The opinion of the court was delivered by: COOPER
The defendant moves pursuant to Rules 41(f) and 12(b), Federal Rules of Criminal Procedure, to suppress the contents of two briefcases seized and searched on September 5, 1975 by the New York City Police. After a full hearing before us on December 13 and 20, 1977, the within motion is hereby denied in its entirety.
Our ruling is predicated primarily on the following succinct recital: (1) The defendant has standing to contest the admissibility of the seized articles on the basis of Fourth Amendment safeguards. See, e.g., Mancusi v. DeForte, 392 U.S. 364, 368, 88 S. Ct. 2120, 20 L. Ed. 2d 1154 (1968); Jones v. United States, 362 U.S. 257, 261, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960). (2) There was probable cause to arrest the defendant. See, e.g., Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 93 L. Ed. 1879 (1948); N.Y.Crim.Proc.L. § 140.10 (McKinney 1971) (warrantless arrest). (3) The impounding of the car was proper under standard New York City Police Department procedures. See, e.g., People v. Kern, 67 Misc.2d 495, 324 N.Y.S.2d 442 (1971). (4) The inventory search of the car and briefcases was lawful. See, e.g., Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973); Cooper v. California, 386 U.S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1967).
We plan to file a more detailed memorandum decision disposing of these and other issues presented.
We found credible the evidence adduced by the Government at the open hearing we conducted on the defendant's application to suppress certain extremely vital evidence which came into the hands of the police after defendant Ochs was placed under arrest. The nature of this motion before us is such that we undertake
a somewhat detailed factual recital of what took place at the hearing.
While cruising in a patrol car on September 5, 1975 at approximately 4:30 P. M. in the vicinity of a department store, B. Altman & Company, Fifth Avenue and 35th Street, Manhattan, New York City, Police Officers John O'Malley (on the force 8 1/2 years) and William Kelly were signaled to stop by Mr. Theodore Bielefeld, the assistant director of security of the store. He imparted to them right then and there information that proved to have a direct bearing on the issue of probable cause for the subsequent arrest of Ochs. We should promptly point out that he was well known to the officers. They had dealt with him in his official capacity as assistant security director of B. Altman. On over a dozen prior occasions Officers O'Malley and Kelly had arrested individuals in B. Altman for a variety of offenses including shoplifting, forgery, and burglary solely on information supplied to them by Mr. Bielefeld. All arrests made upon information provided by Mr. Bielefeld have been upheld by the New York State Courts. Mr. Bielefeld is himself a retired New York City police officer.
Bielefeld informed the officers that a ring of three male persons engaged in check-cashing stolen traveler's checks of the American Express Company had just passed such checks in the store; that two of them were then seated in a blue Cadillac automobile parked on East 35th Street (between Fifth and Madison Avenues) and the third, known to Bielefeld as Julian Mitchell,
was no longer in sight; that merchandise which had been purchased by Mitchell and members of his ring the day before was brought there for refund by Ochs the very next day (September 5) at about 4:00 P. M.; that Ochs entered the store, proceeded to the refund counter with the apparent intent of making a refund for cash. Perhaps because he was being followed by Bielefeld, Ochs became apprehensive and exited the store with the package without having received a refund.
Bielefeld also related he had followed defendant out of the Fifth Avenue door of the store and observed him walk in a northerly direction on that street. Ochs disappeared into a doorway on the east side of Fifth Avenue between 35th and 36th streets at which time Mr. Bielefeld flagged down Officers O'Malley and Kelly in their patrol car. Ochs then approached a dark blue, 1975 Fleetwood Cadillac (New York license no. 634-WFL) and entered that car which was parked on East 35th Street facing west.
Bielefeld showed O'Malley photostatic copies of the stolen American Express checks in the name of O. Grable that were cashed in the store the day before; also a photostatic picture of Mitchell.
The officers requested Bielefeld to see if the persons he mentioned were still in the automobile; he looked and reported affirmatively. The officers then pulled their patrol car in front of the Cadillac so as to preclude exit. They approached the automobile, O'Malley on the driver's side where Ochs sat, Kelly on the passenger's side (front) where one Liveo
was seated. Weapons were not drawn. When O'Malley first saw Ochs, he perceived that he fitted the description (furnished him by Bielefeld) of the man who attempted to obtain a refund on stolen merchandise that day.
Less than a minute thereafter, O'Malley observed the blade of an open knife on the front seat between Ochs and Liveo. O'Malley yelled that information to Kelly. One of them took the knife and upon its examination, by the officers right then and there, were satisfied that it was a gravity knife. Both knew it was a violation of New York State law to possess such an instrument open or closed.
