U.S. v. Polito

• Decision Date: 15 August 1978
• Docket Number: D,No. 824,824
• Citation: 583 F.2d 48
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Alphonso POLITO, Defendant-Appellee. ocket 78-1031.
• Court: U.S. Court of Appeals — Second Circuit

Page 48

583 F.2d 48

UNITED STATES of America, Plaintiff-Appellant, v. Alphonso POLITO, Defendant-Appellee.

No. 824, Docket 78-1031.

United States Court of Appeals, Second Circuit.

Argued April 11, 1978.

Decided Aug. 15, 1978.

Roger P. Williams, Asst. U. S. Atty., Western District of New York, Buffalo, N. Y. (Richard J. Arcara, U. S. Atty., Western District of New York, Buffalo, N. Y., of counsel), for the United States of America.

Carl H. Dobozin, Buffalo, N. Y. (Dobozin & Pottle, Buffalo, N. Y., of counsel), for defendant-appellee.

Before FRIENDLY, GURFEIN and MESKILL, Circuit Judges.

MESKILL, Circuit Judge:

This appeal raises the question whether and in what manner local law enforcement personnel may assist the Parole Commission of the United States Department of Justice in the apprehension of federal parolees for whom the Commission has issued warrants which instruct federal officers to retake and return to custody the named parolee. Alphonso Polito, for whom such a warrant had been issued, was detained by a Buffalo, New York, police officer who had been made aware of the warrant, and he was promptly turned over to appropriate federal officials. Subsequently, an indictment was returned against Polito based upon evidence seized at the time of his detention. At a pre-trial hearing, Judge John T. Elfvin of the United States District Court for the Western District of New York held that the police officer was without authority to make the stop and ordered the evidence suppressed. The government determined that no prosecution would be possible without the evidence and, pursuant to 18 U.S.C. § 3731, filed this appeal. For the reasons that follow, we reverse Judge Elfvin's suppression order and remand for further proceedings.

On March 13, 1972, Alphonso Polito was convicted in the Western District of New York of conspiracy to rob a bank, 18 U.S.C. § 371; he was sentenced under the Youth Corrections Act, 18 U.S.C. §§ 4209, 5010(b), to four to six years imprisonment. Three years later, on March 12, 1975, he was released on parole. In October of 1976, however, William Schaefer, Chief Officer of the Probation Office in Buffalo and Polito's supervisor, asked the Parole Commission to consider Polito a parole violator and issue a warrant for his retaking. Two parole violations were alleged. First, beginning in July, 1976, Polito had failed to submit his monthly supervision reports to his parole officer. Second, as of August, 1976, Polito had left what had been his residence in Buffalo and had failed to report the change. At the time of the warrant application, Polito's whereabouts were unknown. The warrant was issued on November 10, 1976.

Soon after the issuance of the warrant, the Erie County Savings Bank of Buffalo received from the Federal Bureau of Investigation a flier, described as a "wanted poster," regarding Polito. This flier apparently consisted of a photograph of Polito and notification that he was wanted by the federal government for parole violation. According to the chief security guard at the bank, Ray Collins, he and the other bank employees were asked by the FBI to "watch for" Polito. Collins, in fact, kept the photograph of Polito under the plastic cover on the inside of his service hat and looked at it frequently while on duty. Collins was also advised by the FBI that Polito had a safe deposit box in the bank. The FBI flier was also circulated to various members of the Buffalo Police Department.

On the morning of December 27, 1976, Polito walked into the bank. Josephine Burgio, an employee of the bank for 22 years, recognized Polito and telephoned Mr. Lunde of the FBI, telling him that Polito was in the bank. She then informed Collins of Polito's presence and returned to work. During this time, Polito was apparently tending to some business he had in the safe deposit vault area of the bank. Collins in turn notified Patrick McDonald of Polito's presence. McDonald was one of a number of Buffalo police officers who, when off duty, serve as security guards for the shopping mall in which the bank is located; at the time of these events, however, he was As Polito started to leave the bank, McDonald instructed him to stop, identified himself as a police officer, and ordered him to take his hands out of his pockets. McDonald testified that Polito "started to take his hands out of his pockets and he hesitated and then he took them out completely." McDonald then told Polito that he was under arrest pursuant to a warrant and conducted a "pat down" search. During this search, he felt "two hard objects in (Polito's) front pockets, both left and right pockets." He promptly ushered Polito into a nearby conference room and, in Collins' presence, conducted a more thorough search. During the course of this search, McDonald discovered a loaded .357 magnum pistol and a loaded .32 Llama pistol in the front pockets of an Army field jacket which Polito was wearing underneath a larger green parka. The pockets of the green parka had been cut to allow access to the pockets of the field jacket. McDonald also discovered a portable radio scanner device monitoring the Buffalo police frequency (the ear plug was in Polito's left ear); a tool known as a "dent puller"; lose cartridges; and ten marijuana cigarettes. By the conclusion of the search, which apparently took a little over ten minutes, Undersheriff Thomas Higgins and Officer William Fisher, both of the Buffalo police department, had arrived to assist McDonald. Special agents from the FBI had also responded by that time.

