Friendly, Chief Judge, Waterman, Circuit Judge, and McLean, District Judge.*fn* Waterman, Circuit Judge (dissenting).
Petitioner is a state prisoner who is serving concurrent sentences of 7 1/2 to 10 years and 5 to 10 years imposed upon him by the Supreme Court, Queens County, New York, upon his conviction in 1965 of the crimes of felonious possession of marijuana with intent to sell and felonious possession of marijuana. In July 1969 he filed a petition for a writ of habeas corpus in the District Court for the Southern District of New York, claiming that he had been arrested without a warrant and without probable cause, and that his conviction was secured by evidence obtained in violation of his rights under the Fourth Amendment. Judge Palmieri found it unnecessary to hold a hearing on these claims. He accepted the facts as found by the state court in a series of hearings on petitioner's motion to suppress, in which petitioner made the same contentions that he makes here. The fairness of these hearings and the adequacy of their fact finding procedures were not challenged by petitioner. See 28 U.S.C. § 2254(d). On the basis of these facts, Judge Palmieri held that petitioner's constitutional rights had not been violated. He dismissed the petition by order dated October 16, 1969, with an opinion which is unreported.
In July 1970 this court granted a certificate of probable cause and thereafter assigned counsel to represent petitioner on his appeal. After examining the record, we agree with the district court's conclusion, and, accordingly, we affirm the order.
The proceedings in the state court, which were rather extensive, may be summarized as follows. Petitioner was indicted in the Supreme Court, Queens County, in October 1964. He moved in advance of trial to suppress the marijuana which the police had seized in his apartment at the time of his arrest on June 1, 1964. After a hearing held in January 1965, Mr. Justice Conroy denied the motion by order dated January 19, 1965. Petitioner was then tried and convicted by a jury verdict. He appealed from both the judgment of conviction and from the order denying his motion to suppress. The Appellate Division affirmed both. People v. Cardaio, 25 A.D.2d 953, 272 N.Y.S.2d 112 (2d Dept. 1966). The New York Court of Appeals, however, withheld determination of the appeal and remanded the case to the Supreme Court, Queens County, for a further hearing on the motion to suppress. People v. Cardaio, 18 N.Y.2d 924, 276 N.Y.S.2d 1004, 223 N.E.2d 497 (1966).
A further hearing was held, again before Mr. Justice Conroy, in March 1967. In May 1967, he denied the motion for a second time. Although the Appellate Division affirmed his findings of fact, it nevertheless remanded the case for a third hearing on the ground that a witness who had testified at the first hearing should have been permitted to testify again at the second. People v. Cardaio, 28 A.D.2d 1144, 284 N.Y.S.2d 940 (2d Dept. 1967).
The third hearing took place before Mr. Justice Shapiro in February 1968. Both sides rested on the record of the two previous hearings, except that petitioner introduced the minutes of a hearing on a motion to suppress made by Tod Konrad in another case. Konrad was a key figure in petitioner's case, as will presently appear. On February 23, 1968, the court denied petitioner's motion for a third time. The Appellate Division affirmed the order. People v. Cardaio, 30 A.D.2d 843, 294 N.Y.S.2d 579 (2d Dept. 1968). In April 1969, the New York Court of Appeals affirmed the judgment of conviction. People v. Cardaio, 24 N.Y.2d 988, 302 N.Y.S.2d 818, 250 N.E.2d 227 (1969).
Petitioner began this federal proceeding within a few months after the Court of Appeals' decision. He did not seek a writ of error coram nobis in the state court. Nevertheless, both sides appear to assume that petitioner has exhausted his state remedies; at any rate no claim is made that he has not. We take the same view. Petitioner litigated his constitutional claim for over four years in the course of his direct appeal. It was finally determined against him by the state's highest court. No purpose that we can perceive would have been served by starting all over again on the coram nobis route. See Brown v. Allen, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469 rehearing denied, 345 U.S. 946, 73 S. Ct. 827, 97 L. Ed. 1370 (1953).
The relevant facts were developed in a somewhat piecemeal fashion in the three suppression hearings. Some new facts were added at each successive hearing. Some were repeated in the testimony on the trial of the indictment. We have treated the state record as a whole, and regardless of the order in which the facts came out, we summarize them here in chronological order.
On June 1, 1964, the Manhattan police received information that narcotics could be found in an apartment at 31 Bedford Street, Manhattan. Lieutenant Mulligan and other officers went to that address. While they were waiting at the door of the apartment, Tod Konrad appeared. In answer to the officer's inquiry, Konrad said that he had marijuana in his apartment. He further remarked that he was "a nervous wreck" because the night before he had been "stuck up" and robbed of approximately eight pounds of marijuana. He said that one of his assailants was armed with a gun. He characterized this man as a "beatnik type of kid," with long hair, about twenty years old, whose name was Nick. He gave the officers Nick's telephone number. It was a Queens number.
Lieutenant Mulligan thereupon telephoned his office in Manhattan and spoke to Detective King, a Queens detective, who happened to be there. Mulligan told King what he had learned from Konrad. He told him that he had received a complaint from a man who said he had been assaulted and robbed of marijuana and that "there was a gun involved in the case." He instructed King to find out from the telephone company whether the telephone number belonged to someone named Nick and if so, to ascertain the address and to proceed to that address with his partners or "whoever he could get his hands on" to make observations. This conversation occurred at approximately 5:15 P.M.
Detective King ascertained that the telephone number was that of Nicholas Cardaio of 43-10 Auburndale Lane, Queens. Petitioner lived at that address, a two-family house. The other apartment in the house was occupied by petitioner's father, also named Nicholas Cardaio. It is not entirely clear whether the telephone number was that of the father or the son.
King collected two other Queens detectives, Arrington and Rannie, and all three drove to 43-10 Auburndale Lane where they arrived at about 8:00 P.M. They did not obtain either an arrest warrant or a search warrant. They parked their car across the street and took up observation. At about 8:30 P.M., a man came out of the building. The officers followed him and brought him back, but he turned out to be no one more sinister than a tailor.
King then decided upon a more aggressive course. He knocked at the door which was opened by a woman, later discovered to be petitioner's aunt, who shortly was joined at the door by petitioner's wife. King asked if Nick was home. The aunt answered, "Yes, just a minute." King then announced that he was a police officer and that he had come "to lock up Nick." Thereupon he walked in. The two women apparently did not protest, but it would doubtless be ...