The opinion of the court was delivered by: MANSFIELD
MANSFIELD, District Judge.
The defendants William J. Huggins ("William" herein), and Walter I. Huggins ("Walter" herein), who are charged in Count 2 of a three-count indictment with having received and possessed money stolen from Manufacturers Hanover Trust Company in violation of Title 18 U.S.C. § 2113(b), have moved, pursuant to Rule 41(e), F.R.Crim.P., for suppression of (1) evidence seized on March 31, 1967, pursuant to a search of William's residence at Apartment 5 F. 1671 Vyse Avenue, Bronx, N.Y.; and (2) statements obtained by agents of the Federal Bureau of Investigation ("FBI" herein) on the same date from William and Walter allegedly in violation of their Constitutional rights.
The Government concedes that the search and seizure was without a warrant, but contends that it was conducted pursuant to the express consent of William and his wife, and that the statements were obtained only after fully and fairly advising William and Walter of their Constitutional rights, and obtaining from them a voluntary waiver of such rights.
On June 23 and 30, 1967, the Court held a hearing on the motions, at which evidence was offered by both parties, including testimony of Special Agents Kenneth M. Rommel, Jr., Arthur E. Davidson and Samuel Matson of the FBI and of Laura Huggins (William's wife), William and Walter, and various documentary exhibits.
After observing each of the witnesses testify and carefully determining the weight of credibility to be extended to the testimony of each, the Court finds as follows:
1. On the morning of March 31, 1967, Agent Matson, accompanied by Agent Morrison, after identifying themselves to William at his residence, Apartment 5 F. 1671 Vyse Avenue, Bronx, N.Y., lawfully arrested him pursuant to a warrant issued for his arrest, and fully advised him of his Fifth and Sixth Amendment rights, including the right to have legal counsel who would be appointed by the Court if he could not afford counsel. Another warning, advising William of his same rights, was given shortly thereafter by Agent Rommel, upon his arrival at the apartment. William, although under arrest and handcuffed, was allowed to make a phone call to his mother.
2. Later on the morning of March 31, 1967, William was escorted to the offices of the FBI at 201 East 69th Street, Manhattan, where he was furnished with food, photographed, fingerprinted, again warned of his same Constitutional rights, and interviewed. William, who attended school to the 11th grade and could read and understand English, then agreed to waive his rights and to give a statement to the FBI. Thereupon Agent Matson read to William a typewritten statement of his same Constitutional rights and waiver, which William signed after acknowledging that he understood its contents. A copy of the statement of waiver (Government's Ex. 7) is shown in the Appendix.
3. After signing the waiver, William gave a statement to the FBI containing admissions, and advised the FBI agents that money stolen from the bank was hidden in the refrigerator of the kitchen of his apartment. After being advised by Agent Matson that he had a Constitutional right not to have his apartment searched without a warrant, William agreed to permit Agents Matson and Davidson to search his apartment. He thereupon voluntarily signed a consent to the search being made, after the consent (Government's Ex. 2, a copy of which is shown in the Appendix) was read to him and he acknowledged that he understood it.
4. After obtaining the aforementioned consent to a search from William, Agents Matson and Davidson at about 11:30 A.M. on March 31, 1967, proceeded to William's apartment at 1671 Vyse Avenue, Bronx, N.Y., where they identified themselves to his wife, advised her that William had admitted having the money in the refrigerator and had consented to their searching the apartment but that she did not have to let them enter and search if she did not want to do so. She then voluntarily admitted them to the apartment where they seized the money found in the kitchen refrigerator.
5. William's wife, Laura Huggins, a high school graduate able to read and understand English, then proceeded with Agents Matson and Davidson to the FBI offices at 201 East 69th Street, Manhattan, where she was advised of her Consitutional rights, including the right not to have the family's apartment searched without a warrant, and voluntarily executed a waiver of rights and a confirmation of her consent to the search of the apartment, after first having it read to her and acknowledging the contents. (Government's Exs. 8 and 9)
6. On the morning of March 31, 1967, Agent H. Edward Morrison of the FBI proceeded to the home of Walter, where he identified himself and was invited by his sister to enter. He advised Walter that he was not under arrest. At his request Walter than accompanied him to the FBI offices at 201 East 69th Street, Manhattan.
7. Agents Morrison and Davidson advised Walter fully of his Fifth and Sixth Amendment rights. He then voluntarily consented to waive his rights and give them an oral statement. Thereupon he executed two forms acknowledging that he had been advised of his rights and waiving them (Government's Ex. 5), after having the same read to him and acknowledging that he understood them. He then gave a written statement to the FBI containing certain admissions.
None of the aforementioned waivers or consents was obtained by force, threats, promises ...