United States v. Caruso

Citation358 F.2d 184
Decision Date06 April 1966
Docket NumberNo. 295,Docket 30097.,295
PartiesUNITED STATES of America, Appellee, v. Ciro Michael CARUSO, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Michael A. Querques, of Querques & Isles, Orange, N. J. (Daniel E. Isles, Orange, N. J., on the brief), for appellant.

Samuel J. Heyman, Asst. U. S. Atty., New Haven, Conn. (Jon O. Newman, U. S. Atty., District of Connecticut, on the brief), for appellee.

Before SMITH, HAYS and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge.

On the morning of April 13, 1965, the appellant at gun point robbed a branch of the Connecticut National Bank in Fairfield, Connecticut of cash in excess of $100. As the alarm rang, he ran from the building, pursued by a bank employee. He was then observed by a Fairfield policeman who, after continuous pursuit, apprehended him a few minutes later on the highway. Caruso was taken to the Fairfield Police Station where for an hour and a half he was questioned by the local police and the F. B. I. He was directed to take off his clothes, which were searched. After Caruso put them on again, he was taken to a state court and arraigned. Following his commitment to the Fairfield State Jail, he was given regular prison garb, and his own clothes were turned over to the F. B. I. for use as evidence.

The appellant now complains that this seizure of his clothing was unlawful and that its use in evidence should have been suppressed. There is no question but that the arrest itself was in all respects lawful, as was Caruso's subsequent detention. The taking of the clothing was incident to the lawful arrest. He and his clothes were constantly in custody from the moment of his arrest, and the inspection of his clothes and the holding of them for use in evidence were, under the circumstances, reasonable and proper. Whalem v. United States, 120 U.S.App.D.C. 331, 346 F.2d 812, 813, cert. denied, 382 U.S. 862, 86 S.Ct. 124, 15 L.Ed.2d 100 (1965); Robinson v. United States, 109 U.S.App.D.C. 22, 283 F.2d 508, 509, cert. denied, 364 U.S. 919, 81 S.Ct. 282, 5 L.Ed.2d 259 (1960); United States v. Guido, 251 F.2d 1, 3-4 (7th Cir.), cert. denied, 356 U.S. 950, 78 S.Ct. 915, 2 L.Ed.2d 843 (1958); Charles v. United States, 278 F.2d 386, 388-389 (9th Cir.), cert. denied, 364 U.S. 831, 81 S.Ct. 46, 5 L.Ed.2d 59 (1960); People v. Chiagles, 237 N.Y. 193, 142 N.E. 583, 32 A.L.R. 676 (1923).

Appellant argues on the basis of Preston v. United States, 376 U.S. 364, 84 S. Ct. 881, 11 L.Ed.2d 777 (1964), that it is the time lapse of about six hours between the moment of arrest and the final taking and holding of his clothes by the F. B. I. which violated his Fourth Amendment Federal Constitutional rights. But this case is distinguishable from Preston because there the question concerned the search of an automobile long after the defendants had been put in jail. Here the clothes were constantly in sight, were taken on the person of the suspect at the time of arrest and were continuously in custody. Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); United States v. Barone, 330 F.2d 543, 544 (2d Cir. 1964), cert. denied, 377 U.S. 1004, 84 S.Ct. 1940, 12 L.Ed.2d 1053 (1964).

The appellant's contention means that the seizure of his clothing could have been made constitutionally only if, immediately on his arrest, he had been stripped to the buff on the public highway. Even though that April 13th may have been a very pleasant spring day, we are of the opinion that the argument is somewhat extreme.

Caruso also appeals from the refusal of the trial judge to strike the testimony of a government witness where it appeared that the witness had previously testified before the Grand Jury but that no minutes of any testimony before the Grand Jury had been made. The trial judge properly denied the motion to strike. Where minutes of the testimony before the Grand Jury have been taken, the defense has the right to have the court inspect and consider them in relation to a witness' testimony at the trial to determine whether or not there are contradictory or inconsistent statements of which the defense may wish to avail itself on cross-examination. United States v. Giampa, 290 F.2d 83 (2d Cir. 1961). But, where as here, no minutes were in fact made, there is no ground for striking the testimony of the witness in the trial itself. The taking of Grand Jury minutes is not mandatory. United States v. Cianchetti, 315 F.2d 584 (2d Cir. 1963).

Another question raised by Caruso on his appeal concerns the portion of the prosecutor's closing argument in which he stated that the defense had just as much right to call one Moniuk to testify as the Government did, adding, "This applies to any other witnesses." He also made the statement that the jury had the right to consider the absence of witnesses but

"* * * you must also consider who has the right to bring him to court and whether they are equally available to both parties.
* * * * * *
* * * defense counsel could have called
...

To continue reading

Request your trial
74 cases
  • United States v. Edwards 8212 88
    • United States
    • U.S. Supreme Court
    • March 26, 1974
    ...the police to have stripped respondent of his clothing and left him exposed in his cell throughout the night. Cf. United States v. Caruso, 358 F.2d 184, at 185—186 (CA2), cert. denied, 385 U.S. 862, 87 S.Ct. 116, 17 L.Ed.2d 88 (1966). When the substitutes were purchased the next morning, th......
  • State v. William
    • United States
    • Kansas Supreme Court
    • March 1, 1991
    ...not whether it is reasonable to procure a search warrant, but whether the search itself was reasonable. The Court said: "[United States v. Caruso, 358 F.2d 184 (2d Cir.), cert. denied 385 U.S. 862, 87 S.Ct. 116, 17 L.Ed.2d 88 (1966),] is typical of most cases in the courts of appeals that h......
  • United States v. DeLeo
    • United States
    • U.S. Court of Appeals — First Circuit
    • April 20, 1970
    ...States, 336 F.2d 211 (1st Cir. 1964), cert. denied, 379 U.S. 971, 85 S. Ct. 669, 13 L.Ed.2d 563 (1965). We would add United States v. Caruso, 358 F.2d 184 (2d Cir. 1966), cert. denied, 385 U.S. 862, 87 S.Ct. 116, 17 L.Ed.2d 88 (1966); Rodgers v. United States, 362 F.2d 358 (8th Cir. 1966), ......
  • United States ex rel. Parson v. Anderson
    • United States
    • U.S. District Court — District of Delaware
    • November 28, 1972
    ...have sustained the search despite the fact that it was not "on the spot." See e. g., Schmerber v. California, supra; United States v. Caruso, 358 F.2d 184 (2nd Cir. 1966) (station house search after six hours of detention); United States v. Frankenberry, 387 F.2d 337 (2nd Cir. 1967) (statio......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT