United States ex rel. Saunders v. Ziegler, Civ. A. No. 70-2374.

CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
Citation319 F. Supp. 492
Docket NumberCiv. A. No. 70-2374.
PartiesUNITED STATES of America ex rel. Frank SAUNDERS v. John T. ZIEGLER, Superintendent of Broadmeadows Prison, Delaware County, Pennsylvania.
Decision Date25 November 1970


Carmen P. Belefonte, Kassab, Cherry, Curran & Archbold, Chester, Pa., for petitioner.

Stephen J. McEwen, Jr., Dist. Atty., Delaware County, by Ralph B. D'Iorio, Asst. Dist. Atty., Media, Pa., for respondent.


LUONGO, District Judge.

In this petition for writ of habeas corpus, Frank Saunders seeks to have declared invalid his state conviction for "Lottery" and "Traffic in Lottery Tickets". The complete state record is before the court. Counsel for the parties have agreed that the state court record contains all the evidence relevant to the issues in dispute and that no evidentiary hearing is required in this court.

Relator claims that he is entitled to release on several grounds: (1) the conviction was based on evidence seized during an unlawful search of his person in violation of his Fourth Amendment rights; (2) testimony by a prosecution witness to the effect that Saunders refused to answer a question by police as to possession of certain alleged lottery slips deprived Saunders of his Fifth Amendment rights; (3) the trial court's refusal to compel disclosure of the identity of a confidential informer violated relator's Sixth Amendment right to confront witnesses; and (4) the trial court commented, in violation of relator's Fifth Amendment rights, on relator's decision not to testify on his own behalf and not to offer evidence in his own defense.

(1) Arrest.

Relator was arrested and searched in the early afternoon of October 10, 1968 pursuant to an arrest warrant issued by a magistrate in Chester, Pennsylvania. The police officers who conducted the search found lottery slips and a good deal of cash on relator's person. Prior to the actual arrest Saunders had attempted to flee from the police. During the flight the police observed Saunders throw out of the window of his automobile other lottery slips which the police retrieved. Both the evidence seized from Saunders' person and the lottery slips thrown out of the window of the car during flight were admitted in evidence at trial after the trial judge had refused to suppress the evidence after a pre-trial suppression hearing.

It is relator's contention that the arrest and the search of his person which accompanied it was unlawful because the arrest warrant was invalid.1

After a full hearing on the motion to suppress, the trial court concluded that the following facts had been presented to the issuing magistrate, either by affidavit or sworn testimony,2 at the time the arrest warrant was issued:

In early September, 1968, state and local police received information from a confidential informer that a numbers bank was being operated at 814 East Seventh Street, Chester, Pennsylvania. The informer advised the police that the pick-up man would be driving a red Mustang and described in detail the time and the route of his stops. On September 6, 1968, experienced officers of the State Police vice squad began a surveillance of the operator of the red Mustang (later identified as relator) and followed him on the route previously described by the informer. On that same day, the police observed a person at one of the stops handing Saunders pieces or slips of paper.3

The police conducted a surveillance of relator's activities on nine separate occasions. On each occasion relator began his route at 1:30 P.M., made stops at the same taprooms, and concluded the tour at 2:00 P.M. at 814 East Seventh Street. The police knew from their vice squad experience that this was the usual time for a pick-up man to make his rounds because horse races (upon which the numbers game is based) begin at 2:00 P.M.

At the suppression hearing, further evidence was presented to the trial judge as to the circumstances surrounding relator's arrest and the subsequent search and seizure. The police initially attempted to arrest Saunders by pulling their unmarked car out in front of his car as he was picking up slips. The police identified themselves, but Saunders fled the scene in his automobile, the police in hot pursuit. A few blocks later, as Saunders was slowing his vehicle to a halt, he threw small slips of paper out of the window. When he stopped, the police arrested him. After retrieving the slips of paper, which were identified as lottery or numbers slips, the police proceeded to search Saunders and found more lottery slips and a large amount of cash on his person.

The trial judge concluded that the evidence presented to the issuing magistrate was sufficient basis for issuance of the warrant, that the arrest and search and seizure were lawful, and that the evidence thus seized was properly admissible.

