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January 20, 1970

Frederick Robert SCONFIENZA and James Pasanello, Defendants

Cooper, District Judge.

The opinion of the court was delivered by: COOPER

COOPER, District Judge.

Defendant Sconfienza seeks to suppress certain items seized from the rear seat area and trunk of an automobile he was driving when arrested. His original motion to suppress contended that the arrest was without probable cause and that the warrantless search was thus without any justification. Judge Wyatt, following a full and complete evidentiary hearing held on April 12, 1969, denied defendant's motion in an endorsement filed June 4, 1969. He found specifically that there was more than adequate probable cause for defendant's arrest.

 Now on the very eve of trial defendants press another related constitutional contention as grounds to suppress the seized evidence. Their present contention is that, although there was probable cause for defendant's arrest and thus a search without a warrant could nevertheless be justified as incident to his arrest, the search coming when it did was not in fact incident to his arrest.

 The Facts

 The facts as developed at the evidentiary hearing held before Judge Wyatt in essence amount to this: An informer tipped off railroad police to a planned theft. Police, staking out the area suspected, observed a black Buick with the rear seat removed (which had been seen in the area on prior occasions) parked in front of the railway office. One officer was positioned in a caboose about 85 yards from the office from about 7-8:30 p.m. Through binoculars and with adequate lighting around the office area he saw Sconfienza, his codefendant and another man bring two white cartons and a sack out of the office and place them in the trunk and one of the cartons in the rear of the car. All the while this officer in the caboose was in radio contact with a patrol car. While the men were loading the car, this patrol car drove by first one direction and then later the return direction. On both occasions the men hid themselves by quickly returning to office as the patrol car approached. The patrol car was then stationed at the end of railroad property. Sconfienza alone drove the car containing the cartons from the office down to 57th Street (just off railroad property) where he was stopped by the patrol car. The officers placed defendant under arrest, advised him of his constitutional rights and handcuffed him. One of the officers testified that as they were placing defendant under arrest he observed a portion of one white carton in the back seat area of the car partially covered by a blanket, but in plain view. The officers without searching the car or seizing any items from it took defendant in the patrol car back to 60th street to the railroad police station where his pockets were emptied. One officer took defendant's keys (which had been in defendant's pocket) and returned to defendant's car. The officer drove the car back to the station, where it was then searched by police, both the back seat area and the trunk. The items found therein (the two white cartons and the bag) were found to be stolen goods. The time between the arrest and the eventual search was 5 or 10 minutes at most.

 The Law Applicable

 a. The item in plain view

 With regard to the white carton which the officer observed partially hidden in the rear seat area of defendant's car, suffice it to say that the Supreme Court of the United States has repeatedly held that:

"* * * objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence."
Harris v. United States, 390 U.S. 234, 88 S. Ct. 992, 19 L. Ed. 2d 1067 (1968) (per curiam).

 Without question the officer, having probable cause to arrest defendant, had a right to be in the position from which, as he testified, he had the carton in plain view. Accordingly, no search was required to effect this seizure and no grounds for suppression have been shown.

 b. The items in the trunk

 The carton and bag found in the trunk upon search, however, are subject to different rules, which we now consider. The issue in this regard is whether the search and seizure of the automobile was incident to the lawful arrest (Judge Wyatt having held there was probable cause).

 The leading decision of the United States Supreme Court in this area is Preston v. United States, 376 U.S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777 (1964). Preston involved an arrest for vagrancy. "Soon after" effecting the arrest, towing the car to the police station, and booking ...

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