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February 7, 1966

Maxie THOMAS and Wilbur Wiggins, Defendants

The opinion of the court was delivered by: TENNEY

TENNEY, District Judge.

 Defendants move herein, pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure, to suppress the use of two cartons allegedly seized from them in violation of their Fourth Amendment rights.

 Based on the evidence adduced at the hearing, at which both defendants testified, as did the three railroad policemen involved as well as Agent Conlon of the Federal Bureau of Investigation, I find the following to be the facts (substantially as alleged by the Government):*

 In the early evening of Friday, November 5, 1965, at approximately 7:15 P.M., Lt. George Matwijeczko and Patrolmen James Mullarkey and Lonnie Hamilton, all employees of the New York Central Railroad Police Department, were on duty near 11th Avenue and 30th Street in the New York Central Railroad's 10th Avenue Yard, situated between 10th and 12th Avenues and 30th and 32nd Streets, New York City (Gov't's Exh. 1). These three individuals were employed as policemen pursuant to appointments by the Superintendent of the New York State Police, made under Section 88(1) of the New York Railroad Law, McKinney's Consol.Laws, c. 49, and were in possession of cards, or commissions, evidencing their appointment. Their assignment on the evening of November 5th was to patrol the various marshalling yards and trucking platforms situated on New York Central Railroad (hereinafter "Railroad") property within the area bounded by 10th and 12th Avenues and 30th and 37th Streets, New York City. Matwijeczko, Mullarkey and Hamilton (hereinafter collectively referred to as "railroad policemen" or "police") had anywhere from 14 months' to 8 years' service with the Railroad, and had patrolled this same area for a number of years.

 These three railroad policemen were thus fully familiar with the physical layout and character of the area, and with the activity or inactivity in this area at all times of the day and night, including Friday evenings. They knew, for instance, that the area was almost entirely desecrated at that time of the evening, with no trucking activity and almost no private vehicular or pedestrian traffic. They knew that pedestrian traffic in the area was rare because of the absence of pedestrian attractions or facilities. They also knew from experience that the bulk of the business in that area consisted of the off-loading of perishable foodstuffs from railroad cars into trucks, but that none of this type of work was done on Friday or Saturday. They knew that there was a small amount of trucking done in the area on Friday but that all such work ceased at 5 o'clock on Friday afternoon.

 At approximately 7:15 P.M. these three railroad policemen, while sitting in two patrol cars, one marked and one unmarked, in the 10th Avenue Yard, near the corner of 30th Street and 11th Avenue, observed two men (the defendants Thomas and Wiggins) at the southeast corner of 11th Avenue and 30th Street, proceeding on 11th Avenue across 30th Street, each carrying a large and apparently heavy carton. They watched Thomas and Wiggins continue north on the sidewalk on 11th Avenue, immediately above their position in the 10th Avenue Yard.

 Upon seeing this, the suspicion of the railroad policemen that something was afoot was aroused. Firstly, they already knew from experience that it was unusual to see any pedestrian traffic at that hour of the evening. Secondly, they knew it was very unusual for anyone in that area to be carrying a carton on the street, regardless of the time of day or night, since cartons were never carried that way, except occasionally from a vehicle into a yard, and if a carton were moved along a street, it was done by handtrucks, not by handcarrying. Accordingly, the three railroad policemen decided to investigate.

 Traveling in two cars, one marked and one unmarked, they proceeded out of the yard via a ramp located near the corner of 30th Street and 11th Avenue (the corner where Thomas and Wiggins were first seen) and proceeded north on 11th Avenue until they were abreast of Thomas and Wiggins, who were then on the sidewalk at the northeast corner of 32nd Street and 11th Avenue. Matwijeczko double-parked on 11th Avenue, just south of 32nd Street (location "B" on Government's Exhibit 1), and walked east into 32nd Street and then north to the sidewalk, just east of defendants' locations. Neither car used any siren or flashing light in making this approach.

 As the police officers thus approached, Thomas was standing on the sidewalk near a carton (also situated on the sidewalk); Wiggins, however, appeared to have begun running with the carton, and to have then slipped and fallen, whereupon Lt. Matwijeczko assisted him in getting up.

 Matwijeczko and Hamilton, dressed in plainclothes, then identified themselves, both orally and by displaying their badges. *fn1" Mullarkey, who was dressed in his official uniform, did not identify himself.

 While all three railroad policemen were carrying guns at the time, at no time did they touch or draw them, *fn2" and Hamilton demonstrated at the hearing that his gun was not even visible.

