The opinion of the court was delivered by: MOTLEY
Defendant, Walter R. Secor, was charged in a two-count information with wilful failure to pay the tax imposed on persons in the business of accepting and receiving wagers and wilful failure to register as a person so engaged.
These charges cover a period from on or about the 30th day of September 1965 up to and including the 8th day of October 1965. During this time, Special Agent Bruce Murray of the Internal Revenue Service visited defendant's place of business, Tom's Tavern, Bronx, New York, on six different occasions, each time placing a policy wager with defendant. About noon on the first of these occasions, October 1, Murray went to the tavern with another individual who did not know that Murray was working as an undercover agent. When they entered, defendant was standing at the end of the bar on the customer's side in a position that gave him an unobstructed view of the front door. There were about four other persons in the bar at this time, including the bartender. Murray and his companion approached defendant and the companion placed a policy wager with him. The wager was recorded on a small piece of newspaper and the money was pocketed by the accused. At this point, Murray's companion assured defendant that she knew Murray and told defendant that Murray wanted to "get something in". Defendant replied, "sure" and Murray proceeded to place a policy bet with defendant, a record of which was duly made upon the same piece of newspaper and the money similarly pocketed. Immediately after placing his wager, Murray saw another individual come in, place a policy wager with defendant, and leave. Before they too departed, Murray and his companion had drinks at the bar. The money paid for these drinks was put into the cash register.
At approximately the same time on October 4, 5, 6, 7, and 8, 1965, Murray returned to Tom's Tavern and placed policy wagers with defendant in much the same manner as he did on his original visit. While at the tavern on October 4, Murray saw another individual place a policy wager with defendant. On October 5, Murray witnessed "about five persons" placing bets with defendant in the tavern-one was a horse racing wager. Once again Murray had a drink at the bar and again the bartender put the money for this drink in the cash register. The following day, October 6, Murray again placed a wager with defendant, who was operating from the bartender's side of the bar-the bartender not being present. Defendant placed the $10 bill which Murray gave him for a $2 wager in a cigar box next to the cash register, and gave Murray $8 change. While there Murray heard another individual also place a bet with defendant. Murray returned to Tom's Tavern on October 7, and again placed a wager with defendant.
Before setting out for Tom's Tavern on October 8, Murray recorded the serial number of a $10 bill and marked it with a special crayon. These markings are visible to the naked eye only under ultraviolet light. Murray also briefed another agent, John Cotter, on the Secor investigation on October 8 prior to entering the tavern and gave him a piece of paper bearing the serial number of the marked $10 bill. At about noon that day, Murray again went to Tom's Tavern and placed a wager with defendant. This time, however, Murray paid defendant with the marked $10 bill. Defendant gave the bill to the bartender who put it in a cigar box adjacent to the cash register. Murray then left the premises and on his two-way radio called Cotter who was in the vicinity with other agents and a detective from the New York City Police Department.
Cotter entered the tavern, carrying with him an arrest warrant, which though it did not contain defendant's name, had a description of the person to be arrested. There were about 3 or 4 persons in the tavern when Cotter entered. Cotter approached defendant and put him under arrest. Identifying himself, Cotter gave the arrest warrant to defendant to read and explained it to him. Cotter inquired of defendant whether he was the owner of the premises and defendant replied in the affirmative. Defendant was searched by Cotter, as was the area in the immediate proximity. In a cigar box near the cash register Cotter found $40 in currency. Upon comparing the currency he found a $10 bill in that box with the same serial number he had on the piece of paper Murray had given him earlier in the day. Cotter also found and seized $5,000 in a compartment under the counter of the back bar, $900 in a glass on the back bar, $372 in another cigar box on the back bar counter and $315 in a wallet which was on the back bar. This money was all found within 10 to 15 feet of where defendant was standing when arrested. The money in the cash register was not seized.
Agent Murray, who has been a special agent for approximately eleven years, all but one of which has been spent on wagering tax investigations, and who has been involved in about 75-100 wagering investigations, testified that it was customary for numbers writers to have substantial amounts of cash on hand. This cash would represent receipts from the wagering operation, cash to pay off winning bettors and for the expenses of the operation.
In addition Murray testified that there has been a large amount of publicity concerning the Federal wagering tax requirements. He testified that in the 11 years that he has been a Special Agent, through cooperation with the mass communications media, there has been a constant program of public information on the wagering tax laws. On occasion, Murray, himself, has caused information to be published on this subject. The Government introduced a file of clippings, covering the period from June 1964 through September 25, 1965, from newspapers of general circulation, all dealing with the requirements of the Federal wagering tax laws. Three issues of the Mamaroneck Daily Times, published while defendant was a subscriber to that paper, contained articles dealing with the wagering tax law requirements.
Testimony of Government's witness, Harry D. Watson, an official of the State Liquor Authority, indicated that through defendant's retail liquor license renewal application for the period March 1, 1965-March 1, 1966 and the accompanying penal bond (filled out with the help of an attorney) defendant had shown his awareness that he stood to lose his liquor license for violations of the law. However, it is also clear that these documents give no indication of what specific law violations would have this result, or even of the existence of a Federal wagering tax law.
Thomas Beichert, Internal Revenue Service Unit Supervisor in charge of records for Manhattan, Bronx and Staten Island, testified that for the period 1964-1966 there is no record of defendant registering or paying the tax required by Federal law. The Internal Revenue Service records also show that defendant paid the required retail liquor dealers tax for 1965-1966.
During the trial, defense counsel raised questions concerning both the validity of the search made at the time of arrest and the admissibility of items seized in the course of that search. In addition, the defense relied heavily upon what it charged was the Government's inability to prove the element of "wilfulness" in the commission of the crimes charged. Though the arresting officer did not have a search warrant, the arrest was made pursuant to an arrest warrant. It is a well settled principle of law that no search warrant is necessary to validate a search made incident to a lawful arrest. United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430, 94 L. Ed. 653 (1950). There seems to be no real question about the lawfulness of the arrest. Defense counsel may have been getting at questions about the arrest rather obliquely through his line of questioning of Cotter concerning the "John Doe" arrest warrant. However, counsel did not directly make this an issue, and this line of questioning was probably more geared to raising doubts as to whether there had been confusion resulting from the investigation made prior to arrest in this case and another simultaneous investigation. There was a slight discrepancy in the arrest warrant, however. It was headed "United States of America v. John Doe", followed by a description of the person to be arrested, but the body of the warrant commanded that "Jim Doe" be arrested. Nonetheless, this variance would seem far from fatal as the crucial thing in a John Doe warrant like this one is the description of the person to be arrested and not the arbitrary name tag attached to him. The warrant was based upon extensive prior investigation covering a span of several days. There can be no doubt as to the existence of probable cause and the lawfulness of the arrest here. See, Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963), and cases cited 479-484. The arrest being lawful, the search incident to it was as well. Rabinowitz, supra. Agent Cotter established that Secor was the owner of the premises upon arresting him and the search made incident to that arrest was limited in both time and scope. As the Supreme Court declared in Agnello v. United States, 269 U.S. 20, at p. 30, 46 S. Ct. 4, at p. 5, 70 L. Ed. 145.
"The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted."
The extent of the search fell well within the broad limits permitted in Harris v. United States, 331 U.S. 145, 67 S. Ct. 1098, 91 L. Ed. 1399 (1947) where the Supreme Court affirmed the validity of a five-hour search of all four rooms of an apartment undertaken as an incident to a ...