United States v. Katz

• Citation: 238 F. Supp. 689
• Parties: UNITED STATES of America v. Israel KATZ, Defendant.
• Decision Date: 18 February 1965
• Court: U.S. District Court — Southern District of New York

238 F. Supp. 689

UNITED STATES of America v. Israel KATZ, Defendant.

United States District Court S. D. New York.

February 18, 1965.

William Esbitt and Marvin B. Segal, New York City, for defendant.

Robert M. Morgenthau, U. S. Atty. for Southern District of New York, by Edward M. Shaw, Asst. U. S. Atty., for the prosecution.

TYLER, District Judge.

Israel Katz, also known as Jack Katz, has moved for an order pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure directing suppression and return of certain evidence consisting of 1,050 unsymboled Swiss watch movements and an automobile seized by United States customs agents on August 5, 1963.

Subsequent to his arraignment before a United States commissioner in the Eastern District of New York on August 6, 1963, Katz was named as one of sixteen defendants in an indictment charging substantive and conspiracy violations of the provisions of 18 U.S.C. § 545. Katz was charged in only one count of the original indictment — the conspiracy count — alleging that he and the other defendants conspired to smuggle unsymboled watch movements into the United States and to receive, sell and facilitate the transportation of such watch movements, knowing the same to have been illegally brought into this country.

Defendant claims that he was searched without a warrant and contrary to law at about 4:30 p.m. on August 5, 1963 on Lanett Avenue, Far Rockaway, Queens and that about 1,050 Swiss watch movements plus his personal automobile were thereafter illegally seized from him.¹

The government resists his motion to suppress upon a number of theories which may be fairly summarized as follows:

(1) The seized items were the fruits of a search incidental to a lawful arrest and thus were obtained in a constitutionally permissible fashion.

(2) There was a valid search and seizure pursuant to the special powers conferred upon customs agents by the provisions of 19 U.S.C. § 482.

(3) The search and seizure were justified by the special facts and circumstances giving rise to proper application of what is sometimes styled as the "emergency mobility situation" doctrine. See Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) and cases therein cited.

(4) The moving defendant clearly consented to the search and seizure in question.

The motion came on for hearing before this court on December 10, 16, 17 and 23, 1964. Upon the basis of the testimony and other evidence adduced on those hearing days, the following facts are found:

During the summer of 1963 the Bureau of Customs, United States Treasury Department, Region I (covering the northeast United States) was conducting an investigation regarding watch movements which had been illegally brought into this country. Customs agent John Dolan of the New York City office was placed in charge of that investigation, and Region I supervising customs agent Mario Cozzi from time to time assisted Dolan. Early in this investigation, there were indications that Valiant Watch Company, a New York City firm, might be involved in the illegal traffic of watch movements. Because of their connection with the Valiant Watch Company, various members of a family named Katz became principal subjects of the investigation, especially the brothers Maurice, Joseph, Ludvik and Zoltan ("Sonny") Katz.

By August 2, 1963, Dolan and Cozzi had amassed sufficient information to obtain warrants to arrest various persons at the Valiant Watch Company and to search the Valiant premises.² As an additional safeguard, Cozzi and Dolan decided that a surveillance of the homes of those who were to be arrested would be made on the day of the arrest. The date for the raid was set for August 5, 1963.

On the morning of August 5, Cozzi briefed several customs agents, including port investigators McMeekin and Bailey. Cozzi sketched the history and background of the investigation and told them, among other things, that Maurice Katz and others were to be arrested later in the day. McMeekin and Bailey were then directed to proceed after lunch time to the vicinity of the home of Maurice Katz located at No. 907 Lanett Avenue, Far Rockaway, and place this house under surveillance. McMeekin and Bailey were especially exhorted to be on the alert for persons carrying small, heavy looking packages wrapped in brown paper to or from the Maurice Katz premises. Shortly after noon, McMeekin and Bailey arrived at Lenett Avenue. After discreetly parking their car five houses down from number 907 but on the same side of the street, they took up their vigil from the front seat of the auto.