 Lt. Matwijeczko and Patrolman Mullarkey, separately, then questioned Wiggins and Thomas, respectively. *fn3" In substance, Wiggins told Lt. Matwijeczko that he and Thomas had found the cartons on the corner of 30th Street and 11th Avenue, that they intended to sell them uptown, and did not have any bills for them. *fn4" Meanwhile, Thomas first told Mullarkey and Hamilton that they found the cartons at the corner of 31st Street and 11th Avenue, and then, upon being advised that there was no 31st Street in that area, said they found them at the corner of 30th Street and 11th Avenue.

 When Lt. Matwijeczko then asked both of them, in substance, "how about coming to our office and we'll find out who the cartons belong to," Wiggins replied, "sure, we just found them, we got nothing to hide." *fn5" At no point was a physical restraint put on the defendants or force used. *fn6"

 Based on the evidence, it appears that the railroad policemen knew that Thomas and Wiggins could not have found the cartons at the corner of 30th Street and 11th Avenue. In the first place, Thomas and Wiggins were first seen walking at that corner with the cartons already on their shoulders. Secondly, just a few minutes prior to 7:15 P.M., both Matwijeczko and Mullarkey had driven by that same corner, and neither had seen any cartons; and if they had seen cartons they would have picked them up and returned them to their owner, as they had done on other occasions.

 During and after these separate conversations, the railroad policemen observed the outside of the two cartons (Government's Exhibits 2 and 3) which were then resting on the sidewalk near Thomas and Wiggins. In addition to noticing that the two cartons were identical in size and shape, they saw identical printing and labels on the outside of the unopened cartons indicating "Made in Japan", plus a large triangle which encircled various numbers, the meaning of which they did not then understand.

 After agreeing to Lt. Matwijeczko's suggestion about going back to the office, Thomas and Wiggins each picked up a carton and placed it in the rear seat of the unmarked car. Then Thomas, Wiggins, Matwijeczko and Hamilton got in the same car and drove to the office, or locker room, of the New York Central Railroad police, at 34th Street and 12th Avenue, arriving there at approximately 7:30 P.M. Meanwhile, Mullarkey proceeded alone to the same office in the marked car. *fn7"

 When they arrived at the office, Wiggins and Thomas carried the cartons into the office and set them on the table. Upon questioning, Wiggins again stated that they had found the cartons, but said he did not know what was contained in the cartons. *fn8" Lt. Matwijeczko after saying "Well, let's find out", then tore open one flap of the carton and pulled out one of the items (a china and wroughtiron hot pad). However, he was unable to find a bill of lading. Neither Thomas nor Wiggins voiced any objection to this inspection, and the carton was thereafter left intact.

 Being unable to determine the ownership of the cartons, Matwijeczko telephoned Special Agent John M. Conlon of the F.B.I. shortly after 7:30 P.M. He explained to Conlon that he had two men there, explained what the railroad policemen had seen and what had happened up to then, described the carton, told him what Wiggins and Thomas had said about finding the cartons and their intent to sell them, stated he was unable to find out whom the cartons belonged to, and told Conlon that he had not arrested Wiggins and Thomas. Conlon advised Matwijeczko not to arrest Wiggins and Thomas, not to hold them on Conlon's account, to let Wiggins and Thomas go if they wanted to leave, after taking their names, and to endeavor to ascertain the owner of the goods and whether it was an interstate shipment.

 Consequently, Lt. Matwijeczko immediately left the office and returned to the corner of 30th Street and 11th Avenue to investigate the area where Wiggins and Thomas said they found the cartons and to determine their origin, but found nothing at that corner. Eventually he found a person at 29th Street and 11th Avenue who ultimately led Matwijeczko to the premises of the Standard Hauling Company, Inc., located at 29th Street and 11th Avenue, just one block from where Thomas and Wiggins were first seen carrying the cartons. There Matwijeczko discovered a trailer parked in a fashion to permit entry into the rear of the trailer, and inside the trailer Matwijeczko observed other cartons, of the same size and shape, bearing the same markings and numbers as the two cartons which Thomas and Wiggins had been carrying.

 As a result, Lt. Matwijeczko telephoned New Jersey and spoke to the president of Standard Hauling Company, Inc., Mr. Albert Wasserman, who agreed to come over to the New York Central Railroad Police Department office in an effort to identify the cartons and produce a bill of lading.

 During Lt. Matwijeczko's absence, Wiggins inquired of Mullarkey and Hamilton as to why they weren't being turned over to the city police. Mullarkey advised him that it was because they didn't know where the cartons came from. When Wiggins then asked if he and Thomas could go if they couldn't find out where they (the cartons) came from, Mullarkey told him "that's right."

 At approximately 8:15 P.M., Matwijeczko returned to his office to wait for Mr. Wasserman's arrival. There he advised both Wiggins and Thomas of his discovery; however, both denied stealing the cartons and repeated their claim that they had found the cartons.

