The opinion of the court was delivered by: CANNELLA
CANNELLA, District Judge.
Defendant Abraham Silinsky's motion, pursuant to Fed. R. Crim. P. 41(e), for the suppression as evidence and return of a potpourri of personalty taken from his home by special agents of the Intelligence Division of the Internal Revenue Service at the time of his arrest on April 27, 1965, is granted and the Government is hereby directed to return forthwith to the defendant all of the personalty seized, including any reproductions thereof, which it might still possess.
On April 9, 1965, a six count indictment was returned charging Abraham Silinsky and four co-defendants,
the latter two of whom are Canadian nationals, with (a) a conspiracy in violation of 26 U.S.C. §§ 7201, 7203 and 7206 to obstruct the Internal Revenue Service (hereinafter the " I.R.S.") in the collection of its taxes beginning in 1956 and continuing until the date of the indictment; and, (b) five counts of substantive crimes against the tax laws of the United States.
Silinsky was named in the second and third counts of the indictment, as well as the conspiracy count. In general, the indictment concerns a joint enterprise and partnership entered into by the five named defendants for the purpose of selling stock in certain Canadian mining corporations. The second count charges that during the calendar year of 1958 this joint enterprise and partnership had a joint income in excess of $2 million and that Silinsky failed to report his distributive share in an attempt to evade the payment of the individual income tax due and owing on that share. The third count charges that Silinsky filed a false return for the calendar year of 1958 and that he subscribed that tax return under the penalties of perjury, knowing that it was not true and correct as to every material matter.
On the date of its return the indictment was sealed and bench warrants were issued as to each of the five defendants. Four of the five bench warrants eventually went unexecuted as Cally and Lumpkin answered the indictment by summons and Newkirk and Wetmore, the Canadian nationals, have not submitted to the jurisdiction of this court. On the other hand, on April 27, 1965, the bench warrant citing Silinsky was executed in his apartment and in conjunction with the arrest, five agents of the I.R.S. made a thorough search of his entire apartment seizing the miscellania which forms the subject matter of this motion.
The petitioner bases his motion on three contentions: (1) that the arresting officers took him into custody in his apartment as a pretext for an unconstitutional search of that apartment; (2) that the scope of the resulting search exceeded permissible limits in that it was a general exploratory search, seeking in reality to obtain evidence and therefore unreasonable; and (3) that the articles seized were not susceptible to seizure even during the course of a lawful search, as they were evidentiary only and were neither contraband nor instrumentalities of a crime.
In light of the disposition made of this motion, the third contention of the defendant will not be discussed.
I. The Legality of the Arrest
The thrust of Silinsky's initial contention is that as the warrant for arrest was issued on April 9th but was not executed until April 27th, and since he was admittedly under a surveillance for a time on April 26th, the arrest in his home was a deliberate ploy by the arresting officers to effect a search of the apartment as incidental to an arrest. This argument is tenuous at best.
Delay by law enforcement officers in arresting a suspect ordinarily does not affect the legality of the arrest. Unfortunately, it is true that "every time there is a delay in the making of an arrest and there is a search made as incidental to the arrest, the law enforcement officers take the risk that they will be charged with using the arrest as a mere pretext for the search." Carlo v. United States, 286 F.2d 841, 846 (2d Cir.), cert. denied, 366 U.S. 944, 6 L. Ed. 2d 855, 81 S. Ct. 1672 (1961). Notwithstanding this danger, however, law enforcement officers must, in the intelligent exercise of their duties, "wait in the hope that they may strengthen their case by ferreting out further evidence or discovering and identifying confederates and collaborators." Carlo v. United States, supra at 846. See also United States v. Holiday, 319 F.2d 775 (2d Cir. 1963); United States v. Lane, 230 F. Supp. 950 (S.D.N.Y. 1964). In this case the court finds as a fact that the agents had a legitimate reason to put off making the arrest. It was the expressed
hope of the Government that by delaying execution of the arrest warrants the two Canadian defendants, Newkirk and Wetmore, would enter the jurisdiction and be apprehended.
And, moreover, it was for this very reason that the indictment was ordered sealed upon its return by the Grand Jury and border stops were placed with United States Customs on Newkirk, Wetmore and Lumpkin, whose whereabouts at the time were unknown. When the statute of limitations had run, the warrant for Silinsky's arrest was ordered to be executed.
In McKnight v. United States, 87 U.S. App. D.C. 151, 183 F.2d 977, 978 (1950), the case upon which the defendant principally relies, the court held that where the police admittedly reject a "convenient present opportunity" to make a lawful arrest and instead deliberately wait until the person enters his house, so that they can break in, make the arrest, and search the house "incidental to" the arrest, there is a violation of the Fourth Amendment. The propriety of this result in the light of the circumstances of that case cannot be seriously questioned. Those circumstances - or even similar circumstances - do not exist in our case, however. While it is true that the agents could have arrested Silinsky on the 26th of April when he was observed to be returning to his apartment, the fact that they did not seems to abnegate the defendant's argument. If the Government's purpose were to make, in effect, an arrest incidental to a search, it would seem that the agents would have arrested Silinsky at a time when they knew for sure that he was in the apartment, i.e., April 26th, or, alternatively, would have established a constant surveillance on the apartment to insure Silinsky's presence when the arrest was made on the following day. As the agents' surveillance was discontinued at approximately 8 p.m. on the evening of the 26th and was not resumed until approximately 7:30 a.m. on the morning of the 27th, the agents could not be sure that Silinsky was still in his apartment when they were going to execute the arrest warrant. The suggestion is compelling that the arrest was made for the arrest's sake and not for the sake of an incidental search.
McKnight v. United States, supra, on its facts, moreover, is readily distinguishable. In McKnight v. United States, supra at 977-78, it was noted by the court that McKnight was "repeatedly" trailed, that the Government conceded that "they purposely refrained from arresting (McKnight) in the street" and that "the officers were given orders not to arrest McKnight until he had entered the house." (Emphasis supplied.) None of these consequential factors exist in our case, however. Silinsky was not "repeatedly" under surveillance but was, in fact, observed only on the prior day "to ascertain the whereabouts of Mr. Silinsky."
Also, the arresting officers were not "given orders to arrest until he had entered the house" for the place of arrest was not specified by the Assistant United States Attorney.
And neither do the teachings of United States v. Alberti, 120 F. Supp. 171 (S.D.N.Y. 1954) compel a different conclusion.
With the foregoing in mind, therefore, this court finds that the arrest was a valid, constitutional arrest and was not a mere pretense for making an ...