United States v. Gordon, 27455.

• Decision Date: 18 February 1970
• Docket Number: No. 27455.,27455.
• Citation: 421 F.2d 1068
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Herman GORDON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

421 F.2d 1068 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Herman GORDON, Defendant-Appellant.

No. 27455.

United States Court of Appeals, Fifth Circuit.

January 26, 1970.

Rehearing Denied February 18, 1970.

COPYRIGHT MATERIAL OMITTED

Lawrence E. Hoffman, Hoffman & St. Jean, Miami Beach, Fla., for appellant.

William A. Meadows, Jr., U. S. Atty., Donald I. Bierman, Neal R. Sonnett, Theodore Klein, Asst. U. S. Attys., Miami, Fla., for appellee.

Before JOHN R. BROWN, Chief Judge, and TUTTLE and MORGAN, Circuit Judges.

TUTTLE, Circuit Judge:

This appeal deals primarily with the validity of a search of the apartment of the appellant which produced evidence in the nature of a large quantity of jewelry, which subsequently formed the basis of appellant's conviction under Title 18 U.S.C.A. § 659 and § 2315 being in possession and receiving stolen jewelry while moving in foreign or interstate commerce.

The most important issue arises from the contention made by the appellant that the search warrant which permitted access by the federal agents to Gordon's apartment was obtained following a viewing of suspected stolen property in the apartment after a federal agent, Yablonsky, obtained admission by a ruse. Appellant contends that, although he knew Yablonsky and knew that he was an FBI agent, he had not been too anxious to see him and that Yablonsky phoned him from downstairs and asked to see him, but that when appellant said that he had nothing to see him about, Yablonsky mentioned the possibility of a criminal prosecution, which might be resolved if he could be permitted to talk to Gordon. Appellant's statement of the case is that thereupon he consented to talk to Yablonsky, who then came to the apartment and sat around and talked for two hours, during which time he observed two unusual type metal cups, the presence of which subsequently led to the obtaining of a search warrant by Yablonsky.

Yablonsky's testimony, to the contrary, was that no ruse was employed by him. His story was that he was a member of the jewel theft squad of the Miami office, and was concerned with the activities of the defendant with reference to the possibility of defendant furnishing him information pertaining to jewel thefts. During the first week of March, 1968, two flight manifests were shown to Yablonsky and he was asked if the name Herman Gordon, which appeared on the manifest, was the same Herman Gordon that he knew. Not being certain as to whether they were one and the same, on March 14, 1968, he visited Herman Gordon at his apartment to ascertain the facts as to this matter. His testimony was that upon arriving in the lobby of the defendant's apartment, he telephoned and asked if he might come up and speak with him. He states that Gordon invited him up to his apartment and admitted him. Yablonsky then established the fact that the same Herman Gordon is the person whose name appeared on the manifest. Thereafter he remained in the apartment for approximately two hours, engaged in conversation as to his exploits of the past. He then departed about 12:30 P.M.

Since this matter was critical to the judgment of the trial court as to the validity of the search warrants, we stop at this point to state that much evidence is introduced dealing with this matter. However, appellant incorrectly states the record when, in his brief, he says that "defendant, his wife and a visitor testified that Yablonsky told him on the telephone that he had a paper which could lead to defendant's arrest if it was not explained," citing the Appendix 127, 161-2, 180, 183, 238. We have carefully read these references to the record and find only Gordon's testimony that Yablonsky told him about such a paper. Obviously, no other person, either his wife or a visitor, could testify to what Yablonsky told Gordon on the telephone. Thus, we have solely the credibility of agent Yablonsky and the credibility of Gordon upon which the trial court could base his determination as to the truth of the essential fact touching on the voluntariness of Yablonsky's original entry into the apartment. The trial court credited the agent. And, in light of all of the evidence produced in connection with the motion to suppress, well he might. We conclude that there was ample evidence upon which the trial court could find that Yablonsky was legally present in Gordon's apartment at the time when he observed the two cups.

Upon returning to his office Yablonsky examined photographs of items allegedly stolen within the last year from John F. Kennedy Airport in New York. He thereupon prepared an affidavit for a search warrant in which he described the shipment of 187 pieces of "Greek jewelry" stolen from the airport, stating that each piece was marked with either 18K or 22K, plus trademark Z or Zolotas. He described the cups as appearing to be purple in color and stated that, upon reviewing photographs he "believed" the cups identical to the cups "stolen."¹

Based on this affidavit, the magistrate issued a search warrant in which he recited the statement made in the affidavit, and then said: "As I am satisfied that there is probable cause to believe that the property so described is being concealed on the premises above described, and that the foregoing grounds for application for issuance of the search warrant exist; you are hereby commanded to search forthwith, etc."

The first attack made by the appellant is that the search warrant was based on a conclusionary statement rather than on a statement of facts. We find no substance in this contention whatever. The fact that the agent said that he "believed" that the cups he saw in Gordon's apartment were the identical cups of which he had seen a picture would be no more a conclusion than if the agent had actually seen the cups themselves and then swore that he believed the cups he saw in the Gordon apartment were the same cups. He could never identify them beyond what he actually "believed." His belief was based on observation and was adequate to establish reasonable cause. As stated in United States v. Saka, 3 Cir., 1964, 339 F.2d 541, "If an officer sees the fruits of a crime, or what he has good reason to believe to be the fruits of a crime, freely lying upon a suspect's property, the officer is not required to look the other way or to disregard the evidence, merely because he is not armed with a search warrant." (Emphasis added.) We find nothing in Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L. Ed.2d 1503, that requires a different conclusion here. The court was there concerned with the fact that the affidavit of the officer did not indicate any source for his belief, and that it did not set forth any sufficient basis upon which a finding of probable cause could be made by the magistrate. Here, the affidavit gave ample cause upon which the magistrate could base his determination of the existence of probable cause.

We next turn to the basic attack upon the search warrant on the theory that the information upon which it was obtained was learned by the FBI agent by gaining entrance to Gordon's apartment by a ruse. We agree with the trial court that, although much of the jewelry which was the subject of proof during the trial was discovered after a later search warrant was issued, its seizure for evidentiary purposes must be justified, if at all, upon the search warrant which we have heretofore discussed.

The trial court found that entrance was gained legally by agent Yablonsky. Appellant contends that what Yablonsky saw while present in Gordon's apartment for two hours or more could not be used as the basis for obtaining a search warrant, because in effect the mere observation of these items amounted in itself to an illegal search. As to this proposition, our court has said: "A search implies an examination of one's premises or person with a view...