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United States v. Gargiso

decided: February 18, 1972.

UNITED STATES OF AMERICA, APPELLEE,
v.
FRANK GARGISO, DEFENDANT-APPELLANT



Anderson, Oakes and Timbers, Circuit Judges.

Author: Oakes

OAKES, Circuit Judge.

After a non-jury trial before Judge Dooling in the Eastern District of New York, appellant was convicted on three counts charging him with possession of footwear, greater than $100 in value, stolen from interstate commerce in violation of 18 U.S.C. ยง 659.*fn1 On July 30, 1971, he was sentenced to concurrent prison terms of three years on each count -- six months to be served in prison and the balance to be suspended for a three-year probationary period. Appellant asserts that his fourth amendment rights were violated during searches leading to his arrest and that the evidence was insufficient to sustain his conviction. The three factually distinct possession counts will be treated separately for the sake of clarity.

COUNT ONE.

Count One charged possession of 14 cartons of women's boots. On November 18, 1970,*fn2 one Amalbert, at the direction of appellant, transported the 14 cartons from the Key World Travel Agency in Brooklyn, of which appellant was president, to the basement of the Charles Bohn Company (a book company) in Manhattan, where appellant and Amalbert worked. Acting on a reliable informer's tip that the shoes would be moved on November 18, Federal Bureau of Investigation (FBI) agents, stationed outside the travel agency on that morning, observed Amalbert as he loaded the cartons into an automobile parked on the street.

The agents followed Amalbert as he drove away and questioned him -- after warning him of his rights -- when he stopped briefly in Brooklyn en route to Manhattan. Amalbert said that he was simply acting as a subordinate and agent of appellant.

During the conversation with Amalbert the agents could plainly see the shoe company name on some labels and the legend "Made in Italy" on all the cartons. Amalbert consented to a search of the automobile, which search showed that the boxes did contain women's boots. He agreed to cooperate with the FBI by carrying out the delivery instructions given to him by appellant. Accordingly, at the book company building in Manhattan, he placed the cartons in a wired-off basement area. The key to this locked area was available to Amalbert and to appellant, as well as to other company personnel. Upon receiving confirmation from FBI headquarters that the boots were stolen, agent McMullen, who had followed Amalbert, spoke about the stolen goods in the basement with the executive vice president of the book company, a Mr. Steubin, in his office. Mr. Steubin took agent McMullen to the basement area and opened the lock for him, after giving the agent permission to search the area. Appellant accompanied the two men to the basement and was arrested after McMullen had searched the area and recognized the boxes as those transported by Amalbert.

After being warned of his rights, appellant denied knowledge regarding the cartons, but then told the agent that he had taken the boots for resale, on a consignment basis, from two truckers whose names and addresses he did not know and from whom he had obtained no information regarding the source of the boots. The truckers, according to appellant, had left the boots at the travel agency, and appellant had sent Amalbert there to get them that morning. At trial, Amalbert testified that in addition to his transportation duties, he had sold boots for appellant to people in the book company building.

Appellant challenges*fn3 the search at the book company but does not challenge the initial search of Amalbert's car. Thus, the seizure of the boots at the book company (assuming arguendo that it violated the fourth amendment) could be viewed simply as "harmless error," Fed.R.Crim.P. 52(a), Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), since the Government had ample proof of its case from the search of Amalbert's car together with Amalbert's testimony.*fn4 However, we find no error in the search that was conducted here in the course of a diligent investigation. Before searching the basement, agent McMullen obtained the consent of the highest officer of the book company then on the scene. Although appellant had supervisory power over the wired-in area, access to it was not exclusively his, running also to his superior, the vice president. Consent to a search is effective when given by one whose right to occupancy or possession is at least equal to that of the person contesting the search. Frazier v. Cupp, 394 U.S. 731, 740, 89 S. Ct. 1420, 22 L. Ed. 2d 684 (1969); Reszutek v. United States, 147 F.2d 142 (2d Cir. 1945).

Valid consent to the search having been given, the cases cited by appellant for the proposition that warrantless searches are to be discouraged are inapposite. Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970), involved, inter alia, the nonconsensual search of an automobile at a police station sometime after the arrest. Vale v. Louisiana, 399 U.S. 30, 34-35, 90 S. Ct. 1969, 26 L. Ed. 2d 409 (1970), specifically lists consent as one of those "few specially established and well-delineated exceptions," in which warrantless searches of dwellings and a fortiori business establishments are constitutionally allowed. The record shows that Mr. Steubin gave his consent ". . . freely and voluntarily . . . ." Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968) (footnote omitted); see also Coolidge v. New Hampshire, 403 U.S. 443, 484-490, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). The evidence recited above was surely sufficient to sustain appellant's conviction on Count One.

COUNT TWO.

Twelve cartons of women's sandals were found by FBI agents during a search of the basement of the Brooklyn building housing the travel agency. Three tenants occupied the building: the travel agency on the ground floor and two apartment holders on the second floor. The basement was leased to no one, and any tenant was allowed to use it for storage.

The search took place contemporaneously with agent McMullen's search at the book company. Permission to search the travel agency offices was denied by appellant's partner Mr. Barberoni, but he expressed no objection to a search of the basement. Agent Clark asked Charles Ciccotto, the owner of the building, for permission to search the basement; the owner agreed and was "happy to cooperate." While Barberoni's agreement to the basement search might arguably be insufficient, ". . . showing no more than acquiescence to a claim of lawful authority," Bumper v. North Carolina, supra 391 U.S. at 549, 88 S. Ct. at 1792, 20 L. Ed. 2d 797 (footnote omitted), Ciccotto's willing consent was unquestionably ". . . freely and voluntarily given." Bumper, supra at 548, 88 S. Ct. 1788. This consent alone validates the search. United States v. Botsch, 364 F.2d 542, 547 (2d Cir. 1966) (2-1 decision), cert. denied, 386 U.S. 937, 87 S. Ct. 959, 17 L. Ed. 2d 810 (1967). Here, as in Botsch, and unlike Stoner v. California, 376 U.S. 483, 84 S. Ct. 889, 11 L. Ed. 2d 856 (1964) (hotel clerk has no authority to consent to search of hotel room), relied upon by appellant, the landlord -- with access to and interest in an area at least as substantial as his tenant's, or with the tenant's permission -- has a right quickly to exculpate himself from suspicion. We are dealing here with a basement storage area used by appellant but under his landlord's control, a situation quite distinct from searches of private quarters held invalid in cases such as Chapman v. United States, 365 U.S. 610, 81 S. Ct. 776, 5 L. Ed. 2d 828 (1961) (with permission of landlord, who had no key, police entered unlocked window of house rented by defendant).

As to the sufficiency of the evidence on Count Two, the cartons were found in the building with which appellant was connected; and both the owner of the building and appellant's own admissions connected him with the travel agency. when questioned by agent McMullen, appellant said that he had seen and inspected the sandals and that he left them in the basement pending their return to the truckers as not-salable. Appellant's testimony together with the independent evidence connecting him with the travel agency building sufficiently establish the requisite possession. See Smith v. United States, 348 U.S. 147, 152-153, 75 S. Ct. 194, 99 L. Ed. ...


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