Petition — Tortorello v. United States

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In The

Supreme Court of the United States

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October Term, 1975

No. €5-18983

DOMINIC TORTORELLO,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND

CIRCUIT

IRVING ANOL'«

JOSEPH P. CARROZZA

Attorneys fo. Petitioner

225 Broadway

New York, New York 10007

(212) 732-3050

IRVING ANOLIK

Of Counsel

LUTZ APPELLATE PRINTERS, INC.

(9156)

Law and Financial Printing

South River, N.J. New York, N.Y Philadelphia, Pa. Washington, D.C.

(212) 563-2121 (215) 563-5587 (201) 783-7288

(201) 257-6850

TABLE OF CONTENTS

Opinion Below .......c cece cece ee ee eee e ee eeeeeeeeeeees

SFOS POCO RE ERE TOE TT TPCT OTe

Questions Presented ......c eee eee cece ceeeeeeeeeeeeees

Constitutional and Statutory Provisions Involved .........

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Jurisdictional Question as to Waiver of Appeal by the

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Pestingnt Pate occcccccccccececsececscecescecesees

Argument:

The court below was in error in its decision of

reversal since it assumed a state of facts which is

untenable. The court found voluntary consent by

Tortorello despite the Government’s contrary

position and despite the inconsistency of the record

which belies consent. ........cccccccccecceeeees

The evidence herein should have been suppressed in

any event since it was tainted and the “fruits of a

poisonous tree.” The petitioner had been arrested for

being in possession of stolen coffee five days earlier

by state authorities and it is manifest that the federal

agents conducted their trespassory and warrantless

search of the Hermany Avenue home as a result of

the knowledge which must have been imparted to

them by the state authorities. In any event, the

agents had more than enough time to obtain a search

NE ccccécnevavesesebsnssceuseseeseennes

13

ii

Contents

Page

SD eu daddtudius CadeGhadieukcedscdedanboweddees 17

TABLE OF CITATIONS

Cases Cited:

Abel v. United Santen, 362 U.S. 217... cccccccccccccccse 15

Brown v. Illinois, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975)

PTT TTT CT CTT TT CTT TTT TT TTT TTT 12, 17

Brown v. United States, 411 U.S. 223 (1973) ........... 2, 12

Burdau v. McDowell, 256 U.S. 465 ........ ccc cece eeeee 15

Coe GW, GO, Foe WA. FE cccccvcesccsccscvcces 15

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ........ 14

Davis v. Mississippi, 394 U.S. 721 (1969) ........ceeeees 12

Estate of Sanford v. Commissioner, 308 U.S. 39 ......... 2

peneter v. Wees Baates, SES TER. FF .ccccncccccscccccese 15

Johnson v. United States, 333 U.S. 10 ......... cece eee 15

Jones v. United States, 362 U.S. 257 (1960) ....2, 3, 9, 10, 14

ee Oh, es I, cea cudeeses 17

McDonald v. United States, 335 U.S. 451 (1948) ....... 11, 15

Nardone v. United States, 308 U.S. 338 ................. 17

- gen) eer

iii

Contents

Page

Sackler v. Sackler, 15 N.Y. 26 GD .ncccccccccccsvccccves 15

Santobello v. New York, 404 U.S. 257 .....ce cece ee eeees 10

Schmerber v. California, 384 U.S. 757) ....e eee cece e ees 15

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ......... 12

Silverthorn Lumber Company v. United States, 251 U.S. 385. 17

Simmons v. United States, 390 U.S. 377 (1968) .......... 2

Terry v. Ohio, 392 U.S. 1c ccccccccccccccccvccccacces 12, 15

United States v. Atkinson, 297 U.S. 157 .......00eeeeees 7

United States v. Brignoni-Ponce, 45 L. Ed. 2d 607 (1975) . 12

United States v. Marotta, 326 F. Supp. 377 (S.D.N.Y. 1971). 17

United States v. Lisk, 522 F.2d 228 (7 Cir. 1975) ........ 2

Warden v. Hayden, 3B7 U.S. 206 .cccccccccccccccccccese 15

Wiborg v. United States, 163 U.S. 632 .......ce cece eeees 7

Statute Cited:

BO UBL. GIFSHE) cccccccccccccccvccvccecvesscccvevess l

United States Constitution Cited:

Ts (ED soc ecueeneedeons 2, 3, 4, 9, 12, 14, 16

iv

Contents

Page

Fue POMIOEE 5 oon. cv 0500060d0ce0ksuies ee 3

Rules Cited:

Federal Rules of Criminal Procedure:

See GED vcccieevcnéséeeccseeesssnee 5

See GOR vos 60c0cevé0000040sh0000 eee 4

we &

General Rules of Southern District of New York, Rule 9(m). 5

APPENDIX

Order Demying Rehearing «oo... cccccccscccccccccecsccces la

CeGar GE AGN ooo ckscsceskdncsnndeeee nee 2a

Copan Gee Game occticciecss sasucseeuecee 4a

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In The

Supreme Court of the United States

~ =>

October Term, 1975

No.

DOMINIC TORTORELLO,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND

CIRCUIT

Petitioner Dominic Tortorello respectfully prays that this

Court issue a writ of certiorari to the United States Court of

Appeals for the Second Circuit to review its order and opinion

dated April 1, 1976, whereby it reversed an order of United

States District Court Judge Lloyd MacMahon, who had signed

an order suppressing evidence. A petition for rehearing was

made and was ultimately denied on the 14th day of May, 1976.

2

OPINION BELOW

The opinion below has not yet been officially reported but

is reprinted in the appendix herein.

JURISDICTION

The jurisdiction of this Court is invoked under 28 U.S.C.

§1254(1). The United States Court of Appeals for the Second

Circuit reversed an order of United States District Court Judge

Lloyd MacMahon on April 1, 1976, thereby holding that certain

evidence consisting of a number of cases of coffee could be

admitted into evidence. Judge MacMahon had ordered that

evidence suppressed. A petition for rehearing was timely filed

and on the 14th day of May, 1976, the United States Court of

Appeals denied the rehearing. A copy of the aforesaid orders

and opinion are annexed hereto and made a part hereof.

