United States v. Cognato

• Decision Date: 10 February 1976
• Docket Number: Crim. No. N-75-153.
• Citation: 408 F. Supp. 1000
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES of America v. Joseph COGNATO.

408 F. Supp. 1000

UNITED STATES of America v. Joseph COGNATO.

Crim. No. N-75-153.

United States District Court, D. Connecticut.

February 10, 1976.

Peter A. Clark, Asst. U. S. Atty., New Haven, Conn., for plaintiff.

John R. Williams, New Haven, Conn., for defendant.

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO SUPPRESS

NEWMAN, District Judge.

Defendant, charged with armed bank robbery, has moved to suppress various items seized from his apartment, some taken at the time of his arrest without a warrant and others taken subsequently by officers executing a search warrant. The right to enter the apartment and the manner of entry are the principal issues.

At 6:12 p. m. on October 31, 1975, the East Haven police were notified of a bank robbery at the Community Banking Center in East Haven. Approximately $6,000 was taken. Inspector Frank Konesky arrived at the bank within minutes and secured information from Arthur Frione, a bank customer, who had witnessed the robbery while waiting in his truck outside the bank. Frione reported he had seen two robbers, one of whom was armed, flee from the bank, had followed them in his truck as they ran, and had seen them enter a Cadillac in which a driver was waiting. Frione reported the license number as PM 3611. Frione also told Konesky the driver of the Cadillac had blond. shoulder-length hair. Witnesses at the bank described the two robbers as small in stature, probably kids.

A police radio bulletin for the Cadillac elicited significant information. Officer Simoni heard the report at home, and immediately recognized the license number as belonging to a car he had twice investigated within the week. He informed Konesky that upon first observing the car, he had been sufficiently suspicious to check the license with the State Motor Vehicle Department. He learned it was registered to the defendant, Joseph Cognato, at a Kenneth Street address in West Haven. On October 30 he again saw the car under circumstances that prompted him to ask the occupants, a male and a female, for a license and registration. They produced a registration listing the owner as Joseph Cognato. The female occupant told Simoni she was Cognato's girl friend and was currently living with him at Apt. 2, 142 Bradford Avenue in East Haven.

The radio report also elicited a telephone call from New Haven police officers. They told Konesky they had been surveilling the Cadillac on October 31 because of a tip from an informant that Cognato, Douglas Wyllie, and a girl were planning a robbery that day. The New Haven police told Konesky they had seen the Cadillac being driven in New Haven that day and that the occupants were Cognato, Wyllie, and a girl.

Capt. Iaguessa of the East Haven police told Konesky he had arrested Wyllie two weeks previously, at which time Wyllie had stated that one of his close associates was Joseph Cognato. Konesky himself knew Cognato and knew that Frione's description of the driver of the Cadillac fitted Cognato.

Konesky sent Iaguessa and Simoni to the Bradford Avenue apartment, instructing them first to stop by the police station to obtain armament. Konesky subsequently drove toward the Bradford Avenue apartment. On the way, he learned over the radio that Iaguessa and Simoni had observed the Cadillac with license PM 3611 at the apartment. He also learned that the officers at the scene had arrested a youth as he exited the apartment. This turned out to be Wyllie. A search of his person uncovered approximately $2,000, including "bait" money taken from the bank.¹

Arriving at the scene between 8:00 and 8:30 p. m., Konesky ascertained that no weapon had been found on Wyllie. He also learned that Wyllie had stated that "Joey" and a girl were in the apartment. He also knew that Wyllie had been apprehended within the line of sight from the apartment window. In addition to all of the circumstances already recounted, Konesky knew several things about Cognato. He knew that Cognato had served a sentence for bank robbery, that Cognato had a reputation for involvement with the criminal element, and that Cognato on one prior occasion had been involved in a shooting episode with a weapon in which Cognato injured himself. Konesky concluded that the weapon Frione had seen in the hand of one of the fleeing robbers was in the apartment with Cognato. He also concluded that Cognato should be promptly apprehended and that entry into the apartment should be made without warning to the occupants to avoid what he feared would otherwise be a "shoot-out." Konesky therefore instructed a police officer to try the door handle quietly. Upon learning that the door was locked, Konesky gave instructions to break the door in, and a group of officers entered the apartment.

