United States v. Fay

• Decision Date: 30 September 1964
• Citation: 234 F. Supp. 543
• Parties: UNITED STATES of America ex rel. Joseph COFFEY, Relator, v. Hon. Edward M. FAY, as Warden, Green Haven Prison, Stormville, New York, Respondent.
• Court: U.S. District Court — Southern District of New York

234 F. Supp. 543

UNITED STATES of America ex rel. Joseph COFFEY, Relator, v. Hon. Edward M. FAY, as Warden, Green Haven Prison, Stormville, New York, Respondent.

United States District Court S. D. New York.

September 30, 1964.

Joseph Coffey, pro se.

Louis J. Lefkowitz, Atty. Gen. of State of New York, New York City, for respondent.

WEINFELD, District Judge.

Petitioner, now serving a term of six to ten years at Green Haven Prison, Stormville, New York, pursuant to a judgment of conviction of burglary in the third degree entered in the Court of General Sessions, New York County, upon a jury verdict, seeks his release by writ of habeas corpus. Petitioner makes a two-pronged constitutional attack upon the judgment. First, he contends that evidence consisting of diamonds, the proceeds of the burglary, was obtained by the police in violation of his Federal right against unreasonable search and seizure. Second, that upon a post-trial hearing to suppress the evidence, he was denied due process of law under the Fourteenth Amendment when the Court upheld the prosecution's refusal to disclose the identity of an informer whose communication led to his arrest and search without a warrant.

The issues here presented arose in the wake of the Supreme Court's landmark ruling in Mapp v. Ohio.¹ In June 1960 Cartier's jewelry story in New York City was burglarized. Two months later petitioner and one De Normand were arrested and searched, and unset diamonds identified as the stolen jewelry were found on De Normand. The arresting officers had neither search warrant nor arrest warrant. At petitioner's trial, which preceded the Mapp ruling, his counsel unsuccessfully sought to exclude the diamonds from evidence on the ground they had been obtained in violation of the Fourth Amendment. The defendant was convicted and filed an appeal, during the pendency of which the Supreme Court handed down Mapp. Thereafter the New York Court of Appeals held that, although the petitioner's conviction had been entered before Mapp, his trial counsel had properly preserved for review the issue of the constitutionality of the search and seizure which had yielded the challenged evidence. The Court of Appeals withheld determination of the appeal to permit the petitioner to move to suppress the evidence.² He so moved and a hearing was conducted before the Trial Judge on the issue of whether the search and seizure was incident to a lawful arrest. During this post-trial hearing petitioner was refused the identity of the informer whose tip led to his arrest. The significance of the informer's identity and other information withheld from the petitioner can be evaluated only against the background of the facts as developed upon the hearing.

The principal witness called by the State to support the legality of the arrest without warrant was Henry Gilhofer, an FBI agent who dealt with the informer. He testified as follows:

About two months after the burglary he received a telephone call from an informer who told him it was common knowledge that the burglary had been committed by two men, Coffey and Patsy, who frequented the Pike Slip area in lower Manhattan, and that they and a third person, known as Kingdon or Bill De Normand, were trying to dispose of the stolen jewelry. Inquiry by Gilhofer of FBI agents familiar with the Pike Slip area revealed that the two persons named by the informant as the burglars were probably Joseph Coffey and Pasquale Fuca, and that Coffey was known to drive a blue and white 1955 Oldsmobile owned by his brother. He was also aware, since the day of the burglary, that the Cartier watchman had described the getaway car as a five-year-old blue and white Oldsmobile. Gilhofer ascertained from the FBI files that in 1943 De Normand had been arrested in a car owned by a brother or uncle of Coffey and that Fuca and Coffey had been arrested and convicted together on several occasions.

The following afternoon, August 30, 1960, Gilhofer met the informer at a restaurant where the latter identified FBI file photographs of Coffey, Fuca and De Normand as the persons to whom he had referred during the previous day's telephone talk. The informer reiterated that Coffey and Fuca were the burglars, adding that the diamonds had been removed from their settings; that the three suspects had shown him the unset stones which he described; that the stones were still in the possession of Coffey or Fuca. At Gilhofer's urging the informer agreed to try to find out where the stones were. The informer entered a phone booth with Gilhofer, held the receiver so that the latter could listen in, and dialed a number which he said was that of the Pike Slip Inn. When the call was answered the informant asked, "Is this you, Bill?" and told Gilhofer that the person who responded affirmatively was Bill De Normand. The substance of the conversation, as Gilhofer testified he overheard it, was that Coffey and Fuca had not yet disposed of the loot, and that a further attempt would be made to dispose of the jewels that evening at 7:00 P.M. when De Normand said he was to meet Coffey and/or Fuca at the Paramount Theatre in Brooklyn.

