Carlo, whose identity will shortly become known to the agents, and Matilda Carlo handed Davenport a shoe bag. Dukas, who had the pair under observation, waited until Matilda Carlo had passed out of sight, and he then arrested Davenport, searched her purse, found that in the shoe bag were eight glassine envelopes containing a white powder that turned out to be heroin. Dukas questioned Davenport about the February 17th, 1960 transaction, and he testified she replied, "a person she knew as Sonny and also as Joe was the person who delivered the narcotics to her at that time on the 17th."

It does not appear that any of the agents followed Matilda Carlo after she delivered the heroin to Davenport on May 24, 1960; but, after the arrest of Davenport, Dukas obtained certain information about an automobile license number and a telephone number. He telephoned these in to the central office, some checking was done, and at about 3 P.M. the Narcotics Bureau informed agent Burke by radio in his car that her address was 313 East 118th Street. There is nothing in the testimony of the agents to indicate when Matilda Carlo returned to her home that afternoon. She left 313 East 118th Street, however, at about 7 P.M. Agent Dukas saw her come out and after a few minutes he saw the same person he had observed giving the small brown bag to Davenport on February 17, 1960 go into the apartment house, 313 East 118th Street. This person turned out to be Joseph DiCarlo. Dukas followed him into the building, up one flight of stairs, and saw him enter Apartment Number 8 on the second floor. This appears to be the first time any of the government agents saw anyone suspected of having dealings in narcotics go into this particular apartment in 313 East 118th Street. All they knew on February 17, 1960 was that DiCarlo was seen entering the building at that address.

In the meantime, agent Burke followed Matilda Carlo, with her young son and her bundle of clothes to the Laundromat nearby. In the Laundromat Burke arrested Matilda because of the narcotics transaction she had that same afternoon with Davenport, as above described. Burke searched Matilda Carlo but found no narcotics either in the laundry bag or in her purse. As Burke and agents Cockrill and Dugan were about to take Matilda Carlo and the little boy down to headquarters, she asked to be allowed to return to her home to leave the child. Dukas was waiting somewhere above the landing on the second floor, having seen DiCarlo enter Apartment Number 8 a few minutes before, while Matilda Carlo was on her way to the Laundromat.

When Matilda Carlo and her child, together with Burke and the other officers arrived at 313 East 118th Street, she led them to Apartment Number 8, opened the door, without using a key, and she entered the apartment, followed by Dukas and Burke, who went up the hall of the apartment to the kitchen, where they saw the two brothers, Joseph DiCarlo and John Carlo sitting at a table drinking a can of beer.

Agent Burke immediately placed DiCarlo under arrest. Up to this moment there is no reason, on the record before us, to suppose that the agents even knew of the existence of John Carlo or had any reason to suspect that he had committed any crime.

In the kitchen was a washing machine, and, after the arrest of DiCarlo, agent Dukas observed a small brown paper bag in plain sight, on top of the washing machine. On the oral argument of the appeal we were inclined to think the small brown paper bag was lying on its side open, so that, without taking possession of the bag and looking inside, its contents could be seen, as Judge Murphy's opinion states: "At the time they saw a number of glassine envelopes containing white powder on a washing machine in the kitchen and asked who owned them." But no such specific testimony was given by either Dukas or Burke, and we must take the fact to be that Dukas saw the small brown paper bag, picked it up, looked inside and saw the six glassine envelopes and the white powder that later proved to be six ounces of heroin.

At this point there was the following colloquy between John Carlo and Dukas:

"Carlo: What is this all about?

"Dukas: Your wife is under arrest for violation of the federal narcotics laws.

"Carlo: You can\'t take her, this is not hers, that is mine.

"Dukas: Do you know what you are talking about?

"Carlo: Yes.

"Dukas: If you admit this is yours I will have to arrest you.

"Carlo: I told you that is mine."

Thereupon Dukas placed John Carlo under arrest. When inquiry was made as to the whereabouts of "the rest," and after a statement by Dukas that Mrs. Carlo would not be arrested on account of the glassine envelopes with white powder found in the small brown paper bag on the washing machine, John Carlo went with agents Burke and Cockrill into the bedroom and pointed out two boxes on the bureau which were seized by the agents and found to contain 1¼ kilos of heroin. The next day it was discovered that in "amongst the narcotics" found in one of the boxes was $20,100 in United States currency "in a tightly wrapped brown paper bag."

We think the critical...