United States v. Cangelose

• Decision Date: 12 June 1964
• Docket Number: Crim. No. 64-Cr-3002.
• Citation: 230 F. Supp. 544
• Parties: UNITED STATES of America, Plaintiff, v. Louis CANGELOSE, also known as Louis Mallo, Louie Zicarelli, and Dominic J. Cervello, Defendants.
• Court: U.S. District Court — Northern District of Iowa

230 F. Supp. 544

UNITED STATES of America, Plaintiff, v. Louis CANGELOSE, also known as Louis Mallo, Louie Zicarelli, and Dominic J. Cervello, Defendants.

Crim. No. 64-Cr-3002.

United States District Court N. D. Iowa, W. D.

June 12, 1964.

Donald E. O'Brien, U. S. Atty., Sioux City, Iowa, for plaintiff.

James L. Williams, Kansas City, Mo., Frank J. Margolin, Sioux City, Iowa, James P. Quinn, Kansas City, Mo., Warren R. Stienstra, Sioux City, Iowa, for defendants.

HANSON, District Judge.

This is a ruling on a motion to suppress certain evidence. The petitioners were in South Dakota hunting pheasants near Brookings. Louis Cangelose is well known to the Government agents and is under constant surveillance. This is not true of Louie Zicarelli and Dominic J. Cervello. When Cangelose and his two companions left Kansas City they were followed to Brookings, South Dakota. Other agents were notified who then came to South Dakota. A possibility of catching Cangelose in a violation of Title 15, Section 902(e) was contemplated. This section states in part that: "It shall be unlawful for any person * * * who has been convicted of a crime punishable by imprisonment for a term exceeding one year * * * transport or cause to be shipped or transported in interstate or foreign commerce any firearm or ammunition."

The petitioners were kept under surveillance while at Brookings, South Dakota. When the petitioners checked out of their motel at Brookings at the conclusion of their hunting trip, they were watched by officers in a car proceeding in front of them and by officers in a car following them until petitioners crossed into Iowa. At that time, they were stopped, arrested, and searched. It does appear that in the heavy traffic around Sioux Falls, South Dakota, the officers lost track of the petitioners for some time but relocated them again on U. S. Highway No. 29 going south. The officers were in constant radio communication with each other and sheriffs' offices in the vicinity. Brookings is about 140 to 150 miles mostly north of Sioux City, Iowa, where the petitioners were stopped.

The officers who searched and arrested the petitioners had neither arrest nor search warrants.

Louis Cangelose was indicted under Section 902(e). Louie Zicarelli was indicted under Section 902(e), Title 15, and Section 2, Title 18. Dominic J. Cervello was indicted under Section 902(g).

The automobile in which the petitioners were riding was being operated by Cervello. It was owned by Cangelose's wife. At the time the petitioners were stopped and searched at Sioux City, this car was searched and six shotguns were found. The petitioners prayed that all property seized through the search be returned, that all information, memoranda, data, evidence, and exhibits obtained through or by reason of the search and seizure be suppressed, and that the United States District Attorney and agents be prohibited from offering any such evidence at the trial.

The question here is whether under all the circumstances the search and seizure was reasonable or unreasonable. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777; Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856. Since Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, searches without a warrant have been justified by being incident to a lawful arrest. There need not be a warrant for arrest if the arrest is otherwise lawful. Ker v. California, 374 U.S. 23, 41, 83 S.Ct. 1623, 10 L.Ed.2d 726. The question as to whether the arrest must precede the search to make the search incidental and reasonable was raised and left unanswered in Ker v. California, supra, 374 U.S. p. 43, 83 S.Ct. 1623. The answer to this question is important in this case.

Mr. Piper, one of the Government agents, testified in part on direct examination as follows:

"Q Continue to tell the Commissioner what you observed after the gentlemen got to Brookings?

"A They loaded all their belongings including the four shotguns and cases into the Pontiac and they went to the Brookings Cafe and they had breakfast, I assume. We kept the car under surveillance. I then followed the car south out of Brookings, South Dakota on U.S. 77 through Sioux Falls to Interstate 29; and about four miles north of the Iowa State line I passed the vehicle, proceeded south to a road block which was set up approximately one half mile south of the South Dakota State line in Iowa where I stopped the vehicle.

"MR. QUINN: Excuse me for interrupting.

(Off the record discussion.)

"THE COMMISSIONER: For the record it is stipulated between counsel that these matters will be consolidated.

"MR. QUINN: Or —

"THE COMMISSIONER: Heard at the same time, pardon me.

"MR. GOLDBLATT: Yes.

"THE COMMISSIONER: And that the testimony so far given by Mr. Piper insofar as it in any way affects the other parties will be testimony as to that.

