United States v. Pellegrini

• Decision Date: 11 February 1970
• Docket Number: No. 69 Cr. 605.,69 Cr. 605.
• Parties: UNITED STATES of America v. Muzio PELLEGRINI, Defendant.
• Court: U.S. District Court — Southern District of New York

309 F. Supp. 250

UNITED STATES of America v. Muzio PELLEGRINI, Defendant.

No. 69 Cr. 605.

United States District Court, S. D. New York.

February 11, 1970.

Whitney North Seymour, Jr., U. S. Atty., Southern District of New York, New York City, for United States of America; John J. Kelleher, Asst. U. S. Atty., of counsel.

Herbert Zelenko, New York City, for defendant; Louis J. Felstiner, New York City, of counsel.

OPINION

COOPER, District Judge.

Defendant moves to suppress certain statements and items of real evidence pursuant to Rule 41(e), F.R.Crim.P. on the ground that his rights under the Fourth and Fifth Amendment have been violated.

On October 29, 1969 a hearing was held by us to determine the facts applicable to relief sought. Both sides were content to rest on the testimony of the Government's one witness, Postal Inspector Shatzel. He testified that at about 5:30 A.M. on Saturday, May 17, 1969, while at the Centuck Post Office where defendant worked, he inspected the bin allotted to defendant and found certain mail (bonus coupons) therein which did not belong on defendant's route. From the elevated observation gallery inside the post office, Shatzel observed defendant arrive at about 6:45 A.M. and then, in addition to removing the mail sorted for his own route, remove bonus coupons from the mail clearly sorted for other carrier routes. Shatzel testified that defendant placed these bonus coupons in a sack at the bottom of his mail hamper, then packed his regular mail which he put in other sacks and in turn also placed in his hamper.

Shatzel next saw defendant leave and get into his private car parked in a supermarket lot across the street. He watched defendant park the car in front of the post office, return inside, wheel his mail hamper (containing both the mail for his route and the sack of bonus coupons) to the car, open the trunk and place all of the sacks of mail inside. After returning the mail hamper, defendant drove off.

At about 10:00 A.M. and again at about 11:00 A.M. that same day Shatzel observed defendant delivering mail on his route. At about 2:00 P.M. Shatzel, unable to find defendant on his route, drove past defendant's home and saw defendant's car backed into his driveway.

Shortly after 3:00 P.M. Shatzel, parked in the supermarket parking lot across from the post office, observed defendant park his car in that lot and proceed to the post office. Shatzel was in two-way radio contact with an Inspector Zekas, located in the observation gallery of the post office. At about 3:30 P.M. Shatzel saw defendant leave the post office and walk to his car.

As defendant opened the car door and started to get in, Shatzel, walking toward defendant's car and about ten feet away, hailed defendant by name. Shatzel identified himself to defendant and showed defendant his commission, a wallet-sized identification card. He then told defendant to step out of the car. As defendant complied, Shatzel bent over and looked into the back seat of the car. Seeing nothing Shatzel asked defendant, "Will you open up the trunk of your car?"¹ Defendant did so. As he did, Inspector Zekas arrived from the post office. Shatzel testified that as they were opening up the trunk of the car defendant said to him, "What are you looking for?"; that he replied, "I'm looking for coupons"; and that defendant then responded, "Yes, I know, they're at home."

Shatzel said that he noticed a small boy (whom he assumed to be defendant's son) seated in defendant's car evidently waiting for defendant. Following defendant's admission, Shatzel, standing by the car trunk with defendant and Inspector Zekas, motioned toward the boy and said to defendant, "I don't want to cause you any embarrassment. Will you go home and get these envelopes for me and bring them back to the station." In response, defendant "either said yes or he nodded." Shatzel then told defendant that he would follow him home and back at a "safe" distance of about a city block. Again, defendant either said yes or nodded affirmatively.

Defendant got into his car and proceeded home. Shatzel and Zekas followed in their car, keeping defendant's car in sight at all times. When they reached defendant's house the inspectors parked so that they kept a portion of defendant's car in view. The inspectors then followed defendant back to the post office. Shatzel testified that the purpose of following defendant was "to see that he would come back."

