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United States v. Francolino

decided: November 3, 1966.


Lumbard, Chief Judge, and Friendly and Kaufman, Circuit Judges. Kaufman, Circuit Judge (concurring).

Author: Friendly

FRIENDLY, Circuit Judge:

A grand jury in the District Court for the Eastern District of New York returned a four count indictment against Anne Francolino. The first three counts charged her with passing various $10 counterfeit notes in violation of 18 U.S.C. § 472; a fourth count charged possession of 1973 such notes in violation of the same statute. The jury found her guilty on the first three counts and not guilty on the fourth.

Defendant passed the counterfeit notes at the Floyd Bennett Store in Brooklyn during a half hour in the early afternoon of July 24, 1964. Mary Lou Patterson, a seventeen year old cashier in the housewares department, identified Anne Francolino as having approached her and having asked for four $5 bills in exchange for two $10's. Nancy Shenker, a sixteen and a half year old cashier in the record department, identified Anne as having come up while she was giving change to a customer and having sought change for a $10 bill, a request accompanied by a compliment, apparently undeserved, over Nancy's hair-do. Diane Ficocelli, a fifteen year old cashier in the millinery department, was the third to be approached. On one occasion Mrs. Francolino made a small purchase for which she paid with a $10 bill; five minutes later she requested change for another $10 bill, admiring Diane's hair-do and seeking advice how to emulate it; and shortly thereafter she changed another $10 bill, saying her husband was waiting in the car for her and she had nothing smaller. While the defendant was occupied in these endeavors, Michael Brady, manager of the housewares department, opened Miss Patterson's cash register and discovered two counterfeit $10 bills on top of the drawer. He and the cashier left the store in hot pursuit and found Mrs. Francolino walking down the block. Brady's statement to her that the $10 bills were no good elicited an expression of incredulity. She then went into a telephone booth and dialed numbers. An unidentified man, whom Mrs. Francolino claimed to be her husband but who Brady testified with some positiveness did not tally with the latter, approached and asked what the trouble was. On hearing Brady's story and his threat to "call a cop," he told Mrs. Francolino to give back the four $5 bills and take the two $10's. She and the man entered a parked 1961 black Cadillac bearing license No. KG9154, which turned out to be registered in the name of Atlantic Freightways, Inc. of which Mr. Francolino was treasurer, and drove off.

A call from Brady brought to the store Secret Service Agent Sershen, who interviewed personnel and found various counterfeit $10 notes. Sershen then went to the Francolino home and observed the Cadillac in the driveway. After summoning two local policemen, he rang the bell and was admitted to the house by defendant's mother-in-law; he told her he wanted to know who owned the car. According to Sershen, who was substantiated by one of the policemen, Joseph Francolino came half way down the stairs, said he was the owner, and invited the agent upstairs into the bedroom where Sershen observed Anne Francolino. Finding that she fitted the description given by the store personnel and seeing a leopard skin handbag they had mentioned, he placed her under arrest. According to the agent and the policeman, upon Sershen's asking for the car keys, Joseph gave them to his mother who gave them to Anne who held them out in her open hand whence the agent removed them and passed them on to a policeman. The latter opened the trunk of the car and found 1973 counterfeit $10 notes; these bore serial numbers B21075986I, B81538826H, and B88902043H, the same serial numbers as notes passed to two of the cashiers. Judge Bartels denied a motion to suppress the notes as to Anne, holding the search of the car was reasonably incident to a lawful arrest, but granted it as to Joseph, whom Sershen had also arrested, unlawfully as the judge held. The notes were received in evidence at Anne's trial.*fn1 Testifying in her own defense, she did not dispute that she had passed the notes; her claim was that she had done this at the behest of her husband without knowing the notes were counterfeit.

