United States v. Fay

• Decision Date: 05 March 1965
• Citation: 239 F. Supp. 132
• Parties: UNITED STATES of America ex rel. Tecumseh ROBINSON, Relator, v. Edward M. FAY, as Warden of Green Haven Prison, Stormville, New York, Respondent.
• Court: U.S. District Court — Southern District of New York

239 F. Supp. 132

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

United States District Court S. D. New York.

March 5, 1965.

Tecumseh Robinson, pro se.

Louis J. Lefkowitz, Atty. Gen., of New York, by Mortimer Sattler, Asst. Atty. Gen., for respondent.

TYLER, District Judge.

On January 31, 1962, Tecumseh Robinson was sentenced after trial to state prison as a second felony offender for a term of three and one-half to four years for criminal possession of a pistol. He here seeks habeas corpus relief upon the general ground that his Fourth Amendment rights were violated in his state court proceedings.

The facts underlying Robinson's arrest were fully developed at a proceeding before Mr. Justice Sarafite of the Supreme Court of New York, New York County, which served the dual function of a hearing on a motion to suppress and a trial without a jury, and are essentially undisputed here.

At about 6:30 a. m. on Sunday morning, July 23, 1961, Robinson was seen walking along Lenox Avenue in upper Manhattan by police officer Silas Bartley who was on uniformed patrol in the area. Approximately ten minutes later, Officer Bartley spotted Robinson again, this time accompanied by another man, Clinton Johnson. The two men, in the prime of life and above average size, were walking slowly down the sidewalk, pausing to look around, peering into store windows and then into the street, and continuing down the avenue. Robinson was carrying a brown paper bag in his left hand. Officer Bartley crossed Lenox Avenue to the side on which the two men were walking, approached them, and asked Robinson what he was doing in the neighborhood and what was in the bag. Without answering, Robinson made a rapid thrust toward the bag with his right hand, as if to remove some object therefrom. Uncertain of the contents of the bag, and admittedly apprehensive of his own safety, Bartley quickly reacted to this sudden movement by commencing to draw his service revolver from its holster. Before the gun had completely cleared the holster, however, the bag Robinson had been holding fell to the sidewalk directly at Robinson's feet.¹ With his gun now trained on the two men, Bartley ordered them to back up against the wall and then bent down, picked up the bag, opened it and found the pistol contained in the bag. At this point, he told the men that they were under arrest. Thereafter, Robinson was taken to the nearest precinct headquarters, questioned and "booked".

At the conclusion of the hearing and trial, the motion to suppress, based upon a claim of unreasonable search and seizure, was denied, and Robinson was found guilty as charged under Penal Law, § 1897. His conviction was subsequently affirmed without opinions by the Appellate Division, First Department, and the Court of Appeals of New York.²

Assuming without discussion that Robinson practically, if not technically, has exhausted his state remedies, see Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), I turn to the merits, and, in so doing, I determine that no evidentiary hearing is necessary because the facts were thoroughly explored before Mr. Justice Sarafite and, in any event, are not in significant dispute. In short, the problem is legal in nature — peculiarly so here because I am unclear as to the reasoning followed by particularly the New York State appellate courts in concluding that Robinson's federally protected rights had not been violated on the Sunday morning in question.

It is clear, however, that Robinson, ably assisted by counsel, early and unmistakably raised the issue of his Fourth Amendment rights. The trial judge entered no formal findings and conclusions on this issue. He did say on the record, however, that upon balancing the rights of the accused against the duties and prerogatives of the police, "* * * I do not believe that the officer exceeded his authority, or that he violated any of the defendant's rights."

But for one difficulty to be discussed hereinafter, this simple conclusion, articulated as it was by a notably able and experienced trial judge, might be sufficient to express the correct result and thus to dispose of this habeas corpus petition. The difficulty arises from the undeniable circumstance that both before the trial court and upon appeal, the District Attorney advanced as the main argument for the People that Robinson "abandoned" the paper sack and its contents — i. e. that thus there was no search and seizure in the legal (or illegal) sense but merely simple and proper inspection of the bag and its contents by Officer Bartley after Robinson had divested himself of control thereof. See Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924); Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960).³

If it be assumed that the New York courts grounded their denial of Robinson's motion to suppress upon this abandonment theory, then I find myself in respectful disagreement. This is so simply because, in my view, this theory upon any realistic appraisal does not fit the flashing sequence of events consisting essentially of Robinson's sudden move of his right hand toward the bag, Bartley's responsive grasp of his service revolver and Robinson's resultant dropping or throwing down of the bag. In short, can it be said as a practical matter under these circumstances that Robinson "abandoned" the bag? I think not.

No lawyer needs citations to support the proposition that the word "abandonment", though it has differing meanings in various substantive niches of the law, consistently includes a significant dollop of "voluntary relinquishment". Tecumseh Robinson cannot be said to have voluntarily relinquished his paper sack on Lenox Avenue in the face of a resolute police officer reaching for his service pistol.

But it is possible that the New York courts sub silentio rejected this principal "abandonment" argument of the People and relied upon different reasoning to hold that Robinson's Fourth Amendment rights were not violated. A more recent decision of the Court of Appeals of New York, for example, has sustained the constitutional validity of "search and seizure" under somewhat similar circumstances to those in this case. People v. Rivera, 14 N.Y.2d 441, 252 N.Y.S.2d 458, 201 N.E.2d 32 (1964). There the court found a reasonable detention and interrogation of the defendant by New York City police officers coupled with a light frisking of defendant's outer clothing which revealed therein a loaded revolver. It was this weapon which brought about Rivera's arrest and conviction for criminally carrying and possessing the same. The majority of the court, upon reasoning not totally unlike that of Mr. Justice Sarafite in this case, upheld the denial of defendant's motion to suppress and his conviction, saying in part that the frisk was "* * * a reasonable and constitutionally permissible precaution * * *" to minimize the attendant hazards faced by patrolmen in doing their duty in the streets of a large urban center. Supra, 14 N. Y.2d at page 446, 252 N.Y.S.2d at pages 462-463, 201 N.E.2d at page 35.⁴

A not insubstantial argument can be made for the proposition that, upon the facts in that case, the majority opinion in Rivera is at odds with the rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). See dissenting opinion of Judge Fuld in People v. Rivera, supra, 14 N.Y.2d at page 448, 252 N.Y.S.2d at page 464, 201 N. E.2d at page 36. Interesting as it would be to develop the merits of this particular...