QUESTIONS PRESENTED

|. Whether, after conceding that Tortorello had standing to

challenge an unlawful search and seizure, the Government could

properly reverse its stand and contend that they originally erred

and that Tortorello actually did not have standing to challenge

the search and seizure (Fourth Amendment)?

2. Whether a concession by the Government on a question

of law is binding on the court? (Estate of Sanford v.

Commissioner, 308 U.S. 39, 51; United States v. Lisk, 522 F.2d

228, 231 [7 Cir. 1975].)

3. Whether the “automatic standing” rule of Jones v.

United States, 362 U.S. 257 (1960) has been overruled by virtue

of this Court’s decision in Simmons v. United States, 390 U.S.

377 (1968) as interpreted by the circuit court from this Tribunal’s

decision in Brown v. United States, 411 U.S. 223 (1973)?

In other words, has Jones v. United States been overruled?

3

4. Whether the circuit court’s finding that petitioner could

and supposedly did consent to the search of a basement over

which he had no proprietary interest, is inconsistent with the

Government's position that Tortorello lacked standing to object

to any search in the first place?

5. Since the federal agents who came to the Hoffman house

where the coffee involved herein was seized had more than

sufficient time to obtain a search warrant and nevertheless failed

to seek one, whether under those circumstances it was a

violation of the Fourth and Fifth Amendments to seek the

“consent” of Tortorello to search the basement of Hoffman’s

house following the agents’ unlawful exploratory search of his

garage?

6. Was it unlawful for the Government to seek the consent

of Tortorello to search Hoffman’s house for stolen coffee after

Hoffman, who admittedly had standing to object to the search,

had in fact declined to give his permission or consent to any

such searches? Tortorello, according to the Government had no

standing whatsoever with respect to those premises.

7. Whether the Government may rely upon the consent of a

third person who has no proprietary or other interest in premises

to search such premises irrespective of the fact that one of the

occupants thereof has objected to the search?

8. Does the automatic standing rule of Jones v. United

States, 362 U.S. 257, mean that a person has “automatic

standing” to grant “consent” or only “automatic standing” to

“object” to a search?

9. Whether the United States Attorney's representation that

no appeal would be filed, constituted a waiver of appeal?

4

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The Fourth Amendment of the United States Constitution

and Rule 4l(e) of the Federal Rules of Criminal Procedure are

involved herein.

ESSENTIAL FACTS

Jurisdictional Question as to Waiver of Appeal by the

Government.

Judge Lloyd MacMahon of the United States District

Court for the Southern District of New York conducted a

suppression hearing in the instant matter following which he

issued an order suppressing evidence consisting of

approximately 250 cases of allegedly stolen coffee which were

found in the basement of a house occupied by Tortorello’s

mother and father, his sister and brother-in-law, but not himself.

This evidence was suppressed not only as to Tortorello but as to

a co-defendant named Hoffman. Hoffman has since been

severed from the case and apparently he will not be prosecuted.

The Government has apparently conceded that the evidence

seized at Hoffman’s own house which is the same evidence which

is the subject of this petition, was seized in violation of

Hoffman’s rights under the Fourth Amendment of the United

States Constitution and accordingly must be suppressed. It is

ironic that they do not concede this with respect to Tortorello

since he, too, was in the house at the time of the seizure.

With respect to the viability of the appeal itself however we

wish to point out that on or about August 28, 1975, the

Government advised Judge MacMahon ihat no appeal would be

taken. Notwithstanding this fact, approximately thirty days after

the order of Judge MacMahon was filed and about thirty-three

days after the decision was made, the Government, nevertheless,

filed a notice of appeal. It had also sought permission to have

—

5

reconsideration and reargument of Judge MacMahon’s order of

suppression. The Judge, however, citing the rules of the district

court, and Rule 45(b) of the Federal Rules of Criminal

Procedure declined to extend the Government's time to move for

reargument. The district court below apparently felt that the

Government had not established “excusable neglect” with

respect to its delay in seeking reargument and reconsideration.

(See also Rule 9(m) of the General Rules of the Southern

District of New York.)

We ask this Court to determine whether or not when the

Government announced that it would not appeal, the

Government waived its right to appeal (A136).'

It is interesting to note that the Government conceded that

Tortorello had standing during the search and seizure

suppression hearing. The position of the Government was that

the petitioner had consented to the search and seizure and

accordingly the evidence should be admitted as against both of

the then defendants namely Hoffman and Tortorello.

Ironically on the appeal, the Government conceded that

Hoffman was entitled to a suppression of the evidence thus

seized. It disputed, however, that Tortorello was similarly

entitled to it.

In addition the Government changed its entire theory

during the appeal by stating that it should not have claimed that

Tortorello consented because of the fact that he had no standing

in the first place. They maintained that the Government should

not have conceded standing at all and accordingly the position

taken on the appeal by the Government was that since

Tortorello had no standing in the first place, his consent was

irrelevant and unnecessary and accordingly the evidence could

always be used as against him. Incredibly however, the circuit

1. Numerals in parentheses refer to pages of the appendix filed by the Go ernment

with the United States Court of Appeals.

6

court found that apparently Tortorello did not have standing,

but that he did have the right to consent to the search. As a

matter of fact it was Tortorello’s consent which the circuit court

relied upon to find that the evidence seized could be used against

him. The paradox of this whole situation is that the self-same

evidence is suppressed as against the co-defendant Hoffman but

admitted as against Tortorello although they were both present

in the same premises at the same time and Hoffman had stated

that the only one who could consent was Tortorello. It is

difficult to understand how on the one hand Tortorelio had no

standing and yet on the other hand could be deemed to be

capable of consenting.

Pertinent Facts

It is conceded by the Government that federal agents went

to the home of the co-appellee, Hoffman. That home was

occupied by Hoffman and his wife, the latter being Tortorello’s

sister, and Tortorello’s mother and father. In fact, petitioner

Tortorello had himself been a resident of that house up to eight

months prior to the search and seizure.

