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October 9, 1973

UNITED STATES of America ex rel. Harry L. SANNEY, Petitioner,
Ernest L. MONTANYE, Warden of Attica Correctional Facility, Attica, New York, Respondent

Curtin, District Judge.

The opinion of the court was delivered by: CURTIN

CURTIN, District Judge.

This case involves a petition for a writ of habeas corpus filed by a state prisoner. In a previous decision reported at 352 F. Supp. 947, D.C., the court discussed the state proceedings in the case and held that petitioner was entitled to raise his claims in this court not withstanding his entry of a plea of guilty in the state trial court.

 Before proceeding to the merits, one additional point on this issue should be noted. At the time petitioner entered his plea of guilty three sections of the former New York Code of Criminal Procedure allowed appeal of certain claims notwithstanding the entry of a plea of guilty. Section 813-g allowed appeal of claims relating to allegedly involuntary confessions. Section 813-c permitted appeal of claims relating to allegedly unlawful searches and seizures of tangible items, See People v. Habel, 25 A.D.2d 182, 268 N.Y.S.2d 94, aff'd, 18 N.Y.2d 148, 272 N.Y.S.2d 357, 219 N.E.2d 183 (1966), appeal dismissed, 388 U.S. 451, 87 S. Ct. 2104, 18 L. Ed. 2d 1313 (1967), while Section 813-m(4) allowed appeal of claims relating to allegedly illegal interceptions of conversations. As indicated below, petitioner's claims concern an allegedly involuntary confession and an allegedly illegal interception of a conversation and thus were appealable pursuant to Sections 813-g and 813-m(4).

 Petitioner does not contend that a hearing is required in his case. He concedes that the facts pertaining to his claims are those revealed in the testimony presented to the grand jury in his case. (Letter from Herman Schwartz, June 12, 1973.) The facts so revealed are as follows:

 In December 1965 petitioner reported to the police that he had found the body of one Charles Reynolds in a coal yard in the city of Lockport, New York. Although petitioner became a suspect in the case and was questioned by the police, he was not arrested at that time.

 In February 1966 petitioner applied for a job at the Reid Petroleum Corporation in Lockport. As a condition of employment he was required to take a polygraph test, which was administered on February 5 by John Bewick, Jr., a polygraph operator retained by Reid as a consultant. During a conversation preliminary to the actual test, petitioner revealed to Bewick that he had been a suspect in the Reynolds case and that he had not told the police that he had hit or pushed the victim. *fn1"

 Bewick reported what he had learned to the police, who thereupon arranged for him to conduct a second polygraph test of petitioner at which Bewick would be equipped with a concealed electronic transmitting device enabling the police to listen to and record the conversation. The second test was held at Reid's on February 8 after Reid informed petitioner that another test was necessary in his case. Petitioner was not given the warnings set forth in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and he was not made aware of the fact that Bewick was acting as an agent of the police and enabling them to eavesdrop on his conversation with Bewick. Indeed, at one point in the conversation Bewick answered in the negative to petitioner's question, "Is there a tape recorder?" During the conversation petitioner repeated and amplified the incriminating remarks he had made in his first conversation with Bewick. *fn2" At the conclusion of the test petitioner left Reid's to go home for lunch and was arrested by the police.

 Petitioner contends that his second confession was obtained in violation of his rights under the fifth amendment. This contention encompasses three distinct claims, the first of which is that Bewick's interrogation imposed on petitioner an impermissible choice between self-incrimination and the loss of his newly acquired job. In support of this claim petitioner cites Garrity v. New Jersey, 385 U.S. 493, 87 S. Ct. 616, 17 L. Ed. 2d 562 (1967), a case in which police officers questioned about the alleged fixing of traffic tickets answered questions after a warning that they were entitled to remain silent and any information given might be used against them in any criminal prosecution but that if they refused to answer they would be subject to removal from office. In overturning convictions based on the answers of the policemen, the Supreme Court stated as follows:

The choice given petitioners was either to forfeit their jobs or to incriminate themselves. The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent. Id. at 497, 87 S. Ct. at 618.

 Garrity is distinguishable from petitioner's case, however, on the ground that it concerned the forfeiture of a governmental benefit, public employment. As such, it represented a specific application of the general principle that the state may not condition the grant of a benefit or privilege upon the recipient's relinquishment of a constitutional right. See Jones v. State Board of Education of Tennessee, 397 U.S. 31, 34, 90 S. Ct. 779, 25 L. Ed. 2d 27 (1970) (dissenting opinion); Honolulu Rapid Transit Co. v. Dolim, 459 F.2d 551, 552 n. 2 (9th Cir.) cert. denied sub nom., Honolulu Rapid Transit Co., Ltd. v. Hawaii Public Utilities Commission, 409 U.S. 875, 93 S. Ct. 124, 34 L. Ed. 2d 128 (1972). In contrast, petitioner's case involves no conditioning of a governmental benefit upon surrender of a constitutional right.

