United States v. Berkowitz

• Decision Date: 10 July 1970
• Docket Number: No. 7587.,7587.
• Citation: 429 F.2d 921
• Parties: UNITED STATES of America, Appellee, v. Samuel BERKOWITZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

429 F.2d 921 (1970)

UNITED STATES of America, Appellee, v. Samuel BERKOWITZ, Defendant, Appellant.

No. 7587.

United States Court of Appeals, First Circuit.

July 10, 1970.

COPYRIGHT MATERIAL OMITTED

Sheldon Newman, Chelsea, Mass., with whom Leader & Newman, Chelsea, Mass., was on brief, for appellant.

James B. Krasnoo, Asst. U. S. Atty., with whom Herbert F. Travers, Jr., U. S. Atty., was on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

McENTEE, Circuit Judge.

Appellant, the proprietor of the Apollo Shoe Store in Chelsea, Massachusetts, was indicted and convicted of possession of goods of a value in excess of $100 stolen in interstate commerce, knowing them to have been stolen.¹ He was sentenced to imprisonment for two years and fined $2,000. The goods involved were eight cartons of slippers under consignment from Phoenix Slipper Company in Secaucus, New Jersey to the W. T. Grant Store in Stoneham, Massachusetts. The carrier from which the slippers were taken was the Hemingway Trucking Company. Appellant attacks his conviction on the grounds that the eight cartons of slippers, which were admitted as evidence against him, should have been suppressed, that an invoice used to establish the value of the goods was inadmissible, and that his motions for acquittal and new trial were improperly denied.

On the morning of May 21, Henry Alfonso, Hemingway's terminal manager, notified the Federal Bureau of Investigation that he had reason to believe that a shipment of goods would be stolen. The truck carrying the slippers was placed under surveillance by two teams of FBI agents. During the surveillance, which lasted from 9:35 to 10:50 in the morning, the driver of the truck carrying the slippers was seen talking to the driver of a blue station wagon while making an unscheduled stop. At this time the station wagon was empty. For a fifteen minute period, contact was broken. When the surveillance of the station wagon was resumed the agents observed that it was loaded with cartons. They could also see the Hemingway truck further down the same street.

Agents Collins and O'Malley followed the station wagon to the Apollo Shoe Store. There they observed the driver bringing the cartons into the store. Collins and O'Malley entered the store about 10:50 a.m. without a warrant and inquired for the owner. The appellant came forward to meet them. They introduced themselves as FBI agents and Collins asked where the cartons were that had just been delivered. At the same time O'Malley noticed some cartons to the rear of the store and read the name "Phoenix Slipper Company" on at least one of them. In response to Collins' query, appellant said "over there" and pointed to where the cartons were located.

In response to questions put by the agents, appellant said that he did not know the driver of the blue station wagon but he could describe him and that he would be returning; that he hadn't paid anything for the cartons; and that if the goods were stolen, he didn't want anything to do with them. At about this time, appellant was advised that the agents were seizing the cartons and their contents and agent O'Malley instructed the appellant as to his Miranda rights.

At 11:15, without being asked, appellant closed his shop to the public. Between 11 and 3:30, however, he was free to move at will. He made telephone calls, went to the basement, to the bathroom, and several times left the store and returned. An employee, Bazylewicz, was also allowed to come and go during the day. At 11:40 the man who had driven the station wagon returned to the shoe store in a different vehicle, a black Chevrolet. As he approached the store agent O'Malley went to the door. The man looked at both O'Malley and the appellant, said something like "oh, nothing today" and left. Appellant made a hand motion, waving him off, as he had done with other customers. He did not identify this man although O'Malley recognized him as the same one who had delivered the cartons.

Between 3:15 and 3:30 another FBI agent entered the store and placed appellant under arrest. Shortly before, the FBI had learned that there were more stolen cartons in the black Chevrolet. Between 3:30 and 4 the FBI removed the eight cartons from the store.

In denying appellant's pretrial motion to suppress, the district court held that the seizure of the goods did not take place until the cartons were removed and thus was incident to a lawful arrest. With this conclusion we cannot agree. When agent Collins was asked at what time he took possession of the cartons he replied, "at approximately 11 o'clock * * * we advised Mr. Berkowitz that we were seizing the cartons." The record shows that he so informed the appellant at least twice. No one was permitted to touch the cartons and an agent was posted nearby to guard them. Furthermore, the agents testified that the reason the cartons were not removed before 3:30 p.m. was that they did not have enough manpower to do so. Unmistakably, the FBI exercised complete dominion over the goods by 11 a.m. Moreover, physical removal of the cartons is not the test.

