United States v. Catalano, 17714-17717.

• Decision Date: 23 September 1971
• Docket Number: No. 17714-17717.,17714-17717.
• Citation: 450 F.2d 985
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony James CATALANO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Vincent Anthony MOSCATELLO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Michael Joseph SWIATEK, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Frank John CULLOTTA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

450 F.2d 985 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Anthony James CATALANO, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Vincent Anthony MOSCATELLO, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Michael Joseph SWIATEK, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Frank John CULLOTTA, Defendant-Appellant.

Nos. 17714-17717.

United States Court of Appeals, Seventh Circuit.

September 23, 1971.

Martin S. Gerber, Robert S. Bailey, Lawrence W. Belson, Ronald P. Alwin, Chicago, Ill., for defendants-appellants.

William J. Bauer, U. S. Atty., Kenneth R. Siegan, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee; John Peter Lulinski, Asst. U. S. Atty., of counsel; Lawrence T. Stanner, Chicago, Ill., for the Government at the Trial.

Before KILEY, CUMMINGS and STEVENS, Circuit Judges.

KILEY, Circuit Judge.

Defendants Catalano and Swiatek in Nos. 17714 and 17716, and defendants Moscatello and Cullotta in Nos. 17715 and 17717, respectively, appeal from their convictions by a jury of unlawful possession of TV sets stolen in interstate commerce with knowledge that the sets were stolen.¹ We affirm the convictions.

The four appellants were riding in an automobile about 3 a. m. August 28, 1968. They were stopped by police officers and searched without a warrant, and were taken to a police station. They were released about 5 p. m. with no charge having been made against them.

While the appellants were being detained at the police station, the arresting officers returned to the vicinity where the appellants were stopped and resumed their patrol. About 5 a. m. one of the policemen noticed a yard enclosed with a high fence less than a block from the point of arrest. Being suspicious, he took a point of vantage upon a nearby railroad right-of-way and, using binoculars, saw a parked tractor-trailer with identifying numbers somewhat obscured by paint. Later another policeman with binoculars was able to discern the numbers and reported the observation to a police station at about noon. The numbers identified the tractor-trailer as one that had been stolen from a railroad yard some time after 11 p. m. the previous night. The theft had been reported to the police at about 10 a. m.

Police kept the yard and trailer under surveillance. At about 4 p. m. a phone rang in the yard office. At about 4:50 p. m. a black 1957 Pontiac drove up to the entrance and Trznadel² and another man emerged and entered the yard. Trznadel placed a white Cadillac so as to block the opening of a gate in the alley at the rear of the yard. The phone rang again and Trznadel ran, entered the office and the ringing stopped. He came out and told the other man he had to leave. Trznadel left in a red Ford parked nearby, and the other man left in the Pontiac.

About 5:15 p. m. the red Ford returned and Trznadel, Catalano and Swiatek, who had shortly before been released from custody, emerged, entered the yard and went to the trailer. Trznadel gave Swiatek a hand bolt cutter, both got on top of a station wagon at the rear of the trailer, and Swiatek cut the bolts locking the rear of the trailer. Swiatek opened the door of the trailer and all three entered and climbed on top of cartons, in the trailer, marked "Zenith Television." They later emerged from the trailer "smiling," left the yard and drove away in the red Ford.

About 8:45 p. m. a car drove to the yard and Cullotta and Moscatello got out. Soon afterward the red Ford returned and Trznadel, Catalano and Swiatek got out. The five entered the yard and went to the rear of the trailer. At about 9 p. m. five policemen forced the yard gate, entered the yard and stationed themselves behind a garage near the trailer. Three others stationed themselves outside in the alley to cut off escape.

A policeman at the garage shouted that they were police and that the five suspects were under arrest. There was no response. He again shouted the message. The response from the rear of the trailer was a volley of gunfire. The police returned the fire and the men dispersed.

Swiatek was wounded outside the yard and arrested; no gun was found on him. Cullotta, Trznadel and Moscatello were arrested at the rear of the trailer, the door of which was open. Catalano surrendered to the police the next day and was arrested. The indictment of the five defendants, the trial, Trznadel's plea of guilty, convictions of the other four, and this appeal followed.

I.