On April 30, 1973, FBI Agents Lester Hay and three others,

without search or arrest warrants, went to the premises in

question, namely 2258 Hermany Avenue in the Bronx. Hay

approached the front door and after a conversation with

Hoffman, went to the garage where they e iamined certain cases

of allegedly stolen coffee (A28). Agent Hay asked Hoffman for

permission to search the second floor of the house but was

refused on the grounds that it would upset his parents-in-law,

who were ill (A29).

The federal agents then requested permission to search the

basement, but Hoffman refused on the ground that he had no

authority to allow such a search (A29, 40-42).

,

At the agents’ insistence, Mrs. Hoffman telephoned her

brother, the appellee Dominic Tortorello, who arrived at the

house about fifteen minutes thereafter (A97-98).

After advising Tortorello of his rights and receiving a

written waiver, Hay and two other agents had a conversation

with Tortorello in their automobile about the stolen coffee,

including their discovery in the garage (A30, 49-50).

The agents then requested that he permit a search of the

basement, after which insistence Tortorello executed a written

consent to search (A31-32).

The agents were taken to the basement by Tortorello and

discovered the 250 cases of stolen coffee, which are the subject of

the indictment.

It is obvious that on the one hand at the hearing, the

Government was relying upon the consent of Tortorello to

justify the search of the basement. Then for the first time on the

appeal to the circuit they took the position that Tortorello had

no right to grant them any consent because he ad no standing

to object in the first place. This was not the position which was

taken during the hearing in the district court below. It is obvious

that the Government was seeking to adduce evidence against

both Hoffman and Tortorello, and not Tortorello alone, It is

therefore clear that they were not raising any question of

jurisdiction or standing so far as Tortorello was concerned, vis-

a-vis the search.

It is submitted that the Government for the first time raised

something new on the appeal. In Wiborg v. United States, 163

U.S. 632, and United States v. Atkinson, 297 U.S. 157, this

Court held that ordinarily matters raised for the first time on

appeal will not be reviewable unless they constitute plain error.

We maintain that the Government cannot raise “plain error” to

excuse their own neglect or mistake. It is further submitted that

&

the plain error rule was obviously designed for the aid of

defendants since ordinarily the Government cannot appeal. It is

only within a very limited area that the Government has a right

of any appeal and the plain error rule we maintain (Rule 52(b)

of the Federal Rules of Criminal Procedure), do not apply to

Government appeals. Accordingly the concession made by the

Government of standing on the part of Tortorello should have

been sustained in the court below. If Tortorello had standing

then the opinion of the United States Court of Appeals below

was incorrect since they relied upon his consent. The only person

who really could consent was Hoffman since Hoffman was a

resident of the house in question. Tortorello was admittedly not

a resident of that house and he could not consent to a search of

those premises. Once Hoffman objected to the search, there

should have been no further effort to obtain any evidence

through a search without obtaining a search warrant. The

Government made no effort to obtain a search warrant in this

case.

The question here which is raised i. whether a complete

stranger or at least a person without any proprietary interest in

premises can “consent” to a search of those premises?

It is submitted that while the opinion of Judge MacMahon

on November 14, 1975 may not be reviewed for the purpose of

considering the reargument, it is nevertheless instructive as to

the findings of facts and conclusions of law that the Judge

made with respect to his original decision of August 29, 1975.

Judge MacMahon had not expatiated in that August 29th

decision since the Government had assured him that it would

not appeal. Thus, the finding and conclusion of Judge

MacMahon with respect to the search is contained on page 10 of

his November |4th opinion wherein he says, inter alia (A144):

“There were no exigent circumstances here. The

two agents who went to the rear of the Hermany

Avenue house were mere trespassers.... The

9

agents had sufficient information to obtain a

search warrant at least four or five days before

they went to the Hermany Avenue house on

April 30th, 1973. Indeed, there was no attempt

whatsoever to assert at the hearing a valid reason

for the failure of the F.B.I. to obtain a search

warrant. Therefore this search was

unreasonable.”

The trial court below then turned to the question of

“standing.” The district judge opined further on page 11 of his

November 14th decision (A145):

“We specifically requested the parties to address

this point [standing] in a _ post-hearing

memorandum. The government’s memorandum

conceded that both defendants had standing

under the ‘automatic standing’ rule of Jones v.

United States, 362 U.S. 257 (1960), that is, in a

criminal prosecution in which possession is an

essential element of the crime, a defendant

automatically has standing to raise Fourth

Amendment objections to seized evidence.”

(Emphasis ours.)

In its decision of November 14th, 1975, the district court

declares that it was incorrect with respect to its determination

that Tortorello had standing when it rendered its decision on

August 29th.

We must bear in mind, however, that this aspect of the case

is not before this Tribunal. The court was considering a motion

for reargument where the Government was shifting its position.

Prior to the motion for reargument the Government had taken

the position that there was no issue of standing since the district

court found that the Government had conceded that both

Tortorello and Hoffman in fact had standing. It was only after

10

the motion for reargument was filed some 30 days after the

district court's original decision that the Government suddenly

came to the conclusion that it should not have made that

concession and that in any event Tortorello did not have

Standing.

The Government's point of view had shifted again. Not only

did it take an appeal from Judge MacMahon’s determination

suppressing evidence against both Hoffman and Tortorello, but

in the circuit court had abandoned its claim with respect to

Hoffman altogether.

Thus, the Government seems to be vacillating in a very

undecisive manner.

We have already adverted to the fact that the petitioner may

not hide behind the smoke screen that the Solicitor General did

not make a determination that no appeal should be taken

because his consent or approval was not sought until about 30

days after the decision not to appeal. The trial court noted from

vast experience that such slips are the rule rather than the

exception.

