The opinion of the court was delivered by: TYLER
TYLER, JR., District Judge.
In April, 1965, an indictment was returned against St. Julian Harrison charging him with income tax evasion. The indictment charges that his tax returns for the years 1958 and 1959 understated his income and alleges a total evasion of over $11,000 for the two tax years in question. Harrison now makes three motions addressed to the indictment: (1) for the suppression of certain materials and statements and dismissal of the indictment, (2) for a bill of particulars; and (3) for discovery and inspection.
The charges in the indictment grow out of the following sequence of events as related in large part by the prosecutor in his opposing affidavit. On February 8, 1960, at approximately 8:00 in the evening, some New York City police officers came to Harrison's home and suggested that he accompany them to the station house for questioning. Harrison's name apparently had been found in the possession of a police officer who had been charged with a narcotics violation. The police wanted to question Harrison about his possible involvement in narcotics violations. Harrison, who was then a parolee of the State of New York, accompanied the officers to the station house as requested.
In response to some preliminary questions, Harrison denied any knowledge of or participation in the narcotics traffic. When asked to produce some identification, Harrison produced a driver's license and registration bearing the name "Harry Walters". He then answered further questions which, with his answers thereto, were stenographically recorded. Specifically, Harrison was asked questions relating to his possible involvement in narcotics and policy operations; his ownership of cars and real estate; his filing, and failure to file, income tax returns; and his failure to include his policy earnings in his reported income. At no time was he advised of his rights to remain silent and to consult with a lawyer.
After the questioning, at about 1:00 in the morning, Harrison was taken to his candy store; the store was searched, and a number of policy slips and other gambling materials were found hidden behind a radiator. He was then taken back to the police station, arrested and charged with false statements on his driver's license and registration, and with a policy violation.
These charges were subsequently dismissed; the recorded statement and the gambling material were turned over to the Internal Revenue Service by the New York City police. Thereafter Harrison was confined in Dannemora State Prison for violation of the conditions of parole imposed upon an earlier conviction and sentence for an unrelated offense.
In March, 1961, while at Dannemora, Harrison was interviewed by an agent of the Internal Revenue Service. He was asked and apparently freely answered questions about his income, assets and expenditures, about his filing of tax returns and about what income was or was not recorded. Again, however, he was not advised of his constitutional rights prior to the questioning.
Harrison, therefore, moves to suppress the recorded statements made to the New York City police, the gambling materials seized from his candy store and the oral statements given to the Internal Revenue agent while in custody at Dannemora.
A. The Recorded Statements and Wagering Materials Obtained by the New York City Police.
Although federal agents concededly played no part in obtaining these items, the statement and the policy slips are inadmissible in a federal criminal trial if the method by which they were obtained violated Harrison's constitutional rights. See Elkins v. United States, 364 U.S. 206, 4 L. Ed. 2d 1669, 80 S. Ct. 1437 (1960).
The government's contention that the statement was properly taken and the wagering materials were legally seized breaks down into two major premises. First, it is said that Harrison voluntarily appeared in the station house and submitted to questioning. Second, the prosecution urges that information gleaned largely, if not entirely, from the interview engendered "probable cause" for the officers' search of Harrison's store. Unfortunately, I am unconvinced by the first premise or argument; rather, I find that the totality of circumstances as stated in the prosecution's version of what transpired at the station house amounted to "custodial ...