U.S. v. Faruolo

• Decision Date: 29 October 1974
• Docket Number: D,Nos. 1126 and 1227,s. 1126 and 1227
• Citation: 506 F.2d 490
• Parties: UNITED STATES of America, Appellee, v. William Michael FARUOLO and Anthony Bernardez, Appellants. ockets 74-1350 and 74-1802.
• Court: U.S. Court of Appeals — Second Circuit

Page 490

506 F.2d 490

UNITED STATES of America, Appellee, v. William Michael FARUOLO and Anthony Bernardez, Appellants.

Nos. 1126 and 1227, Dockets 74-1350 and 74-1802.

United States Court of Appeals, Second Circuit.

Argued July 17, 1974.

Decided Oct. 29, 1974.

Bruce F. Smith, Asst. U.S. Atty. (David G. Trager, U.S. Atty. for the Eastern District of New York, Paul B. Bergman, Asst. U.S. Atty., of counsel), for appellee.

James E. Eagan, New York City, for appellant Faruolo.

William Epstein, New York City (William J. Gallagher, Legal Aid Society, New York City), for appellant Bernardez.

Before MULLIGAN and WINTER, ^* Circuit Judges, and NEWMAN, ^** District Judge.

MULLIGAN, Circuit Judge:

These are appeals taken by Anthony Bernardez and William Faruolo from judgments of conviction entered on March 8, 1974 in the United States District Court for the Eastern District of New York, following the acceptance, on November 12, 1973, by District Judge Edward R. Neaher, of their pleas of guilty to the second count of a two-count indictment. Count one charged the appellants and six others ¹ with receiving and possessing goods stolen from interstate commerce, 18 U.S.C. 2 & 659, and count two charged the same defendants with conspiracy to receive and possess the same stolen goods, 18 U.S.C. 371. Bernardez and Faruolo were sentenced to probationary terms of three years and five years respectively, with Bernardez' terms to commence upon his release from state prison.

Appellants' sole contention on these appeals is that the district court erred in denying, after a hearing, their motion to suppress contraband which was seized without a warrant from Faruolo's home. ² We agree with the district court that Faruolo voluntarily consented to the search and therefore affirm.

I

On August 10, 1972, Special Agent John Egan of the FBI received a report that a truckload of women's dresses and wearing apparel, which was being transported by Interstate Dress Carriers, Inc., had been hijacked earlier in the day. During the subsequent investigation, the truck driver provided a description of the hijackers, as well as of the cargo, a portion of which had been packed in special hangerpack cartons bearing the printed name 'Hangerpack.' Information from reliable informants indicated that defendant John Pastore, a known hijacker, was involved in the theft and further led to the surveillance of the Staten Island residence of Richard Marco, Sr.

At approximately 11:13 on the morning of August 14, 1972, Egan observed a U-Haul rental truck pull away from the front of the Marco residence. The truck had a lock on the back and was followed by a green Cadillac with New Jersey license plates. After losing sight of the vehicles for a short time, Egan located them parked in the vicinity of the Staten Island home of appellant William Faruolo, where the truck was being unloaded by Faruolo, his son and several of the other named defendants. Its contents, which included some 'Hangerpack' containers, were being carried from the truck into Faruolo's house through a side door.

At about 12:45 p.m., the unloading operation completed, Egan followed three of the defendants to the Country Club Diner on Staten Island where they met with John Pastore. Defendant Richard Marco, Jr. and Pastore left the meeting together and the two were observed to drive to 45 Vera Street, Staten Island. There, Marco picked up a second U-Haul which he drove to Faruolo's home, where it was unloaded by several of the defendants. Special Agent William Edwards, who had joined Egan in the investigation, saw them taking large brown 'Hangerpack' cartons, as well as hanging garments in plastic bags, from the truck into the Faruolo house.

At approximately 3:30 or 4:00 p.m., when it appeared that they were finished and that some of the defendants were about to leave, Edwards, accompanied by a number of other agents, moved in to make the arrests. Edwards, with his gun drawn, proceeded to the back yard of the Faruolo home where he found Faruolo standing alone near a blue panel truck. Through the truck window, he could see that it was fully packed with hanging garments and on the ground beside the truck were folded 'Hangerpack' cartons. After placing Faruolo under arrest, Edwards advised him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), except that he omitted to advise him that he had the right to have counsel appointed if he could not afford an attorney. Faruolo just placed his head in his hands, evidencing a state of disbelief. Edwards did not search him for weapons or place handcuffs on him at that time but he did keep his gun drawn for several minutes until he thought that the situation was under control. He requested that Faruolo be seated at a picnic table and they waited for other agents. Faruolo made no statements during this time other than giving his name, admitting ownership of the house and identifying his seventeen-year old son, who stepped out into the yard for a brief period. Edwards did not speak to the young man but he did suggest to Faruolo that he should direct him to return to the house, which was occupied by Faruolo's wife, among others.