Moreover, under the case of Santobello v. New York, 404

U.S. 257 (a case argued by the writer of this brief in the Supreme

Court of the United States), the Supreme Court held that in a

prosecutor’s office the “left hand must know what the right hand

is doing.” It is no excuse, therefore, that the United States

Attorney's office declared that no appeal would be taken and

now seeks to excuse that waiver by asserting that it had no right

to make such a statement. If that is the case, then all cases

should be handled directly by the Solicitor General and not by

the United States Attorney’s office altogether since apparently

this would mean that when one deals with the U.S. Attorney’s

office in the Southern District, they are not dealing in any

binding manner at all, but must await word from the Solicitor

General in Washington.

We maintain that between the United States Attorney's

office and the Solicitor General, there may have been some slip-

up. If so, it is unfortunate, but, according to Judge MacMahon

who has vast experience in this area and was a former Chief of

the Criminal Division of the United States Attorney's office,

such mistakes are typical. No defendant, however, and no court,

should be bound to recognize such mistakes as jurisdictionally

sufficient to warrant granting of either reconsideration or

rendering determinations of United States Attorney's office as

meaningless.

Once the Government, through the United States Attorney,

gives its representation, that should be deemed binding

irrespective of whether or not a slip-up has occurred.

In any event, we do not concede the reasoning of Judge

MacMahon or the Government to be valid with respect to the

issue of standing under any circumstances.

Under Jones v. United States, 362 U.S. 257 (1960) and

McDonald v. United States, 335 U.S. 451 (1948), the Supreme

Court has clearly indicated that standing exists where a person is

on the premises of any edifice wherein the search and seizure

occurs.

In the case at bar it is manifest that at the agents’ behest,

Tortorello was brought to the Hermany Avenue home, and it

was he who was looked to, to give consent to enter the

basement. It would appear that the occupants of that house had

certainly ceded to the petitioner Tortorello the proprietary

interest necessary to grant consent or to refuse consent.

We maintain that in view of the close relationship by

affinity and consanguinity with the occupants of the Hermany

Avenue home, namely the mother and father of Tortorello, as

well as his sister and brother-in-law, would grant him much

more than the ordinary nexus with such a home.

12

The co-defendant, Hoffman, declared that he had no

authority to grant consent to search the basement. The other

occupant of that apartment, namely Mrs. Hoffman, who is

Tortorello’s sister, at the behest of the agent, was told to call

Tortorelio, since apparentiy it was he who would have authority

to grant such consent. We maintain that the consent, however,

which was granted by Tortorello, was not the true type of

voluntary consent that one should expect, but rather was in

response to lawful authority.

See Schneckloth v. Bustamonte, 412 U.S. 218 ( 1973).

See also, Brown v. Iilinois, 95 S. Ct. 2254, 45 L. Ed. 2d 416

(1975).

We must bear in mind that Tortorello was requested to

come over by Federal Bureau of Investigation agents and was

taken into their car and was interrogated. We must therefore

presume, as we have a right to, that he was not in a position

where he could just walk away.?

The Fourth Amendment applies to all seizures of the

person, including seizures that involve only a brief detention

short of traditional arrest (Davis v. Mississippi, 394 U.S. 721

(1969); Terry v. Ohio, 392 U.S. 1, 16-19; and United States v.

Brignoni-Ponce, 45 L. Ed. 2d 607 (1975)).

“Whenever a police officer accosts an individual and

restrains his frzedom to walk away, he has ‘seized’ that person,”

Terry v. Ohio, supra, at 16, — and the Fourth Amendment

requires that the seizure be “reasonable.”

We therefore maintain that under the circumstances

described in the record herein, Tortorello was not merely some

guest but was in the custody of the FBI agents. He was brought

2. Thus, the argument of the Government that Tortorello was not in “possession” of

the coffee is not persuasive, since he was actually on the premises searched at the

instance of the Government. Brown v. United States, 411 U.S. 273, 229 is therefore not

applicable.

13

over to the Hermany Avenue address and then interrogated, not

with a view toward passing the time of the day, but clearly with

a view toward incriminating him with respect to the stolen

coffee.

ARGUMENT

I.

The court below was in error in its decision of reversal since

it assumed a state of facts which is untenable. The court found

voluntary consent by Tortorello despite the Government’s

contrary position and despite the inconsistency of the record

which belies consent.

At Slip Opinion 2887 and 2888 of the United States Court

of Appeals’ affirmance in the case herein, the court below

declares that since Tortorello accompanied the agents on the

search of the basement but was not present when the garage of

the same premises was also searched, that his consent was

sufficient to validate the search of the basement. The

Government However had taken the position at the appeal that

consent was not meaningfully given because Tortorello had no

right to consent in the first place because he had no standing.

It is obvious therefore that the United States Court of

Appeals predicated their affirmance upon the “consent” of

Tortorello to a search over premises where he had no standing

to object in the first place according to the Government.

Moreover on the appeal the Government did not predicate its

request for affirmance upon “consent” since it took the position

that no consent was even necessary.

The determination of the court below therefore is extremely

difficult to understand under these circumstances.

We submit that this Court should resolve the question of

whether or not Tortorello had standing and also whether or not

14

he had the right to consent to a search altogether since the

position of the Government was that he had no proprietary or

other interest in these premises. Did he consent is also posed for

resolution.

The question is presented whether or not the Government

can ever rely upon the consent of a person who has no interest in

a premises to search. The Jones case, supra, does not mean as

we under it that Jones could have consented to a search. As we

understand Jones the rule of “automatic standing” is that a

person on the premises which are being searched has “avtomatic

standing” to object. He does not necessarily have automatic

Standing to consent.

The evidence herein should have been suppressed in any

event since it was tainted and the “fruits of a poisonous tree.”

The petitioner had been arrested for being in possession of

stolen coffee five days earlier by state authorities and it is

manifest that the federal agents conducted their trespassory and

warrantless search of the Hermany Avenue home as a result of

the knowiedge which must have been imparted to them by the

state authorities. In any event, the agents had more than enough

time to obtain a search warrant.

