Marullo v. United States, 20756.

• Decision Date: 08 April 1964
• Docket Number: No. 20756.,20756.
• Citation: 328 F.2d 361
• Parties: Anthony Paul MARULLO, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

328 F.2d 361 (1964)

Anthony Paul MARULLO, Appellant, v. UNITED STATES of America, Appellee.

No. 20756.

United States Court of Appeals Fifth Circuit.

February 25, 1964.

Rehearing Denied April 8, 1964.

Sam Monk Zelden, New Orleans, La., for appellant.

William J. Hamilton, Jr., Asst. U. S. Atty., Jacksonville, Fla., for appellee.

Before CAMERON, WISDOM, and GEWIN, Circuit Judges.

Rehearing Denied April 8, 1964. See 330 F.2d 609.

WISDOM, Circuit Judge.

In January 1962 five men broke into a post office in Florida and made off with the safe. Among the contents were a money order validating stamp and 681 blank money order forms. Anthony Marullo, the defendant-appellant, although not involved in the burglary, agreed to take a hundred of the money orders on consignment and to pay $25 for each one successfully negotiated. At the time, Marullo and Joseph Ricks were renting a room in the Pines Motel in Jefferson Parish near New Orleans. Ricks had the misfortune to ask his uncle, Jesse Krause, then managing the Playhouse Bar in New Orleans, to pass the money orders. Krause agreed to do so. Instead, however, he reported the whole story to the postal authorities who persuaded him to act as their agent in his transactions with Ricks and Marullo. Krause met the two men in the Playhouse Bar and paid Ricks $70 for a $90 money order. Shortly after this occurred, New Orleans police officers picked up Ricks and Krause and took them to the First District police station. Marullo, who had left the Bar just as the police officers approached, was picked up later and also taken to the station. While Ricks was in custody and still under the impression that Krause was a co-conspirator, Ricks told Krause that the money orders were under the cabin at the Pines Motel. He asked him to obtain them and destroy them, should Krause not be booked.

Krause was released after he had been in custody about fifteen minutes. Then Krause, with a postal inspector and police officers, drove out to the Pines Motel, where they were met by Jefferson Parish officers. They went into the room where Ricks and Marullo had been staying. There they found one of the stolen money orders in "somebody's" trousers. After the officers searched the room, Krause went outside and crawled under the cabin, which rested on brick pillars and was about one to two feet off the ground. He removed from the top of one of the pillars a paper bag. Inside the bag were stamp pads, ink, date stamps, validating stamps and, needless to say, a number of the missing money orders.

It is undisputed that the search was conducted without a warrant. Both Ricks and Marullo were then in custody.

At the trial the money order extracted from "somebody's" trousers was excluded by the court. The articles in the paper bag were admitted over objections of counsel and after a hearing on a motion to suppress, granted under Rule 41 (e), C.F.Crim.P.

Marullo was indicted for conspiring, in violation of 18 U.S.C.A. § 371, to steal, convert, receive, and conceal stolen Government property, consisting of postage stamps, cash, and money orders, and for the false making of the money orders so obtained.

He was tried alone before a jury. Upon the jury's verdict of guilty, and after denial of his motion for a new trial, he was adjudged guilty and sentenced to the custody of the Attorney General for three years. This appeal, taken in forma pauperis, followed.

The able and resourceful attorney for the appellant contends that the area under a house is within the curtilage and is therefore protected from unreasonable searches by the Fourth Amendment. This is a persuasive argument. It would be more persuasive if the validity of searches and seizure turned only on "curtilage". Webster's New Third International Dictionary (1962) defines it as a "yard, courtyard, or other piece of ground included within the fence surrounding a dwelling house". But the Constitution does not speak of curtilage. It speaks of the people's right to be secure in their "houses" against...