United States v. Macri

• Decision Date: 02 June 1960
• Docket Number: Cr. No. 10074.
• Citation: 185 F. Supp. 144
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES of America v. John MACRI.

185 F. Supp. 144

UNITED STATES of America v. John MACRI.

Cr. No. 10074.

United States District Court D. Connecticut.

June 2, 1960.

Harry W. Hultgren, Jr., U. S. Atty., Hartford, Conn., Francis M. McDonald, Asst. U. S. Atty., New Haven, Conn., for plaintiff.

Joseph Adinolfi, Jr., of Schatz & Schatz, Hartford, Conn., for defendant.

J. JOSEPH SMITH, Chief Judge.

The accused, John Macri, is under arrest pursuant to an indictment found by a grand jury charging him with failure to purchase an Occupational Tax Stamp in violation of Sections 4411 and 7262 of Title 26 of the United States Code. Macri has made a motion in advance of trial, pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure, 18 U.S.C., for the return of certain property alleged to have been illegally seized and for the suppression of the use of said property as evidence in the criminal proceedings now pending against him. The indictment, filed on March 16, 1960, charges that the accused was engaged in the business of accepting and receiving wagers between September 1, 1959 and March 1, 1960 and that he failed to purchase the $50 Occupational Tax Stamp for the period ending June 30, 1960. A warrant for Macri's arrest was issued on or before March 18, 1960 and was received by Special Agent Pulcini of the Internal Revenue Service on March 18, 1960. After having received word that the arrest warrant had issued, Agent Pulcini along with Officer Dunbar, a Connecticut State Police Officer, proceeded to the home of the accused at 323 Hillcrest Terrace Extension, Meriden, Connecticut, to make the arrest. Agent Pulcini did not have the arrest warrant in his possession for the purposes of making the arrest, nor did he obtain a search warrant. The plans called for the arrest to be made at 3:00 p. m. in conjunction with simultaneous arrests of twenty-five other persons who had been indicted by the same grand jury for violations of the tax laws on gambling activity. Officer Dunbar had previously taken part in a raid by the state authorities on Macri's home some six weeks prior to March 18. At that time, the state officers entered through the front door of the Macri residence and up the stairs to the living quarters on the second level. The officers noticed a toilet flushing and suspected that Macri was attempting to dispose of evidence although some evidence was obtained and Macri was arrested and pleaded guilty to pool selling in the Municipal Court. Because it was felt that Macri would again attempt to destroy any incriminating evidence in his possession, Agent Pulcini and Officer Dunbar decided to enter the home from the rear door so as to avoid being detected in advance by Macri who was thought to be in his bedroom overlooking the front of the house.

At approximately 3:00 p. m. on March 18, 1960, Pulcini and Dunbar, both dressed in plainclothes, proceeded to the rear of the Macri home to the rear entrance. Upon finding the outside door to be locked, they pried open the outer door with a pinch bar, kicked in the inner door which had been bolted with a chain lock, and entered into the kitchen of the home. The officers did not make known their authority or purpose or make a demand of entry prior to breaking into the home in the manner described. Immediately upon gaining entry into the kitchen, Agent Pulcini announced that he was a "federal agent" and that this was a "federal raid". The officers then proceeded down the hall to the front bedroom where Macri was observed in the bedroom crumpling up a copy of the "Armstrong Daily News" and coming towards them. Pulcini identified himself as a Treasury Agent, showed Macri his badge, and asked Macri to present his wagering stamp. Macri announced that he did not have a stamp and Pulcini announced that he was under arrest. Macri was then asked to strip to his underclothes and a search was made of his clothing and person by Dunbar. Both officers then searched the bedroom where Macri was found including a desk at which Macri was believed to have been seated just prior to being confronted by the officers. As a result of the search, the following items were confiscated: a telephone, a radio, a copy of the "Armstrong Daily News", six ball point pens, ten 3" × 5" blank pads and two bundles of currency in the aggregate sum of $5,645.

Macri contends that the search was illegal because made without a search warrant and that it was not a valid search incident to a lawful arrest because the arrest was not lawfully made.

