United States v. Moderacki

• Decision Date: 13 February 1968
• Docket Number: Crim. A. No. 1826.
• Citation: 280 F. Supp. 633
• Parties: UNITED STATES of America, Plaintiff, v. Charles Joseph MODERACKI, Defendant.
• Court: U.S. District Court — District of Delaware

280 F. Supp. 633

UNITED STATES of America, Plaintiff, v. Charles Joseph MODERACKI, Defendant.

Crim. A. No. 1826.

United States District Court D. Delaware.

February 13, 1968.

L. Vincent Ramunno, Asst. U. S. Atty., Wilmington, Del., for plaintiff.

Stanley C. Lowicki, of O'Donnell, Hughes & Lowicki, Wilmington, Del., for defendant.

OPINION

LAYTON, District Judge.

The defendant, Charles Joseph Moderacki, was charged on May 5, 1967, in a three count Information, with violations of Title 18 U.S.C. §§ 7, 13, and 1303. Defendant moved to dismiss the Information and to suppress evidence seized. A hearing was held, and from the evidence presented by the United States and on behalf of the defendant, the Court finds the following facts:

(1) Just prior to 12:20 P. M., January 20, 1967, Postal Inspectors Kohl and Lanctote observed the defendant in the United States Post Office in Wilmington, Delaware, acting in a manner giving cause for reasonable belief that he was violating certain federal laws.

(2) About 12:20 P. M., January 20, 1967, the inspectors approached the defendant on the floor of the mail room of the Wilmington, Delaware, Post Office and asked him if he would go upstairs with them to the Postal Inspectors' Office, which he agreed to do.

(3) On arrival in the Postal Inspectors' Office, Inspector Kohl handed the defendant a "WARNING AND WAIVER" form, which purports to advise all persons who are about to be interrogated of their Fifth Amendment rights against self-incrimination under the circumstances.

(4) Defendant read the form and was then asked to read it out loud, which he did.

(5) Inspector Kohl went over the form once again with the defendant.

(6) Defendant said that he understood his rights and that he did not want a lawyer.

(7) The inspectors then asked the defendant if he "would mind" emptying his pockets, which he proceeded to do. From his pockets the defendant produced a copy of the MORNING TELEGRAPH, a newspaper which reports race track information, $590 in cash and 4 slips of paper. At this point, the inspectors did not warn the defendant that he need not reveal the contents of his pockets or that if he did so, the contents could be used as evidence against him in a Court.

MOTION TO SUPPRESS

There is no question that the defendant was fairly and adequately warned of his Constitutional rights as laid down in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Defendant, however, moves to suppress the contents of his pockets on two grounds. First, the defendant urges that the production of the material in his pockets at the "request" of the inspectors was not voluntary. Second, he argues that the search was unlawful because it was not incident to a valid prior arrest.

It is, of course, elementary that the fruits of an unlawful search are not admissible in evidence against the defendant. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652; Silverthorne Lumber Company v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319.

Voluntariness Of The Search

The United States' primary contention is that the search was lawful because the defendant knowingly and freely emptied his pockets, thereby waiving his rights under the Fourth Amendment. Concededly, a defendant may waive his Fourth Amendment rights against searches of his property or person. As said by Judge Steel in United States v. Elmer William Enderlein (Del., January 27, 1964, unreported):

"* * * But the intention to waive the right must be demonstrated by clear and positive testimony. Rigby v. United States, 101 U.S.App.D.C. 178, 247 F.2d 584 (1957); United States v. Page, 302 F.2d 81 at 83 (9th Cir. 1962); Schaffer v. Anderson, 224 F.Supp. 184 (D.Del., 1963); Judd v. United States, 89 U.S.App.D.C. 64, 190 F.2d 649 (Cir., 1951) at 651. It has been said that the consent must be unequivocal and specific (United States v. Page, supra.; Karwicki v. United States, 55 F.2d 225, 226 (4th Cir., 1932), and freely and intelligently given. United States v. Smith, 308 F.2d 657, 663 (C.A. 2, 1962), certiorari denied, 372 U.S. 906, 83 S.Ct. 717, 9 L.Ed.2d 716 (1962); Kovach v. United States, 53 F.2d 639 (6th Cir., 1931); Judd v. United States, supra., 651. The courts indulge every reasonable presumption against the waiver of a constitutional right. United States v. Page, supra; Rigby v. United States, supra."

