United States v. Carney

• Decision Date: 21 May 1971
• Docket Number: Crim. A. No. 2082.
• Citation: 328 F. Supp. 948
• Parties: UNITED STATES of America, Plaintiff, v. Charles Patrick CARNEY et al., Defendants.
• Court: U.S. District Court — District of Delaware

328 F. Supp. 948

UNITED STATES of America, Plaintiff, v. Charles Patrick CARNEY et al., Defendants.

Crim. A. No. 2082.

United States District Court, D. Delaware.

May 21, 1971.

F. L. Peter Stone, U. S. Atty., Richard D. Levin, Asst. U. S. Atty., Wilmington, Del., for plaintiff.

Edward Z. Sobocinski, Wilmington, Del., for defendant Carney.

Oliver V. Suddard, Wilmington, Del., for defendant Sturm.

Frank O'Donnell, O'Donnell, Hughes & Lowicki, Wilmington, Del., for defendant Blandford.

C. Waggaman Berl, Jr., Booker, Leshem, Green, Shaffer, Berl & Wise, Wilmington, Del., for defendant Mahon.

OPINION

STAPLETON, District Judge.

This matter is currently before me on motions by defendants Carney and Mahon to suppress certain evidence which they claim has been obtained in violation of their constitutional rights. From the lengthy and often conflicting testimony I find the following facts.

FINDINGS OF FACT

On Friday, November 6, 1970, Special Agent Lundgren of the FBI interviewed James D. Weiss, the security officer of the Farmers Bank of the State of Delaware. Weiss advised him (1) that a checking account had been opened with his bank in the name of Clinton C. Frank, (2) that on November 6, 1970, a white male, identifying himself as Clinton C. Frank and accompanied by a white female, had deposited two checks in that account, (3) that both checks were drawn on the account of a Pennsylvania based corporation (American Financial Management Corp.) in a Pennsylvania bank (Fidelity Bank) to the order of Clinton C. Frank, (4) that both were produced by use of a checkwriting machine and (5) that he (Weiss) had called the corporation on which the checks were drawn and had been informed that they were part of a group of checks that had been stolen from the firm in a burglary. Weiss gave Agent Lundgren a description of both the white male and the white female. An arrest warrant for Clinton C. Frank on a charge of interstate transportation of stolen checks was then obtained.

During the evening of November 6, 1970, Lundgren received a telephone call from Weiss. Weiss advised him that the same individual, identifying himself as Clinton C. Frank, had attempted to cash a check on the Farmers Bank account and that, because the bank's staff recognized him from the previous occasion, a teller had been sent out of the bank and had observed the man and woman get into a black Mercury with a Pennsylvania license plate. The teller was also able to get the license number of this car. As a result of Weiss' telephone call, the FBI called motels in the Wilmington and Newark area requesting that the FBI be notified if persons fitting the description given and/or this automobile appeared. The FBI ascertained from the National Crime Information Center that a Mercury with the license number obtained by the teller had been stolen from Philadelphia.

Sometime prior to 8:00 A.M. on Saturday, November 7, 1970, Mr. Hickey, the manager of the Holiday Inn Motel in Newark called the Baltimore office of the FBI and reported that the two individuals fitting the descriptions and driving a Mercury with the same Pennsylvania license number had registered in his motel under the name of T. T. Cromley. The Baltimore office relayed this information to Agent Snyder at his home in Wilmington at approximately 8:00 A.M. on November 7, 1970, and Snyder called Hickey directly. Hickey further advised Snyder that the white male, after registering, had called from his room and said there was an associate of his at the motel who wanted a room. An individual then came over and, after identifying himself as Clinton C. Frank, registered in a room on the second floor.

The FBI set up surveillance at the motel at approximately 10:00 A.M. Upon arriving they were advised that the white male and white female, later identified as defendants Carney and Sturm, were registered in Room 147 and the other male, later identified as defendant Mahon, was registered in Room 249 on the second floor.

Agents Lundgren and Snyder occupied Room 145 immediately adjacent to Room 147. Agent Wedge stayed in the motel office and was in contact with Snyder and Lundgren by phone. Other agents were posted around the motel. Mahon ordered breakfast and it was taken to him by Agent Hyden, who acted as though he were a motel employee.