All searches without a warrant are presumptively violative

of the Fourth Amendment unless they come within a recognized

exception to the rule requiring such warrants. The only such

exceptions would involve a consent search or a search incident

to a lawful arrest (Coolidge v. New Hampshire, 403 U.S. 443

(1971)).

In the case at bar, during the hearing itself and the legal

arguments made in connection therewith, the Government’s

position was that Tortorello gave a valid consent to the search.

We have already analyzed our reasons for maintaining that the

15

consent was really submission to lawful authority and was not

the product of a free will. Tortorello was obviously already

under arrest by state authorities and had been summoned to the

Hermany Avenue address at the behest of federal agents who

proceeded to interrogate him in a car.

Additionally, however, no lawful arrest had yet taken place

so there was no search incident to a lawful arrest. Assuming,

however, that a lawful arrest had occurred, it would certainly

not warrant searching the basement since that would have been

inconsistent with the rules permitting a search incident to an

arrest which must be in an area in the immediate vicinity of the

person arrested and not at some remote point (Chimel v.

California, 395 U.S. 752).

We must bear in mind further that this was not a search

conducted in the course of “hot pursuit” (Warden v. Hayden,

387 U.S. 294); nor was it a search conducted in an emergency

situation or exceptional circumstances (Terry v. Ohio, supra;

Schmerber v. California, 384 U.S. 757; Johnson v. United

States, 333 U.S. 10; or McDonald v. United States, 335 U.S.

451).

Moreover, this was not a search in an open non-private area

(Hester v. United States, 265 U.S. 57); nor did it involve

abandoned property (Abel v. United States, 362 U.S. 217).

Since admittedly federal agents conducted the search, we do

not have an exception relating to private persons (Burdau v.

McDowell, 256 U.S. 465; Sackler v. Sackler, 15 N.Y. 2d 40). The

district court should have also suppressed on the “fruit’s”

doctrine.

In short, there were no exceptions under which the federal

agents could proceed.

The Government having taken the position of the district

court on the original hearing, that Tortorello had standing since

16

they were relying upon his consent to authorize the search, have

not shifted not only from that position by claiming that he had

no standing, but also take the position now that his co-

defendant Hoffman, should have secured a proper suppression

of evidence.

The Government really is arguing that it may conduct

“exploratory searches.” In other words, it cowid deliberately

conduct a trespassory search of Hoffman’s abode and use any

evidence found against a person who is not a resident there,

irrespective of the fact that the search was admittedly invalid.

Without Tortorello’s arrest, no one would have permitted the

agents to the basement.

We must bear in mind that the entire hearing in the district

court predicated itself upon the fact and argument that the FBI

agents had acted properly within the purview of a consent

search. The Government, however, had their cake and ate it too.

They were permitted to shift their Position and state that the

facts adduced were no longer valid.

Having failed in their attempt to secure a reargument, they

should have been precluded from raising issues which were

presented during the reargument. They should have been

concluded by the factual determinations made by the district

court with respect to the only valid motion which was before the

circuit court. That includes the decision thereon which

culminated in the August 29th opinion of Judge MacMahon,

which was filed on September 3rd.

The FBI had almost one week within which to secure a

search warrant, and failed to do so. They did not even have an

excuse for not having made such an attempt. The activities in

obtaining the coffee in the basement of the Hermany Avenue

house were clearly violative of every concept of fairness and

certainly a gross affront to the Fourth Amendment. The seizure

of the coffee in the basement was the product of the “fruits of a

17

poisonous tree.” (Nardone v. United States, 308 U.S. 338;

Silverthorne Lumber Company v. United States, 251 US. 385;

and Brown vy. Illinois, supra).

See too, Katz v. United States, 389 U.S. 347 and United

States v. Marotta, 326 F. Supp. 377 (S.D.N.Y. 1971).

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

s/ Irving Anolik

s/ Joseph P. Carrozza

Attorneys for Petitioner

IRVING ANOLIK

Of Counsel

la

APPENDIX

ORDER DENYING REHEARING

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a Stated Term of the United States Court of Appeals, in

and for the Second Circuit, held at the United States Court

House, in the City of New York, on the fourteenth day of May,

one thousand nine hundred and seventy-six.

Present:

HON. PAUL R. HAYS

HON. WILLIAM H. MULLIGAN

HON. MURRAY I. GURFEIN

Circuit Judges.

United States of America,

Plaintiff-Appellant,

v.

Frank Hoffman, Dominic Tortorello,

Defendants-Appellees.

75-1376

A petition for a rehearing having been filed herein by

counsel for the appellee Dominic Tortorello,

2a

Order Denying Rehearing

Upon consideration thereof, it is

Ordered that said petition be and hereby is DENIED.

A. DANIEL FUSARO

Clerk

ORDER OF AFFIRMANCE

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a Stated Term of the United States Court of Appeals, in

and for the Second Circuit, held at the United States Court

House, in the City of New York, on the Ist day of April, one

thousand nine hundred and seventy-six.

Present:

Hon. Paul Hays, Circuit Judge

Hon. William H. Mulligan, Circuit Judge

Hon. Murray I. Gurfein, District Judge.

Docket No. 75-1376

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

-against-

DOMINIC TORTORELLO,

Defendant-Appellant.

3a

Order of Affirmance

Appeal from the United States District Court for the

Southern District of New York.

This cause came on to be heard on the transcript of record

from the United States District Court for the Southern District

of New York, and was. argued by counsel.

ON CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged, and decreed that the judgment of said

District Court be and it hereby is reversed.

s/ A. Daniel Fusaro

A. DANIEL FUSARO

Clerk

4a

OPINION OF THE COURT

UNITED STATES COURT OF APPEALS

For THE Seconp Crrcvit

No. 7/5—-September Term, 1975.

(Argued January 30, 1976 Decided April 1, 1976.)

Docket No. 75-1376

=

a

Unitep States or AMERICA,

Appellant,

—against—

Dominic ToRTORELLO,

Defendant-A ppellee.

4

7

.

Before:

Hays, Muutican and Gurrern,

Circuit Judges.

