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November 15, 1960

Edward BOLGER, Plaintiff,
UNITED STATES of America, Robert G. Anderson, Secretary of the Treasury of the United States of America, Customs Agents, William J. O'Shea and Thomas F. Loughman, Customs Enforcement Officers Walter J. Conlon and Joseph E. Patterson and Dorothy T. Zecha, Shorthand Reporter, in charge of office of Supervising Agent of Customs, Port of New York and Michael Cleary, Defendants. Edward BOLGER, Plaintiff, v. WATERFRONT COMMISSION OF NEW YORK HARBOR and David C. Thompson, Commissioner, and James O'Malley, Jr., Commissioner, Defendants

The opinion of the court was delivered by: BRYAN

Edward Bolger, the plaintiff in these two actions, is a hiring agent and longshoreman licensed by the Waterfront Commission of New York Harbor and employed on the New York waterfront.

 Bolger claims that on September 12, 1959 he was arrested in the early morning by federal customs agents without a warrant and held until the evening of that day without being arraigned or even charged; that during the day his home was searched and property found there seized without warrant, nd incriminating statements were extracted from him while he was under detention. He contends that the arrest, search and seizure and detention were all unlawful and in violation of his rights under the Fourth and Fifth Amendments of the Constitution and under Rules 4, 5(a) and 41 of the Federal Rules of Criminal Procedure, 18 U.S.C.

 In the first action, Civil No. 153-182, the defendants O'Shea and Loughman are Customs agents, and Conlon and Patterson are Customs enforcement officers who were concerned in the detention and questioning of Bolger and the search and seizure. Defendant Zecha is a Customs Service shorthand reporter who took down and transcribed an incriminating statement made by Bolger during his detention. Defendant Cleary is a Waterfront Commission detective who was present when Bolger's statement was taken and at other times during his detention.

 Bolger had originally named as defendants in the first action the United States and the Secretary of the Treasury. The action has been dismissed as to these defendants.

 Bolger seeks an injunction restraining each of the remaining defendants from testifying, as to any evidence obtained or statements made during his detention or secured by the search and seizure, in criminal proceedings against him now pending in the Court of Special Sessions of the City of New York, or in proceedings before the Waterfront Commission for the revocation of his longshoreman's and hiring agent's licenses. He also seeks the return of all property seized.

 In the second action, Civil 60-1184, the defendants are the members of the Waterfront Commission of New York Harbor, a bi-state agency of the States of New York and New Jersey. Bolger seeks to restrain the Commission and its members from considering any evidence obtained in the course of the detention and search, in the proceedings before it relating to his licenses.

 Bolger brought on a motion before me for a preliminary injunction in his first action. I directed that a hearing be held before me on the facts. After that hearing had started Bolger commenced his second action against the Waterfront Commission. During the course of the hearing all parties stipulated that the hearing should be considered a final trial on the merits in both actions. The trial has been concluded and both actions are now ripe for final decision.

 I. The facts

 The facts as developed at the trial and as I find them to be are as follows:

 In September 1959 Bolger was employed by the Cosmopolitan Line as an assistant boss of stevedores mainly acting as foreman during the loading and unloading of ships at various piers along the New York shore of the North River. He had been employed on the waterfront for 35 years. He is 54 years old, married, and lives in Keansburg, New Jersey, about an hour's drive from New York. He has had no previous trouble with the law.

 September 12, 1959 was a Saturday. At about 8:00 in the morning, Bolger entered Pier 56, North River, at 14th Street, one of the piers on which he regularly worked. The pier was not being worked on that day.

 Federal customs enforcement officers, Patterson and Conlon, were in a parked car about 200 yards distant. They were on the lookout for thefts from the piers and particularly thefts of liquor which had been occurring frequently. They observed Bolger enter the deserted pier, carry a cardboard carton from it and place the carton in a car parked at the pier entrance. He then was observed to move some pallets about the pier with a fork lift truck. About half an hour after he had entered the pier he got in his car and drove south. The customs officers followed in their car.

