United States v. Russian

• Citation: 192 F. Supp. 183
• Court: U.S. District Court — District of Connecticut
• Decision Date: 21 February 1961
• Parties: UNITED STATES of America v. Haskell Archie RUSSIAN.

192 F. Supp. 183

UNITED STATES of America v. Haskell Archie RUSSIAN.

Cr. No. ___.

United States District Court D. Connecticut.

February 21, 1961.

Harry W. Hultgren, Jr., U. S. Atty., Hartford, Conn., for plaintiff.

Jerome E. Caplan, Rogin, Nassau, Caplan & Lassman, Hartford, Conn., for defendant.

ANDERSON, Chief Judge.

By this motion under Rule 41(e) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., Haskell A. Russian seeks to suppress certain evidence obtained from him by agents of the Federal Bureau of Investigation on November 30, 1960.

A hearing in this court on January 20, 1961, at which special F.B.I. agent Stiles was the only witness, disclosed the following facts: agents of the F.B.I. received information from one David Emmons, of Putnam, Connecticut, that on October 19, 1960, Russian had sold to him several contraceptives with unusual attachments after having transported them from Pawtucket, Rhode Island. Emmons subsequently turned these items over to the agents. Thereafter, the agents learned from Emmons that Russian was to make delivery of certain obscene films to Emmons before noon on November 30th. In anticipation of this delivery, special agent Stiles, on November 29, 1960, made out a complaint and presented it to the U. S. Commissioner at Hartford for the purpose of obtaining a warrant for the arrest of Russian. The complaint asserted that it was based upon information obtained by Stiles in the course of his official duties; that Russian's truck bore a Rhode Island registration number, and that Emmons had turned over the five contraceptive items to Stiles. All of this was alleged to have been in violation of 18 U.S.C. § 1465, which prohibits knowingly transporting obscene matter in interstate commerce. On the basis of this complaint the commissioner issued an arrest warrant.

On November 30th, after the special agent had received progress reports by radio from other agents who were shadowing Russian, including a report of Russian's crossing the Rhode Island-Connecticut state line, the agent observed Russian driving his truck into Emmons' gasoline station where it stopped. Agent Stiles entered the rear of the truck just as Russian placed in the hands of an employee of Emmons two canisters of the type commonly used as containers for films. The canisters, with the films in them, were seized. The truck was then searched by the agents of the F.B.I. and certain additional evidence was taken from Russian's possession. All of the evidence so seized on November 30th is the subject of Russian's motion to suppress.

Although at first the Government took the position that the search and seizure were good as incident to a lawful arrest made pursuant to a proper warrant, on January 6th, this court ruled that the complaint, on which the warrant of arrest was based, was inadequate in the light of the standards described in Di Bella v. United States, 2 Cir., 284 F.2d 897, certiorari granted 81 S.Ct. 692 and Giordenello v. United States, 1958, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503. The Government now seeks to justify the search as one incident to a lawful arrest without a warrant. The Government claims that the officers, at the time they arrested Russian on November 30th, had reasonable grounds to believe that a felony was being committed by Russian in their presence, that is, knowingly transporting in interstate commerce obscene films for the purpose of sale or distribution. The hearing of January 20, 1961, held by this court, concerned the validity of the arrest without a warrant for a felony committed in the presence of the arresting officers. Agent Stiles, in addition to the facts stated above, also testified that, at the time the arrest was made, the agents thought that the warrant had been validly issued and that they were arresting Russian pursuant to and under its authority. Russian argues that because the warrant was based on the alleged past offense of October 19, 1960, the search conducted on November 30th could not have been incident to a lawful arrest because the officers did not purport to arrest Russian for any offense committed in their presence on the later date.

The subjective state of the arresting officers' minds, however, is not the touchstone of the legality of the arrest because the proper standard is an objective one. Whenever the officers are in possession of an arrest warrant, they doubtless have in mind that they are making the arrest pursuant to that warrant; but the cases demonstrate that even though a warrant may be held invalid by the court many months after the arrest, the Government may justify it by showing that at the time a lawful arrest could have been made without a warrant. In Di Bella, supra, the warrant was found to be invalid, but the arrest was upheld.¹ "Although Costa the agent apparently believed that this warrant was a valid one, yet, even though it was not, the arrest may be justified on the ground that Costa had reasonable grounds to believe that Di Bella had committed a narcotics violation." 284 F.2d at page 903. See also Giordenello v. United States, supra, 357 U.S. at page 488, 78 S.Ct. at page 1251.

Based upon the evidence presented at the January 20th hearing, the court finds that the F.B.I. agents had reasonable grounds to believe that Russian was committing a felony in their presence. This information was more than suspicion, and certainly met the standards of 18 U.S.C. § 3052. The arrest was therefore legal.

Russian's claim that there was no arrest for the November 30th violation is without basis in law.² It is true that arrests are usually prompted by acts or events indicating that one or more offenses have been committed. But an arrest is not made for a particular offense in the sense that evidence discovered in a search incidental thereto may be suppressed unless such evidence relates to the offense apparently prompting the arrest. See Charles v. United States, 9 Cir., 278 F.2d 386, certiorari denied 1960, 364 U.S. 831, 81 S.Ct. 46, 5 L.Ed.2d 59. In that case suppression was denied where a package of narcotics had been taken from the possession of the defendant after an arrest pursuant to a warrant charging the threatening of an assault and battery. The Court said:

"It seems to us that a search of the person of the accused, even for the purpose of uncovering evidence of a crime other than that which is charged, is generally incident to a valid arrest. Power over the body of the accused is the essence of his arrest; the two cannot be separated. To say that the police may curtail the liberty of the accused but refrain from impinging upon the sanctity of his pockets except for

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