Although we do not agree with the reasoning employed by the district court, we reach the same result by a different route. In the first place, when the agents entered the store, the cartons they had reason to believe had been stolen were in plain view. Agent O'Malley was able to make out the words "Phoenix Slipper Company" even before appellant pointed toward the boxes. See United States v. Thomas, 396 F.2d 310 (2nd Cir. 1968). We think it settled that:

"mere observation does not constitute a `search\'. If an officer sees the fruits of crime — or what he has good reason to believe to be the fruits of crime — lying freely exposed on a suspect\'s property, he is not required to look the other way, or disregard the evidence his senses bring him." Ellison v. United States, 93 U.S.App.D.C. 1, 206 F.2d 476, 478 (1953).

We so held in Robbins v. MacKenzie, 364 F.2d 45, 47 (1st Cir.), cert. denied, 385 U.S. 913, 87 S.Ct. 215, 17 L.Ed.2d 140 (1966) and Fagundes v. United States, 340 F.2d 673, 676 (1st Cir. 1965).

Appellant contends that the agents were on his property without legal justification because their reason for being there was not related to his trade. He argues that since their entrance was a trespass ab initio, whatever transpired afterwards was tainted. We do not agree. A commercial establishment when open to the public is open for all legitimate purposes. It was not illegal to walk in with the intention of looking around. Such a rule in no way offends the traditional notions regarding the right of the individual to be secure against unwarranted governmental intrusion.

Appellant also seeks to attach legal significance to the fact that the agents were halfway into the store before they saw the cartons. But once the agents were on the premises, in a place where they had a right to be, it is immaterial where they stood as long as the cartons were not concealed from view.

The question remains whether the evidence should have been suppressed as the product of an unreasonable seizure within the contemplation of the Fourth Amendment. Appellant argues that a warrant should have been obtained before the cartons were seized. When the agents entered appellant's place of business they had no cause to believe that he was involved in the theft. Their purpose was to ascertain whether the cartons delivered to the store were the same ones that had disappeared from the Hemingway truck. Appellant denied any involvement, appeared to cooperate with the agents, offered to identify the man who delivered the shoes upon his return and testify against him in court. When told by the agents that they believed the shoes were stolen, he said, "well, I don't want any part of any hot shoes, any stolen shoes."

The protections guaranteed by the Fourth Amendment are not absolute; they may be waived. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Zap v. United States, 328 U.S. 624, 628, 66 S. Ct. 1277, 90 L.Ed. 1477 (1946), vacated on other grounds, 330 U.S. 800, 67 S.Ct. 857, 91 L.Ed. 1259 (1947). Where consent is given, courts must go beyond appearances and inquire whether the consent was a "voluntary, intentional and understood waiver of a known right, or, on the contrary, was the product of deceit, duress and coercion, actual or implicit." United States v. Curiale, 414 F.2d 744, 746 (2d Cir. 1969). Each case must be viewed on its own facts and in its own context. Higgins v. United States, 93 U.S.App.D.C. 340, 209 F.2d 819, 820 (1954); United States v. Lewis, 274 F.Supp. 184, 188 (S.D.N.Y.1967). And factual distinctions such as whether the defendant was under arrest, Judd v. United States, 89 U.S.App.D.C. 64, 190 F.2d 649, 651 (1951); whether he was physically restrained, United States v. McCunn, 40 F.2d 295 (S.D.N.Y.1930); and where the seizure occurred, Trujillo v. United States, 294 F.2d 583 (10th Cir. 1961), are of great importance.

The facts that distinguish this case from a host of others are that the seizure of the cartons took place long before any arrest was made and at a time when the appellant gave every appearance of cooperating with the authorities. His repeated assurance that if the cartons were stolen he wanted no part of them was a clear abandonment of any claim to the goods. This being the case, no warrant was needed to validate the seizure.

Nor do the circumstances concerning appellant's arrest show any overreaching on the part of the authorities. There is nothing to indicate that the agents coerced the appellant to allow them to remain on the premises. He volunteered the information that the person who delivered the shoes was expected to return. It was therefore reasonable for them to remain. He was not asked to close the store but did so of his own volition. Furthermore, he was allowed to move about freely and to leave the store...