Several points urged on appeal require little discussion. Our recital of the evidence of Anne's peculiar behavior during and immediately after her visit to the store is alone enough to demonstrate the lack of basis for objection on the score of insufficiency of proof. It was not error to admit a $10 note found in the cash register of the snack bar on the same day and during the same hours that Mrs. Francolino was in the store. United States v. Leitner, 202 F. Supp. 688 (S.D.N.Y.1962), aff'd, 312 F.2d 107 (2 Cir. 1963). There was ample evidence for the jury to conclude that the two $10 bills handed to Miss Patterson and later returned to defendant and never found thereafter were in fact counterfeit; and the Government's inability to produce them is inconsequential. United States v. Gersh, 328 F.2d 460 (2 Cir. 1964).

A closer question is the relevancy of the 1973 counterfeit bills found in the Cadillac to the three substantive counts of passing. Although these were clearly admissible on the fourth count, it is argued that this should have been dismissed for lack of proof on the motion of defense counsel and the jury instructed to disregard the 1973 notes. While the identity of serial numbers and other circumstances sufficiently connected these bills with the ones passed by the defendant, there was no direct proof of her knowing that the bills she passed had come from the hoard in the car or indeed that she knew of the latter at all. On the other hand, the evidence of her well planned technique for note-passing, of her dash into the telephone booth upon being confronted with the counterfeit, and of her being escorted to and from the store by a man who was not her husband though she claimed he was, afforded sufficient basis for inferring she was a principal in the enterprise to warrant admission of the 1973 notes on the passing counts. Moreover, we are not convinced that this same evidence plus the fact of her apparently having regained the car keys from the unidentified man was not enough to warrant submission of the possession count at least insofar as this claimed she was an aider and abetter, cf. United States v. Lefkowitz, 284 F.2d 310, 315-316 (2 Cir. 1960), and there was no request for an instruction that if the jury did not convict on that count, it should disregard the evidence on the others.

This leaves us with the claim of error in denying the motion to suppress the notes with respect to Mrs. Francolino. Without considering other possible grounds for upholding the search of the car as to her, we think the ruling was proper both on the basis on which the judge placed it, that the search was reasonably incident to her lawful arrest, and on another, that the search was authorized because of probable cause to believe that the car was subject to seizure and forfeiture under 49 U.S.C. §§ 781-783.

Challenging the first ground, defendant claims that the agent lacked sufficient basis for believing her to be the person who had passed the notes, with consequent invalidity of the arrest, and that even if her arrest was lawful, a search of the car was not reasonably incident to it. We need not tarry over the first point; the description furnished the agent by Brady and the three cashiers plus the presence of the Cadillac and sight of the leopard skin bag amply supported his conclusion that Anne was the passer of the counterfeit.*fn2 The question whether a search of the car was reasonably incident to the lawful arrest is closer. In Agnello v. United States, 269 U.S. 20, 30, 46 S. Ct. 4, 5, 70 L. Ed. 145 (1925), the Supreme Court stated that the right of search incident to a lawful arrest extended not only to the person but to "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 * * *" In Harris v. United States, 331 U.S. 145, 67 S. Ct. 1098, 91 L. Ed. 1399 (1947), a five hour search of a four room apartment was held reasonably incident to an arrest pursuant to a warrant for mailing and transporting a forged check.*fn3 United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430, 94 L. Ed. 653 (1950), decided that this principle sustained the search of a desk, safe and file cabinets in the room where the defendant was arrested; it overruled Trupiano v. United States, 334 U.S. 699, 68 S. Ct. 1229, 92 L. Ed. 1663 (1948), insofar as Trupiano had held that a search without a warrant violates the Fourth Amendment even though incident to a lawful arrest if undertaken when a warrant could practicably have been secured. Later decisions as to the scope of search incident to an arrest -- Kremen v. United States, 353 U.S. 346, 77 S. Ct. 828, 1 L. Ed. 2d 876 (1957), invalidating a search as too extensive, and Abel v. United States, 362 U.S. 217, 80 S. Ct. 683, 4 L. Ed. 2d 668 (1960), upholding one as not -- leave the matter about where Harris and Rabinowitz placed it. See also Ker v. State of California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963).

