United States v. Marrese

• Decision Date: 10 September 1964
• Docket Number: No. 14652.,14652.
• Parties: UNITED STATES of America v. Joseph John MARRESE, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

336 F.2d 501 (1964)

UNITED STATES of America v. Joseph John MARRESE, Appellant.

No. 14652.

United States Court of Appeals Third Circuit.

Argued April 24, 1964.

Decided September 10, 1964.

Felix-Ramon Neals, Jersey City, N. J. (Robbins & Reger, Levy, Lemken & Margulies, Seymour Margulies, Jersey City, N. J., on the brief), for appellant.

Richard A. Levin, Asst. U. S. Atty., Newark, N. J. (David M. Satz, Jr., U. S. Atty., Newark, N. J., on the brief), for appellee.

Before KALODNER, FORMAN and SMITH, Circuit Judges.

KALODNER, Circuit Judge.

Following a jury trial, defendant, Joseph John Marrese, was found guilty and sentenced¹ for possession of a sawed-off shotgun on which tax had not been paid in violation of the National Firearms Act.²

He prosecutes this appeal on the grounds that (1) the shotgun, used in evidence against him, was obtained by the police in an illegal search and seizure of his room, and (2), his "statement", tantamount to a confession, was the "fruit" of the illegal search, and subsequent illegal detention, and thus inadmissible at the trial. The defendant's motions to suppress the use of the shotgun and statement as evidence were denied prior to the trial.

It is undisputed that on October 3, 1961, the defendant and one George R. Allen, occupied a rented room on the second floor of a rooming house in Hackensack, New Jersey; at noontime that day as they descended to the first floor of the rooming house they were stopped by three local policemen, in civilian clothes, and Allen, after disclosing his identity, was placed under arrest as a deserter from the United States Marine Corps; two of the policemen then went upstairs with the defendant and searched his room although they had neither a warrant for his arrest nor for a search; the policemen found the shotgun in the room, placed the defendant under arrest and then took him to police headquarters where he was questioned until 3:45 P.M., at which time he signed a statement (not used at the trial); the defendant was jailed overnight; he was interrogated at about 10 A.M. of the next day by a federal agent who obtained the statement used at the trial, and was then taken before a United States Commissioner at noontime and charged for the first time with a crime.

There is a sharp dispute as to whether the defendant "consented" to the search of his room.

Defendant testified that when Allen admitted his identity, the three policemen drew their revolvers and asked who he was; that they didn't disclose they were policemen; two of them "pushed" him around, and then, at gun point, forced him to lead them to his room on the second floor and ordered him to open the door; they searched the room and found the shotgun which they seized and then took him to a police station where he first learned they were police officers; he was questioned for several hours with respect to various robberies and then signed a statement admitting possession of the shotgun; he was not informed that he was under arrest; he was not allowed to phone anyone.

The policemen involved testified that they disclosed their identity as officers when they first accosted the defendant and Allen; they did not at any time draw their revolvers or push the defendant; one of them asked him if they could look at his room and he said "go right ahead"; two of the officers accompanied defendant upstairs to his room; he opened the door and led them in; they searched the room and found the shotgun and a box of shells; the purpose of the search was to uncover any weapons that Allen might have hidden in the room.

On this appeal defendant contends that he did not "consent" to the search of his room; the search, sans search warrant, was also without probable cause making inadmissible as evidence the seized shotgun; the statement given to the federal officer was obtained during an illegal detention and was thus inadmissible as evidence.

The sum of the Government's position is that (1) the search of the room was "incidental" to Allen's arrest; (2) defendant voluntarily consented to the search; (3) "no working arrangement" existed between the police and the federal authorities and the latter were not responsible for the delay in the defendant's being brought before the United States Commissioner.

On review of the record and consideration of the contentions presented we are of the opinion that the search, sans search warrant, and without reasonable cause, was neither "incidental" to Allen's arrest nor "consented to" by the defendant, and was accordingly in plain and flagrant violation of his rights under the 4th Amendment to the Constitution of the United States; that for that reason, the Court below committed prejudicial error in failing to grant the defendant's motion to suppress as evidence the shotgun and shells, and statement, obtained by the federal authorities in the course of an illegal detention, and in further premitting their use in evidence at the trial.

The Government's contention that the search of the room was "incidental" to Allen's arrest is untenable under the principles recently...