 While waiting for Wasserman's arrival, Matwijeczko again spoke by telephone to Conlon. He advised Conlon of his investigation concerning the origin of the cartons, including his discovery of the improperly parked trailer on the premises of Standard Hauling, and of other cartons in that trailer which were identical to those which Wiggins and Thomas were carrying. He also advised Conlon that he had spoken to Wasserman and that Wasserman was on his way to the railroad police office to make a positive identification and to produce a bill of lading. Conlon advised Matwijeczko that he would proceed to the railroad police office after Wasserman made a positive identification and produced the bill of lading establishing the interstate character of the shipment.

 During the same period of time, Matwijeczko asked Hamilton to get him, Matwijeczko, some food, whereupon Wiggins and Thomas asked if Hamilton would get some for them as well. Accordingly, Hamilton went to a nearby restaurant and purchased two hamburgers and coffee, each, for Thomas and Wiggins, with money furnished by one of the defendants.

 When Wasserman arrived at the railroad office at about 8:45 P.M., he identified the cartons, then obtained from the nearby office of Standard Hauling a bill of lading (Government's Exhibit 4) containing numbers identical to those on the outside of the two cartons and showing that the two cartons were being shipped by Standard from New York City to Washington, D.C. He further explained how the trailer had been improperly parked by one of his men so as to permit entry into the rear of the trailer.

 At approximately 9:00 P.M. Matwijeczko again called Conlon and informed him of the positive identification of the cartons, the bill of lading and their interstate character. Conlon advised him that he was on his way down; and at approximately 9:45 P.M. arrived at the railroad police office. Upon arrival, Conlon reviewed the facts with Wasserman and the railroad policemen, looked at the cartons and inspected the bill of lading.

 Conlon then interviewed Thomas and then Wiggins, alone. After advising Thomas of his right to counsel, his right to refuse to make any statement and that any statement could be used against him, Thomas gave substantially the same story that he had previously given to the railroad policemen. Conlon asked Thomas if he had any complaints about the way he had been treated, and Thomas said "no", n.9 and also asked Thomas if he had any objection to coming over with the railroad policemen to the office, and Thomas said, in substance, no, because they hadn't done anything wrong, they hadn't stolen the cartons, they had just found them. *fn9" Thomas also told Conlon he and Wiggins didn't want to stay around much longer because they wanted to go home. Conlon advised Thomas he would have to hold them a little while longer, because he might have to arrest them for a violation of Federal law.

 During Conlon's interview with Wiggins, Wiggins was also advised of the same rights and gave substantially the same story as previously given to the railroad policemen. However, this interview was relatively brief since Wiggins appeared to be in a distressed state.

 After telephoning his office and an Assistant United States Attorney, Agent Conlon advised both Thomas and Wiggins, at approximately 10:45 P.M., that they were under arrest for possession of goods stolen from an interstate shipment.

 Thereafter, Thomas and Wiggins were taken to the Federal Detention Headquarters, West Street, New York City, and lodged overnight until their appearance before the Commissioner the next morning.

 All three railroad policemen testified that at no time, prior to being told by Conlon that they were under arrest, did either Thomas or Wiggins request, suggest or indicate that they wanted to leave. They were neither told that they were under arrest nor that they were free to leave; nor was any physical restraint, either by guns, handcuffs, or otherwise, exerted on either Thomas or Wiggins. In fact, they all testified that prior to Colon's arrival, besides eating, there was conversation on totally unrelated subjects. The railroad policemen also denied that defendants had been frisked or searched at the corner of 32nd Street and 11th Avenue, where Thomas and Wiggins were first questioned.

 With the conflict in testimony resolved, I now proceed to consider the applicable law.

 The initial problem confronting the Court is to determine as of what point the defendants were arrested, whether as of that point probable cause existed to arrest them, and, as an incident to those determinations, whether detention for investigation constitutes an arrest.

 The defendants do not contend that as of 10:45 P.M. when Agent Conlon "formally" arrested them, the standard of probable cause, requisite for an arrest without a warrant (see Henry v. United States, 361 U.S. 98, 80 S. Ct. 168, 4 L. Ed. 2d 134 (1959)), was not met. They rather assert that they were arrested at some point after the initial encounter with the railroad policemen and probably at the point that they entered the police car to go to the railroad police office. In support of their argument they cite Henry v. United States, supra, as being dispositive, and press the Court to adopt the classical definition of arrest, namely, that once liberty of movement is restricted, an arrest has been effected. *fn10" "To determine whether an arrest has taken place we look to the facts to see if there has been 'an actual restraint of the person.'" Foote, The Fourth Amendment: Obstacle or Necessity in the Law of ...

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