United States v. Mazzochi

• Decision Date: 07 April 1970
• Docket Number: No. 597,Docket 34284.,597
• Citation: 424 F.2d 49
• Parties: UNITED STATES of America, Appellee, v. Frank MAZZOCHI, Jr., Appellant.
• Court: U.S. Court of Appeals — Second Circuit

424 F.2d 49 (1970)

UNITED STATES of America, Appellee, v. Frank MAZZOCHI, Jr., Appellant.

No. 597, Docket 34284.

United States Court of Appeals, Second Circuit.

Argued March 11, 1970.

Decided April 7, 1970.

Irving Anolik, New York City, for appellant.

Jerome C. Ditore, Asst. U. S. Atty. (Edward R. Neaher, U. S. Atty., for Eastern District of New York, on the brief), for appellee.

Before SMITH, KAUFMAN and HAYS, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

Frank Mazzochi, Jr. appeals his conviction on trial to the jury in the Eastern District of New York, John F. Dooling, Jr., Judge, for violating 18 U.S.C. §§ 1708 and 2 in that he was in possession of certain stock certificates which he knew had been stolen from the mail. Appellant raises two issues, namely whether the trial court erred in denying, after a hearing, his motion to suppress evidence obtained from a search and seizure of a Buick automobile which appellant had rented and whether it was error to admit into evidence certain American Express travelers' checks found in the search. We find no error and affirm the judgment.

In the investigation of a robbery of travelers' checks (total worth $620,000) from a pier on the North River, New York police and Waterfront Commission representatives arranged through undercover agents to purchase from one Candarini, a co-defendant, a certain amount of the stolen checks for $13,500. On October 24, 1967, three undercover agents met Candarini, by pre-arrangement at 1 p. m. at the Korvette Shopping Center parking lot in Brooklyn to make the purchase. When asked if he was going to get the checks, Candarini told the agents to come with him; the four went to a white Dodge, and Candarini pointed to a shopping bag in the car. However, this turned out to be the wrong car and Candarini said he would go get the checks. One of the agents and Candarini went to a gold 1965 Buick, License No. 4D 4076 N.Y. which was leased to Mazzochi; Candarini opened the trunk with a key and took out a white shopping bag. The two returned to the car of one of the other agents and Candarini put the bag in the trunk; an agent asked if the stuff was there, looked into the bag and saw travelers' checks. Candarini was paid and started to walk toward his white Dodge; however, he was arrested by Detective Massaro who also told another officer to keep the gold Buick "secured" and under surveillance. Massaro looked into the Buick but found nothing; he could not look in the trunk because it was locked and no key was then found on Candarini. At 2:30 p. m. some of the Waterfront Commission men attempted to force open the Buick's trunk but were told to leave it alone. At 5 p. m. another police officer arrived to search the Buick, and he opened and searched the trunk. At this time among other things was found a black attache case (Mazzochi's) containing various documents, including appellant's passport (with his photograph) and the stolen stock certificates which resulted in the instant indictment and conviction. The Buick was later moved to a state District Attorney's office. The sufficiency of the evidence, assuming proper search and seizure of the car, is not contested by Mazzochi. The search and seizure are contested. Mazzochi was shown to have leased the Buick from April 26, 1967 until it was seized by the police. The Buick was about 150 feet from the spot where Candarini was arrested, and was not searched until 3½ to 4 hours after his arrest. It was only in the delayed search that the black attache case containing three stock certificates stolen from the U. S. mails was found; Mazzochi stipulated at trial that the attache case and the documents therein, except the stolen stock certificates, were his.

The principal contention in this appeal is that the search and seizure of the trunk's contents was not incidental to the arrest of Candarini, the co-defendant, and therefore the evidence (stolen stock certificates) was unconstitutionally obtained. Since Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) is not to be applied to this search in October, 1967, United States v. Bennett, 415 F.2d 1113 (2d Cir. 1969), the question of whether the search and seizure was valid depends on pre-Chimel principles. In Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947), the Court held that search and seizure incident to a lawful arrest is valid without a search warrant and may, under appropriate circumstances extend beyond the person of the one arrested to include the premises under his immediate control. In United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430, 94 L.Ed. 653 (1950), also pre-Chimel, the Court noted that there was no fixed formula for the reasonableness test to be applied and that validity of searches incident to lawful arrest turns upon reasonableness under the circumstances and not upon the practicability of procuring a search warrant since such warrant is not required. The Court considered car searches in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L. Ed.2d 777 (1964) and Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L. Ed.2d 730 (1967). In Preston, although acknowledging that police have the right to search and seizure contemporaneously with arrest (and this extends to things under the accused's immediate control), justification for such a warrantless search was held absent where the search was remote in time or place from the arrest. The Court stated that once an accused was under arrest and in custody, a search made at...