The opinion of the court was delivered by: TAYLOR
Robert Grant and George Lawrence are charged in the first fifteen counts of a sixteen-count indictment with unlawfully, wilfully and knowingly having in their possession the contents of certain check-letters stolen from the United States Mail, knowing the same to have been stolen. In the sixteenth count they are charged with unlawfully, wilfully and knowingly forging the endorsement of the payee, Freddie Mitchell, on the back of a check, for the purpose of obtaining from the United States Government a sum of money, the check being a genuine obligation of the United States.
Each defendant has moved to suppress all evidence seized by the Government agents claiming that such seizure was in violation of the Fourth Amendment to the United States Constitution and Rule 41 of the Federal Rules of Criminal Procedure. Defendants also seek to have suppressed certain statements made by them to the Government officers while under arrest. The motions are supported by an affidavit of each defendant.
At the hearing on this motion, Agent Quinn, both defendants, and a U.S. Postal Inspector testified as to the events occurring on August 3, 1976. Agent Quinn's testimony may be summarized as follows. On August 3, 1976, he was in the process of training Agent Dougherty.
He had taken Agent Dougherty to Playland Arcade on West 42nd Street to show him where false identification cards were often purchased for use in cashing stolen government checks. Agent Quinn testified that in the last three years he had been involved in "no less than 25 cases" involving stolen government checks in which the false identification cards were purchased at Playland Arcade. Agent Quinn also added that he had made at least 400 arrests for stolen government checks in his seven years as a Secret Service Agent.
At approximately 2:45 p.m., while standing some twenty feet from the counter where facsimile social security cards were sold, Agent Quinn observed two young men approach the counter. One of the men, later identified as defendant Grant, purchased two facsimile social security cards. On cross-examination, Agent Quinn demonstrated extremely accurate vision when confronted with four small cards at a distance equal to that from which he observed the purchase of the facsimile social security cards. Quinn also observed that defendant Lawrence had a bulky package under his right arm.
As the defendants left Playland, the agents followed them, at first closely, gradually dropping back to about 35 feet, so as to arouse less suspicion of the defendants.
At some point, as the defendants walked up the west side of Seventh Avenue, defendant Lawrence shifted the package so that he was holding it with his right hand underneath the package. As they proceeded up Seventh Avenue, the agents began to close the gap between themselves and the defendants. At some point between 42nd and 43rd Street, Agent Quinn observed something sticking out of a hole in the rear of the package which appeared to him to be a Polaroid camera of the type often used to take pictures for false identification cards.
As the agents began to follow closer to the defendants, Quinn observed about a one-half inch by three-quarter inch portion of what appeared to him to be a U.S. Treasury check.
A few moments later, he also noticed that portions of two "brown manila envelopes" were sticking out of the hole in the package, and that these envelopes appeared to be of the same color used to mail U.S. Treasury checks.
When the defendants had to stop at 45th Street for traffic, the agents came to within approximately five feet of them. Quinn said he then confirmed that the green object was indeed the corner of a Treasury check.
While standing behind the defendants at this close proximity, Quinn observed that defendant Lawrence turned his head to the left and apparently caught a glimpse of Agent Dougherty. Quinn said defendant Lawrence then "stiffened" and "shuddered" upon the apparent recognition that he and defendant Grant were being followed.
As the defendants started to cross 45th Street, Quinn went around them on their right, held his badge in front and between the two defendants, giving them time to read the inscription. He then requested the defendants to "please pull over" at the corner because he would "like to talk to them." Both agents were in plain clothes, and no weapons were exhibited.
Quinn then asked Grant if he had just purchased some identification cards at Playland. Grant, after hesitation, responded affirmatively. Quinn asked Grant what he intended to do with the cards, and, after hesitation, Grant said they were for his own use. Quinn then asked Lawrence, "Could I see what you have in that package?" Lawrence handed over the package, and Quinn immediately placed it on the sidewalk and crouched down over it to examine the contents. Quick scrutiny of the contents revealed many items, including the following: several commercial and government checks; many pieces of identification; photographs of both defendants of the type generally used on identification cards; various envelopes, one of considerable bulk labeled "Jursey [sic] checks"; and an electronic calculator.
The agents immediately arrested and handcuffed the defendants. The bag was seized.
Personal search of defendants turned up an additional commercial check on Lawrence and false identification on both defendants. Defendants later gave inculpatory statements to agents.
Both Quinn and the Postal Inspector testified that Grant, during the time of questioning, appeared alert, responsive, and in command of his senses, revealing no symptoms of being under the influence of drugs.
On cross-examination, Quinn stated that at no time prior to the examination of the bag did he intend to arrest either defendant; that their path was not blocked, and ...