United States ex rel. Lundergan v. McMann

• Decision Date: 29 August 1969
• Docket Number: Docket 32935.,No. 619,619
• Citation: United States ex rel. Lundergan v. McMann, 417 F.2d 519 (2nd Cir. 1969)
• Parties: UNITED STATES of America ex rel. Dennis M. LUNDERGAN, Relator-Appellant, v. Daniel McMANN, Warden of Auburn Prison, Auburn, New York, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

417 F.2d 519 (1969)

UNITED STATES of America ex rel. Dennis M. LUNDERGAN, Relator-Appellant, v. Daniel McMANN, Warden of Auburn Prison, Auburn, New York, Respondent.

No. 619, Docket 32935.

United States Court of Appeals Second Circuit.

Argued June 5, 1969.

Decided August 29, 1969.

Matthew Muraskin, Mineola, N. Y. (James J. McDonough, Legal Aid Society of Nassau County, N. Y., Daniel J. Dillon, Mineola, N. Y., of counsel), for relator-appellant.

Burton Herman, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., of counsel), for respondent.

Before WATERMAN, FRIENDLY and KAUFMAN, Circuit Judges.

FRIENDLY, Circuit Judge:

Dennis M. Lundergan, indicted in 1965 in Nassau County, New York, for grand larceny and burglary, moved in the County Court to suppress the allegedly stolen goods, a maroon and gold jewelry box and a metal strong box, which had been seized from his wife's automobile while it was in his possession. On June 1, 1966, the motion was denied after a hearing. Lundergan was allowed to plead guilty to the lesser crimes of attempted grand larceny in the second degree in regard to the theft of the strong box and petit larceny in regard to the theft of the jewelry box. He was sentenced to 2½-5 years on the attempted grand larceny conviction and received a suspended sentence on the petit larceny conviction. His appeal from the judgment of conviction challenging the refusal to suppress, New York Code of Criminal Procedure § 813-c, resulted in an affirmance without opinion, People v. Lundergan, 29 A.D.2d 736, 287 N.Y.S. 2d 349 (2d Dept. 1968). Leave to appeal to the Court of Appeals was denied. Lundergan thereupon filed a petition for habeas corpus in the District Court for the Eastern District of New York. After a hearing before Judge Abruzzo, the writ was denied.

Lundergan was a delivery man for a Long Island furniture firm. A customer to whose home he and an associate had delivered beds complained to Lundergan's employer of the loss of a jewelry box from her bedroom. The employer went to the car used by Lundergan, although actually owned by his wife, and observed through a window a small box, which fit the customer's description of the missing jewelry box, sticking out from under the car seat. The employer notified the police, told them the customer's story and had them observe the box. He then located Lundergan whom he summoned to the warehouse.

At this point there is a divergence of testimony. The version of the detective who testified was that when Lundergan arrived he was told that the police suspected that his car contained stolen goods. Lundergan denied any knowledge of such goods. Another detective then told him, in effect, that in that case he would have nothing to hide and asked whether he would consent to a search of the car. Lundergan immediately stated that he had no objection, and the detective wrote out a consent form which Lundergan read and signed. The employer corroborated this testimony. The police and Lundergan then went to the car, which was parked near the warehouse. Lundergan unlocked the door on the passenger side, and a patrolman removed the jewelry box. The detective took the key, opened the trunk and found a metal strong box which was later found to have been stolen. Lundergan was then taken to the police station and booked. Petitioner's version is that he refused consent for some twenty minutes after the police first asked for it. Finally, after the police told him that they were looking for a gun in his car and that they would let him go if they did not find it, he scrawled his name on the bottom of the consent form, doing so in a manner totally unlike his normal signature in order to demonstrate that it was done involuntarily.¹ Accepting the version of the detective and the employer as true, the district court found the search and seizure to have been lawful both as incident to an arrest made on probable cause and as resting on a valid consent.

For us to uphold the search and seizure as incident to a lawful arrest would require us to consider both whether Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), applies to convictions that had already become final, see Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L.Ed.2d 601 (1965), and whether, even if it does not, the Supreme Court does not regard pre-Chimel law as requiring a closer relationship between the places of the arrest and of the search than this court had thought to be demanded. Compare United States v. Francolino, 367 F.2d 1013, 1017 (2 Cir. 1966), cert. denied, 386 U.S. 960, 87 S. Ct. 1020, 18 L.Ed.2d 110 (1967), and United States ex rel. Mahoney v. La Vallee, 396 F.2d 887 (2 Cir. 1968), cert. denied, 395 U.S. 985, 89 S.Ct. 2137, 23 L. Ed.2d 774 (1969), with the discussion in Chimel, 395 U.S. at 764-765 and n. 10, 89 S.Ct. 2034, and the decision in Shipley v. California, 395 U.S. 818, 89 S.Ct. 2053, 23 L.Ed.2d 732 (1969). We have no need to do this since we affirm the denial of the writ on the basis of the finding of consent.²

It is true enough, as this court has held, that consent to a search is not to be lightly inferred. United States v. Viale, 312 F.2d 595, 601, cert. denied, 373 U.S. 903, 83 S.Ct. 1291, 10 L.Ed.2d 199 (1963); United States v. Como, 340 F.2d 891, 893 (1965). As said in United States v. Smith, 308 F.2d 657, 663 (2 Cir. 1962), cert. denied, 372 U.S. 906, 83 S.Ct. 717, 9 L.Ed.2d 716 (1963), "an accused's voluntary consent to a search must be proven by clear and positive evidence. * * * Moreover, to be voluntary, a consent must have been unequivocal, specific, and intelligently given." However, as the Smith case shows, the mere fact that a suspect is under arrest does not negate the possibility of a voluntary consent. Neither does the...