Niro v. United States, 6934

• Decision Date: 02 February 1968
• Docket Number: 6954.,No. 6934,6934
• Citation: 388 F.2d 535
• Parties: Frank A. NIRO, Jr., Defendant, Appellant, v. UNITED STATES of America, Appellee. Edward M. GLYNN, Defendant, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

388 F.2d 535 (1968)

Frank A. NIRO, Jr., Defendant, Appellant, v. UNITED STATES of America, Appellee.

Edward M. GLYNN, Defendant, Appellant, v. UNITED STATES of America, Appellee.

Nos. 6934, 6954.

United States Court of Appeals First Circuit.

February 2, 1968.

Murray H. Falk, by appointment of the Court, with whom Moulton, Looney, Mazzone & Falk, Boston, Mass., was on brief, for appellant Frank A. Niro, Jr.

Chester C. Paris, Wakefield, Mass., with whom Joseph J. Balliro, Boston, Mass., was on brief, for appellant Edward M. Glynn.

Herbert N. Goodwin, Asst. U. S. Atty., with whom Paul F. Markham, U. S. Atty., was on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

ALDRICH, Chief Judge.

Defendants, Niro and Glynn, appeal from convictions under 18 U.S.C. § 659 for knowing possession of stolen goods that had been transported in interstate commerce. Their primary contention is that the district court erred in denying motions to suppress evidence (hereinafter referred to in the singular).

During the evening of September 19, 1966, agents of the FBI commenced surveillance of a garage in Franklin, Massachusetts. The building, roughly 200 feet long and 50 feet wide, originally a carbarn and then a shop or garage, was owned by one Wise. Wise had discontinued active operation and in April 1966 leased the back 50 feet to Niro. Wise at all material times employed a part-time caretaker, Ford, who had a key, and whose duties, to Niro's knowledge included periodic inspection of the entire interior of the building. In May, Ford observed Niro and others, accompanied by a man subsequently identified as Glynn, erect a partition which, when the sliding door was closed, separated the Niro portion from the rest of the building. The Niro portion had a separate entrance.

When the FBI commenced the surveillance they had probable cause to believe the following facts. On September 13, a tractor trailer, description fully known, loaded with vodka and gin was hijacked in Madison, Connecticut. Through a known reliable informant,¹ the hijackers were reported to be Glynn and one Pineau. On September 16, a tractor trailer, description known, loaded with whiskey was hijacked by three men in West Warwick, Rhode Island. The evening of September 19, Ford reported to the local police, and then to the FBI, that both tractor trailers and a quantity of whiskey were in Niro's portion of the garage, and identified a picture of Glynn. The surveillance then began.

Near noon on September 20, two cars believed to be used by Niro and Glynn were seen to enter the rear of the building. At this point the FBI force was increased to twelve men, in three or four cars. A group of three, using a key supplied by Ford, entered the front door. Niro, who had heard the cars and had run to the front portion to see what was happening, was arrested by the door. Glynn, and others not presently involved, were arrested immediately thereafter. The evidence, due to the absence of a chart used at the trial, is not clear, but apparently Glynn, too, was in Wise's retained portion of the premises. One of the tractor trailers protruded through the open doorway in the partition. Through this doorway cartons of whiskey could be seen. Having secured all the occupants, the FBI moved into Niro's portion of the building, where they found, also, the vodka and gin. They thereupon seized the liquor and the tractor trailers.

Prior to trial defendants sought to suppress the evidence seized at the garage. The testimony taken revealed the foregoing facts. It further revealed that no warrant for the arrest of any person, or for a search of any kind, had been issued or, so far as appeared, had been sought, at the time of the entry and arrests. The court denied the motion without opinion.

In seeking to support this ruling the government makes a number of contentions. The first is that the defendants lacked standing to object. This contention is based upon an unsound reading of Jones v. United States, 1960, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697. In Jones the defendant sought to suppress a quantity of narcotics seized under an allegedly invalid warrant. The lower courts held that because the defendant failed to establish that he was more than a licensee in the premises or that he was in possession of the narcotics, had no standing to press the motion. A unanimous court reversed on both grounds. The Court rejected the notion that protection of the constitutional right against unreasonable searches and seizures should turn on subtle distinctions borrowed from the law of private property, and concluded, "Anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him." 362 U.S. at 267, 80 S.Ct. at 734. The Court further stated that where the "basis" of the charge was possession the government could not simultaneously resist the motion to suppress on the ground that the defendant's possession was lacking. In no uncertain terms it condemned "such squarely contradictory assertions of power by the Government." 362 U.S. at 264, 80 S.Ct. at 732.

