The opinion of the court was delivered by: DUFFY
On August 21, 1980, two FBI agents conducted a warrantless search of defendants' warehouse. As a result of the search, several boxes containing stolen stereo equipment were seized. The agents also questioned the defendants Vincent and Mildred Piteo ("defendants") about the stolen materials. Thereafter, defendants were arrested and indicted by the grand jury.
The defendants first move to dismiss the indictment and for inspection by this court of the grand jury minutes. Defendants also contend that the warrantless search and seizure at defendants' premises were in clear violation of the fourth amendment to the Constitution. They move, therefore, to suppress the physical evidence seized as a result of the unauthorized search. The Piteos also move to suppress statements made by them to Agent Moran.
A two day hearing was held on the validity of the search and seizure as well as the voluntariness of defendants' statements. After considering all the credible evidence and testimony presented at the hearing, I hereby deny defendants' motions to suppress any physical or oral evidence. I also deny defendants' motions to dismiss the indictment and for inspection of the grand jury minutes.
On August 21, 1980, the Newark, New Jersey office of the Federal Bureau of Investigation received a report that some Soundesign brand stereo equipment had been stolen from Don Dee Trucking Corporation located in Jersey City, New Jersey. Evidently, sometime in the early morning hours of that day, a trailer containing approximately 361 cartons of Soundesign equipment had been stolen from the Don Dee terminal yard.
Eight days later, on the Friday afternoon before Labor Day weekend at approximately 1:30 p.m., FBI Special Agent Robert deBellis received information relating to the stolen equipment from a confidential informant. The informant advised deBellis that a truckload of stolen Soundesign equipment was en route to Manhattan and was to be delivered that afternoon to a warehouse operated by Piteo Trucking, Inc. located at 76 Thompson Street. Piteo Trucking is owned by the defendants. The informant also told deBellis that the vehicle transporting the goods was a forty-foot trailer pulled by a blue International tractor bearing New Jersey license number XUL-37F.
Agent deBellis conveyed this information to his supervisor, Agent McCarten. McCarten then relayed this message to Agent Conlin at the Brooklyn-Queens office of the FBI. Another agent, Neil Moran agreed to aid Conlin in the investigation and surveillance.
Conlin then proceeded in a vehicle to 76 Thompson Street, arriving there at 2:45 p.m. He observed that the premises consisted of a one-story warehouse type of building with a loading dock. The dock was set back from the sidewalk approximately forty feet allowing room for trucks to back into the loading area. Conlin also observed three large bays with roll-up doors for loading and unloading. Two of the bays were open and the interior of the warehouse was visible from the street. Conlin then drove around the corner and parked his car.
As he was walking back toward the warehouse, Conlin observed the tractor-trailer rig described by the informant arrive and park at the loading dock. As he walked by the warehouse, he observed wooden pallets loaded with large cartons on the dock behind the truck. He also observed some individuals on the dock who appeared to be unloading the truck.
At this point, Agent Moran arrived in a separate vehicle and Conlin briefed him on what had occurred. Conlin then called the Newark or Brooklyn-Queens FBI office from a telephone booth on Thompson Street to advise the office that he and Moran were going to "walk in." The agents did not attempt to contact a magistrate to acquire a search warrant.
Conlin and Moran then proceeded walking toward the loading dock area. As they moved toward the warehouse, they saw Mildred Piteo who at that moment turned to the warehouse and yelled "Hey Rocky!"
The agents then climbed onto the loading dock area via a five-step metal staircase. From this vantage point, Conlin saw cartons that appeared to contain stereo equipment with the brand name "Soundesign" on the exterior. He observed others stenciled or sprayed with black paint. Vincent Piteo then came forward and stated he was the manager of the warehouse. He was asked whether he had a bill of lading for the goods then being unloaded. He replied that he did not but could obtain the documents in a couple of days.
Agent Moran then questioned each of the Piteos separately. Both defendants were advised of their constitutional rights concerning such interrogations and they each stated their full understanding of their rights.
The Piteos were then arrested. The Soundesign equipment was inventoried and all but seven cartons were returned to their rightful owner. ...