The opinion of the court was delivered by: TYLER
Four of the above-named defendants, Rudolph Vilhotti, Vincent Santa, Albert Mercurio and Anthony DiMenna,
moved for an order pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure directing the suppression and return of certain cartons containing sundry drug items, seized without a warrant by a special agent of the Federal Bureau of Investigation, William E. Kelly, on March 27, 1969.
In a three-count indictment, filed July 10, 1969, defendants were charged with conspiracy to violate and violations of 18 U.S.C. § 659, in the purchase, receipt and possession of goods traveling in interstate commerce stolen from two motortrucks operated by Paul's Trucking Company and from the Connecticut shipping depot of Bitter Freight System, Inc., Gore Division.
The motion was heard by the undersigned on November 18, 1970. The evidence consisted primarily of the testimony of four government witnesses: FBI Special Agent Kelly, William H. Abraham, owner of the garage from which the majority of items were seized, Marion Pignone, co-owner and manager of the store from which the remaining items were seized and Thomas Minor, superintendent of an adjacent apartment building, his testimony offered by stipulation. There follow my findings of fact and conclusions of law.
A member of the hijacking squad of the Federal Bureau of Investigation, Agent Kelly conducted the investigation which led to the March 27, 1964 arrests and seizures at issue herein. Approximately two months earlier, an unidentified informant, with whom Kelly had dealt for about two years,
advised that defendant Vilhotti had been using a certain garage at 356 West 172nd Street in the Bronx as a "drop" for stolen goods and that an old man had been engaged to watch the premises. From checking Vilhotti's record, Kelly learned that the defendant had two prior convictions for similar crimes. Accompanied by two members of the New York City Police Department, Special Agent Kelly conducted surveillance of the 172nd Street garage and observed an old man, whom he later identified as defendant DiMenna, frequently at the garage. It was DiMenna who held the leasehold interest on the property.
Between March 23 and March 26, 1969, Kelly received further information from the same informant which led him to reinstitute surveillance of the garage. On Sunday, March 23, the informant advised Kelly that Vilhotti had participated that weekend in the hijacking of two trailer-trucks, one of which could be found in Brooklyn, the other in Queens. The FBI had received a complaint that two trucks containing sundry drugstore items were missing from the Pathmark installation at Cranford, New Jersey. The missing units were found, as the informant had predicted, in Brooklyn and Queens on Monday March 23 and Tuesday March 24, respectively. On Wednesday, the informant communicated to Kelly that the stolen items were in the 172nd Street garage. At 4:00 p.m., Kelly and the same two New York City police officers began the second and final surveillance of the garage. No one was seen at the garage that night.
At approximately 10:00 p.m., Agent Kelly accompanied by the two police officers, approached the rear of the garage through the service alley of an adjacent apartment building. Standing in the service area which abuts on the garage structure,
and with the aid of a flashlight, Kelly and at least one of the police officers peered through a small space between the boards covering a rear window. From this vantage point Kelly was able to see approximately 25 feet into the garage where he discerned a number of cartons, several of which bore the marking "SGC" and/or various numbers. A check with the FBI in New Jersey revealed that the letters SGC stood for Supermarkets General Corporation, and the numbers, for Long Island stores to which the goods were consigned, thereby establishing that these boxes were those stolen from the hijacked Pathmark trucks. Kelly thereafter telephoned Assistant United States Attorney Frank Turkheimer, who advised that a search warrant could be obtained and directed Kelly to send someone to his office in the morning to apply for one.
The first activity the agents perceived at the garage on March 27 was the arrival of DiMenna in an old black car at approximately 5:30 a.m. DiMenna made about three trips carrying cartons from the garage to his car. Accompanied by one of the city detectives, Kelly followed DiMenna to the corner of 189th Street and Belmont Avenue, where DiMenna unloaded the cartons and carried them into a candy store at 2481 Belmont Avene. The agents then returned to the garage and Kelly had a second telephone conversation with Turkheimer who advised him of the appropriateness of a warrantless arrest in the event that the warrant, then being prepared, would not be timely obtained.
At 9:20 that morning, three men emerged from a black Chevrolet parked by the corner opposite the garage. Kelly was able to identify two of the three men as the defendants Vilhotti and Santa, as he had previously seen their photographs and checked their criminal records. Of Santa, who had not, like Vilhotti, been specifically implicated in the hijacking by the informant, Kelly knew at least that he had been dismissed from the New York City Police Department in 1961. Mercurio, the third companion, he did not recognize. Vilhotti and Mercurio proceeded to the garage. Santa reparked the car and followed after them.
Several minutes later Kelly and the police officers approached the door of the garage. The door was locked, but while they were standing there, Vilhotti opened it. Kelly arrested him in the small office into which the street door opened. Santa and Mercurio were brought from the back of the garage, containing the cartons, to the office where Kelly advised them they were under arrest. (It is immaterial whether they had been so advised by the officers who retrieved them.) Kelly's arrest of the remaining two defendants, Maloney and DiGiacomo, shortly thereafter, is not in issue here.
That afternoon. Kelly returned to the Belmont Avenue candy store, where he had previously observed DiMenna deposit cartons from the garage. Identifying himself as an FBI agent, he asked the owner, Mrs. Marion Pignone, whether an old man had left some cartons there earlier that day. She identified the old man, defendant DiMenna, as "Cowboy", a frequent visitor to the store and readily pointed to several boxes, which DiMenna had left earlier when only her husband was at the store. At Kelly's request Mrs. Pignone directed him to several additional cartons in the rear of the store. Kelly took the cartons and left. DiMenna was arrested several weeks later.
Defendants, jointly and severally, make the following arguments for suppression: