United States v. Pardo-Bolland

• Decision Date: 12 May 1964
• Parties: UNITED STATES of America, v. Salvador PARDO-BOLLAND, Juan Carlo Arizti and Rene Bruchon, Defendants.
• Court: U.S. District Court — Southern District of New York

229 F. Supp. 473

UNITED STATES of America, v. Salvador PARDO-BOLLAND, Juan Carlo Arizti and Rene Bruchon, Defendants.

United States District Court S. D. New York.

May 12, 1964.

COPYRIGHT MATERIAL OMITTED

Robert M. Morgenthau, U. S. Atty., for the S. D. of New York, New York City, for the United States (William M. Tendy, Asst. U. S. Atty., of counsel).

Bernard M. Tompkins, New York City, for defendant Salvador Pardo-Bolland.

MacMAHON, District Judge.

Defendant Salvador Pardo-Bolland moves under Rule 41(e) of the Federal Rules of Criminal Procedure for an order directing (1) the return of property taken from his person at the time of his arrest on the ground that the arrest was unlawfully made without a warrant and that, in any event, the items of property seized were not instrumentalities of crime; (2) the return of property seized later the same day from his hotel room on the ground that the search was unlawfully made without a warrant and that, in any event, the items of property seized were not instrumentalities of crime; and (3) the suppression of unspecified evidence claimed to have been obtained by wiretaps violative of the Communications Act, Title 47 United States Code § 605.

The court declined to hear evidence upon the claimed violation of the Communications Act. There is no possible justification for burdening this congested court with a hearing which may ultimately prove to be academic. Even if we assume that the government did engage in wiretapping, it may never use evidence so obtained or any fruits of the poisoned tree. At this stage, the motion is at best hypothetical. The issue cannot be decided until all the relevant facts are before the court upon or after the trial.

Accordingly, the application is denied as premature. United States v. Gruber, 39 F.Supp. 291, 295 (S.D.N.Y. 1941); Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939). In any event, the moving affidavit by defendant is so lacking in specific statements of evidentiary facts that it fails to raise an issue. All it asserts on the subject is that: "On information and belief U. S. Government Agents also monitored, intercepted and listened in on my personal telephone conversations at the Hotel Elysee to obtain evidence against me, in violation of law." The charges are so manifestly devoid of evidential support that they require neither an answer¹ nor a hearing. The burden is upon the defendant to establish that his wires have been tapped. Nardone v. United States, supra; United States v. Coplon, 185 F.2d 629, 28 A.L.R.2d 1041 (2 Cir. 1950), cert. denied, 342 U.S. 920, 72 S.Ct. 362, 96 L.Ed. 688 (1952); United States v. Casanova, 213 F.Supp. 654 (S.D.N.Y.1963). That burden requires allegations of evidentiary facts upon personal knowledge, or at least disclosure of the sources of the deponent's information and the grounds for his belief, to support a demand for a hearing. United States v. Casanova, supra, 213 F.Supp. at 657 n. 10. Otherwise, the government's case would be prematurely exposed and the court burdened with hearing nothing but a stark fishing expedition by the defendant. Indeed, this phase of the motion is so ill-founded that we conclude that it was made in bad faith for the sole purpose of gaining a preview of the government's evidence.

The court did hear evidence upon the issue of illegal search and seizure. That evidence clearly established that agents of the Federal Bureau of Narcotics had probable cause to arrest petitioner without a warrant. After petitioner's arrest, Judge Cannella, upon a clear showing of probable cause, issued a valid warrant for the search of petitioner's hotel room, and the room was searched pursuant to the warrant. It would serve no useful purpose to detail the evidence. Suffice it to say that there was more than reasonable ground to believe that defendant was engaged with others in an international conspiracy illegally to import enormous quantities of narcotics into the United States from France, and he has since been indicted for that crime.

