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UNITED STATES v. SMOLLAR

November 8, 1972

UNITED STATES of America
v.
Alvin SMOLLAR, Defendant


Motley, District Judge.


The opinion of the court was delivered by: MOTLEY

Memorandum Opinion on Motion to Suppress

MOTLEY, District Judge.

 The defendant, Alvin Smollar, was arrested on April 29, 1969 and indicted on January 7, 1971 (Indictment 71 Cr. 12) for violation of the mail theft statute, 18 U.S.C. ┬ž 1709.

 Defendant filed a pretrial motion to suppress a credit card obtained from his automobile on April 29, 1969 and a confession obtained from him on the same date.

 On May 9, 1972 the court held a suppression hearing to determine whether the credit card was legally seized and whether the confession was validly obtained. Defendant's motion is denied for the reasons set forth below.

 Postal Inspectors Robert Bazen and Louis Duquette had been investigating the loss of credit cards on the delivery route to which defendant was assigned as a regular carrier. They gave a "test" letter to the foreman of mail carriers at defendant's station. The foreman placed the test letter in the mail that Mr. Smollar was to deliver. Inspector Bazen saw the letter placed in the tray from which defendant sorted his mail but could not actually see defendant remove the test letter from the tray and place it in his rack. The test letter contained a Diner's Club credit card.

 The inspectors then followed defendant on his rounds and found that the letter was neither delivered to the place to which it had been addressed nor returned to the post office when defendant completed his rounds.

 After the inspectors verified that the test letter had not been returned to the post office, they observed defendant leave the station at 2:16 P.M. They arrested him at a nearby garage as he was getting into his automobile. As Mr. Smollar stepped out of the automobile, Inspector Bazen patted him down. He then advised defendant that he did not have to say anything, that anything he said could be used against him in court, that he could have an attorney, and that if he could not afford one, an attorney would be appointed for him. Mr. Bazen further told defendant that any discussion of Mr. Smollar's case would await their arrival at the General Post Office. Defendant denied that he was so advised.

 Defendant and the postal inspectors then entered defendant's car and defendant drove them to the General Post Office. Inspector Bazen, who was sitting in the back seat, observed a book with the end of what he believed to be a credit card protruding. He opened the book and observed a Unicard credit card. The book containing the credit card was then carried to Inspector Bazen's office at the General Post Office.

 Defendant contended that the inspectors discovered the Unicard during a search of the trunk of his automobile. The inspectors did not have a search warrant.

 After arriving at the General Post Office, defendant and the two postal inspectors proceeded to Inspector Bazen's office. Defendant signed a warning and waiver form listing the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) and stating his intention to waive those rights. (See Government's Exhibit 2). Defendant dated the form and put the time of 2:35 P.M. on it. He also signed the confession in question and a letter of resignation from the post office.

 I. Defendant claims there was not adequate probable cause to justify the arrest on April 29, 1969 and, therefore, the evidence discovered in the automobile and the confession obtained at the General Post Office are inadmissible as fruits of an illegal arrest. Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).

 The court rejects this contention. As found above, prior to defendant's arrest, Inspectors Bazen and Duquette had been advised that credit cards had been lost on Mr. Smollar's route. On April 29, 1969, the inspectors, as part of their investigation, gave a test letter to defendant's foreman containing a credit card addressed to a person on defendant's route. They followed defendant on his rounds and observed that the test letter was not in the addressee's mailbox nor was the letter returned to defendant's post office station.

 The evidence before the inspectors at the time they arrested Mr. Smollar did not point conclusively to defendant's guilt. One of the other men regularly assigned to defendant's route or neighbors may have been responsible for the credit card losses which the inspectors were investigating. There are also innocent explanations for the loss of the test letter. The inspectors did not actually see the letter placed in defendant's rack. It is possible, therefore, that the letter was misplaced at the station. It is also possible that defendant mistakenly delivered the letter to the wrong address or that it was delivered to the proper address but that the addressee removed it from the mailbox before the inspectors were able to observe the box's contents.

 Nevertheless, "[evidence] required to establish guilt is not necessary. . . . Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed." Henry v. United States, ...


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