United States v. LaVallee

• Decision Date: 05 March 1968
• Docket Number: No. 312,Docket 31868.,312
• Citation: 391 F.2d 123
• Parties: UNITED STATES of America ex rel. James NICKENS, Petitioner-Appellee, v. J. Edwin LaVALLEE, as Warden of Auburn State Prison, Auburn, New York, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

391 F.2d 123 (1968)

UNITED STATES of America ex rel. James NICKENS, Petitioner-Appellee, v. J. Edwin LaVALLEE, as Warden of Auburn State Prison, Auburn, New York, Respondent-Appellant.

No. 312, Docket 31868.

United States Court of Appeals Second Circuit.

Argued January 23, 1968.

Decided March 5, 1968.

Phylis Skloot Bamberger, New York City (Anthony F. Marra, New York City, on the brief), for appellee.

John G. Proudfit, Asst. Atty. Gen., State of New York (Louis J. Lefkowitz, Atty. Gen., State of New York, on the brief), for appellant.

Before MEDINA, MOORE and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge:

On December 4, 1962, Nickens, the appellee, was sentenced to three to six years, following his conviction in the former Court of General Sessions, New York County, State of New York, on a charge of burglary in the third degree. He was also convicted on a charge of possessing burglar's tools for which he was given a suspended sentence. State remedies, via direct appeal and later through State habeas corpus proceedings, were exhausted. The United States District Court for the Northern District of New York denied his application for Federal habeas corpus and this ruling was appealed. We then remanded the case for a hearing on the legality of the searches and seizures. The case was transferred to the Southern District of New York and on August 30, 1967, Judge Murphy held a hearing on that issue, which he decided in favor of the petitioner-appellee who was ordered discharged from parole unless the State promptly granted him a new trial. The respondent, the Warden of Auburn prison, has appealed. We affirm.

The facts are set out in careful detail in Judge Murphy's opinion, 279 F.Supp. 248. The questions before us are whether or not a search and seizure of certain key-making equipment, made at the appellee's office, was reasonable, and whether or not a seizure of certain newspaper clippings taken from the appellee's living quarters was lawful.

Nickens, the appellee, was the superintendent of a store and office building on Church Street in Manhattan. In the course of investigating a suspected burglary the police found Nickens in the building in what was described as his office. While talking to him they observed certain equipment used in making keys. Subsequent events supplied the police with reasonable cause to believe that Nickens had committed an offense and Detective McDonnell arrested him in the elevator of the building at about 2:30 to 3:00 a. m., on March 11, 1962. A few minutes later Nickens was taken to the station house and booked. An hour or more thereafter Detective McDonnell returned to appellee's office to search it. He saw for the first time a tin can filled with keys, which were tagged with different addresses, a piece of clay and notebooks found in the desk drawers. These items were all introduced into evidence by the prosecution.

On the next day, March 12, 1962, the police obtained a warrant to search appellee's dwelling apartment for "* * * key-making machines, blank keys, lock picks and various machines and paraphernalia used by a licensed locksmith which property is in violation of § 408 of the Penal Law." Pursuant to the warrant they searched his apartment, seized a large quantity of key-making equipment and also took some newspaper clippings. It is undisputed that the items of equipment came within the terms of the warrant but Nickens objected to the seizure of the newspaper clippings which contained accounts of several burglaries. The clippings were not placed in evidence as exhibits in the State trial but were used, over defense counsel's objection, in cross-examining Nickens and the contents was disclosed to the jury.

The search of appellee's office on March 11 and the seizure of the tin can of keys, the clay and the notebooks were clearly in violation of Nickens' Fourth Amendment rights and require no extended discussion. The facts are squarely within Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). The action taken by the police was not under the authority of a warrant nor was it incident to an arrest.¹ The Court said in Preston, "Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest." See also Stoner v. State of California, 376 U.S. 483, 486, 84 S.Ct. 889, 891, 11 L.Ed. 2d 856 (1964) in which the Supreme Court said, "But a search can be incident to an arrest only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest."

The respondent-appellant argues that because policemen, other than McDonnell, the arresting officer, remained at the office building between the time McDonnell left with his prisoner and when he returned alone, they were in "constructive possession" of the items ultimately found and seized. This position is untenable under the holding in Preston because in that case the automobile, the search of which (made "soon after" its occupants were arrested) was declared unlawful, was continuously in the custody of the police between the time of the arrest and the subsequent search.

The newspaper clippings, seized by the police on March 12th at Nickens' apartment, present a somewhat more difficult question. While at first glance they appear to be inconsequential items, they were disclosed and emphasized during cross-examination of the accused as reports of burglaries, which obviously implied that Nickens had more than a casual interest in that particular subject and it happened to be the offense with which he was charged. Under the circumstances we cannot very well declare that permitting their use was harmless beyond a reasonable doubt. Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L. Ed.2d 705 (1967).

The District Court upheld the taking of the clippings in reliance on Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960), and Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). The appellant did not discuss this point in his brief, but Nickens has again raised the question. He relies on Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927), which, though not cited by the district court, is in our opinion controlling on this issue. The facts in Marron are indistinguishable from these in the present case. The court below, though affirmed on all other points, was in error in not holding the seizure of the newspaper clippings to have been unlawful.

In Marron a warrant was issued to prohibition agents to search specifically designated business premises leased by Marron and to look for, and seize, any intoxicating liquor, or apparatus of a type used in the manufacture thereof. The agents arrested one Birdsell, who was in charge of the place, and in searching the building, they discovered and seized, in addition to a cache of liquors, a ledger, mostly in Marron's handwriting, containing inventories of the business, and records of receipts, expenses, and other items relating to the illegal operation, together with a number of bills many of which were in Marron's name. Marron asserted that the seizure of the ledger and the bills, subsequently introduced in evidence against him at the trial, violated the Fourth Amendment because they were not described in the warrant and they were not discovered in the course of a search incident to his arrest. The Government justified the seizure either as "an incident to the execution of the search warrant" or as "an incident to the right of search arising from the arrest of Birdsall." 275 U.S. at 194-195, 48 S.Ct. at 75. The Supreme Court considered both grounds urged by the Government and, while it sustained the latter, it expressly rejected the former.

In the present case, the newspaper clippings were not taken as an incident to an arrest nor can they be found to come within any of the items specifically described in the warrant. The appellant's only remaining argument, that the clippings could be taken as "an incident to the execution of the search warrant"² was explicitly rejected in Marron. The Supreme Court said, at p. 196, 48 S.Ct. at p. 76:

"The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant."

We do not read in either Warden, Md. Penitentiary v. Hayden, supra, or Abel v. United States, supra, relied upon by the trial court, an intention to confer upon police officers executing a search warrant the very discretion which Marron ruled they do not have. The Hayden case eliminated the "mere evidence" rule³ from the law of search and seizure, but that case did not involve a search warrant and none of the three opinions in it so much as refers to Marron. Nor did the Abel case concern things seized pursuant to a search warrant. The piece of graphpaper mentioned by the trial court was taken from the person of Abel while he was being arrested and as incidental thereto. While the opinion in Abel does contain the statement that a policeman may take any article subject to lawful seizure which turns up in the course of a lawful search, 362 U.S....