+e

Appeal by the United States from an order of the United

States District Court for the Southern District of New

York, Lloyd F. MaeMahon, Judge, suppressing certain

stolen coffee as well as certain statements of the appellant

Dominic Tortorello as evidence against him at trial on

ground that such evidence was the product of illegal

searches.

Reversed on grounds that appellant lacked standing to

challenge one search, and that he consented to a second

search.

ws

=

Ronaup L. Garnett, Assistant United States At-

torney, New York, N.Y. (Thomas J. Cahill,

a

Sa

Opinion of the Court

United Siates Attorney, and James A. Moss

and John D. Gordan, III, Assistant United

States Attorneys, of counsel), for Appellant.

Irvine ANouik, Bronx, N.Y. (Joseph P. Car-

rozza, Bronx, N.Y. of counsel), for Defen-

dant-A ppellee.

i ee

GurFEIN, Circuit Judge:

The United States appeals, pursuant to 18 U.S.C. § 3731,

from an order of the United States District Court for the

Southern District of New York, Lloyd F. MacMahon, Judge,

suppressing certain stolen coffee as well as certain state-

ments of the defendant Dominic Tortorello (“Tortorello”)

as evidence against him at trial.

On April 25, 1973, Frank Hoffman (“Hoffman”) and

Tortorello, while driving a van containing some 50 boxes

of allegedly stolen coffee, were apprehended in Brooklyn

by New York City police officers. The next day both sus-

pects gave statements in the Brooklyn House of Detention

to FBI agent Lester Hay after being informed of their

rights and executing waiver forms. They were subsequently

released.

On the morning of April 30, 1973, Hay and three other

agents, without search or arrest warrants, went to 2258

Hermany Avenue in the Bronx, where Hoffman lived on

the first floor with his family. Hoffman’s parents-in-law,

who are also parents of Tortorello, resided on the second

floor. At the back of the two-family house is a detached

three-car garage connected to the street by a driveway.

The house has a basement. Although Tortorello formerly

lived in this house, he moved out in August 1972, when he

got married.

6a

Opinion of the Court

As Agent Hay approached the front door, other agents

walked down the driveway to the back of the house and

looked into the garage through a window. They saw some

fifty boxes of coffee and told Hay of their discovery. Hay

met with Hoffman and advised him that the agents had

seen coffee in the garage. The agents obtained permission

from Hoffman to conduct a search of his residence on the

first floor of the house. The search turned up nothing. The

agents and Hoffman then went to the garage, and, with

Hoffman’s consent, the agents entered and examined the

cartons of coffee. Hay, thereupon, asked Hoffman for per-

mission to search the second floor of the house, but Hoff-

man refused, saying that it would upset his parents-in-law

who were ill. The agents also asked Hoffman for his con-

sent to search the basement. Hoffman refused to consent

on the ground that he had no authority to allow such a

search. The agents then requested Mrs. Hoffman to tele-

phone her brother, defendant Tortorello, to come over.

Tortorello arrived at the house some fifteen minutes later.

The agents asked Tortorello to come into their car. There

they advised him of his constitutional rights and asked his

permission to search the basement. The agents informed

Tortorello that they had seen the coffee in the garage, and

that they felt they could get a search warrant for the base-

ment if he refused to consent to the search. Tortorello

then signed a written consent to the search of the hase-

ment. The agents were taken to the basement hy Torto-

rello where they found 250 boxes of coffee.

On July 23, 1975, defendants Hoffman and Tortorello

were indicted. The indictment charged that on Anril 23.

1973, they unlawfully received, concealed and stored 250

boxes of coffee (presumably the coffee which was found in

the basement during the April 30, 1973 search’. moving as

part of an interstate shipment, knowing the same to have

been stolen, in violation of 18 U.S.C. 4 2315.

Ta

Opinion of the Court

On August 14, 1975, Hoffman and Tortorello moved to

suppress: (a) certain statements made by them; (b) the

50 boxes of coffee found in the van they were driving when

they were stopped by the New York City police on April

25, 1973; (c) the 50 boxes of coffee found on April 30, 1973

in the garage adjacent to the Hermany Avenue house; and

(d) the additional 250 boxes of coffee seized the same day

by the agents in the basement of the house.

An evidentiary hearing on the motion was held on Au-

gust 26, 1975. On August 27, Judge MacMahon announced

from the bench that the search of the garage and the base-

ment at 2258 Hermany Avenue had been illegal and that

the coffee so discovered and any statements taken then or

thereafter would be suppressed. An order to this effect

was filed on September 3, 1975. The Government conceded,

at that time, that since Tortorello was charged with a pos-

sessory crime, he had standing, under the “automatic stand-

ing” rule of Jones v, United States, 362 U.S. 257 (1960), to

move to suppress any evidence seized in violation of the

Constitution. Judge MacMahon, quite understandably, ac-

cepted this concession at the time as a correct statement of

the governing law.

On October 2, 1975, the Government moved to reargue

the suppression motion as to Tortorello on the ground that

he lacked standing to complain of the search of the garage

and that it was the illegality of the garage search that had

impelled the District Court to suppress the coffee later

found in the basement, together with Tortorello’s later

statements. In a written opinion, on November 14, 1975,

Judge MacMahon indicated that he now agreed with the

Government’s present position that Tortorello did not

have standing to challenge the search of the garage and

that, with respect to the coffee found in the search of the

basement, Tortorello had voluntarily consented to that

8a

Opinion of the Court

search. He found, however, that the Government’s motion

for reargument was not timely made.

The appeal is from Judge MaecMahon’s original order of

September 5, 1975, which granted defendants’ motion to

suppress, and with which Judge MacMahon later disagreed

in his careful opinion of November 14, written for the

henent of this court.’

We agree with Judge MacMahon’s later opinion that

appellee Tortorello lacked standing to challenge the search

of the garage and that he had voluntarily consented to the

search of the basement. Accordingly, we reverse the orig-

inal suppression order of the District Court.

