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United States v. Alvarado

August 7, 1963


Author: Hays

Before MOORE, HAYS and MARSHALL, Circuit Judges.

HAYS, Circuit Judge.

Defendant appeals from a judgment of conviction, entered upon a jury verdict, for violations of the narcotics laws. 18 U.S.C. § 1403, 21 U.S.C. § 176a, 26 U.S.C. §§ 4741(a), 4742(a), 4744(a), 7237(a). He assigns as error the denial by Chief Judge Sylvester Ryan of his motion to suppress certain evidence. We affirm on the authority of Abel v. United States, 362 U.S. 217, 80 S. Ct. 683, 4 L. Ed. 2d 668 (1960).

The evidence shows that appellant Alvarado and his codefendant, Torres, both nationals of Panama then living in New York, wrote to one Byron Foreman in Panama, asking Foreman to send them some marihuana. Upon receiving Foreman's assent to the plan, Torres and appellant rented a post office box under the name Luis Sanchez. Torres wrote the name and address under which the box was rented on a matchbook cover, and gave it to appellant, Torres and appellant instructed Foreman to forward the marihuana to the post office box and sent him a money order for $80 signed by appellant.

Thereafter Torres and appellant were advised by Foreman that the narcotics were being shipped. The narcotics had, however, been discovered by customs officials in Florida during a routine examination of air parcel post from abroad. The package was resealed and forwarded to New York for delivery to the addressee by the postal authorities, and the post office box was placed under surveillance. When Torres came to the post office box and removed the package he was arrested. He thereupon agreed to cooperate with the authorities.

After Torres' arrest, Customs Agents, acting without a warrant, went to appellant's apartment and upon identifying themselves as Federal agents, were invited by appellant to enter. Agent Cozzi asked appellant whether he was an American citizen, to which appellant replied that he was from Panama. Cozzi examined appellant's passport and concluded that appellant was in the country illegally. Leaving one of the agents in appellant's apartment, Cozzi went outside and telephoned the Immigration and Naturalization Service. He told the official on duty that he had come across a Panamanian who was in the country illegally, and "was wondering if [I.N.S. was] interested in sending up any officers."

Fifteen minutes later two Immigration investigators, Calemine and LaVeille, arrived outside appellant's apartment. Cozzi told them that it appeared that appellant had overstayed his leave in the United States. Calemine said, "Well, let's go up and see."

The officers entered appellant's apartment, where Calemine identified himself and questioned appellant regarding his stay in this country. The I.N.S. agents then arrested appellant, although they had no warrant for his arrest, and searched his apartment.

Appellant was asked whether he had any pay receipts from past employment. Appellant "fished" behind some photographs on the mantlepiece, and was observed by Calemine attempting to conceal a small object. The object, an address.

At this point Calemine asked that a window be opened. In the process of opening the window, an ashtray was overturned and a matchbook fell out. Agent Cozzi testified that "the defendant almost broke a leg getting over to pick it up." The matchbook contained the name and adress under which the post office box had been rented.

Appellant was arraigned on March 7, 1962, some 19 days later.

Appellant urges that his arrest was invalid because no warrant had been obtained, 8 U.S.C. § 1252(a), and, alternatively, because it was procured by Agent Cozzi as a subterfuge to permit a search of appellant's person and apartment for evidence to be used in a criminal prosecution. In support of the latter claim, appellant relies on the following statement contained in a letter from the Customs Bureau to the United States Attorney's office:

"Juvenal Martinez-Alvarado was arrested by Immigration officers at his residence on February 16, 1962 on information furnished by this office to the effect that he was in the United States illegally in overstaying a conditional entry. This action was taken so that this office could develop additional evidence to arrest him for his part in the marihuana case."

The invalidity of the arrest, appellant submits, required that the evidence seized at his apartment be suppressed. Moreover, he urges, a handwriting sample taken during his unlawful nineteen day detention ...

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