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UNITED STATES EX REL. POWELL v. LAVALLEE

June 6, 1974

UNITED STATES of America ex rel. Joseph POWELL, Petitioner,
v.
J. E. LaVALLEE, Superintendent, Clinton Correctional Facility, Respondent



The opinion of the court was delivered by: BONSAL

MEMORANDUM

 BONSAL, District Judge.

 Petitioner, pro se, seeks a writ of habeas corpus.

 Petitioner was arrested on January 23, 1970 in a police raid on apartment 3H at 1874 Loring Place, Bronx, New York. Seized by the police at that time were some 10 pounds of heroin and paraphernalia for "bagging up" heroin. Prior to his trial, petitioner moved to suppress this evidence on the grounds that it was illegally seized. After a hearing before Justice Brust of the New York Supreme Court, Bronx County, petitioner's motion was granted on June 18, 1970. The State took an interlocutory appeal, and on March 25, 1971, the order of the trial court suppressing the evidence was reversed by the Appellate Division, First Department. 36 A.D.2d 177, 319 N.Y.S.2d 485 (1971) (Nunez & Capozzoli, JJ., dissenting). The New York Court of Appeals affirmed on March 16, 1972. 30 N.Y.2d 634, 331 N.Y.S.2d 445, 282 N.E.2d 333 (1972) (Fuld, C. J., dissenting).

 On October 19, 1972, petitioner pled guilty to the charge of criminal possession of a dangerous drug in the first degree and was sentenced to imprisonment for a term of 8 1/3 to 25 years. Petitioner is presently serving his sentence in the Clinton Correctional Facility, Dannemora, New York. By way of habeas corpus, petitioner now asks this Court to pass on the constitutionality of the seizure of evidence which occurred incident to his arrest on January 23, 1970. In view of the ample record in the State court proceedings in which petitioner was represented by counsel, no hearing is necessary.

 Facts

 Petitioner's arrest on January 23, 1970 was the culmination of an investigation which began some three months earlier. On October 24, 1969 an unknown informant telephoned the Narcotics Bureau office and provided the names and addresses of four women, two of whom were said to be running narcotics mills. These women were Beverly Massey, nicknamed Chalky, Jr., and Naomi Bostick, nicknamed Chalky, living at 866 Elsmere Place, apartment 2E, and Robbie Taylor and Marcelle Thomas, living at 90 West 164th Street, apartment 6A. As a result of the anonymous phone call, surveillance of these two locations was begun. Inspection of the Bureau of Identification records revealed that both Massey and Bostick had previously been arrested and convicted of violations of the narcotics laws.

 On October 29, 1969, Bostick was followed from 866 Elsmere Place to the vicinity of 173rd Street and Walton Avenue, where she met a man named Charles Harris. Together, Bostick and Harris proceeded to 1764 Walton Avenue, apartment 3G. Apartment 3G was kept under surveillance, during which time one of the police officers overheard conversation in which the name "Chalky", Bostick's nickname, was used. At about 10 p.m. the door to apartment 3G opened. Bostick emerged carrying a large number of glassine envelopes and was arrested. Inside apartment 3G, one of the officers saw white powder, glassine envelopes, rubber bands, and scotch tape. In addition to Bostick, three other persons -- Charles Harris, Claudette Gary and Pat Jackson -- were arrested. While at the station house, Jackson asked one of the officers if he would give Naomi and Beverly a break because, "'These girls just work mills. They are just working girls.'"

 On January 5, 1970 surveillance on Massey, Bostick and 866 Elsmere Place was resumed. That same day officer Strano, one of the officers involved in the investigation, requested information about Massey and Bostick from a confidential informant. On a past occasion this informant had given information which led to the arrest of three persons for violation of the narcotics laws. The informant stated that he believed Massey and Bostick to be two girls who stayed at a bar on 116th Street and Fifth Avenue, that they were known by the name of Chalky and that they and their friends dressed in men's clothes. On the following day, the informant identified pictures of Massey and Bostick and stated that there was little doubt that they were active in "bag-ups" or in mills.

 On January 14, 1970, the informant told Strano that "something was happening," that "something was in the wind," and that "[the] girls were getting ready." The following day the informant told Strano that "it wouldn't be a big one but it might be going down, and very possibly at 866 Elsmere." On January 16, the police officers waited at 866 Elsmere Place from early morning until about 6:00 p.m. Strano spoke to the informant by phone and was told, "'It is off. I don't know what happened but all the girls are out in the street.'"

 On January 20, 1970 Strano spoke to the informant again. The informant told him that "they were ready again," that "there was a lot of confusion," that "there would be a lot of girls involved" and that it would not be at the usual place. The informant said he would try to ascertain the location.

 On January 21, 1970, Strano and another officer followed Massey from Elsmere Place to the corner of Loring Place and Burnside Avenue, where she entered a building. That evening, the informant told Strano that "'It is really hot. It is going. The girls are moving. They are all happy. They are going to make money.'" Strano asked the informant what he knew about "'Loring Place and Burnside.'" The informant hesitated and asked, "'Big corner building?'", to which Strano replied, "'Right'." The informant then said "'There is a girl that lives in there, they call Tess, but she has a lot of nicknames and she is involved in all kinds of games.'" He also stated that the apartment had been used before and that it was on the third floor.

 On January 22, 1970, Strano spoke to the informant for the last time prior to the arrest. The informant told him, "'Everything is go. They are all ready. It is going to start early in the morning. It is going to be a big one. Be careful and good luck.'" The informant also confirmed the address and the apartment again. Officer Strano went to the District Attorney's office and obtained a "no knock" search warrant. Prior to the raid on January 23, one of the officers learned from the name on the doorbell and through verification by the phone company that the occupant of apartment 3H was Tessie Truehart.

 Early on January 23, 1970, police officers took up positions at 866 Elsmere Place and 1874 Loring Place. At about 7:45 a.m., a woman, later identified as Ann Brown, was observed entering 1874 Loring Place. At 8:00 a.m. a Buick with New Jersey registration came up Burnside Avenue and parked on the corner of Burnside and Loring, on the opposite side of the street from 1874 Loring Place. A man, later identified as the petitioner, got out of the driver's side of the car, walked to the rear of the vehicle, and stood there for three to five minutes looking up and down the street. At approximately 8:05 Massey emerged from 1874 Loring Place, approached petitioner and engaged him in conversation. After both petitioner and Massey looked around the street again, petitioner opened the trunk of the car and removed a cardboard box, a paper bag, and ...


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