It would be possible to construe the Court's phrase "possession on the basis of which petitioner is to be * * * convicted * * *" in Jones, 362 U.S. at 264, 80 S.Ct. at 732 as no broader than the decision; viz., as limited to where, as in the case of contraband, possession is the sole basis of the offense. And, in fact, in United States v. Konigsberg, 3 Cir., 1964, 336 F.2d 844, cert. denied, 379 U.S. 933, 85 S.Ct. 334, 13 L.Ed.2d 344, a case strikingly like the case at bar, the court, as an alternative ground of decision in denying defendants' standing to press the motion, so distinguished Jones, stating that where possession was only one element of the offense defendants must establish it. With due respect, we do not think that the principle established by Jones is to be read so narrowly. It is still "squarely contradictory" for the government to charge out of one side of its mouth that the defendant had possession, even though in addition to possession the government must ultimately prove other matters, and to say out of the other that the defendant, as movant, lacked standing because he did not have possession. The defendant still faces the "dilemma," to employ the Court's characterization, of having to assist the prosecution in its ultimate proof by self-incrimination in the very case, whether possession constitutes the offense, or only part of it.² The government would still "have the advantage of contradictory positions as a basis for conviction." 362 U.S. at 263, 80 S.Ct. at 732.

If, in addition to possession, Jones requires that defendant, or defendant's goods, be legitimately on the premises, which we do not intimate, there can be no question on that score. Niro was a tenant, and Glynn a guest.³ The defendants' standing was adequately established.

Next, the government contends that the seizure was lawful. First it says that Ford's authority was sufficient to allow the agents to enter the building. On the assumption that the entry was not inimical to Wise we may accept, for present purposes, the government's position as to entry on Wise's retained portion. This could not apply to Niro's portion where the liquor was stored. Stoner v. State of California, 1964, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856, Chapman v. United States, 1961, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828. It is, of course, true, as the government says, that the agents were free to observe from Wise's side what was in plain view on the other. United States v. Lee, 1927, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202; Fagundes v. United States, 1 Cir., 1965, 340 F.2d 673; Ellison v. United States, 1953, 93 U.S.App. D.C. 1, 206 F.2d 476. It does not follow that their observation made the agents free to make a seizure on premises to which they were not lawfully admitted. For this they needed something else.

The government contends that the additional element necessary was present and that the entry on Niro's portion was justified as an incident of the lawful arrest of Niro and Glynn. In support it says, "It is apparent that probable cause existed for the arrests." With this statement we quite concur. However, there is a further difficulty. We cannot accept the government's contention that this was not a case "where there was clear evidence of probable cause to make the arrests substantially prior to the time they were made." Quite to the contrary, the arresting officer testified as follows.

Q. "Now, you had had all of the information that was available to you with regard to this arrest, and with regard to this search and seizure, on the evening of September 19th had you not?"

A. "Yes, sir."

No contradiction is to be found. Either the officers had had probable cause to make the arrests for over twelve hours (which we believe they did) or they never had it.

In the light of the unexplained neglect to obtain a warrant, this case fits squarely within Trupiano v. United States, 1948, 334 U.S. 699, 68 S.Ct. 1229, 92 L. Ed. 1663. There government agents learned, over a period of time, of the operation of an illicit still. After a lengthy surveillance they descended upon the premises, arrested one Antoniole, who could be seen from outside actively operating the still, and on the basis of the arrest searched the premises and seized the contents. Although they had long had sufficient knowledge and opportunity to seek warrants for arrest and seizure, the officers had sought none. A divided court, although viewing the arrest of Antoniole while engaged in committing a felony as lawful, held that the failure to obtain a search warrant when there had been full opportunity to have done so, invalidated what would otherwise have been a search justified by the arrest. Shortly thereafter the court reached a similar result in McDonald v. United States, 1948, ...