A white Volkswagen automobile arrived and a person, later identified as defendant Blandford, emerged and entered Room 147. The FBI immediately determined through the National Crime Information Center that this Volkswagen was reported stolen in Philadelphia on November 2. Shortly thereafter, defendant Mahon arrived at the door to Room 147 and was admitted. While Agents Snyder and Lundgren could not from their vantage point see from where this caller came, they were informed by another agent on the telephone that it was the man registered in Room 249 as Clinton C. Frank.

Shortly thereafter Blandford and Mahon left Room 147, went to the Volkswagen and removed a cardboard box which, in the opinion of the agents, was the size of a box that might contain a checkwriter. This box was placed on the hood of the Mercury outside Room 147. Blandford then drove away in the Volkswagen.

Mahon then briefly re-entered Room 147 and, upon emerging, transferred the cardboard box from the hood of the Mercury to the back of a blue Oldsmobile which had been parked nearby during the entire period of the surveillance. Mahon covered the box with clothing and then drove around towards the office of the motel. Lundgren and Snyder called Wedge and Wedge directed the other agents who were present to stop and apprehend Mahon on the arrest warrant for interstate transportation of stolen checks. Mahon was so arrested.

A few minutes later, Carney and Sturm emerged from Room 147. Carney was carrying a gray attache case. He approached the Mercury and unlocked the driver's door. Sturm went to the passenger's side. At that point, Agents Lundgren, Snyder and Leonard emerged and arrested them for interstate transportation of a stolen motor vehicle. Carney threw the keys and attache case in the car. Agent Lundgren took custody of Carney. Agent Snyder took custody of Sturm and put her handbag on the hood of the car on the passenger's side. Sturm was taken around to the driver's side of the vehicle by Agent Snyder and she and Carney were placed side by side. Agent Snyder advised them orally of their rights. There was a body search of Carney to determine if he had any guns or weapons on him. Agent Snyder picked the attache case and car keys up from the floor of the car and placed them on the hood of the car on the driver's side. Sturm then moved back around to the passenger's side of the vehicle. She grabbed her purse and pulled out a piece of paper. When ordered to hand the paper over she refused and proceeded to tear it up. Snyder attempted to obtain the piece of paper from her and there was a scuffle in which Snyder was struck by Sturm.

Shortly thereafter, Sturm fell to the ground and had some kind of "fit." An ambulance was called for her and Lundgren and Snyder waited with Carney and Sturm for the ambulance and for Sgt. Leonard who had left immediately after the arrest to secure transportation back to the FBI office.

Agent Snyder instructed Agents Leonard and Lundgren immediately after the arrest not to open the attache case, that he had seized it as evidence, and that they would obtain a search warrant. He thereafter instructed other law enforcement officers who came to the scene not to open the case. Agent Snyder took the case with him from the motel to the FBI office where he locked it in a file cabinet.

The arrest of Carney and Sturm took place at 12:20 P.M. The agents arrived back at the FBI office with Carney, Sturm and Mahon at 1:15 P.M. Agent Snyder recorded this time and the other times hereafter referred to in a log book on November 7, 1970. These three defendants were taken to the FBI office in order to process them (i. e. photographing, fingerprinting and getting descriptive information from them) and then "if time permitted" to interview them.

Upon arrival Snyder advised Carney of his constitutional rights. He gave Carney a waiver form to sign and Carney read it. He refused to sign, however. Snyder asked him whether he understood his rights and Carney replied in the affirmative. Snyder then asked him whether he had any objection to answering questions and Carney replied that he did not. Snyder then proceeded to get background and description information. This was concluded at approximately 1:30. From 1:30 to 2:55 P.M. Snyder interviewed Carney.

Shortly after they reached the FBI office, Carney inquired as to what would be done with the attache case and Snyder said that it would be maintained in his custody until a search warrant was obtained. Carney said "What the hell for, you already looked in it?" Snyder immediately responded that he had not looked in it and Carney said, "No, you didn't, but one of those other guys did." Snyder then asked him to identify whom he was talking about, either by name or general description. Carney was unable to supply either a name or even a general description.

When Snyder first started talking to Carney, Carney said that it would save Snyder a lot of time if he would call an Agent York in the Philadelphia office of the FBI, whom Carney had worked with in the past and who would "explain everything". Agent Snyder called Philadelphia but Agent York was not in the office. One of the other Philadelphia agents finally reached York, called back, and said that there was no foundation for what Carney had said. Agent Snyder relayed this information to Carney and he responded cooperatively thereafter. He answered all of the questions asked, although he gave several different accounts which he changed later in the course of the interview. During the interview, Carney admitted that he had opened the account in the name of Clinton C. Frank and that he had hired...