 At Pier 46, North River, four blocks south, Patterson displayed his badge and ordered Bolger to pull over to the side and stop. Bolger complied and the officers parked their car in front of his. The officers ordered him out of his car and 'frisked' him. It was then shortly after 8:30 a.m.

 Conlon asked Bolger to show him the carton which he had carried from the pier. Bolger did so. It contained only empty soda bottles. Conlon examined several other cartons in the back of the car. They contained more empty soda bottles. He then ordered Bolger to open the trunk. Again there were only empty soda bottles. Bolger was questioned about whether he had obtained any liquor from the piers. He replied that he had six or eight bottles at home which he had bought from crew members who had bought the liquor from ships' stores.

 When Conlon had completed the search of the back of the car and the trunk, Patterson searched the front of the car. In the glove compartment, he found a number of spark plugs and windshield wipers. Two of the windshield wipers and six of the spark plugs were stamped 'Made in England'. They could have been bought here for about seven dollars.

 In view of Bolger's statements about the possession of liquor obtained from crew members and the two windshield wipers and six spark plugs found in his car stamped 'Made in England', the Customs officers decided to take Bolger in custody. By then it was close to 9 o'clock.

 Bolger and Patterson got into Bolger's car and followed Conlon's car south. Both parked in front of Pier 42. Conlon went inside to call his superiors, Customs agents O'Shea and Loughman. Patterson took Bolger's car keys, told Bolger to remain in the car, and followed Conlon inside. When he came out a few minutes later Bolger asked to telephone. Patterson refused but said he would be permitted to call later.

 Patterson and Bolger then followed Conlon in Bolger's car to 54 Stone Street, headquarters of the Customs Enforcement Section, arriving there about half past nine. Bolger again asked Patterson to use the telephone and was again refused.

 At 10 a.m. customs agents Loughman and O'Shea arrived at 54 Stone Street. At about 10:30, after some preliminary questions Bolger was taken into a separate room by O'Shea. He admitted that he had some thirty or forty bottles of liquor obtained from seamen, and additional merchandise, at his home in Keansburg. Later in the interrogation Bolger signed a so-called consent to search which read as follows:

 'I, Edward Joseph Bolger, hereby authorize W. J. O'Shea and -- - Customs Agents of the Customs Agency Service, U.S. Treasury Department, to conduct a complete search of my residence located at 80 Willis Ave. Keansburg, N.J. These agents are authorized by me to take from my residence any letters, papers, materials, or other property which they may desire.

 'This written permission is being given by me to the above agents voluntarily and without threats or promises of any kind.'

 It was signed by Bolger and witnessed by O'Shea. The agents rely on this document to justify the search of Bolger's house and the seizure of property found there.

 The testimony is in conflict as to the circumstances under which Bolger signed the consent.

 After considering the conflicting testimony and evaluating the credibility of the witnesses, I find that Bolger refused to sign the consent to search without consulting a lawyer. The agents told him in substance that, considering the information they had already obtained, the consent form was unnecessary and they could search without it but that he mights as well sign it to save them trouble. Bolger then signed the form.

 Bolger had previously asked Loughman how his present difficulties would affect his longshoreman's and hiring agent's licenses issued by the Waterfront Commission. Loughman told Bolger that he had nothing to do with Waterfront Commission and could promise him nothing but that when the Waterfront Commission examined Bolger's case they would probably take his cooperation with the Customs Service into account.

 Shortly before 11 a.m. Patterson, Conlon, O'Shea and Bolger left 54 Stone Street in a government car for Bolger's house in Keansburg, New Jersey. They arrived about noon. Bolger's wife was there with two guests and their children who were spending the weekend. Bolger briefly explained to his wife why the agents were there. Then, at O'Shea's direction he led O'Shea to a bedroom closet where there were some seventy-five bottles of liquor. O'Shea then searched other parts of the house. During most of the search Bolger remained in the dining room with one of the other agents and Mrs. Bolger accompanied O'Shea. O'Shea removed various other items, including perfumes, gloves, handkerchiefs, linens, porcelain figurines, cloth and costume jewelry. In Mrs. Bolger's bedroom closet he found a Stenorette tape recording machine made in West Germany.

