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UNITED STATES v. KING

December 16, 1982

UNITED STATES OF AMERICA,
v.
GEORGE KING and FRANK ELSIS, Defendants.



The opinion of the court was delivered by: SWEET

SWEET, D.J.

Defendants Frank Elsis ("Elsis") and George King ("King") were arrested October 6, 1982 and subsequently charged in a one count indictment which alleged a conspiracy to use and manufacture counterfeit credit cards in violation of 15 U.S.C. § 1644(a). Elsis has moved for a bill of particulars and to suppress certain physical evidence as well as a statement allegedly obtained from Elsis in violation of his constitutional rights. King has challenged the validity of certain search warrants and has moved to suppress evidence obtained from searches executed pursuant to those warrants. For the reasons set forth below, the motions are denied.

 On December 9, 1982 an evidentiary hearing was held in connection with Elsis' motion to suppress. Lieutenant Dennis Zloty ("Zolty"), a Secaucus, New Jersey police officer, testified that on the morning of October 6, 1982 he arrested Elsis, King and King's wife in Bergen County and impounded Elsis' station wagon which contained assorted boxes of merchandise and small machinery. During the car ride to the Secaucus police headquarters, just moments after the arrest, Zloty advised Elsis of his Miranda rights, reading from a card which he carries in his wallet. Zloty testified that Elsis said he understood his rights.

 Detective Frank Donnelly ("Donnelly"), a New York City Police Department detective also testified at the hearing. He stated that he and Inspector Richard Bowdren ("Bowdren"), Postal Inspector for the United States Postal Service, met with Elsis at the Secaucus police station at about 10:30 a.m. Donnelly testified that at the outset of the meeting, Bowdren asked Donnelly for his Miranda card from which Bowdren read Elsis his rights. Donnelly further testified that after reading each individual right, Bowdren would ask Elsis if he understood the question and that Elsis said he did. After that, Bowdren interviewed Elsis.

 Donnelly was not involved in the credit card ring investigation but was investigating a homicide and questioned Elsis after Bowdren was finished. Donnelly testified that Elsis said he knew nothing about the murder, and having heard what Elsis had to say, Donnelly called him "stupid" several times. The entire interrogation lasted for no more than ten to fifteen minutes, during which time Elsis sat without handcuffs, and according to Donnelly, appeared lucid and normal.

 At about 2:30 p.m., Elsis was transported to the MCC in Manahattan accompanied by Donnelly and Bowdren. Donnelly testified that during the car ride, Bowdren and Elsis were engaged in small talk about a previous encounter they had had. At no time during the ride did Elsis state that he wanted to remain silent or retain counsel. Every so often, Donnelly told Elsis that he was "stupid." Donnelly testified that at one point, Elsis, pointing to Donnelly, said to Bowdren:

 Tell him that I am not a bad guy, I am not into violence. I am not a violent person. You know me, I am into plastic and credit cards, but I am not into any violence. I never hurt anybody in my life.

 It is this statement that Elsis seeks to suppress.

 The procedural safeguards outlined in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), are required where a suspect in custody is subjected to interrogation. Rhode Island v. Innis, 446 U.S. 291, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980). Elsis argues that he was being interrogated in the car on the way to the MCC in Manhattan and that because his rights were not read to him upon entering the car or during the trip, any incriminatory statements made by him during the ride must be suppressed. I conclude, however, that Elsis was not being interrogated.

 There is no evidence that Elsis was being questioned in the car by Bowdren or Donnelly about the counterfeit credit card ring. Donnelly did not continue to ask Elsis about the homicide that was under investigation. He did, however, continue to call Elsis "stupid" as he had at the time of questioning at the station house. This name-calling is not "interrogation" within the meaning of Innis, supra at 302 ("the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminatory response.")

 Even if Donnelly's remarks concerning Elsis' mental process were reasonably anticipated to elicit a response which might be incriminating, the statement would not be suppressed. Several hours prior to the car ride, Elsis was read his Miranda rights on two separate occasions. Both times he said he understood those rights and then voluntarily waived them. At no time during the car ride did he express the desire to exercise his rights. It would exalt form over substance to require under these circumstances that Elsis receive a third reading of his rights within hours of two prior warnings. What matters is that he understood that he had constitutional rights and was free to exercise them. There has been no indication that he did not.

 As to the evidence seized from Elsis' station wagon, it is undisputed that the search was based on a valid warrant. Finally, the Government indicated at the hearing that it would supply particulars requested by Elsis.

 King has challenged the validity of certain search warrants and has moved to suppress evidence seized pursuant thereto. Prior to the commencement of this action, the Government obtained a search warrant directed at a warehouse rented by King in Secaucus, New Jersey ("Space Station"), and warrants authorizing searches at his residence and of a truck rented by him based in part on the evidence seized at the Space Station. The warrant for the Space Station was issued by a United States Magistrate in the District of New Jersey on October 5, 1982 upon the affidavit of United Postal Inspector James Buchanon ("Buchanon") (which included, as an appendix, the complaint in United States v. Donald Sanders, S82 Cr. 627). The Space Station warrant authorized a search for "equipment and other paraphernalia related to the production of counterfeit credit cards." King contends that the affidavit did not state facts sufficient to support a finding of probable cause for the Space Station search and that the subsequent searches of his home and rented truck should be suppressed as fruits of an illegal search. I reach the opposite conclusion.

 From the Sanders complaint and Buchanon's affidavit, the Magistrate learned that Buchanon was investigating a New York-based group that manufactured and distributed Counterfeit credit cards, and that an informant had stated that King was the "mastermind" behind the credit card ring and had brought Donald Sanders ("Sanders") from California to New York to supervise production of counterfeit cards. According to Buchanon's affidavit, on September 4, 1982 Sanders had been arrested in Chicago and a search incident to arrest produced documents reflecting the purchase of the equipment and collection of information necessary to produce counterfeit credit cards, including orders for equipment ordered out of 160 West 46th Street, New York ...


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