 Petitioner claims next that his second confession was obtained in violation of his rights under the fifth amendment because before questioning him Bewick did not give him the warnings required by Miranda v. Arizona, supra. The answer to this contention is that petitioner was not in custody when he was interrogated by Bewick. The test of whether questioning is custodial in nature is an objective one not "[depending] upon how [the] individual being questioned [perceives] his situation." United States v. Hall, 421 F.2d 540, 544 (2d Cir. 1969), cert. denied, 397 U.S. 990, 90 S. Ct. 1123, 25 L. Ed. 2d 398 (1970). To establish custody in the absence of actual arrest "something must be said or done by the authorities, either in their manner of approach or in the tone or extent of their questioning, which indicates that they would not have heeded a request to depart or to allow the suspect to do so." Id. at 545. Nothing in Bewick's conversation with petitioner indicates that he would not have allowed petitioner to terminate the conversation and leave the room. The fact that the eavesdropping police would probably have arrested petitioner had he tried to leave the room without incriminating himself is irrelevant because their presence was unknown to petitioner. The conclusion that petitioner was not subjected to custodial interrogation is consistent with the holdings of other cases involving the use of secret agents to obtain incriminating statements. See United States v. Viviano, 437 F.2d 295, 300-301 (2d Cir.), cert. denied, 402 U.S. 983, 91 S. Ct. 1659, 29 L. Ed. 2d 149 (1971); United States v. DiLorenzo, 429 F.2d 216, 219 (2d Cir. 1970), cert. denied, 402 U.S. 950, 91 S. Ct. 1609, 29 L. Ed. 2d 120 (1971); United States v. Knohl, 379 F.2d 427, 442 (2d Cir.), cert. denied, 389 U.S. 973, 88 S. Ct. 472, 19 L. Ed. 2d 465 (1967).

 Petitioner's final fifth amendment claim is that his second confession was involuntarily given. As was noted in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973), a confession is not deemed to be voluntary merely because it represents a conscious choice among alternatives. On the other hand, it cannot be said that a statement is voluntary only if it would have been made even if no inquiry or other action by law enforcement officials had occurred. Rather, a "confession is voluntary if it is the product of an essentially free and unconstrained choice and involuntary if the product of a will overborne." Mancusi v. United States ex rel. Clayton, 454 F.2d 454, 456 (2d Cir.), cert. denied sub nom., Montanye v. Clayton, 406 U.S. 977, 92 S. Ct. 2413, 32 L. Ed. 2d 677 (1972), citing Lynumn v. Illinois, 372 U.S. 528, 534, 83 S. Ct. 917, 9 L. Ed. 2d 922 (1963), and Culombe v. Connecticut, 367 U.S. 568, 602, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961). In short, the test of voluntariness is whether "under the totality of circumstances such pressure was exerted upon the suspect through threats, infliction of fear or pain or making of inducements and promises that his will was overborne." United States ex rel. Liss v. Mancusi, 427 F.2d 225, 229 (2d Cir. 1970), citing Haynes v. Washington, 373 U.S. 503, 513, 83 S. Ct. 1336, 10 L. Ed. 2d 513 (1963).

 Applying the foregoing tests, the court does not believe that petitioner's second confession was the product of a will overborne and hence involuntary. There is no doubt that Bewick deceived petitioner by concealing his newly acquired status as a police agent and denying that their conversation was being recorded. Nevertheless "[a] mere deception by an interrogator, ipso facto, does not invalidate a confession absent other compelling circumstances." United States ex rel. Lathan v. Deegan, 450 F.2d 181, 186 (2d Cir. 1971), cert. denied sub nom., Lathan v. Deegan, 405 U.S. 1071, 92 S. Ct. 1520, 31 L. Ed. 2d 803 (1972). Petitioner's case does not present other circumstances sufficiently coercive to render petitioner's confession involuntary. As previously noted, petitioner was not in custody. Furthermore, the fact that his conversation with Bewick was surreptitiously listened to and recorded by police officers "did not tend to show either actual coercion or a potentially coercive setting." Procunier v. Atchley, 400 U.S. 446, 454, 91 S. Ct. 485, 489, 27 L. Ed. 2d 524 (1971). Most significantly, Bewick did not make any threats or promises to petitioner to induce him to confess. Compare United States ex rel. Everett v. Murphy, 329 F.2d 68, 70 (2d Cir.), cert. denied Murphy v. Everett, 377 U.S. 967, 84 S. Ct. 1648, 12 L. Ed. 2d 737 (1964) (promise of police assistance to reduce charges). While the taking of a polygraph test might be a trying experience for any person, let alone one described as "very immature" and "very dull", it is not an event sufficient in and of itself to render involuntary a confession made during the test. See United States v. McDevitt, 328 F.2d 282, 284 (6th Cir. 1964); Weston v. Henderson, 279 F. Supp. 862, 864 (E.D.Tenn.1967), vacated on other grounds, 415 F.2d 343 (6th Cir. 1969). This is particularly true in petitioner's case because he had taken another polygraph test just a few days before the one in question.

 Finally, petitioner claims that the use by the police of an eavesdropping device concealed on Bewick's person to listen to his conversation with petitioner constituted an unreasonable search and seizure under the fourth amendment. Because the electronic surveillance in petitioner's case occurred prior to the date upon which Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), was decided, it is clear that the legality of the surveillance must be determined in light of the law as it stood prior to the decision in Katz. See United ...

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