We see no reason in principle why a car parked immediately outside a house should stand better than a room inside it which was not the place where the defendant was arrested. Drummond v. United States, 350 F.2d 983, 987 (8 Cir. 1965), cert. denied sub nom. Castaldi v. United States, 384 U.S. 944, 86 S. Ct. 1469, 16 L. Ed. 2d 944 (1966). It would violate common sense to draw subtle distinctions between a car in a built-in garage (which, under appropriate circumstances, would appear to be covered by Harris), one in a detached garage, and one on the driveway. The question rather is whether there was fair basis for belief that the place searched -- whether inside the house or immediately outside it -- would contain instruments or fruits of the crime for which the arrest was made. Harris v. United States, supra, 331 U.S. at 152-153, 67 S. Ct. 1098. Here the agent could well have believed there was additional counterfeit to which the unidentified man might seek to gain access and the Cadillac was a likely spot to locate it.

We likewise find no basis for considering Harris and Rabinowitz to have been undermined by later decisions. Chapman v. United States, 365 U.S. 610, 81 S. Ct. 776, 5 L. Ed. 2d 828 (1961), did not present the issue of a search incident to a lawful arrest. Preston v. United States, 376 U.S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777 (1964), which did, held that the particular search -- of an automobile at a garage to which it had been towed after the arrested man had been booked at the police station -- was too "remote in time or place from the arrest." 376 U.S. at 367, 84 S. Ct. at 883. The Court's citation of Rabinowitz, which had also been cited with approval in Mr. Justice Clark's opinion in Ker v. State of California, 374 U.S. 23, 41-42, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963), is hardly consistent with the notion that Preston intended to reintroduce the qualification Rabinowitz had repudiated, that an otherwise valid search incident to a lawful arrest would be invalid if circumstances permitted a search warrant to be obtained. Stoner v. State of California, 376 U.S. 483, 84 S. Ct. 889, 11 L. Ed. 2d 856 (1964), and James v. State of Louisiana, 382 U.S. 36, 86 S. Ct. 151, 15 L. Ed. 2d 30 (1965), add nothing to Preston on this score.*fn4 Both the Court of Appeals for the District of Columbia and this court have held that Preston did not "require officers lawfully arresting occupants of an automobile to make a considered and correct on-the-spot determination whether the circumstances of the arrest might render it feasible to secure a warrant before searching the car." United States v. Gorman, 355 F.2d 151, 155 (2 Cir. 1965), cert. denied, 384 U.S. 1024, 16 L. Ed. 2d 1027, 86 S. Ct. 1962 (1966); accord, Adams v. United States, 118 U.S.App.D.C. 364, 336 F.2d 752, 753 (1964), cert. denied, 379 U.S. 977, 85 S. Ct. 676, 13 L. Ed. 2d 567 (1965). We perceive no reason for a different rule because the person arrested was alongside the car or, as here, in a house close by.

We hold alternatively that the forfeiture statute, 49 U.S.C. §§ 781-784, authorized the search. This makes it unlawful, inter alia, to transport or possess in any vehicle, or to use any vehicle for the transportation or possession of, contraband articles, specifically including counterfeit, § 781(b) (3). Subject to qualifications not here material, any vehicle "which has been or is being used" in violation of this prohibition "or in, upon, or by means of which any violation of said section has taken or is taking place, shall be seized and forfeited." 49 U.S.C. § 782.

The leading case dealing with the effect of such a statute is Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925), also frequently cited as the fountainhead for a general dispensation from the need of a search warrant where there is reasonable cause to believe that a moving car contains instruments or fruits of crime. The Carroll case arose under a provision of the National Prohibition Act, 41 Stat. 305, 315 (1919), which authorized officers who discovered "any person in the act of transporting in violation of the law, intoxicating liquors in any wagon, buggy, automobile, water or air craft, or other vehicle," to seize such liquors, take possession of the vehicle and arrest any person in charge -- this in contrast with another provision expressly requiring a warrant to authorize a search for liquor in all other places. In a lengthy opinion by Chief Justice Taft, the Court held the distinction to be consistent with the Fourth Amendment.

The critical portion of the opinion begins with the decisive statement that "On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause * * * [to believe] that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid." 267 U.S. at 149, 45 S. Ct. at 283-284. The Court pointed to a passage in the famous case of ...

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