I

Appellee initially contends that the Government may not

argue before the Court of Appeals that Tortorello lacked

standing because it had agreed in the District Court that

appellee did have standing to challenge the legality of the

searches. We disagree. The only “concession” on Torto-

rello’s standing was made in the context of rebutting an

argument that Tortorello’s consent was unavailing be-

cause he had no authority to consent to the search of the

basement. In any event, whether Tortorello has standing

to challenge the legality of the searches is a question of

law. A concession by the Government on a question of

law is not binding on the court. See United States v. Lisk,

522 F.2d 228, 231 n.8 (7 Cir. 1975) (Stevens, J.). See also

Estate of Sanford v. Commissioner, 308 U.S. 39, 51 (1939).

The Government is free to argue in this court that appellee

has no standing to suppress the coffee found in the garage.

1 On January 13, 1976, we dismissed the appeal as to Hoffman on

the Government's motion. Only the appeal as to Tortorello is now

before us.

7

at at a gee 46

9a

Opinion of the Court

II

The law regarding standing to suppress materials de-

rived from an illegal search in the case of an offense where

possession is an essential element has been evolving in

recent years. Jones v. United States, 362 U.S. 257 (1960),

held that a person charged with possession of property that

had been seized illegally had “automatic standing,” as a

“person aggrieved” within Fed. R. Crim. P. 41(e), to chal-

lenge its admissibility, even though the defendant testified

that the property seized was not his and that the place of

arrest was not his home.’ The court fixed upon an “auto-

matic” standing rule, in such cases, to avert the unfairness

of the dilemma to which the defendant would otherwise be

put, that to achieve standing he must claim possession,

even though his admission of possession would deal him a

fatal blow at trial. Judge Learned Hand in Connolly v.

Medalie, 58 F.2d 629, 630 (2 Cir. 1932), had recognized the

dilemma but held, nevertheless, that a defend: ut could not

“secure the remedies of a possessor, and avoid the perils

of the part.” Jones avoided Judge Hand’s dilemma by

2 Justice Frankfurter in Jones said that “(t]he issue of petitioner's

standing is to be decided with reference to Rule 41(e) of the Federal

Rules of Criminal Procedure.” 362 U.S. at 260. At that time Rule

41(e) provided that “[a] person aggrieved by an unlawful search and

seizure” may move for return of the property and to suppress for use

as evidence anything illegally obtained. Jones reasoned, relying on the

language of the rule, that a “person aggrieved” included one who may

have owned the seized property but who could not assert his rights

because he was charged with the very possession he must prove to estab-

lish his standing.

Rule 41 was amended in 1972, and the amended rule no longer

specifically states that only an “aggrieved person” may move to suppress

evidence. However, the Court has noted that the old Rule 41 merely

“conforms to the general standard and is no broader than the constitu-

tional rule.” Alderman v. United States, 394 U.S. 165, 173 n.6 (1969).

We conclude, therefore, that despite Justice Frankfurter’s emphasis on

the language of former Rule 41(¢), it was mot the key to his decision

in Jones.

10a

Opinion of the Court

holding that standing will be presumed if the defendant

would have to prove his guilt of the crime in order to estab-

lish his standing. Although the Jones Court reached this

result in possession cases, it indicated that in cases not

involving an offense of “possession” the defendant must

establish “that he himself was the victim of an invasion of

privacy.” 362 U.S. at 261.

In 1968, the Court prohibited the prosecution from using

the testimony of a defendant on the suppression hearing

at his subsequent trial. Simmons v. United States, 390 U.S.

377 (1968). While Stmmons did not itself involve a “pos-

sessory” crime, its exclusionary rule tended to extricate

the defendant from the dilemma which had concerned the

Jones Court, as well as this court, in the “possession”

cases,

The Court, thereafter, in Brown v. United States, 411

U.S. 223 (1973), recognized that the Jones dilemma had

been diluted by the Simmons exclusionary rule.

When arrested with a truck full of stolen goods, the

appellants in Brown confessed that they had stolen other

goods two months earlier, and had sold them to one

Knuckles. The police searched Knuckles’ store on a de-

fective warrant, while the appellants were not present but

in custody, and found the goods which had been stolen two

months earlier. Knuckles moved to suppress the evidence

against him, successfully, but the District Court denied

appellants’ motion for lack of standing, and the stolen

merchandise seized from Knuckles’ store was later received

in evidence.

The offense charged in Brown was conspiracy to trans-

port as well as actual transportation of stolen goods in

interstate commerce in violation of 18 U.S.C. 4 2314. The

indictment alleged that the conspiracy had ended the day

before the illegal search of Knuckles’ store. Since “[t]he

stolen goods seized had been transported and ‘sold’ by

~

Opinion of the Court

petitioners to Knuckles approximately two months before

the challenged search,” the Court concivded that “[t)he

vice of allowing the Government to allege possession as

part of the crime charged, and yet deny that there was

possession sufficient for standing purposes, is not present,”

and that “(t]he Government cannot be accused of taking

‘advantage of contradictory positions.’ Jones v. United

States, supra, at 263.” 411 U.S. at 229. The Court empha-

sized that “we do not decide that this vice of prosecutorial

self-contradiction warrants the continued survival of Jones’

‘automatic’ standing now that our decision in Simmons has

removed the danger of coerced self-incrimination. We

simply see no reason to afford such ‘automatic’ standing

where, as here, there was no risk to a defendant of either

self-incrimination or prosecutorial self-contradiction.” Id.

The Court accordingly found that there was no standing

to contest a search and seizure where, as there, the defen-

dants: “(a) were not on the premises at the time of the

contested search and seizure; (b) alleged no proprietary

or possessory interest in the premises; and (c) were not

charged with an offense that includes, as an essential ele-

ment of the offense charged, possession of the seized evi-

dence at the time of the contested search and seizure.” .a.

In our case, Tortorello did not allege any interest in the

garage and was not present at the time of the search of

the garage and the seizure of the coffee within it. Nor did

he claim any proprietary or possessory interest in the

coffee.

Furthermore, the indictment does not allege that the

coffee in the garage was criminally received by Tortorello.