Gilhofer returned to FBI headquarters where he concluded the informer's description of the jewels tallied with the official unpublicized description. He decided to institute surveillance and attempt to recover the stones, but being of the view that no Federal violation appeared invited the New York City police to participate. Lieutenant Holt and Detectives Egner and Keeney of the New York police arrived about 6:00 P.M. at FBI headquarters where they were briefed by Gilhofer.

Shortly after 6:15 P.M. other FBI agents and police officers, supervised by Gilhofer, drove in four cars to the Paramount Theatre in Brooklyn. Gilhofer there saw Coffey, De Normand and one Tony Rotunda, known to him to have a criminal record. The three men entered a blue and white 1955 hardtop Oldsmobile, which left the area followed by the police cars. In Manhattan at Madison Avenue between 28th and 29th Streets Rotunda left the car. It then proceeded to Avenue C and 20th Street where it stopped for a red traffic light. Thereupon the officers and FBI agents converged upon the car, directed Coffey and De Normand to leave it, placed them under arrest and searched them. In De Normand's pocket police found an envelope containing diamonds, later identified as part of the Cartier jewels. The petitioner and De Normand were taken to FBI headquarters and there interrogated; however, since it still appeared that no Federal statute had been violated, the city police took over and the defendants were arraigned the next morning in Felony Court.

Detectives Egner and Keeney also testified upon the hearing on the motion to suppress. They swore in substance that before the arrest Gilhofer had shown them pictures of Coffey, De Normand and Fuca and told them that he had received information from an informer that they had the Cartier jewels, which the informer had accurately described. Their testimony, in general, corroborated Gilhofer's with respect to events from the start of the surveillance operation through the arrest of petitioner and De Normand. Apart from the information received from Gilhofer, Detective Egner testified that immediately following the burglary the New York City police teletype alarm had described a 1955 hardtop Oldsmobile, painted blue and white, as the getaway car.

Defense counsel, at the start of the hearing and repeatedly during the cross-examination of Gilhofer, sought to obtain, on stated constitutional grounds, the name of the informer and the place where allegedly he had been shown the unset diamonds by Coffey and his associates. Counsel urged that the information was essential to a meaningful cross-examination and an effective rebuttal. The State invoked its "informer privilege" upon the grounds that the informer, who had been paid $400 by the FBI, had been promised anonymity and that to reveal his identity would endanger his life. The refusal to disclose the place where allegedly the informer had been shown the jewels was sustained upon its contention that such information would indirectly identify the informer.

After an extensive hearing the motion to suppress was denied.³ The Trial Judge, stressing that the State had expressly disavowed reliance upon the informer's past reliability, concluded, "there was reasonable cause for the arrest and search apart from the informer's communication and without relying on his credibility."⁴ In this circumstance he found that to withhold the informer's identity was not prejudicial to the defendant.⁵

The denial of the motion to suppress was affirmed by the Appellate Division⁶ and by the New York Court of Appeals (Judge Fuld dissenting).⁷ The Court of Appeals subsequently amended its remittitur to indicate it had considered and passed upon the constitutional issues with respect to probable cause and failure to disclose the informer's identity.⁸ Certiorari was denied by the Supreme Court.⁹ Then followed this petition incorporating by reference the questions raised in the petition for certiorari. Petitioner has exhausted all available state remedies.

This Court agrees that upon the basis of Gilhofer's testimony as to his own acts, taken in conjunction with the information he swore he received from the informer, probable cause was shown for the arrest of petitioner and De Normand. The informer's accurate description of the stolen diamonds, his statement that they had been shown to him by Coffey, De Normand and Fuca, his naming of two of them as participants in the burglary, his overheard telephone conversation concerning possible disposition of the loot, the meeting as predicted at which Coffey and De Normand were seen in a car similar to the getaway car, met the required standards for an arrest without a warrant. These, together with other items, were sufficient to justify the police officers, as reasonable and...