United States v. Dento

• Decision Date: 02 August 1967
• Docket Number: No. 16216.,16216.
• Citation: 382 F.2d 361
• Parties: UNITED STATES of America v. James DENTO, alias James Dansykle, alias James Van Syckle, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

382 F.2d 361 (1967)

UNITED STATES of America v. James DENTO, alias James Dansykle, alias James Van Syckle, Appellant.

No. 16216.

United States Court of Appeals Third Circuit.

Argued May 26, 1967.

Decided August 2, 1967.

Certiorari Denied November 6, 1967.

Frederick W. Andrews, Harrisburg, Pa., for appellant.

Thomas J. Hanlon, Asst. U. S. Atty., Scranton, Pa. (Bernard J. Brown, U. S. Atty., Scranton, Pa., on the brief), for appellee.

Before McLAUGHLIN, KALODNER and FREEDMAN, Circuit Judges.

Certiorari Denied November 6, 1967. See 88 S.Ct. 307.

OPINION OF THE COURT

McLAUGHLIN, Circuit Judge.

Defendant, James Dento, was found guilty of possessing and attempting to pass a falsely made and counterfeited $20 Federal Reserve Note in violation of 18 U.S.C. § 472. This is an appeal in forma pauperis from that conviction.

On March 6, 1965, at about 5:03 P.M., defendant entered Evans Food Market in Harrisburg, Pennsylvania where he selected a number of goods totalling $1.35. At the check-out counter defendant presented a twenty dollar bill to the clerk, Mrs. Grace A. Luty, who noticed that the bill's serial number matched a serial number on a warning list distributed by the Secret Service. At this point Mrs. Luty either returned the bill or had it taken from her by the defendant who then paid for his purchase with other currency. Dento left the store, followed by Mrs. Luty, and got into a black Dodge sedan with a New Jersey registration. Before defendant drove away Mrs. Luty had enlisted the aid of a passer-by, Mr. Cecil Hughes, who took down the car's license number.

The Pennsylvania State Police notified Secret Service agent Robert E. Powis in Scranton, Pennsylvania of the Harrisburg incident and informed Powis that the car was registered to a James D. Van Syckle (an alias used by defendant Dento), 2 Hallstead Street, Clinton, New Jersey. Agent Powis relayed this information to the Secret Service office in Newark, New Jersey which had charge of the Clinton area. At about 9:40 P.M. on March 6th special agent Wood of the Newark office called agent B. J. Mullady requesting the arrest of Van Syckle based on the information received from the Secret Service office in Scranton. Mullady was also instructed to contact the Clinton Police and the New Jersey State Police and ask that Van Syckle be taken in custody in the event he could be located. Mullady talked with Chief Schneider of the Clinton Police who told the agent that Van Syckle was well known to him and that he would check the Hallstead Street address and advise Mullady if the automobile was there. The New Jersey State Police also informed Mullady of their familiarity with defendant and that they would look out for Van Syckle and notify the Secret Service if he was apprehended. Besides the call from agent Mullady the New Jersey State Police were warned of defendant's possible presence in their vicinity by a teletype message from the Harrisburg Police Department containing the suspect's license number.

It appears that the defendant did not return to Clinton until sometime on Sunday, March 7, 1965. That same day at approximately 4:40 P.M. state troopers Richard Decker and Jack Cole of the Clinton barracks observed Van Syckle driving his car on Route 22 near Clinton and motioned the defendant to the side of the road. As defendant was pulling off the highway both troopers noticed him lean forward and apparently place something under the front seat of the car. When defendant stopped the car he was informed by trooper Decker that he was under arrest for attempting to pass a counterfeit $20 Federal Reserve Note the previous day in Harrisburg, Pennsylvania. For reasons of safety there was no search made of defendant's car while it was parked along Route 22. The suspect's car was driven to the State Police barracks at Clinton where a search under the driver's seat uncovered a wallet containing seven counterfeit $20 notes and five counterfeit $10 notes. At 5:00 P.M. on March 7th, trooper Decker called agent Mullady informing him of defendant's arrest and the seizure of the additional bogus bills. The arrest of defendant and the search of his automobile were effectuated without either an arrest or search warrant and the evidence obtained by the search was introduced by the Government at defendant's trial.

Defendant's sole contention is that the evidence seized by the New Jersey State Police was introduced at trial in violation of his constitutional rights. This position rests on two fundamental points: the necessity of a warrant for both the arrest and search, and the legality of the arrest and incidental search without a warrant.

I

The argument is made that since the arresting officers had received information concerning defendant's activities some hours before his apprehension there was sufficient time in which to procure a warrant for his arrest and for the search of his person and car. Naturally it must be assumed for this point that the knowledge possessed by the troopers was sufficient to establish probable cause for defendant's arrest, since if the arrest without a warrant lacked probable cause it could not be justified on any grounds. Also, assuming a lawful arrest there is no need to discuss the necessity of a search warrant when the search is incident to that lawful arrest. Ker v. State of California, 374 U.S. 23, 41, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950). To put the resulting query from such circumstances simply, may probable cause alone justify an arrest where it appears that the arresting officers had ample time within which to obtain a warrant? Notably the Supreme Court has never directly passed on this question. Jones v. United States, 357 U.S. 493, 500, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958). However, it will not be necessary for this Court to examine the full import of the problem since the opportunity for the arresting officers to apply for a warrant in this appeal never reasonably presented itself.

Defendant was arrested by the New Jersey State Police less than twenty-four hours after he had tried to pass counterfeit money in Harrisburg, Pennsylvania. From the time he left Evans Food Market on Saturday, March 6th, the defendant was never located until troopers Decker and Cole sighted his car on Sunday afternoon, March 7th. Before that time defendant's whereabouts was unknown. This is not a situation where a suspect's presence has been pinpointed and the police are coordinating their operations in a direct effort to secure an arrest. The State Police did not set out on Sunday afternoon to arrest the defendant, they were only warned to be on the lookout for him. Here it was the defendant who happened to come within view of the state troopers and at that stage his arrest was immediate. Moreover when the troopers spied Dento it was their duty to apprehend him since there was the sound possibility that the suspect's excursion along Route 22 was an attempt to leave the Clinton area where his identity to the police was much too well known.

II

Defendant also questions the legality of his arrest without a warrant and the reasonableness of the search as incident to that arrest. The legality of a warrantless arrest hinges on the existence of probable cause, i. e., where facts and circumstances known to the arresting officers reasonably lead them to believe that a crime has been or is being committed. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Ker v. State of California, supra; State v. Cook, 47 N.J. 402, 221 A.2d 212 (1966). The Harrisburg Police acting on a reliable account by Mrs. Luty, that she had found the serial number on the note passed by defendant to match a serial number on a Secret Service warning list, contacted the New Jersey State Police and the Secret Service. The Secret Service had also communicated with the New Jersey State Police concerning defendant, so...