The Fourth Amendment to the Constitution provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The protection under this provision of the Constitution reaches all citizens, whether accused of crime or not and it is the duty of all those enforcing the federal laws to recognize this right of the citizen. If the rights of the citizen under this constitutional safeguard are violated through an unreasonable search and seizure, any evidence so obtained for use against the citizen in a criminal prosecution in a federal court may be suppressed. Weeks v. United States, 1914, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652. A search may be valid even though made without a search warrant, if made of a place where a person is lawfully arrested so as to find and seize articles which are the fruits of the crime or the means by which a crime was committed. Agnello v. United States, 1925, 269 U.S. 20, 30, 46 S.Ct. 4, 70 L.Ed. 145. Where a lawful arrest is made at a person's dwelling, a lawful search may be made of the premises which are under the control of the arrested person and may even extend beyond the room where the person is found. Harris v. United States, 1947, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (search of four rooms for five hours, held valid). In the present case, the scope of the search was confined to the person of the accused and the room in which he was found to have been engaging in gambling activity. Such a search, considered apart from the question of whether the arrest on which it was based was lawful, cannot be deemed to have been violative of the constitutional guaranties under the Fourth Amendment. Our inquiry must then be directed to the lawfulness of the arrest on which the search is claimed to have been based.

An arrest made pursuant to an arrest warrant which has been issued at the time of the arrest, is a lawful arrest notwithstanding the fact that the arresting officer does not have the arrest warrant in his possession at the time of the arrest. Rule 4(c) (3), Federal Rules of Criminal Procedure; United States v. Petti, 2 Cir., 1948, 168 F.2d 221, 223. Rule 4 is silent on the question of whether a federal officer must make a demand for admission and state his authority and purpose before breaking into a person's home to make an arrest authorized by an arrest warrant.¹ In determining the legality of an arrest made by a federal officer without an arrest warrant, reference must be made to the local law of the state in which the arrest is made. United States v. Perez, 2 Cir., 1957, 242 F.2d 867, 869, certiorari denied 354 U.S. 941, 77 S.Ct. 1405, 1 L.Ed.2d 1539; United States v. Burgos, 2 Cir., 1959, 269 F.2d 763, 766; Seawell v. United States, 4 Cir., 1957, 243 F.2d 909, 912. In the case of an arrest by a federal officer under an arrest warrant issued by a federal judicial officer, the Supreme Court has indicated that state law should also control. In United States v. Di Re, 1948, 332 U.S. 581, at page 589, 68 S.Ct. 222, 92 L.Ed. 210, the Court pointed to the Act of September 24, 1789 (Ch. 20, Sec. 33, 1 Stat. 91) which provided in its original form that the arrest by judicial process for a federal offense must be "agreeably to the usual mode of process against offenders in such State". The Revisors to the United States Code saw fit to remove the quoted provision, presumably in the belief that the Federal Rules of Criminal Procedure had supplanted the statute. However, Rule 4 does not provide for the specific situation met in the case at bar. We feel, therefore, that we must go to the state law under the principle recognized by the Supreme Court in its view of the Act of September 24, 1789. The Court stated, 332 U.S. at page 590, 68 S.Ct. at page 226 of the Di Re case that the enactment of a federal rule in some specific cases seems to imply the absence of any general federal law of arrest.

It was established early in the Connecticut law, that an officer may break open the door for the purpose of making an arrest if he has been refused entry after having made known his business and made a demand for admittance. State v. Shaw, 1789, 1 Root, Conn., 134; Kelsy v. Wright, 1789, 1 Root, Conn., 83. It was later recognized that there are cases which would not be within the reason of the general rule and which would form a just and reasonable exception. In Read v. Case, 1822, 4 Conn. 166, a sheriff was directed under a mittimus obtained by Read's bail to arrest Read who had threatened to resist arrest through violence. The defendant Case, the assistant to the bail, was allowed by Read to enter the latter's home, there being no indication that there was a plan to arrest him. While Case was in the home with Read, the sheriff knocked on the door whereupon Case grabbed Read's gun, then unbolted the door so as to permit the sheriff to enter and arrest Read. Read brought an action of trespass against Case and the court held that the arrest was lawful as being an exception to the general rule requiring announcement of purpose and demand of entry prior to breaking in to make an arrest.² In the instant case, the arresting officers broke into Macri's home forcibly, without a prior announcement of purpose or ...