In the meantime, back in Manhattan Dolan had led other customs agents into the Valiant offices at about noontime; arrests and searches were there made pursuant to the previously issued warrants. It was at this stage that Jack Katz, the moving defendant, made his first appearance. Dolan found Jack in the Valiant offices. He told Dolan, in response to the latter's questions, his name and that, as Dolan already realized, he was another brother of Maurice Katz. Dolan then said he was free to leave, at which point Jack Katz said that he would be returning to his office.³

Picking up the tale in Far Rockaway again, agents McMeekin and Bailey observed nothing unusual until after 4:00 p. m. when a light colored auto slowly drove down Lanett Avenue, circled the block twice and finally parked about three doors away from the Maurice Katz home on the same side of the street and between that house and the agents' car. Instead of getting out at once, the driver of this auto remained seated for at least one minute; finally, he left the car and went to the entrance of Maurice Katz' house. After a few moments, he reappeared and walked down the driveway between Maurice Katz' house and the one next to it until he again was out of sight.

McMeekin promptly called his New York office by the radio phone in his car and reported what he and Bailey had just observed, including the license plate number of the light colored auto. The base set operator at once reported back that the car in question belonged to Jack Katz who had been questioned earlier at the scene of the arrests at Valiant Watch Company, that Bailey and McMeekin should observe Katz carefully and that, in particular, they were to intercept and question him in the event he were to appear with the aforementioned type of small, heavy, brown-wrapped package or packages. The operator also reminded McMeekin that there was no outstanding warrant for Jack Katz' arrest.

Ten minutes later Jack Katz emerged from the same driveway he had previously entered. He was carrying two packages, one under each arm, wrapped in brown paper and appearing to be heavy. McMeekin again called the Customs base set in Manhattan, and again he was told to stop and question Jack Katz.

In this interval, Katz had turned onto the sidewalk and walked toward his car. As he did so, the two agents drove their car forward and pulled up alongside of Katz' auto. Observing this maneuver, Katz did not stop or get into his car but kept walking along the sidewalk past his parked vehicle and the agents, who were stepping out of their car. McMeekin called to Jack Katz, approached him on the sidewalk, showed his credentials and advised that he and Bailey were conducting an investigation.

McMeekin then invited Katz to step into the government car for a talk. Jack Katz accepted this suggestion without hesitation, saying that he was an American citizen and had nothing to hide. Upon getting into the government car, Katz also stated that he was merely picking up some packages for his brother. McMeekin replied that he would appreciate Katz' cooperation and that he was not placing Katz under arrest. The three men drove to another location off Lanett Avenue in order to avoid the gaze of some neighbors whose curiosity had been aroused by the foregoing events. Agent Bailey was driving, McMeekin was in the right front seat and Katz was in the back seat with the two packages.

McMeekin then asked Katz if he would mind showing him the packages. Katz said he would not mind and handed one of the packages to McMeekin. McMeekin refused, saying that he would prefer to have Katz open the package himself. Katz thereupon opened one of the packages, reached in, removed a small box from within and handed it to McMeekin. McMeekin then opened the small box and found watch movements. The other boxes from both packages were then opened and the contents counted and placed on the front seat.

Bailey then drove to a nearby gas station where McMeekin placed a telephone call to the New York office out of the hearing of Katz. McMeekin was told by his headquarters to ascertain if Katz would voluntarily reveal the place where he had picked up the two packages. Upon rejoining Bailey and Katz, McMeekin was told by Katz that he would be glad to lead the agents to the place where he had picked up the packages. Thereupon the three men drove back to Lanett Avenue where Katz took McMeekin to the basement of a house behind Maurice Katz' house. This particular house, incidentally, was that of Sonny Katz. Neither McMeekin nor Jack Katz could find any more watch movements in this cellar area.

Katz and McMeekin then rejoined agent Bailey in the government car. Bailey drove to a neighboring luncheonette where McMeekin made another telephone call to headquarters. McMeekin was instructed to see if Katz would be willing to come to the headquarters at 201 Varick Street in Manhattan to undergo further questioning. When he was asked by McMeekin about this, except for voicing some concern about leaving his own auto, Katz expressed acquiescence. Before leaving for Manhattan, the three men returned in the government car to Lanett Avenue to pick up Katz' auto. At this point, McMeekin inquired if he could look in the trunk of the latter vehicle. Katz responded by opening his trunk. No incriminating materials were there to be found.

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