The coffee seized in the garage amounted to only 50 boxes,

while the indictment charges the defendants with receiving

250 boxes, the very amount found in the basement. Indeed,

the Government specifically concedes in its brief that “the

EE EEE ee

12a

Opinion of the Court

indictment does not charge .. . the 50 cases found in the

garage.” Since the Government has not charged Torto-

rello with possession of the coffee found in the garage at

the time of the illegal search, it has not involved itself in

any seeming self-contradiction.* In the case of Tortorello,

with respect to the garage seizure, we think, therefore,

that our case meets all of the criteria set forth in Brown.‘

We follow the “established principle” laid down in Alder-

man v. United States, 394 U.S. 165, 171-72 (1969), that

“suppression of the product of a Fourth Amendment vio-

lation can be successfully urged only by those whose rights

were violated by the search itself, not by those who are

aggrieved solely by the introduction of damaging evidence.”

Accordingly, we find that Tortorello did not have standing

to challenge the search of the garage.®

Ill

The search of the basement presents a different problem.

It is true that Tortorello lacked a possessory interest in

the basement, just as he lacked an interest in the garage.

However, Tortorello accompanied the agents when they

3 We do not find controlling, however, the fact that the indictment

charged the defendant with receiving, concealing and storing the stolen

coffee “[o]n or about April 23, 1973," while the search took place on

April 30th, seven days later. The dates set forth in the indictment

seem to be approximations, since there appears to be no evidence which

directly shows that defendants possessed the coffee on April 23rd.

4 We therefore have no reason to determine whether the “automatic

standing” rule of Jones still has any application, in light of Simmons

and Brown.

5 Appellant also argues, relying on McDonald v. United States, 335

U.S. 451 (1948), that he should have standing to challenge the search

of the garage by reason of the fact that his co-defendant, Hoffman,

concededly does have standing. This argument is without merit, since

the Supreme Court has rejected a reading of McDonald which would

automatically extend standing to a co-defendant. Alderman v. United

States, supra, 394 U.S. at 173 n.7.

13a

Opinion of the Court

conducted the search of the basement. The Government

also requested Tortorello to consent to the basement search.

It would be anomalous for us to permit the Government to

support the legality of its search on the basis of consent

while denying that the person upon whose consent the le-

gitimacy of the search depends has standing to object to it.

We find, therefore, that Tortorello did have standing to

challenge the legality of the basement search.

We conclude, however, that Tortorello voluntarily con-

sented to the search of the basement, as Judge MacMahon

found after the hearing.* Whether he was in fact author-

ized to give consent for the search of the basement or not,

he is bound by his consent. He signed a written authori-

zation which gave the FBI agents the right to conduct the

search. Though he now contends that he was coerced to

agree, coercion is not established solely by the circumstance

that the statement was signed while Tortorello was sitting

in a car with three FBI agents. He was not under deten-

tion through an illegal arrest. Compare . own v. Illinois,

422 U.S. 590 (1975). As the Supreme Court recently noted,

“the fact of custody alone has never been enough in itself

to demonstrate a coerced . . . consent to search.” United

States v. Watson, 44 U.S.L.W. 4112, 4116 (U.S. Jan. 26,

1976). See also United States v. Fields, 458 F.2d 1194, 1198

(3 Cir. 1972), cert. denied, 412 U.S. 927 (1973). Tortorello

did not testify that the agents pressured him into signing

the consent form. He testified that the agents simply told

him that they had found coffee in the garage and that they

could get a warrant to search the basement if he did not

6 Appellee conceded in his brief in this court that “while the opinion

of Judge MacMahon on November 14, 1975 may not be reviewed for

the purpose of considering the reargument, it is nevertheless instructive

as to the Findings of “acts and Conclusions of Law that the Judge

made with respect to his original decision of August 29, 1975." In the

posture of the case, we assume that upon a remand the Judge would

affirm the findings he made in the November 14 opinion.

l4a

Opinion of the Court

consent. Consent is a question of fact to be determined

from all the circumstances. See United States v. Miley,

513 F.2d 1191, 1201-02 (2 Cir.), cert. denied, 96 S. Ct. 74

(1975). “In this ease, there is no evidence of any inher-

eutly coercive tactics—either from the nature of the police

questioning or the environment in which it took place.

Indeed, since consent searches will normally occur on a

person’s own familiar territory, the specter of incommuni-

cado police interrogation in some remote station house is

simply inapposite.” Schneckloth v. Bustamonte, 412 U.S.

218, 247 (1973).

Nor was Tortorello’s consent tainted by the circumstance

that, before he consented, he was informed by the FBI

agents that they had seen the coffee in the garage. The

warrantless search of the garage was an unreasonable

search, as we have seen, and the procurement of a “vol-

untary” consent to search based upon a prior illegal search

may taint the consent. See, e.g., United States v. Hearn,

496 F.2d 236, 241-44 (6 Cir.), cert. denied, 419 U.S. 1048

(1974) ; Holloway v. Wolff, 482 F.2d 110, 115 (8 Cir. 1973).

This principle might have been applicable here, as well,

if Tortorello’s own right of privacy had been invaded in the

garage search. Since we have determined, however, that

Tortorello had no standing to contest the legality of the

garage search, the information obtained from that search

was not illegally obtained as far as Tortorello is concerned.

In Wong Sun v. United States, 371 U.S. 471, 491-92 (1963),

the Court held that narcotics illegally obtained from Yee

could nevertheless be used as evidence against Wong Sun,

since “‘[t]he seizure of this heroin invaded no right of

privaey of person or premises which would entitle Wong

Sun to object to its use at his trial.” It follows that the un-

lawful search of the garage did not invalidate Tortorello’s

consent of the search of the basement.

1Sa

Opinion of the Court

The order of the District Court filed on September 3,

1975, is reversed insofar as it suppresses, with respect

to appellant Tortorello, evidence obtained from the searches

at 2258 Hermany Avenue on April 30, 1973, and statements

made by Tortorello in connection with these searches.

|