                merely waiting for friends in the mall and was not on duty in either capacity.  McDonald was aware of the FBI flier on Polito.  1  He instructed an elevator attendant to call other mall security officers for assistance and then proceeded to the bank, carrying his badge and identification in one hand and his gun in the other
                

On January 20, 1977, an indictment was filed in the Western District of New York charging Polito with receiving a .357 magnum pistol which had been transported in interstate commerce. 18 U.S.C. §§ 922(h), 924(a). Polito moved for suppression of evidence seized at the time of his apprehension, including the .357 magnum. The district judge, relying on his interpretation of 18 U.S.C. § 4213, the federal statute dealing with parole violator warrants, and the fact that the documents provided by the parties relating to Polito's parole violation warrant were addressed to federal officers, determined that local police officers were not authorized to execute federal parole warrants, that the detention of Polito was therefore unlawful and that, accordingly, evidence seized incident to that detention had to be suppressed. The government appealed.

DISCUSSION

New York police officers are authorized to arrest for state and federal offenses, N.Y.Crim.Proc. Law § 140.10; Marsh v. United States, 29 F.2d 172 (2d Cir. 1928) (L. Hand, J.), to execute federal arrest warrants, United States v. Bowdach, 561 F.2d 1160 (5th Cir. 1977); People v. Floyd, 56 Misc.2d 373, 288 N.Y.S.2d 950 (Sup.Ct.Queens Co.1968), Aff'd, 33 A.D.2d 795, 307 N.Y.S.2d 832 (2d Dep't 1969), Rev'd on other grounds, 26 N.Y.2d 558, 312 N.Y.S.2d 193, 260 N.E.2d 815 (1970), Discussed in United States v. Swarovski, 557 F.2d 40, 46 (2d Cir. 1977), Cert. denied, 434 U.S. 1045, 98 S.Ct. 889, 54 L.Ed.2d 796 (1978), ² and to execute warrants for the retaking of New York State parolees, N.Y.Exec.Law § 259-i(3)(a)(i) and (iii), Formerly, N.Y.Correc.Law § 217. Polito argues on this appeal, as he did below, that Officer McDonald exceeded his authority by detaining him and that, accordingly, evidence seized incident to that detention was inadmissible. Here, a federal warrant had been issued for Polito's retaking and, knowing of the warrant and having been informed that Polito was its subject, McDonald detained him. See note 1, Supra, and note 3, Infra. Because this is not a case involving a warrantless arrest, the question whether McDonald acted outside his authority under state law is neither before us nor determinative of our deliberations. See United States v. DiRe, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948). See also note 8, Infra, and accompanying text. Thus, we consider here only the question whether some federal statutory or constitutional provision was violated in such a way as to require suppression. Cf. United States v. Turner, 558 F.2d 46, 49 (2d Cir. 1977) ("This is a federal prosecution, and federal law determines whether suppression is appropriate.").

The Parole Commission's authority to issue warrants for the retaking of parolees is found in the Parole Commission and Reorganization Act, 18 U.S.C. § 4201 Et seq. Section 4213 of that Act provides in pertinent part as follows:

(a) If any parolee is alleged to have violated his parole, the Commission may

(2) issue a warrant and retake the parolee as provided in this section.

(d) Any officer of any Federal penal or correctional institution, or any Federal officer authorized to serve criminal process within the United States, to whom a warrant issued under this section is delivered, shall execute such warrant by taking such parolee and returning him to the custody of the regional commissioner, or to the custody of the Attorney General, if the Commission shall so direct.

The regulations promulgated by the Commission provide that such a warrant may be issued only upon presentation of "satisfactory evidence" that a parolee has violated the conditions of his or her release. 28 C.F.R. § 2.44(a). ³ The regulations regarding execution of such warrants by federal officers parallel the wording of the statute. 28 C.F.R. § 2.46. ⁴

The statute itself is devoid of any suggestion that federal officers must act alone or that local law enforcement officers are prohibited from assisting in the retaking of federal parolees once a warrant has been issued. It provides only that a federal officer "to whom a warrant issued under this...