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UNITED STATES v. MCCARTHY

January 11, 1966

UNITED STATES of America
v.
Aedan Charles McCARTHY, Defendant



The opinion of the court was delivered by: MISHLER

MISHLER, District Judge.

 Defendant moves to suppress evidence [Rule 41(e)] on the ground that such evidence was obtained in violation of defendant's rights under the Fourth and Fifth Amendments, and to dismiss the indictment "on the grounds that all the evidence * * * was obtained as a result of, and pursuant to, an illegal attempt to arrest the defendant. * * *" (Defendant's notice of motion).

 Defendant is charged in this two-count indictment with assault on a Special Agent of the F.B.I. [18 U.S.C. § 111], and an attempt to escape from custody of F.B.I. Agents, after having been placed under lawful arrest [18 U.S.C. § 751] pursuant to the unlawful flight statute [18 U.S.C. § 1073].

 The relief available under Rule 41(e) is "* * * for the return of the property and to suppress for the use as evidence * * *" anything obtained as a result of an unlawful search and seizure. There is no claim of an unlawful search or a seizure of property; nor is there a claim that any evidence, in the hands of the prosecutor, flowed from an unlawful search or seizure. In defendant's brief (p. 6) he urges in the caption of point III of his argument that "evidence of any alleged scuffle at the time of the unlawful arrest must be suppressed." The concept is without support in law or logic. A confession made while under illegal arrest does not, ipso facto, render the confession inadmissible. Wong Sun v. United States, 1963, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441; Brinegar v. United States, 1949, 338 U.S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879. Certainly, then, are voluntary acts, while under unlawful arrest, subject to proof.

 The motion to dismiss both counts in the indictment is based on the claimed illegality of the arrest. The first attack on the arrest is directed to the sufficiency of the complaint upon which the warrant of arrest was issued.

 The complaint made by F.B.I. Agent Maceys and upon which the Commissioner issued a warrant of arrest stated only that it was "based on information obtained by investigators of the New Haven Office, F.B.I." Rule 4(a) of the Rules of Criminal Procedure provides in part:

 
"If it appears from the complaint that there is probable cause to believe that an offense has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall issue to any officer authorized by law to execute it."

 In Giordenello v. United States, 1958, 357 U.S. 480, 486, 78 S. Ct. 1245, 1250, 2 L. Ed. 2d 1503, *fn1" the Court said the Commissioner "should not accept without question the complainant's mere conclusion that the person whose arrest is sought has committed a crime." The complaint in Giordenello did not provide "any basis * * * under Rule 4 that probable cause existed." See also Aguilar v. State of Texas, 1964, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723. While "[technical] requirements of elaborate specificity * * * have no proper place in this area," United States v. Ventresca, 1965, 380 U.S. 102, 108, 85 S. Ct. 741, 746, 13 L. Ed. 2d 684, the complaint must, nevertheless, comply with Rule 4(a) in showing a basis for the Commissioner's determination of probable cause. The complaint in the instant case was insufficient and the warrant issued thereon invalid.

 The arrest, however, was lawful if probable cause is shown. Giordenello v. United States, supra; Di Bella v. United States, 1960, 2d Cir., 284 F.2d 897, order vacated on other grounds, 369 U.S. 121, 82 S. Ct. 654, 7 L. Ed. 2d 614.

 A person in custody under lawful arrest is required to submit to the arresting authority, while one under unlawful arrest may resist. United States v. Di Re, 1948, 332 U.S. 581, 594, 68 S. Ct. 222, 228, 92 L. Ed. 210; Foster v. United States, 1962, 5th Cir., 296 F.2d 65, 67.

 Resistance, and the use of force or violence against the assailants, even though they are police officers, is privileged if such force or violence is not more than sufficient to prevent the commission of an offense against the person. People v. Dreares, 1961, 1st Dep't, 15 App.Div.2d 204, 221 N.Y.S.2d 819, aff'd mem., 1962, 11 N.Y.2d 906, 228 N.Y.S.2d 467, 182 N.E.2d 812; People v. Pitcher, 1959, 4th Dep't, 9 App.Div.2d 1016, 194 N.Y.S.2d 337 (per curiam). Whether such force or resistance is "not more than sufficient " is to be judged in "terms of the physical necessities of the situation." People v. Cherry, 1954, 307 N.Y. 308, 121 N.E.2d 238. Thus, a victim may not pursue his counter-attack merely for the sake of revenge. Ibid. The counter-attack should occur in close sequence to the unlawful arrest and as part of the resistance to such. People v. McNeil, 1965, 15 N.Y.2d 717, 256 N.Y.S.2d 614, 204 N.E.2d 648; People v. Allen, 1964, 15 N.Y.2d 558, 254 N.Y.S.2d 369, 202 N.E.2d 911 (mem).

 The right to exert sufficient force to resist an unlawful arrest is a matter of defense to the first count. Thus, the lawfulness of the arrest is a fact question, resting on the presence or absence of probable cause, to be submitted to the jury. The issue is presented differently in the framework of the second count. One of the essential elements of the crime charged under 18 U.S.C. § 751 *fn2" is that the custody of the defendant was "pursuant to lawful arrest. * * *"

 The arrest was made under 18 U.S.C. § 1073. That section provides:

 
"Violations of this section may be prosecuted * * * only upon formal approval in writing by the Attorney General or an Assistant Attorney General of the United States, which function ...

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