Inside the apartment Konesky observed Cognato on his bed with a pistol on the bed near him. Upon seeing Cognato move toward the pistol, Konesky pushed Cognato away, seized the weapon, and arrested Cognato. Other officers arrested the girl. The officers then walked quickly through the small apartment to determine if there were other occupants. They found no one else.

While walking through the apartment, which consisted only of a bedroom, bathroom, and kitchen, the officers noticed several items in plain view. These included a soda bottle filled with money in an alcove-type closet (without a door), a clip for the pistol and a box of ammunition, a box of rubber gloves, and money tucked under the bed mattress but visible as the officers returned from the kitchen to the bedroom. The only items seized at this time were the pistol and some money taken from Cognato's person when he was arrested. The other items were photographed.

After taking Cognato and the girl into custody, the police officers prepared an application for a search warrant, which was presented to a state court judge at his home. A warrant for seizure of money was issued. The officers returned with it to the apartment, but did not execute it because, prior to reentering the apartment, they noticed that the apartment number and street address on the warrant were incorrect. They prepared a new application for a search warrant, returned to the state judge's home, and were issued a second search warrant for the seizure of money. They returned to the apartment shortly after midnight and seized the money, the rubber gloves, and the ammunition, which they had previously seen. A search of the apartment disclosed approximately $4,000 hidden in a box in the bathroom. This money, which included "bait" money taken from the bank, was also seized.

Defendant initially challenges the officers' action in entering the apartment without an arrest warrant. The issue of whether the Fourth Amendment is violated by "the forceful nighttime entry into a dwelling to arrest a person reasonably believed within, upon probable cause that he had committed a felony, under circumstances where no reason appears why an arrest warrant could not have been sought," Jones v. United States, 357 U.S. 493, 499-500, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514, 1519 (1958), has been explicitly left unresolved by both the Supreme Court² and the Second Circuit.³ Decisions upholding such an entry have generally focused on exigent circumstances thought sufficient to justify not obtaining a warrant, as well as the strength of the probable cause to believe both that the suspect has committed a felony and that he is located in the dwelling.⁴

The facts here justify the warrantless entry without consideration of what the outcome would be if the stark issue framed in Jones were presented. Konesky had overwhelming reason to believe Cognato had been a participant in an armed bank robbery. An eyewitness had seen the fleeing robbers enter his car, and he matched the description of the car's driver. He had been seen that day driving his car with two persons, one of whom was arrested as he left Cognato's apartment within two hours of the robbery with a large amount of cash. Moreover, he was known to have committed a bank robbery on a prior occasion.⁵ Konesky's basis for believing Cognato was in the apartment was also strong, stemming from the spontaneous report of Wyllie just after he left the apartment.

The exigent circumstances justified if not impelled prompt action. A pistol had been observed during the crime and had not been recovered from Wyllie. Cognato had been known to use a pistol before. Since Cognato had previously served time for bank robbery, the officers could assume he might well take rash action to avoid apprehension. At a minimum this could involve disposing of the robbery money by flushing it down a toilet or even burning it. At worst, he might reasonably be thought ready to take desperate action to resist capture.⁶ The police knew a girl was in the apartment, but were not clear as to her circumstances. She was reported to be the suspect's girl friend. Whether she would turn out to be an accomplice, willing or unwilling, or a hostage in an escape attempt was uncertain. Finally, since the officers knew Wyllie had been arrested within sight of the apartment, they could reasonably be concerned that Cognato was already alerted to their presence, and that the lapse of any time would afford him the opportunity to destroy the money, to plan resistance to capture, or both.⁷ Posting a guard while a warrant was procured would not lessen the serious risks that evidence would be destroyed or that serious injury would ensue to the girl or to the officers.⁸

Defendant further contends that even if the circumstances justified entry without warrant, the entry was unlawful for lack of notice of the identity and purpose of the officers. These requirements, specified by 18 U.S.C. § 3109 for execution of a search warrant, generally apply to an entry to arrest without a warrant, Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958), although circumstances can justify their omission, Ker v. California, 374 U.S. 23, 83 S.Ct....