United States ex rel. Foreman v. Casseles, 69 Civ. 4606.

• Decision Date: 04 March 1970
• Docket Number: No. 69 Civ. 4606.,69 Civ. 4606.
• Citation: 311 F. Supp. 526
• Parties: UNITED STATES of America ex rel. Thomas H. FOREMAN, Petitioner, v. J. Leland CASSELES, Warden, Sing Sing Prison, Ossining, N. Y., Respondent.
• Court: U.S. District Court — Southern District of New York

311 F. Supp. 526

UNITED STATES of America ex rel. Thomas H. FOREMAN, Petitioner, v. J. Leland CASSELES, Warden, Sing Sing Prison, Ossining, N. Y., Respondent.

No. 69 Civ. 4606.

United States District Court, S. D. New York.

March 4, 1970.

Thomas H. Foreman, pro se.

Louis J. Lefkowitz, Atty. Gen. of State of New York, by Mortimer Sattler, Asst. Atty. Gen., New York City, for respondent.

MANSFIELD, District Judge.

Petitioner who is incarcerated in Sing Sing Prison, seeks a writ of habeas corpus directing his release on various grounds hereinafter discussed. On April 4, 1962, after a jury trial in Kings County, he was convicted of the crimes of first degree robbery, second degree grand larceny, second degree assault and second degree burglary, and was sentenced, as a second felony offender, to concurrent terms of 30 to 60 years, 10 to 20 years, 5 to 10 years, and 10 to 20 years. On appeal the sentence for first degree robbery was reduced to 15 to 20 years, and that for grand larceny to 5 to 10 years.

Since petitioner has exhausted available state remedies by applying for coram nobis relief, denial of which was affirmed, 30 A.D.2d 918, 293 N.Y.S.2d 496 (1968), we proceed to consideration of the various grounds urged by him.

1. The Incriminating Statements

Petitioner argues that incriminating statements made by him at two different times, separated by some six months, should not have been admitted into evidence at his trial. He has twice previously attempted-unsuccessfully-to exclude them on grounds other than those he now advances. At his trial he contended that he had not made the statements. The jury's verdict indicates that it rejected this contention. He also argued that the statements, assuming that he had made them, had not been voluntarily given. The same judge (Leibowitz, J.) who had presided at his trial ruled against Foreman after a Huntley hearing on this question.

Foreman now makes two additional arguments. First, he suggests that the statements should have been excluded because the police did not give him the Miranda warnings. Since his arrest and trial occurred before the date set by the Supreme Court for the application of Miranda, this claim fails. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966).

He also resorts to one of the lyrically named doctrines in the legal lexicon, the "fruit of the poisonous tree," Wong Sun v. United States, 371 U.S. 471, 484-488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), contending that since there was not probable cause to arrest without a warrant his arrest constitutes the poisonous tree from which grew his statements to the police. Since an arrest without probable cause violates the Fourth Amendment, Henry v. United States, 361 U.S. 98, 100-101, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Giordenello v. United States, 357 U.S. 480, 485-486, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), it can serve as the poisonous tree, barring use of resulting fruits, including statements as well as physical evidence. Wong Sun, supra 371 U.S. at 485, 83 S. Ct. 407; Collins v. Beto, 348 F.2d 823, 828 (5th Cir. 1965). Although the nature of the authority exercised by the Supreme Court in Wong Sun is not completely clear,¹ its remand of various cases to state courts for reconsideration in the light of Wong Sun indicates that the decision was intended to apply to the states. See, e. g., Traub v. Connecticut, 374 U.S. 493, 83 S.Ct. 1899, 10 L.Ed.2d 1048 (1963); Ker v. California, 374 U. S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963).

However, the constitutionality of a warrantless arrest by state officials is controlled by state law, in the absence of a federal statute defining the requirements.² United States v. Di Re, 332 U.S. 581, 589-590, 68 S.Ct. 222, 92 L.Ed.2d 210 (1947); United States v. Perez, 242 F.2d 867, 869 (2d Cir. 1957). The applicable New York State law, Code of Crim. Proc. § 177, provides that "A peace officer may, without a warrant, arrest a person * * *. (3) When a felony has in fact been committed, and he has reasonable cause for believing the person to be arrested to have committed it."

"Reasonable cause" within the New York statute is the same as the federal "probable cause" standard, People v. Lombardi, 18 App.Div.2d 177, 239 N.Y.S.2d 161, aff'd, 13 N.Y.2d 1014, 245 N.Y.S.2d 595, 195 N.E.2d 306 (1963), and is satisfied if the arresting officer is motivated by grounds which would constitute such cause to a reasonable, cautious and prudent police officer. People v. Valentine, 17 N.Y.2d 128, 269 N.Y.S.2d 111, 216 N.E.2d 321, remittitur amended, 17 N.Y.2d 869, 271 N.Y.S.2d 299, 218 N.E.2d 335 (1966); People v. Santiago, 13 N.Y.2d 326, 247 N.Y.S.2d 473, 196 N.E.2d 881 (1964).