 Bolger was asked if he wanted to have some lunch but said he did not. Bolger, Patterson, Conlon and O'Shea left for New York at about 2 p.m., the search having taken some two hours. They took with them all the articles which they had found in Bolger's house which they suspected were acquired illegally.

 On the way back to New York they stopped for lunch. Bolger was offered food but had only a bottle of soda. This was all he had from the time he was first detained at 8:30 a.m. until he was released at 7:30 p.m. that night.

 The group arrived back in New York about 4 p.m. and went directly to 201 Varick Street, headquarters of the Customs Service.

 The Waterfront Commission, which worked in close cooperation with the Customs Service, had been informed f Bolger's detention.

 About ten minutes after Bolger arrived at Varick Street he was questioned briefly by Machry, a Waterfront Commission detective, and was asked to show his hiring agent's and longshoreman's licenses.

 Loughman, and Cleary, another Waterfront detective, were standing nearby. They asked Bolger to produce his key ring. Bolger told them that one of the keys was to a tool room in the basement of an apartment house on 75th Street and West End Avenue which he occasionally used to repair pier equipment. Loughman and Cleary decided to investigate this story. They drove Bolger to the basement tool room in a Waterfront Commission car, ordered Bolger to open the room and searched it. Finding nothing suspicious they returned to Varick Street with Bolger about 5:45 p.m. A few minutes later he was asked if he was willing to make a statement concerning the merchandise seized from his home. Apparently he did not demur.

 After telling him that he did not have to make a statement and that anything said could be used against him, he was sworn, and Loughman and O'Shea proceeded to question him. Mrs. Zecha, a Customs Service reporter, took down the questions and answers verbatim. Cleary, the Waterfront Commission detective, was present throughout the questioning and could have participated though he did not do so.

 Bolger admitted that with the exception of a few items which he had bought from crew members he had found most of the merchandise taken from his house on piers where he was working and had removed it. He also said that he had found the Stenorette tape recorder 'bunked' on a lighter moored at one of the piers.

 At the conclusion Bolger was asked whether he had voluntarily granted permission to search his house and whether the statement was made voluntarily without 'duress, threats or other form of intimidation or promise of reward'. He replied that it was. The statement was transcribed but was never shown to Bolger and was unsigned.

 The questioning concluded about 7 p.m. Bolger was permitted to leave at 7:20. One of the customs officers drove him back to 54 Stone Street where his car was parked and he drove off about 7:30.

 Although a United States Commissioner was sitting in the United States Court House, a short distance away, from 11 a.m. to 1 p.m. on that day, no effort was made to bring Bolger before the commissioner, or before any of the judges of the court who might have been available. Nor was there any attempt to obtain a search warrant. At no time was counsel available to Bolger, despite the fact that he had indicated he wanted to consult counsel before signing the 'consent' to search and, at least twice, was refused the use of a telephone. At no time was he advised of his right to arraignment, to a hearing before a commissioner, or to consult counsel.

 A month later Bolger was arrested by the New York City police upon a charge of grand larceny for the theft of the Stenorette tape recorder which was among the articles seized by the customs officers at his house on September 12. This charge, now reduced to petty larceny, is scheduled for trial in the Court of Special Sessions of the City of New York. As the result of this charge the Waterfront Commission subsequently suspended temporarily Bolger's licenses as hiring agent and longshoreman. Hearings on the revocation of these licenses have been deferred until after the disposition of the larceny charge in the Court of Special Sessions. The trial in Special Sessions has been deferred pending decision of the present actions.

 II. The first action (Civil No. 153-182)

 a. Jurisdiction

 The question of jurisdiction lies at the threshold of Bolger's action against the agents of the federal Customs Service and the Waterfront Commission detective Cleary. All the defendants contend that this court has no jurisdiction of the subject matter of the action. The considerations affecting ...

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