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August 13, 1959

Jack MARTIN, Julius Kantor and Harry Appelbaum, Defendants

The opinion of the court was delivered by: BRYAN

Defendants Kantor and Appelbaum apply, pursuant to Rule 41(e), F.R.Crim.P., 18 U.S.C., to suppress evidence consisting of furs, packages of furs and the wrapper from a mailed package seized at the loft premises of Kantor and Appelbaum, Inc., at 305 Seventh Avenue, New York City, on September 6, 1958. *fn1" Kantor and Appelbaum, Inc., is a manufacturing furrier. Kantor is president, and Appelbaum is secretary-treasurer of the corporation, and, as individuals, they are co-lessees of the premises.

The testimony at the hearing held on this application *fn2" is in sharp conflict in a number of respects, and particularly on the key issue of whether there was consent to the search. It is not disputed that if there was such consent the other questions raised are academic. To resolve this issue it is necessary only to discuss the events which transpired at the time of the allegedly unlawful search, together with some necessary back-ground.

Some time prior to September 5 one Jack Martin, Named as a co-defendant in the indictment, a postal employee assigned to a special delivery package route, was suspected of misappropriating packages entrusted to him for delivery. Martin was placed under surveillance and furs in certain packages he was to deliver were marked by postal inspectors for later identification. Martin was observed on two occasions prior to September 6, the date of the search (August 23 and 30, 1958), entering 305 Seventh Avenue with packages. This building was not on his assigned route. On August 30 Martin was observed outside of 305 Seventh Avenue conversing with two men, later identified as Kantor and Appelbaum. As a result Martin was given specially prepared and marked packages for delivery on September 6, 1958, and close watch was kept on his activities that morning. Martin was observed by detectives and postal inspectors parking his mail truck near the freight entrance of 305 Seventh Avenue at about 11:20 a.m. He entered the building, stayed there for about ten or fifteen minutes and then came out and joined Kantor in a nearby restaurant at about 11:40. About ten minutes later both men left and separately entered 305 Seventh Avenue.

 Approximately fifteen minutes later several postal inspectors and New York City detectives entered the building and proceeded to the loft on the sixth floor occupied by Kantor and Appelbaum. Some time between 12 noon and 12:15 p.m. the search complained of commenced. There is conflict as to what transpired when the premises were entered.

 The entrance to the sixth floor loft occupied by Kantor and Appelbaum was through a door leading into a small anteroom with a grilled window on the right opening on a small office. When this door opened a bell rang in the main portion of the premises. There were swinging doors at the far end of the anteroom. *fn3" Beyond them was a showroom where goods were displayed to customers. To the left on entering the showroom was a door into a large factory room where furs were cut and garments fabricated. There was a large vault in the factory in which furs were stored. A door, customarily kept locked, led directly from the factory to the outside hallway so that one could leave the factory without passing through the showroom and anteroom. The factory portion of the premises contained miscellaneous paraphernalia including four sewing machines and three cutting tables.

 At noon on September 6, 1958, Kantor and Appelbaum were open for business. Kantor was in the showroom with a prospective customer and her two companions discussing the remodelling of a fur coat. In the factory Appelbaum and two employees were working on garments and there was also the defendant Martin. Thus, there were eight people on the premises, three of whom were in Kantor's company in the showroom when the bell rang indicating that someone had come into the anteroom.

 Kantor testified that he then opened the door between the showroom and anteroom and '* * * a couple -- some officers, (at a later point Kantor's estimate expanded to five or seven) pushed in, they shoved in, and I asked them what they wanted there. So they asked me right away, 'Where are the boxes?" 'So I asked them, 'What kind of boxes?' What are you looking for?' 'So he says, 'Never mind." 'And the men started running into the factory. * * *'

 Kantor claimed that he asked if the officers had warrants and was told 'We don't need any', that consent to search was neither requested nor given and that one of the officers dragged him into the factory. *fn4" According to Kantor, taken as a whole, the moment he answered the bell seven officers crowded into the showroom, specified in order of entry as Detective Reilly, Postal Inspector Hickey, Detective Kelly, Postal Inspector Cerra, Postal Investigative Aid Washington (wearing a postal uniform), Detective Shannon and Postal Inspector Shea. If this is true there would be grave doubt as to whether under such circumstances, after a 'mass invasion' of determined men, any consent given to the search could have been voluntary. However, I am satisfied that Kantor deliberately distorted the facts to create such an impression and that his testimony is not in accord with what actually transpired.

 There was no real corroboration of Kantor's story. His co-defendant Appelbaum and the two employees present in the factory at the time of the search testified they did not see and could not overhear his discussion with Hickey. They said that almost immediately after the bell rang some officers entered the factory area and the search began and that many men 'ran in'. However, at least one, and probably both employees continued to work throughout. Appelbaum denied that he gave any consent to the search.

 The testimony of Appelbaum and the two employees as to what occurred is as incredible as that of Kantor. All of them appeared to slant the facts so as to give the picture of a police raid en masse which brushed aside the defendants and all objections to the search. This picture is not substantiated by the credible evidence. The testimony of the two employees that they continued to work is, however, quite consistent with the testimony adduced by the Government.

 Inspector Hickey testified in detail as to the circumstances of the search. He said that Investigative Aid Washington (who also testified) first went into the premises dressed in a postal uniform. Washington told Kantor that he had a package for delivery. He was followed in a moment or two by Hickey and Detective Kelly. Hickey identified himself as a Postal Inspector and explained his mission to Kantor. He told Kantor he was there to recover packages brought into the premises by Martin. After Kantor denied that he knew anything about them Hickey requested permission to look around and Kantor granted such permission.

 As Hickey stepped toward the factory Appelbaum came forward. He requested Appelbaum for permission to search the premises and Appelbaum likewise consented.

 Up to this point there were only three investigating officers on the premises, all in the showroom. Also present were the prospective customer and her two friends. Kantor was not faced by an entry by storm or an implied threat by numbers but by three officers who asked consent to search in the presence of three disinterested spectators. Only after consent to search was given by both Kantor and Appelbaum, and he had gone into the factory, did Hickey send for two other officers who had been detailed to guard the rear door. *fn5" The three other officers were not then on the sixth floor and only arrived some fifteen minutes later.

 Hickey's testimony is entirely credible and is corroborated in substance by that of four other witnesses. I accept it. Only Hickey's testimony is consistent with the fact that work continued during the search for the packages and with the testimony of the ...

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