In order for a valid arrest warrant to issue, there must be presented to the judicial officer sufficient facts from which he may independently conclude that probable cause exists. Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). Probable cause exists when sufficient facts have been established to warrant a man of reasonable caution with reasonably trustworthy information in believing that an offense had been committed and that the accused had committed that offense. See Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

Where a warrant is based on information received from an informer, the police must establish that the informer was reliable and that the manner in which the informer obtained his information was reliable. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The credibility of the informer and the reliability of his information may be established by corroborating external circumstances. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Costello v. United States, 324 F.2d 260 (9th Cir. 1963), cert. denied, 376 U.S. 930, 84 S. Ct. 699, 11 L.Ed.2d 650 (1964); United States ex rel. Altizer v. Mazurkiewicz, Civil Action No. 70-777 (E.D.Pa., filed June 8, 1970); United States v. Altizer, 308 F.Supp. 376 (E.D.Pa.1970).

In the instant case, the informer's credibility and the reliability of his information were sufficiently established by the police at the time the warrant was issued. The police affidavit indicated (although without detail) that the informer had previously supplied information which had led to a number of convictions, but more importantly, police surveillance of Saunders' activities had corroborated the informer's information as to the route, the time of day the route was travelled, and to the type of automobile used. From what the police had themselves observed it was obvious that the information supplied by the informer was based on personal observation and was more than a rumor of general circulation in the underworld. See Spinelli v. United States, supra.

From all the information presented to him, the magistrate could reasonably conclude that an offense had been committed and that Saunders had committed it. There was probable cause for the issuance of the arrest warrant. Toohey v. United States, 404 F.2d 907 (9th Cir.1968); Churder v. United States, 387 F.2d 825 (8th Cir.1968) (Opinion by Blackmun, J.); United States v. Pitt, 382 F.2d 322 (4th Cir. 1967). The arrest warrant was validly issued and the search of Saunders' person made contemporaneously therewith was valid, and the evidence thus seized was properly admissible. See Nunez v. United States, 370 F.2d 538 (5th Cir. 1967); United States ex rel. Jenkins v. Bookbinder, 291 F.Supp. 87 (E.D.Pa. 1968); United States ex rel. Dessus v. Commonwealth of Pennsylvania, 316 F. Supp. 411 (E.D.Pa.1970).

(2) Testimony as to Pre-Trial Refusal to Answer Questions.

During the prosecuting attorney's examination of one of the police officers who had participated in relator's arrest, the following occurred:

"Q. And Commonwealth's Exhibit C-5, sir, can you tell me what that is?
A. This is one of the pieces of paper that was thrown out of the car by Mr. Saunders.
Q. And you saw him throw them out of the car?
A. Definitely, yes.
Q. And did you see where they had landed when they were thrown out of the car?
A. Yes, I did.
Q. And is that the point where you picked them up?
A. Yes, it was.
Q. And after you picked these up, Trooper Newcomb, what did you do with them?
A. I brought them back, showed them to Mr. Saunders, and asked him if these were his, and he said he didn't have anything to say." (Emphasis added) (N.T. 62-63).

Saunders now alleges that this testimony violated his constitutional rights in that it improperly brought to the attention of the jury that he had invoked his right to remain silent, or alternatively that his remaining silent might have been regarded by the jury as a tacit admission.

The prosecution may not use at trial the fact that an accused stood mute or exercised his privilege to remain silent in the face of accusation. See Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); United States v. Dolleris, 408 F.2d 918 (6th Cir.), cert. denied, 395 U. S. 943, 89 S.Ct. 2014, 23 L.Ed.2d 461 (1969); United States ex rel. Smith v. Brierly, 267 F.Supp. 274 (E.D.Pa.) aff'd, 384 F.2d 992 (3rd Cir. 1967); Commonwealth v. Dravecz, 424 Pa. 582, 227 A.2d 904 (1967). But see Osborne v. United States, 371 F.2d 913 (9th Cir.), cert. denied, 387 U.S. 946, 87 S.Ct. 2082, 18 L.Ed.2d 1335, reh. denied, 389 U.S. 891, 88 S.Ct. 23, 19 L.Ed.2d 207 (1967). In the instant case, the prosecution did not deliberately elicit this testimony. A careful examination of the transcript indicates that the prosecuting attorney was seeking only to identify and to establish proper police...

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5 cases
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    • United States
    • United States State Supreme Court of Pennsylvania
    • January 19, 1973
    ...232 (3d Cir. 1971); United States ex rel. Broaddus v. Rundle, 429 F.2d 791 (3d Cir. 1970); United States ex rel. Saunders v. Ziegler, 319 F.Supp. 492 (E.D.Pa.1970). Other federal circuits would agree as well. See, e.g., Bowman v. Wainwright, 460 F.2d 1298 (5th Cir. 1972); Fields v. Swenson,......
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