At the post office, defendant got out of his car with the sack of coupons and walked into the station with Shatzel. They proceeded to an office where defendant was duly advised of his constitutional rights. Defendant signed a waiver of those rights and thereafter initialed the retrieved bonus coupons and admitted orally and in writing that he took the coupons to convert them to his own use. After Shatzel discussed defendant's arrest with the United States Attorney's office, defendant was allowed to go home for the balance of the week-end and told to report on Monday morning for his arraignment.

The issues herein are whether defendant was entitled under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966) to a warning of his constitutional rights prior to the time he received such warnings at the post office, and, if so, whether defendant is entitled to suppression of the bonus coupons he retrieved and of the statements he made to the officers.

When the Miranda Warnings Are Required

In Miranda v. Arizona, supra the Supreme Court held that unless warnings effective to secure the privilege against self-incrimination have been given and such rights knowingly and intelligently waived, no evidence obtained as a result of custodial interrogation (questioning initiated by a law enforcement officer after a person is deprived of his freedom of action in any significant way) may be used by the prosecution.² General on-the-scene questioning by officers as part of the fact-finding process is not necessarily custodial interrogation.³ Likewise, volunteered statements are not affected by Miranda.⁴

In its subsequent decision in Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969) the Supreme Court laid to rest any argument that Miranda might be limited to interrogation at the police station, emphasizing that the warnings are required whenever the person being interrogated is "deprived of his freedom of action in any significant way."

The Second Circuit has recently defined this test more precisely in United States v. Hall, 421 F.2d 540 (2d Cir. December 15, 1969). That decision rejects the contention that (as in Escobedo) Miranda warnings are required whenever an investigation has "focused" on a particular suspect. Miranda's test of "custodial interrogation" as the point at which warnings are required resulted from concern that the atmosphere of such interrogation would have an inherently coercive effect on the person being questioned. Accordingly, our Circuit reasoned that the test of custody or significant restraint on liberty must be an objective one, and can neither depend upon the officer's inner intentions nor upon the suspect's subjective perceptions. "Some affirmative action by the authorities other than polite interrogation" is required. United States v. Hall, supra.

As to the additional affirmative action that is necessary:

"* * * In the absence of actual arrest something must be said or done by the authorities, either in their manner of approach or in the tone or extent of their questioning, which indicates that they would not have heeded a request to depart or to allow the suspect to do so. This is not to say that the amount of information possessed by the police, and the consequent acuity of their `focus,' is irrelevant. The more cause for believing the suspect committed the crime, the greater the tendency to bear down in interrogation and to create the kind of atmosphere of significant restraint that triggers Miranda, and vice versa. But this is simply one circumstance, to be weighed with all the others." Id.

The First Admission

Applying these principles to the instant facts, we turn first to defendant's initial admission that the bonus coupons were at his home.

At the outset, we do not believe that the absence of Miranda warnings prior to defendant's initial admission can be justified by the simple expedient of terming this "on-the-scene questioning." This was not simply routine inquiry, after the officer's suspicions are aroused, made at the scene as part of the fact-finding process as was the case in United States v. Thomas, 396 F.2d 310 (2d Cir. 1968); United States v. Gibson, 392 F.2d 373 (4th Cir. 1968); Allen v. United States, 129 U.S.App.D.C. 61, 390 F.2d 476 (1968); Lowe v. United States, 407 F.2d 1391 (9th Cir. 1969). The officers here had scant doubt, if any, that within their sight a crime had been committed by this defendant. Their primary purpose in approaching defendant was to nail down tangible supportive evidence of this fact.

Nevertheless, defendant may not suppress this admission on the ground it was made before the Miranda warnings were given. This admission by defendant was volunteered and did not come as a result of any interrogation; furthermore, even assuming some "polite interrogation," there was no additional affirmative action by the officer at this point which, viewed objectively, would indicate to defendant that he would not be permitted to leave and, thus, there was no "coercive atmosphere." See United States v. Hall, supra.

Inspector Shatzel's requests that petitioner get out of his car and open his trunk did not constitute interrogation. It was petitioner who initiated the questioning by asking, "What are you looking for?" The Inspector replied, "I'm looking for coupons," but did not question defendant. Defendant then volunteered the admission, "Yes, I know, they're at home."

While this is certainly closer to interrogation than the immediate spontaneous...