Before and during the trial, appellants moved to suppress all testimony about their 3 a. m. warrantless "arrest," including the identification of Catalano, Moscatello and Cullotta as Swiatek's passengers in the car at 3 a. m., and all evidence gleaned from surveillance and observation of the action of appellants in or about the yard — on the ground that the arrest was without probable cause and that the evidence gathered was fruit of the "illegal arrest."

The hearing on the motion to suppress adduced the following facts: At 3 a. m. on August 28, 1968, three detectives in plain clothes in an unmarked car saw Swiatek, whom they knew by reputation as a burglar,³ driving a white Thunderbird in the neighborhood near the yard, an area in which he did not live. As the Thunderbird approached, the detectives noticed other passengers in the car slide down in their seats to hide from view. Being suspicious, they followed the car, stopped it, and ordered the passengers out. The faces of the slouching passengers — Catalano, Moscatello, and Cullotta — were observed by the police officers as they got out of the car. The four appellants were taken to the police station. The investigation of the area and discovery of the trailer followed.

The district court rejected defendants' argument that the evidence should be suppressed on its view that the 3 a. m. incident was not an arrest but a reasonable stop and search based on the justifiable suspicion of the detectives. The court's view also was that even if the stop of the car amounted to an "illegal arrest," there was nothing disclosed as a result of the arrest that could reasonably be said to have led to the evidence later gathered against defendants, since the later patrol of the area and discovery of the trailer would have occurred even if the car had not been stopped.⁴ The court further found that the police lacked probable cause for the detention of defendants at police headquarters and suppressed any mention of that incarceration at the trial.

We think the district court's view that the incident was a stop and search police maneuver based on reasonable suspicion and not an illegal arrest was not erroneous. The fact that the suspicion did not amount to probable cause is of no consequence; it is sufficient that "the facts available to the officer at the moment of the seizure * * would `warrant a man of reasonable caution in the belief' that the action taken was appropriate." Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L. Ed.2d 889 (1968). Here three experienced police detectives observed a known burglar — out of his neighborhood — in the early hours of the morning driving a car containing three passengers, all of whom slouched below the car's windows as it approached the lit-up police car. We think that these facts, taken together,⁵ would properly warrant the detectives "to investigate this behavior further," id. at 23, 88 S.Ct. 1868, by stopping the car, restraining the liberty of movement of its occupants briefly, and addressing questions to them. The stop of the car was accordingly legal. It follows that there is no merit in appellants' contention that what police action uncovered thereafter on observation and surveillance is a fruit of a poisoned tree.⁶ We need not therefore discuss the district court's further view based on its assumption that the incident was an unlawful arrest.

Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959), and United States v. Burhannon, 388 F.2d 961 (7th Cir. 1968), cited by defendants, do not involve the type of police action sanctioned in Terry — "necessarily swift action predicated upon the on-the-spot observations of the officer on the beat"⁷ — but rather, conduct resulting from the culmination of a prior investigation of the particular defendants, the lawfulness of which is traditionally measured by the Warrant Provision of the Fourth Amendment.⁸ The recent case of Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1970) is inapposite for the same reason.⁹ Nor is United States v. Ruffin, 389 F.2d 76 (7th Cir. 1968), in point because the evidence obtained there — the fact that defendants were in possession of a stolen car — resulted from a check on the license plate of the car following the illegal arrest of the drivers of the car.

II.

Catalano contends that the district court erred in denying his motion to suppress evidence as to his activity at the yard at 5:15 p. m. as a fruit of his unlawful "arrest and detention." His argument is premised on the assertion that he would not have been in the yard if he had not gotten a ride from Trznadel when Swiatek and he were released from jail.

In view of our contention that the stop was lawful, Catalano's contention must be limited to his claimed "illegal detention" at the jail.

We think there is no merit to his contention, assuming but not deciding that the incarceration was illegal. The district court was not required to find that but for the detention Catalano would not have been in the yard at 5:15 p. m. The evidence disclosed not only that Catalano was present with the other defendants on all three occasions that they were observed by the police, but also that Catalano climbed into the trailer when he was in the yard with Swiatek and Trznadel at 5:15 and that all three emerged "smiling." This is a question as to the credibility of Catalano's defense that he was a victim of circumstances, and was proper for the...