However, whether a subject, otherwise fully warned of his Miranda rights, who has apparently permitted a search of his person, without a further warning that he need not submit to the search and that anything found may be used against him as evidence has voluntarily and knowingly waived his Fourth Amendment rights is still an open question. In fact, as recently as December 1, 1967, the United States Court of Military Appeals expressed three divergent views on this very point. United States v. Pershing (U.S. Ct. of Military App., December 1, 1967).

Two cases, United States v. Nickrash, 367 F.2d 740 (C.A. 7, 1967) and United States v. Blalock, 255 F.Supp. 268 (E.D. Pa., 1966), have held that the additional warning is required prior to the search. To the contrary are two state court opinions, State v. Forney, 181 Neb. 757, 150 N.W.2d 915 (1966) and State v. McCarty, 199 Kan. 116, 427 P.2d 616 (1967), and a ruling of the Court of Appeals for the First Circuit, Gorman v. United States, 380 F.2d 158 (C.A. 1, 1967).

The rationale underlying Gorman is that a warning to a suspect that he does not have to make any statement and, if he does, anything he says may be used against him as evidence is tantamount to a warning that he does not have to submit to a search and, if he does, anything found may be used against him.

"But that things which might be found in a search could be used against an accused seems implicit in the warning of the right to remain silent * * *." Gorman v. United States, supra, at page 164.

While this argument carries some persuasion, I adhere to the result reached in Nickrash and Blalock. The key to a voluntary waiver is whether it was done knowingly. An inference that a person has been warned is not one and the same thing as an actual warning. The rule of waiver is not intended so much for the protection of the cool, hardened, criminal as for the slow-witted offender and perhaps, on occasion, the innocent person caught in a web of circumstances who becomes frightened or confused. The former, but not necessarily the latter, might suspect that the Miranda-type warning is equally applicable to a search.

It is obviously repetitive, and may even seem slightly ridiculous, for an officer, having once given the Miranda warning before taking a suspect's statement, to have to repeat relatively the same warning before searching his person. But only in this fashion can it be known beyond doubt that the suspect, in emptying his pockets, has done so with a full knowledge of what he is doing. Lacking an explicit warning as to his rights under the Fourth Amendment, it can never be known with certainty whether a defendant voluntarily waived those rights.¹ Accordingly, the search was unlawful insofar as it rests upon the defendant's waiver of his rights.

The Validity Of The Search As Incident To The Prior Arrest

Having rejected the Government's primary contention, that the defendant voluntarily produced the contents of his pockets, the alternative contention, much less stressed at the argument and in the briefs, will now be considered.

There was no search warrant although one could have been easily and swiftly secured as the search occurred in the Federal Building in Wilmington, Delaware, which houses the offices of a United States Commissioner and three United States District Court Judges, each authorized to issue search warrants (18 U.S.C. § 3102), and the offices of the United States Marshal and the Federal Bureau of Investigation, who are empowered to execute search warrants (18 U.S.C. § 3106 and § 3107, respectively). Notwithstanding the availability of a warrant, the United States urges that the search was lawful as incident to a valid arrest.² The defendant argues that Postal Inspectors have no power to arrest and, therefore, the search was not lawful.

It is established beyond question that a search can be validated by an arrest only when the arrest was antecedent, valid itself, and the search was "incident to" the arrest. United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948); United States v. Coplon, 185 F.2d 629 (C.A. 2, 1950). There is no problem in this case regarding the requirement that the arrest be prior to the search or that the search be "incident to" the arrest. The sole contention here is that the arrest was not valid.

The validity of an arrest by a federal official is tested by federal statutory law and in the absence of controlling federal law, by the law of the state in which the arrest was made. United States v. Di Re, supra., United States v. Viale, 312 F.2d 595 (C.A. 2, 1963). Where there is no affirmative statutory power to arrest without a warrant, Congress has not granted the power. This conclusion follows almost a fortiori from the fact that no Act of Congress establishes a general federal rule for arrests without a warrant (United States v. Di Re, supra, p. 591, 68 S.Ct. p. 222) and by the fact that when Congress wanted to grant the power to make arrests without a warrant, it did so expressly (see 18 U.S.C. § 3050, 18 U.S.C. § 3052 and compare 18 U.S.C. § 3056 before 1965 with the section as amended in 1965). The Act defining the powers of Postal Inspectors, 39 U.S.C. § 3523, neither authorizes nor proscribes arrests without a warrant. The validity of the arrest here, then, must be determined under the law of Delaware, the state in which the arrest was made.

Under Delaware law, an arrest without a warrant is lawful where 1) made by a private citizen for crimes committed in his presence which amount to or threaten a breach of the peace (...