United States v. Gitlitz

• Decision Date: 16 November 1966
• Docket Number: Docket 30077.,No. 56,56
• Citation: 368 F.2d 501
• Parties: UNITED STATES of America, Appellee, v. George Samuel GITLITZ and Henry F. Williams, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

368 F.2d 501 (1966)

UNITED STATES of America, Appellee, v. George Samuel GITLITZ and Henry F. Williams, Defendants-Appellants.

No. 56, Docket 30077.

United States Court of Appeals Second Circuit.

Argued October 4, 1966.

Decided November 16, 1966.

Michael S. Fawer, New York City (Robert M. Morgenthau, U. S. Atty., for S. D. New York, and Robert L. Latchford, U. S. Atty., on the brief), for appellee.

Joshua N. Koplovitz, New York City (Anthony F. Marra, New York City, on the brief), for appellants.

Before SMITH, HAYS and FEINBERG, Circuit Judges.

HAYS, Circuit Judge:

After a trial by the court sitting without a jury appellants were convicted of violating 21 U.S.C. § 176a.¹ They appeal alleging (1) that certain evidence should have been suppressed because it was obtained in violation of the Fourth Amendment prohibition against unreasonable searches and seizures and (2) that there is insufficient evidence to establish a basic element of the offense charged, to wit, their knowing possession of narcotics in the Southern District of New York. We find no error and affirm the convictions.

Early in the morning of May 28, 1965 United States Customs agents and agents of the California Bureau of Narcotics Enforcement, acting on a tip from a previously reliable informer, initiated a surveillance of defendant Gitlitz's motel room in San Diego, California. At 10:00 A.M. that same day Gitlitz drove up to the motel and carried two metal footlockers into his room; at 11:30 A.M. a truck of the Imperial Truck line pulled up to Gitlitz's room and the driver loaded the lockers on the van and drove away.

State Narcotics Agent McLaughlin and Customs Agent Burnett followed the truck for about two miles, then drew alongside, identified themselves and asked the driver to pull off the highway. After receiving permission to examine the two footlockers, Agent McLaughlin entered the van. Detecting an odor of marijuana, he pressed the top of each locker and found that the odor intensified. The agents requested that the driver proceed immediately to his terminal but permission was denied by the Imperial Truck Lines dispatcher. Instead the driver released the lockers and corresponding bills of lading (which consigned the lockers to a fictitious Paul Brock) to the agents and they transported them directly to the Imperial Terminal in Chula Vista, California.

The footlockers were then transferred to the Denver & Chicago Truck Company terminal, loaded on a Denver & Chicago van, and shipped to that company's terminal in North Bergen, New Jersey, where they were unloaded in the early morning of June 4th. A second smell test was conducted at that time and the lockers were then stored in a separate room by the terminal manager. On June 8th two federal narcotics agents opened the lockers, without obtaining a search warrant, and determined that they did in fact contain marijuana.

At about 2:30 P.M. on June 8 Gitlitz went to the office of Mel's Express, a delivery service in New York City, and arranged for the lockers to be picked up in New Jersey and delivered to him in New York. While at Mel's Express, Gitlitz telephoned the North Bergen terminal and established that the footlockers were available; he also executed, in the name of Paul Brock, a letter authorizing release of the lockers to the Mel's Express driver and in a second phone call he notified officials at the North Bergen terminal of this fact.

The Mel's Express driver picked up the footlockers at about 5:00 P.M. and proceeded to 647 East 5th Street, New York City. Federal and New York City narcotics agents followed the truck to this address. Detective Perez of the New York City Police Narcotics Squad had an undisclosed conversation with the truck driver and then assisted him in making the delivery. They carried the lockers to apartment 3-D; receiving no answer they waited. A short time later federal narcotics agent Leya saw Gitlitz loitering in the vicinity.

At approximately 6:55 P.M. Williams entered the building, approached the two men on the third floor and said, "Those are my footlockers. How much do I owe you?" After Williams paid the charges, signing the receipt "Paul Brock," Perez and the driver left. Leya, who had witnessed the delivery, arrested Williams when the latter picked up the lockers and was about to leave them with the woman in apartment 3-C. Using a key found in Williams's possession, Leya opened the two lockers. He then left Williams in the custody of other agents and went outside to a nearby corner where he found Gitlitz in a telephone booth and placed him under arrest.

I.

Appellants contend that the June 8th seizure of the marijuana violated their constitutional rights under the Fourth Amendment. It is conceded that the seizure was valid if it was incident to a lawful arrest. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); United States v. Rabinowitz, 339 U.S. 56, 60, 70 S.Ct. 430, 94 L.Ed. 653 (1950). However, while appellants agree that at the time they were taken into custody the agents had probable cause to arrest them, they argue that some of the evidence which supplied the probable cause was obtained in the course of an unreasonable search and seizure in California. Relying on the doctrine proscribing the "use of all evidence obtained as an indirect result of such illegal activity," United States v. Paroutian, 299 F.2d 486, 489 (2d Cir. 1962), they claim that the knowledge acquired during the California search cannot be used to establish probable cause. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920); Corngold v. United States, 367 F.2d 1 (9th Cir. 1966) (en banc); United States v. Paroutian, supra, 299 F.2d at 488-489.

The search alleged to have violated appellant's rights was that conducted by Agent McLaughlin when he entered the Imperial Lines truck, smelled marijuana and compressed the lid of the footlockers thus determining that they were the source of the odor. We find it unnecessary to decide whether compressing the footlockers constituted a search, cf. Hernandez v. United States, 353 F.2d 624 (9th Cir. 1965), cert. denied, 384 U.S. 1008, 86 S.Ct. 1972, 16 L.Ed.2d 1021 (1966), or whether appellants have standing to object to McLaughlin's entering the truck, see United States v. Bozza, 365 F.2d 206 (2d Cir. 1966), since appellants waived their objections by failing to interpose them below. United States v. Indiviglio, 352 F.2d 276 (2d Cir. 1965) (en banc) cert. denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966); United States v. Percodani, 363 F.2d 867 (2d Cir. 1966).

Appellants did object to the introduction of the marijuana in evidence both at the trial and earlier when they moved to suppress the evidence. At the hearing on the motion they did not attack the actions of the government agents in California. Instead they contended that there had been an illegal search in North Bergen, New Jersey, which invalidated the subsequent arrests and seizure.

At the trial it was disclosed for the first time that McLaughlin and Burnett had removed the lockers from the van and driven them directly to Chula Vista. Appellants cited this seizure as a further ground for objection and renewed their objection on the ground of the agents' activities in New Jersey. This was in keeping with their apparent trial strategy since they were contending that the agents had such complete dominion and control over the lockers that their own custody was aborted.²

Since defendants did not at any time refer adequately to McLaughlin's actions in boarding the truck and conducting the smell tests as ground for objection, they "failed reasonably to apprise the trial judge of the grounds asserted here." United States v. Indiviglio, supra, 352 F.2d at 279. See On Lee v. United States, 343 U.S. 747, 749 n. 3, 72 S.Ct. 967, 96 L.Ed. 1270 (1952); United States v. Sten, 342 F.2d...