United States of America Ex Rel. Nicholas Cardaio v. J. Leland Casscles, Warden of Sing Sing Prison

WATERMAN, Circuit Judge

(dissenting) :

I respectfully dissent.

I deem McDonald v. United States, 335 U.S. 451 , 69 S.Ct. 191 , 93 L.Ed. 153 (1948), to be controlling. As stated in McDonald, at 455, 69 S.Ct. at 193 :

Here, as in Johnson v. United States [ 333 U.S. 10 , [ 68 S.Ct. 367 , 92 L.Ed. 436 ] (1948)] and Trupiano v. United States [ 334 U.S. 699 , [ 68 S.Ct. 1229 , 92 L.Ed. 1663 ], (1948)], the defendant was not fleeing or seeking to escape. Officers were there to apprehend petitioners in case they tried to leave. Nor was the property in the process of destruction nor as likely to be destroyed as the opium paraphernalia in the Johnson case. * * * No reason, except inconvenience of the officers and delay in preparing papers and getting before a magistrate, appears for the failure to seek a search warrant. But those reasons are no justification for by-passing the constitutional requirement [of getting a search warrant], as we held in Johnson v. United States, supra, 333 U.S. at page 15 , 68 S.Ct. at page 369.

Here, the robbery of Konrad by Car-daio which Konrad reported to the police on the afternoon of June 1 at Konrad’s apartment had occurred the previous night. This was not the “hot” report of a frightened victim who had just been stuck up and robbed at gunpoint. And, except for the fact that he had been arrested and was in the custody of Lt. Mulligan’s patrol, it is highly unlikely that Konrad would have ever confessed to have illegally possessed eight pounds of marijuana and have been “robbed” of the contraband. Quite obviously, it seems to me, Cardaio could not have supposed that he would be informed upon and could not have expected that he would be the object of a robbery investigation by the police; hence not even the police could believe that Cardaio feared arrest or would attempt immediate flight, or would hastily destroy the marijuana claimed to have been forcefully taken from Konrad. Moreover, from the leads given by Konrad, Detective King, by quick and effective police work, was in possession of all pertinent information needed to obtain both an arrest warrant for Cardaio and a search warrant for 43-10 Auburndale Lane.

Additionally, as in McDonald, the premises were soon under surveillance and it is inconceivable that a search *639 warrant could not have been safely obtained between the time the premises were identified and consultative plans could safely be made for a night-time search. As the majority opinion points out, after nightfall King (“whose job is the detection of crime and the arrest of criminals”) decided upon a more aggressive course and the majority would justify this action by holding “that the exigencies of the situation made that course imperative.” 1

I submit that it strains credulity to say that any “emergency” existed here so as to justify the officers’ violation of the well-known fundamental right of a person to be secure in his home from unreasonable searches in the night-time.

The majority, despite McDonald, relies upon the Second Circuit case of United States v. McMillan, 368 F.2d 810 (1966) an arrest and search conducted after there had been four sales of narcotics by McMillan to a federal narcotics agent. Thei’e, after the sales, which, of course, identified McMillan as a dealer, the agents, pursuant to the power specifically granted to federal narcotics agents under 26 U.S.C. § 7607 , made a warrant-less arrest. Such an arrest was permissible “for violations of any law of the United States relating to narcotic drugs” when the agents “believe that the person to be arrested has committed or is committing such violations.” Inasmuch as four sales had been made to an agent, this statute on its face authorized the agents, whenever they wished to act, to arrest McMillan and then to conduct an incidental search for narcotics in the premises where he was living. Here the officers were policemen of the City of New York, and the warrantless search they conducted was to find a gun and was not for the purpose of uncovering marijuana.

I would reverse and remand with instructions to issue the writ of habeas corpus, unless the State promptly retries appellant without the use of the marijuana unconstitutionally seized. See my dissent in DiBella v. United States, 284 F.2d 897, 904-909 (2 Cir. 1960), rev’d, 369 U.S. 121 , 82 S.Ct. 654 , 7 L.Ed.2d 614 (1962); see also United States v. Baca, 417 F.2d 103 (10 Cir. 1969); Niro v. United States, 388 F.2d 535 (1 Cir. 1968).

. As stated in McDonald v. United States, 335 U.S. 451, 456 , 69 S.Ct. 191 , 93 L.Ed. 153 , this is the single permissible exception to the requirement that a search requires the advance delivery to the searching officers of a search warrant issued by a magistrate. In fact, it is not amiss to quote the portion of the McDonald opinion immediately following the quotation at the beginning of this dissent and ending with the quotation here noted:

We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative. 335 U.S. at 455, 456 , 69 S.Ct. at 193 .