When Egan and Agent Thomas Armstrong arrived, at most, no more than five minutes after Faruolo's arrest, Edwards holstered his gun and informed Egan that the individual under arrest was Faruolo, that it was his house and that he had been given his Miranda rights. Egan then advised Faruolo that he was an FBI agent investigating a hijacking and asked him for permission to search his house. Faruolo was informed that he did not have to permit the search if he did not want to and that the house would not be searched without his consent. Egan, however, did point out that if Faruolo did not consent, a search warrant would be applied for and further conveyed his belief that one would be issued. He also stated that a warrant, because of the late hour, probably could not be obtained until the following morning and that, consequently, the FBI would have to keep his house under surveillance to prevent the removal of its contents. Faruolo then, after quietly thinking a minute or two, signed a consent to search form which Egan had previously read to him and which Faruolo had said he understood. ³

Faruolo was subsequently left in the custody of Special Agent Charles Steadman, while Egan and Edwards proceeded with the search. Faruolo and Steadman went into the house where Steadman correctly and fully advised Faruolo of his Miranda rights. Faruolo consented to an interview, during which he admitted that he knew the merchandise was stolen, but he then indicated that he would like to speak to an attorney before answering any more questions and the interrogation terminated. ⁴

II

Appellants' ⁵ principal argument on appeal is that the facts established at the suppression hearing failed to show by clear and convincing evidence that Faruolo's consent was freely and voluntarily given. Specifically, it is urged that Faruolo reluctantly signed the consent form because he feared that the agents would arrest his seventeen-year old son whom they had observed unloading the contraband and also because of Egan's representation that he could get a search warrant.

We adhere to the view reaffirmed in United States v. Mapp, 476 F.2d 67, 78 (2d Cir. 1973) that we must look to the 'totality of the circumstances' in determining whether a consent to a search is voluntary or not. Looking at all the circumstances, we conclude that the Government here satisfied its burden of establishing that Faruolo's consent was freely and voluntarily given. After an evidentiary hearing in which agents Egan, Edwards and Steadman as well as the appellant Faruolo testified, the district court found that:

Egan did not state that Faruolo's wife or son would be prevented from leaving the house (if a warrant could not be obtained until the following morning). Nor did he, or any other agent, threaten that either wife or son would or could be arrested.

Record at 376. These findings were consistent with the testimony of the agents and the only evidence to the contrary was Faruolo's testimony which Judge Neaher said he disbelieved. Id. The issue was one of credibility which the district court, who saw and heard the witnesses, resolved in favor of the agents. United States v. Fernandez, 456 F.2d 638, 640 (2d Cir. 1972).

The argument is reduced therefore to the proposition that Egan's statement that he would apply for a warrant, which conveyed the impression that one would be obtained, constituted a coercive factor negating consent. In comparable cases this and other courts ⁶ have held to the contrary. Here the defendant had been given partial Miranda warnings, he was told that he did not have to consent to the search (in United States v. Mapp,supra, 476 F.2d at 77, we held that failure even to advise the person of the right to withhold consent is not fatal but only one factor to be held in the balance) and he consented after being made aware of the fact that a warrant would be obtained. The district court found that Egan's advice was well grounded. There was no deceit or trickery. ⁷ The court below found that there was not only a sufficient basis for his communicated belief but that in fact there were grounds for the issuance of a search warrant. This is not at all open to serious question. The house and the defendants had been under surveillance. Faruolo was apprehended practically in flagrante delicto in his own back yard unloading the stolen goods ⁸ which he later admitted, after full Miranda warnings, he knew had been stolen.

In United States v. Bracer, 342 F.2d 522 (2d Cir.), cert. denied, 382 U.S. 954, 86 S.Ct. 427, 15 L.Ed.2d 359 (1965), the defendant was arrested while in possession of drugs but he did not consent to a search of his residence until he was advised that a warrant would be obtained. Judge Smith's opinion, in which he noted...