United States v. Fay, 360

• Decision Date: 09 June 1964
• Docket Number: Docket 28211.,No. 360,360
• Citation: 332 F.2d 1020
• Parties: The UNITED STATES of America, ex rel. William LUPO, Appellant-Petitioner, v. Edward M. FAY, Warden of Green Haven, Stormville, New York, Appellee-Respondent.
• Court: U.S. Court of Appeals — Second Circuit

332 F.2d 1020 (1964)

The UNITED STATES of America, ex rel. William LUPO, Appellant-Petitioner, v. Edward M. FAY, Warden of Green Haven, Stormville, New York, Appellee-Respondent.

No. 360, Docket 28211.

United States Court of Appeals Second Circuit.

Argued March 17, 1964.

Decided June 9, 1964.

John C. Lankenau, New York City, for appellant-petitioner.

Barry Mahoney, Deputy Asst. Atty. Gen., (Louis J. Lefkowitz, Atty. Gen., of the State of New York, on the brief), (Samuel A. Hirshowitz, First Asst. Atty. Gen., and Ronald J. Offenkrantz, Asst. Atty. Gen., of counsel), for appellee-respondent.

Before FRIENDLY, HAYS and MARSHALL, Circuit Judges.

MARSHALL, Circuit Judge.

This is a habeas corpus proceeding, in which petitioner seeks to set aside his 1958 conviction in the Kings County Court on charges of grand larceny first degree (as a participant in a payroll robbery on December 7, 1956) and grand larceny second degree (in connection with the theft of an automobile on December 6, 1956). Judge Palmieri discharged the writ without a hearing, on grounds that the relator had failed to exhaust his state remedies, and thereafter granted a certificate of probable cause.

Although the appeal presents the exhaustion issue,¹ and also the question of the "retroactivity" of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), in the view which we take of this case it is not necessary to decide them, except for one point to be touched on later. For even assuming that we were to decide these questions in relator's favor, we believe that the facts alleged in his petition are not such as to establish a violation of his rights under the Fourteenth Amendment.

Lupo's sole claim is that $100 in one dollar bills was unlawfully seized from his person by the police when they arrested him on December 7, 1956, and that this currency was introduced in evidence at his trial. In his petition for certiorari to the Supreme Court, from the affirmance of his conviction, which he later annexed to his petition for the writ of habeas corpus, Lupo set forth the undisputed evidence as to the circumstances of his arrest, and he does not now challenge this account in any way.

His account is as follows: At about 2 p. m. on December 6 Lieutenant Averill and Detective Ringswald of the New York City Police Department were proceeding down Broadway in Brooklyn, in a police car, when they observed Lupo enter a black 1950 Oldsmobile, license plate No. 3K4490 and take the driver's seat. He drove away and, although the police tried to follow his car, they lost sight of it in traffic. They later found it parked on a Brooklyn street, unoccupied. The policemen later verified that the Oldsmobile had been stolen, and Lieutenant Averill ordered surveillance maintained, which was done from 2:35 p. m. on December 6 until about noon on December 7. About noon on the 7th, Lieutenant Averill observed Lupo enter the Oldsmobile, remain several minutes, emerge and disappear again. Thereafter, about 2:25 p. m. he saw Lupo, one D'Antonio and one Bruno drive off in the Oldsmobile and disappear in traffic. At about 3 p. m. on the 7th, two payroll messengers were robbed in front of 1529 Dean Street, Brooklyn, as they attempted to park a car there. The two thieves drove off in the same car in which Lupo had been seen. Only a few minutes thereafter detectives under Averill's command saw D'Antonio and Bruno leave a taxicab and enter Bruno's car, a Cadillac, parked on Park Avenue in Brooklyn. As the police drove up, there was an exchange of gunfire as the result of which Bruno was fatally wounded. D'Antonio was also wounded, but he recovered and was tried and convicted along with Lupo. A sizable portion of the stolen payroll was found in Bruno's car. Two of the detectives, Ringswald and Gottlieb, who participated in the arrest of D'Antonio and Bruno then proceeded to Lupo's residence. Less than an hour later, Lupo and another man left the house, entered Lupo's Pontiac automobile, and drove off. At the nearest intersection, one of the detectives with gun drawn, ordered the car to stop and the occupants to emerge. The detectives searched Lupo, and found in his trouser pocket $447 in currency, including the $100 in singles that were later introduced into evidence at the trial and identified as part of the stolen payroll.

The question thus comes down to whether Lupo's arrest without a warrant was legal, since it is evident that the accompanying search of his person must have been valid if the arrest was. The legality of an arrest by city policemen is to be determined in the first instance by applicable...