The knife had a six inch handle that accommodated a sharp blade about that size. A gravity knife differs from a penknife in that by depressing its button, accompanied by a flicking of the wrist, the blade exits the handle and locks into place. It can be opened and remain so without touching the lock. It is somewhat similar to a push-button switchblade knife without however the latter's spring to force the blade open; the force of gravity, and not a spring, forces the blade open and ends in a locked position.
Satisfied it was a gravity knife, the officers ordered Ochs and Liveo out of the car and directed them to place their hands on the roof of the car. At first Ochs and Liveo resisted the instructions and became belligerent. They soon changed their attitude. The officers frisked them but found nothing relevant to the search.
As O'Malley frisked Liveo down and reached his ankles, he noticed a black object on the left front wheel well floor. His first impression of it was a gun or weapon. He asked Liveo about it and received a negative answer. Thereupon, O'Malley reached in and took possession of an object that turned out to be a folded leather book of American Express traveler checks in the name of O. Grable, identical to the ones which had been used by Mitchell to purchase goods at Altman's on September 4 and 5, 1975.
During the next two minutes, the two were given their constitutional rights and the officers questioned Ochs about the ownership of the automobile; defendant responded it belonged to a friend whose whereabouts then he did not know. When asked, Ochs produced a New York State driver's license in his own name and a registration certificate for the vehicle in the name of Otto Narday. O'Malley noticed that the upper portion of the registration certificate had been tampered with, a "7" changed to an "f."
From Narday we learned that the car belonged to him. On frequent occasions he had borrowed from Ochs substantial sums (at one time $ 18,000; presently $ 12,000). On occasion Narday had difficulty paying defendant back. He had not "yet" transferred to Ochs the ownership of the car.
Since neither occupant was the owner, the registration certificate had been altered, neither occupant knew where the owner could then be located, the gravity knife on the front seat, and Ochs fitted the description given by Bielefeld of the man who was a member of the stolen check-passing ring all these factors gave the officers the impression that they were looking at a stolen car.
O'Malley tried to verify by radio the car's legal status,
but static interfered and prevented contact with the communications bureau. He succeeded in getting another police unit to attend; whereupon Ochs and Liveo were arrested, handcuffed and removed to the Midtown South station house. At no time on the way to the precinct did either man claim ownership of the property in the car; neither requested the officers not to examine or take possession of whatever was there.
Before leaving the scene of the arrest, O'Malley requested one of the policemen to transport the blue Cadillac to the precinct where it was "vouchered"
and an inventory made of the items in it. The police procedure that prevailed at the time made it imperative that a police officer remove and impound
any automobile believed stolen and conduct an inventory search of all cars seized or illegally parked. This is done for the owner's safe-keeping as well as affording protection of the police department against false claims of missing property of any kind, also to determine the existence of explosives or weapons.
Ochs and Liveo were placed in the detention cell promptly. Approximately five to ten minutes later, O'Malley and Kelly left to search the vehicle and make an inventory of its contents. Among other things, the search yielded a .32 caliber starter's pistol, a simulated revolver, a scanning receiver (a device used to listen to police radio transmissions), one B. Altman's sweater, originally purchased with stolen traveler's checks by Mitchell on that day, a second book of stolen traveler's checks and two briefcases. The blue Cadillac itself was also vouchered along with the knife and the stolen traveler's checks seized during the arrest. The briefcases unlocked were found in the footwells of the back seat.
The briefcases were examined by the officers a few feet from where Ochs stood and in a position to observe the inspection. He engaged in small talk that included, "What do you guys think you're going to find?" The contents of the briefcases were carefully inventoried. O'Malley made sure they contained nothing harmful, i. e., a bomb, gun, other weapon, etc. Four bank books were found and listed, one listed this defendant as co-owner, the other three bore names other than defendant. Also removed were numerous sheets of paper, records and two small address books. No valuables, money, jewelry, securities were found.
Numerous entries filled the sheets and records; they related both to Studio 1 Massage Parlor and a money-loaning enterprise. O'Malley immediately recognized the parlor, for official business had brought him there on at least two occasions prior to September 5, 1975, the date of defendant's arrest in the instant case. It was, he was positive, an active house of prostitution. Entries on the paper sheets included names of girls and fees paid to the house. Other entries led O'Malley to conclude they related to "loan sharking" i. e., "old loan, new loan, paid, to be paid, that type deal," he testified.
On the arraignment (the day following) in state court of Ochs for possession of the gravity knife, he said to the officer, "What's this all about loan-sharking . . . so I lend money to people. What's wrong with that?"
On September 24, 1975 Ochs was arraigned in federal court. Defendant's attorney there approached O'Malley and offered a bribe. He reported the incident to his superiors. Officers O'Malley and Kelly thereupon began a three-month undercover investigation which culminated in the arrest of the attorney and the rearrest ...