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UNITED STATES v. DELAGO

June 11, 1974

UNITED STATES of America
v.
Anthony DELAGO, Defendant



The opinion of the court was delivered by: MOTLEY

Memorandum Opinion and Order

 MOTLEY, District Judge.

 Defendant, Anthony Delago, pleaded guilty to the charges of illegal gambling, 18 U.S.C. § 1955, New York Penal Law §§ 225.05 and 225.15, McKinney's Consol.Laws, c. 40, as charged in indictment 72 Cr. 280. He was sentenced on April 29, 1973 to a term of one year, four months in custody and the remaining eight months on probation. His probation was made subject to the standing probation order of the court, and special conditions annexed thereto, a copy of which is attached as Appendix A.

 On August 24, 1973 the defendant was released from custody and commenced his eight-month probationary period under the direct supervision of probation officer Victor Tyne. Some months later the Probation Office filed a petition alleging that Delago had violated the terms of his probation by having possession of gambling records on March 13, 1974. That petition was based on the probation officer's report (Govt.Exh.3501) to that effect. On March 26, 1974 the court issued a bench warrant commanding Delago's arrest for violation of probation. The defendant denied the charges at his arraignment.

 At a hearing held before this court on April 23, 1974 defendant moved to suppress 1) the gambling records as fruits of an unconstitutional search and seizure and 2) certain statements made by defendant to officer Tyne as having been obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).At the hearing officer Tyne testified to the facts and circumstances underlying the probation violation charged. For the reasons which follow, the defendant's motion to suppress is denied and the court further finds that defendant violated the terms of his probation. The probationary status of defendant is hereby terminated and the defendant is directed to appear for sentencing on Thursday, June 27, 1974 at 11:00 A.M. in Courtroom 102.

 FACTUAL BACKGROUND

 The Search, Seizure and Oral Statements

 In the course of his duties as probation officer, Tyne visited the defendant's residence at 7 Drew Street, Port Chester, New York on January 23, 1974. Tyne was greeted by an individual, later identified as John Bolagna, a convicted gambler, and was told that the defendant was away on vacation. Tyne left a message that Delago should call him upon his return, whereupon Tyne left. In response to Tyne's message, the defendant came to the probation office on January 29, 1974. At that time the defendant identified Bolagna and further told Tyne that he had instructed Bolagna to turn away all visitors since the defendant feared they might be bill collectors.

 Tyne testified that on March 13, 1974, he made a return visit to the defendant's residence. As Tyne approached 7 Drew Street he observed two individuals arrive in an automobile and park opposite Delago's residence. One of the two men walked quickly between 7 Drew Street and the adjacent house in the direction of the entrance to Delago's residence which was located at the rear of 7 Drew Street. When Tyne left his car and began to walk towards 7 Drew Street he glanced at the individual who had remained in the car. That individual then shielded his face from view with his open hand. As Tyne proceeded down the alleyway near Delago's house, he met the first individual whom he had earlier seen briskly heading for Delago's door. That individual paused slightly as Tyne passed. Glancing back, Tyne noticed that the individual had paused to watch him. Thereafter, Tyne reached the entrance to Delago's residence.

 As Tyne reached Delago's place he either rang a bell or knocked and was met by an individual later identified as Angelo Lovallo. When Tyne asked to see Delago he was told to wait. As Lovallo walked away from the door he could be seen talking with someone other than the defendant. Tyne stepped just inside from which point he could see the defendant, Lovallo, and a third person later identified as Mike Cicarella.

 Tyne proceeded into the living room and greeted Delago. Tyne next noticed a newspaper folded into a rectangular packet, secured by a rubber band, on a table. Tyne asked Delago to bring it to him, whereupon Lovallo immediately removed the newspaper from the table and concealed it on his person, possibly in his back pocket. Lovallo then replied, "What newspaper?" and further demanded that Tyne identify himself. In response, Tyne gesturing toward Delago told Lovallo, "He knows who I am." Tyne stated at the hearing that it was for the benefit of the defendant, who might be embarrassed by the revelation, that Tyne refused to identify himself. Tyne demanded the paper several more times. Lovallo pivoted away from Tyne and somewhat obviously removed the contents from inside the newspaper, handed the empty newspaper to Delago who, in turn, passed it on to Tyne. Tyne asked to see the contents which had been removed. At that point, Lovallo approached him and, as Lovallo faced him, Tyne noticed a bulge, which he feared might be a weapon, in Lovallo's front pocket. Tyne then drew his gun and demanded the contents. Delago intervened at this point. He went to Lovallo, secured the envelope from him and handed the envelope to Tyne. Upon examination, it was discovered that the envelope contained gambling records, identified by the defendant as "plays." Tyne instructed Delago to get into his, Tyne's car, saying that they were "going for a ride." It is the contents so obtained which defendant seeks to have suppressed.

 After Tyne and Delago went to Tyne's car, they drove away from 7 Drew Street. During the drive, Delago admitted, in response to Tyne's questioning, that the envelope contained "plays" which had been delivered to him. Tyne advised the defendant that the incident would have to be reported to the court as a possible basis for probation revocation. Thereafter, Tyne drove back to Delago's residence and dropped him off. It is this statement, made without benefit of Miranda warnings, which defendant seeks to have suppressed.

 LEGAL CONCLUSIONS

 Tangible Evidence

 The court concludes that there was probable cause to support Tyne's search and seizure of the "plays". The factors which, taken together, constitute probable cause in the instant case include the following:

 
1) that the defendant was known to Tyne to be a convicted gambler;
 
2) that the defendant while on probation was associating with convicted gamblers, on at least one occasion (i.e. January 23, 1974);
 
3) that Tyne had been refused entry to defendant's residence on January 23, 1974 for dubious reasons;
 
4) that Tyne, under an obligation to aid defendant in meeting the conditions of his probation, one of which was to obey state and federal laws, went to defendant's residence, on March 13, 1974, and to Tyne's trained eye, the behavior of the two individuals whose visit preceded his on that date was suspicious;
 
5) that Tyne's reception and the events which preceded his entry into the living room reasonably put him on notice that a crime had been or was about to be committed;
 
6) and, that Lovallo's secretive behavior with regard to the newspaper and its contents suggested the contents might be contraband or other evidence of crime.

 Since this sequence of events constituted the legally sufficient probable cause on which Tyne proceeded, the seizure of the evidence (marked at the hearing as Government Exhibit 1 for identification) was performed in a manner consistent with the Fourth Amendment to the United States Constitution. The evidence, concededly gambling "plays", having been legally obtained, the defendant's motion to have the exhibit suppressed, in accordance with the exclusionary rule of Mapp v. Ohio, 367 ...


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