"Q I believe you were testifying as to having arrived at the road block, Mr. Piper. Before you continue on that line I would like to ask you to go back now because of the recent stipulation and look around this room to see if you can identify the other two men you were referring to?

"A Mr. Cangelose's associates were Dominic Cervello and Louie Zicarelli.

"Q And where in the room is Dominic Cervello?

"A Mr. Cervello is sitting next to Mr. Goldblatt on my left, and Mr. Zicarelli is to my immediate rear.

"Q Sitting on the right of Mr. Cangelose?

"A That's correct.

"Q And when you referred in your prior testimony to the companions of Mr. Cangelose, you were at all times referring to the two gentlemen you have just identified?

"A That's correct. Yes.

MR. McNALLY: Let the record show that the witness has identified Mr. Dominic Cervello and Mr. Louie Zicarelli.

"Q Will you tell the Commissioner what you did after you arrived at the road block in Iowa, Mr. Piper?

"A After I passed the car and arrived at the road block, I observed the car cross the South Dakota state line and proceed toward us at the road block. The car was waved to the side and I immediately went to the right front door of the vehicle and requested Mr. Cangelose to get out of the car which he did. I identified myself as a federal agent and told him that he was under arrest for transporting firearms in interstate commerce after having been convicted of a felony.

"Q And when you stopped the car and advised Mr. Cangelose that he was under arrest, were the three occupants of the car the same three men you have identified in this hearing today?

"A Yes, sir.

"Q That you saw in South Dakota?

"A Yes, sir. Mr. Cervello was driving the vehicle and Mr. Zicarelli was in the back seat.

"Q And you observed the 1962 Pontiac which you have previously identified; you observed that automobile cross from South Dakota into the State of Iowa?

"A Yes, sir.

"Q Let me ask you for clarification, Mr. Piper, were the three men arrested before they were searched or after they were searched?

"A No, sir. Mr. Harmon prior to the arrest was searching the vehicle and he had uncovered the double barreled shotgun and the side by side, pulled it out of the case. That's when I told Mr. Cangelose that he was under arrest.

"Q But you had waved the car to a stop prior to anyone entering the vehicle and you had told them that they were being held for firearms violation, is that not true, Mr. Piper?

"A That's correct.

"Q And they were told that they were being held for a firearms violation before anyone entered the vehicle, is that not true?

"A That's — it all happened rather simultaneously. I walked up to Cangelose, he got out of the vehicle. I told him that he was under arrest and Harmon entered the rear door and started the search.

"Q At approximately the same time?

"A Yes. And the other two subjects had been arrested on the other side of the vehicle.

"Q Prior to any search of the vehicle?

"A Yes.

"Q Let me ask you this, Mr. Piper. Who first approached the vehicle?

"A I think everyone at once just walked up.

"Q Let me ask you this. Who first had conversation with any occupant of the vehicle?

"A I believe that was probably my conversation with Mr. Cangelose, getting him out of the vehicle was about the first conversation.

"Q And what was the conversation when Mr. Cangelose got out of the vehicle?

"A I asked him after I advised him that he was under arrest, I asked him which shotgun was his. He said, `None of these shotguns belong to me, they belong to Fatty.' And at that time he said, `I know that I can't transport guns across state lines, that is why I wasn't driving.

"Q Going back just one minute, Mr. Piper, did you have this conversation with Mr. Cangelose before Agent Cronin opened the back of the car?

"A No, sir. They had entered the car at that time.

"Q But you had arrested Mr. Cangelose before any search was made, is that not true?

"A That's correct. Yes."

On cross-examination, Mr. Piper testified as follows:

"Q Now, then, when this automobile approached, who flagged it down?

"A I can't recall who. Someone motioned it into the side.

"Q And did the automobile pull over to the side?

"A Yes, sir.

"Q Was there any resistance of any sort offered by anyone?

"A None whatsoever.

"Q Were you the first one to approach the automobile?

"A We approached the car from both sides, I think more or less simultaneous maneuver.

"Q And when you approached the automobile, you say you think you were the first one to speak?

"A I am not sure of that. I was one of the first.

"Q And to whom did you speak?

"A I asked Mr. Cangelose to get out of the car.

"Q And did he do so?

"A He did.

"Q Did you tell him that he was under arrest at that time?

"A I believe I searched him first.

"Q You told him to step out of the car?

"A Yes.

"Q And, then, you searched him?

"A Yes.

"Q How was he dressed?

"A He had on a pair of slacks and a sweater, cowboy hat. Cowboy type rolled brim.

"Q Did your search of his person reveal any weapons of any nature?

"A No, sir.

"Q Then where were the other two men when you asked Mr.

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