Impliedly conceding the existence of probable cause, the only contention made by defendant's counsel at the close of the hearing was that the items seized both from petitioner's person, incident to his arrest, and those later seized from petitioner's hotel room pursuant to the search warrant were not properly the subject of seizure. In short, defendant contends that the items seized were not the means, instruments or fruits of the alleged crime, but private papers desired by the government merely for use as evidence and, therefore, not subject to seizure, however lawful the search. Abel v. United States, 362 U.S. 217, 234-235, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Gouled v. United States, 255 U.S. 298, 310, 41 S.Ct. 261, 65 L.Ed. 647 (1921). The government argues that the power to search a person incident to a lawful arrest and seize the property found upon him for use upon the trial is not restricted to the implements of crime, but extends to any relevant evidence.

English and American law have always recognized the right on the part of arresting officers "to search the person of the accused when legally arrested, to discover and seize the fruits or evidences of crime." Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 344, 58 L.Ed. 652 (1914) (emphasis supplied). In such cases, seizure is not restricted to things which might be taken under a search warrant where there is no arrest of the possessor. In the words of Judge Cardozo, "the peace officer empowered to arrest must be empowered to disarm. If he may disarm, he may search, lest a weapon be concealed. The search being lawful, he retains what he finds, if connected with the crime. We may be sure that the law would be flouted and derided if, defeating its own ends, it drew too fine a point, after sanctioning the search, between the things to be retained and the things to be returned. * * * The search, we are told, may lawfully be made, but what is found must be returned, though it be proof positive of guilt, unless at the same time it is an implement of felony. This is to carry the immunity beyond the bounds of reason." People v. Chiagles, 237 N.Y. 193, 197-198, 142 N.E. 583, 32 A.L.R. 676 (1923)² (emphasis supplied). We think it clear, therefore, that all of the items³ taken from petitioner's person incident to his lawful arrest may be retained by the government and used upon the trial insofar as relevant. Draper v. United States, 248 F.2d 295, 299 (10 Cir. 1957); Kernick v. United States, 242 F.2d 818 (8 Cir. 1957); Shepherd v. United States, 100 U.S.App.D.C. 302, 244 F.2d 750, 755 (1956); United States v. Kirschenblatt, 16 F.2d 202, 203, 51 A.L.R. 416 (2 Cir. 1926). If, however, the items prove to be irrelevant or immaterial upon the trial, they should be returned to the defendant immediately upon its conclusion. Cf. People v. Chiagles, supra, 237 N.Y. at 199, 142 N.E. 583.

The items seized from petitioner's hotel room under a lawful warrant are governed by a different principle. Seizure in such circumstances is limited by Rule 41(b) (2) of the Federal Rules of Criminal Procedure to property "designed or intended for use or which is or has been used as the means of committing a criminal offense". Thus, not every item seized under a valid warrant may be retained and used as evidence however relevant the item or lawful the search which produces it. Abel v. United States, supra, 362 U.S. at 234, 80 S.Ct. 683. A valid warrant does not give searching officers carte blanche to make a general exploratory search of premises for incriminatory evidence (United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932); Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931)), but there is not the slightest suggestion, much less evidence, that such a search was conducted here. Rather the evidence shows that the search was reasonably confined to petitioner's hotel room and the items seized limited to the following:

(1) Program for Le Carrousel.

(2) Check Book, Commercial Bank of Covington, Louisiana.

(3) Bill for Hotel Continental, Paris, dated February 16, 1964.

(4) Prescription from Dr. Schollar, dated 1/2/64.

(5) Pan American Airlines Ticket #XXX-XXXXXXXXX and assorted papers with figures.

(6) Hotel Stationery.

(7) TWA Ticket Stubs #XXXXXXXX-XXXX and #XXXXXXXXXXXX.

(8) Immunization Card (Passport purposes).

(9) Some business cards, four (4) matchbooks, toothpicks, Hotel Lotti, Cannes, perfume box, for Prince DeGaulles, Paris, Le Prefire.

(10) 615 new and old Francs and change.

(11) 80,000 Bolivanos, 80 Argentinian Pesos, 40 Peru. Solos.

The government concedes that items (1), (3), (4), (6) and (9) are not instrumentalities of crime and consents to their return. We, therefore, make no ruling with respect to those items except to direct their return to defendant and to preclude the government from using them as evidence upon the trial. Neither side has elicited any evidence beyond...