The record discloses that the police had reasonable or probable cause to arrest petitioner, regardless of when the arrest occurred. Mrs. Pearl Hampton, the victim and complainant, was the superintendent of an apartment building. She collected the rents. The tenants frequently paid by endorsing their pay checks and she would give them the difference between the rent owed and the amount of the check. The owner of the building always gave her cash with which to do this.

On February 3, 1961, a rent-collection day, while Mrs. Hampton was in her apartment with her children and her sister, three men, each of whom wore hose as a mask, entered the room and robbed her. Mrs. Hampton could see the face, and particularly the goatee, of one of the men whose covering was torn in several places. She identified him as Foreman whom she knew and had seen as frequently as once a day for some time preceding the commission of the crime. (Tr. 11, 12, 65)

On the basis of this information, the police visited Foreman, who did have a goatee, at his apartment on February 6, 1961. He voluntarily agreed to accompany them to the police station. An officer who had not taken petitioner to the police station questioned him for some 20 minutes about 1:30 P.M. (Coram Nobis Record ("CNR") 33) Petitioner made the first incriminating statements during this conversation.

Following this interrogation, Foreman was placed in a "cage" or locked room. Mrs. Hampton identified him sometime between 6:00 and 8:00 P.M. (Tr. 43, 47) She also identified him after his apprehension on August 22, 1961. (CNR 59) Her sister never identified petitioner (although it is unclear whether she ever attempted to do so), apparently because she was too frightened by the robbery. (Tr. 49) Between 8:00 and 10:00 P.M. Foreman escaped the cage.

The police apparently never directly informed Foreman that he had been arrested. However, there is no doubt but that they considered him under arrest by the completion of the interrogation, because the interrogating officer, in response to a question posed by the judge who presided at the Huntley hearing, acknowledged that he would have shot Foreman had he tried to leave the station house. (CNR 35-36) Such detention was consistent only with arrest. Clewis v. Texas, supra 386 U.S. at 711, n. 7, 87 S.Ct. 1338.

If the arrest be deemed to have occurred upon completion of the questioning, probable cause was supplied by the incriminating statements. If the arrest preceded the questioning, the identification by Mrs. Hampton was sufficient. Questions concerning the reliability of an identification of a suspect have frequently arisen, especially when an informer gives the information. Compare People v. Verrecchio, 23 N.Y.2d 489, 297 N.Y.S.2d 573, 245 N.E.2d 222 (1969); People v. Corrado, 22 N.Y.2d 308, 292 N.Y.S.2d 648, 239 N.E.2d 526 (1968); People v. Horowitz, 21 N.Y.2d 55, 286 N.Y.S.2d 473, 233 N.E.2d 453 (1967) (informer's information did not furnish probable cause) with People v. Coffey, 12 N.Y.2d 443, 240 N.Y.S.2d 721, 191 N.E.2d 263, remittitur amended, 13 N. Y.2d 726, 241 N.Y.S.2d 856, 191 N.E.2d 910 (1963), cert. denied, 376 U.S. 916, 84 S.Ct. 671, 11 L.Ed.2d 612 (1964) (informer's information furnished probable cause); see also Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L. Ed.2d 327 (1959). When the victim or eye-witness provides the description and/or identification, on the other hand, the concern for reliability is considerably less. See e. g., People v. Feldt, 26 A.D.2d 743, 272 N.Y.S.2d 223, (1966), aff'd, 22 N.Y.2d 839, 293 N.Y.S.2d 103, 239 N.E.2d 733 (1968); see also Bailey v. United States, 128 U.S.App.D.C. 354, 389 F.2d 305 (D.C.Cir. 1967); Brown v. United States, 125 U.S.App.D.C. 43, 365 F.2d 976 (D.C. Cir. 1966).

Since the arrest was constitutional, whether it preceded or followed the questioning, the statements made by Foreman on February 6, 1961, and after his escape and reapprehension on August 22, 1961, could not be rejected on the ground that they were fruits of a poisonous tree.

2. The Identification

Foreman contends that Mrs. Hampton's identification of him as one of the robbers at the police station on February 6, 1961, was unconstitutionally suggestive.

Sometime between 6:00 and 8:00 P. M., Mrs. Hampton identified Foreman in the office of the investigating detective. Also present were a cousin and an aunt of Foreman. (Tr. 47) There is no indication from the records of either the trial or Huntley hearing as to the way in which the detective characterized Foreman, or presented him to Mrs. Hampton for inspection.

The constitutionality of various methods of identification has posed serious questions. Police practices, especially that of showing the suspect singly, as occurred in this case, have been severely criticized. See the parade of articles cited in United States v. Wade, 388 U.S. 218, 228, n. 6, 229, n. 7, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Because the Supreme Court did not apply Wade retroactively, Foreman is restricted to a due process challenge to his identification.

Even though Wade was not applied retroactively, the policy announced in that case by the Supreme Court and the criticism leveled at police methods suggest that a pre-Wade lineup should be...