Petition for a Writ of Certiorari — Wolfe v. United States

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SUPREME COURT, U. S.

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~ APR-F? 1972

MICHAEL RODAK, JR.,CLEEK

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LIBRARY —=—— | Sareme Coun, u. 8. | |

=

IN THE

Supreme Court of the United States

October Term, 1971

No. a | - 1 3 3 3

FRANK WOLFE,

Petitioner,

—against—

UNITED STATES OF AMERICA, |

Respondent.

SS

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

SS

RICHARD I. ROSENKRANZ

Attorney for Petitioner

66 Court Street

Brooklyn, New York 11201

Tel: 875 - 9440

‘

M4rK A. LANDSMAN,

Of Counsel.

TI gn ‘SAP

TABLE OF CONTENTS

PAGE

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ARGUMENT: ~

Point I—The District Court properly distinguished

between the right to search the trucks and the right

to make a search incidental to an arrest at a place

scsi erecta. Cree ions eaeeanecninsilhennetsileninmesniieahinnn 3

Point II—The Government’s reliance on United

States v. Manning is misplaced ........ saan See

PoIntT III—The “scattering” of the vehicles was not

enough to sustain probable Cause ...ecccsseeccssseeeccsss...... 5

CONCLUSION. .....3....ceceseseseses padetitntnsinnsintesesesninasi (vsnenienasibiniiidiia

APPENDIX:

Exhibit A ‘naecocneneeintnetbinaasetaeneeneeicbenensesinnsnmbeseess:

TABLE OF CasEs |

Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975

OND sesslinrinccichnscenintuninasnsnaadicssesicersss dbddsscokieec ts. 4

Coolidge v. New Hampshire, 403 U.S. 573, 91 S. Ct.

vicinity means, ee ON aa Pia 4

Harris v. United States, 331 U.S. 145, 67 S. Ct. -1098

Lin pisces en MES TEN Re ED a os 4

Preston v. United States, 376 U.S. 364, 84 S. Ct. 881

_spaiats lege ne I TAT ARTE EE 4

United States vy. Manning, 448 F.2d 997 (2d Cir. 1971) 4

United States v. Payne, 429 F.2d 169 (CA 9, 1970) ........ 4

Wong Sun v. United States, 371 U.S. 471 eee 2, &

IN THE

Supreme Court of the United States

October Term, 1$71

FRANK WOLFE,

Petitioner,

—against—

- UNITED STATES oF AMERICA,

a

PETITION FOR A WRIT OF CERTIORARI TO ‘THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT —

Respondent.

To: THE HonoraBy, THE CHIEF JUSTICE Or THE

UNITED STATES AND THE ASSOCIATE JUSTICES

OF THE SUPREME CovRT: |

Petitioner, Frank Wolfe, respectfully prays that a Writ

_ Of Certiorari issue to review the judgment of the United

States Court of Appeals for the Second Circuit rendered

on March 20, 1972, which reversed the judgment of the

United States District Court for the Eastern District of

New York ( Dooling, J.).

_ Opinion Below

On March 20, 1972, the United States Court of Appeals

for the Second Cireuit unanimously reversed: the judgment

of the District Court. The opinion is not officially reported.

It is annexed, however, to the instant petition as Exhibit A.

*@.

tata th ess

2

Jurisdiction

REVERSAL ae

The order of affrmenee of the United States’ Court of

Appeals for the Second Circuit was made on March 20,

1972. The jurisdiction of this Court is invoked, pursuant

to 28 U.S.C., Section 876, 28 U.S.C., Section 877.

Questions Presented

1. Can probable cause be transferred to a petitioner far

removed from the scene where the “clearly suspicious” scat-

tering of vehicles occurred? a

2. In light of Wong Sun v. United States, 371 U.S. 471

(1963), is not the “scattering” of three Vehicles too am-

biguous to constitute probable cause where the FBI. agents

had been in unmarked cars and had not as yet announced

themselves?

4

| Statement

The judgment was rendered on June 18, 1971 by the

Honorable John F’. Dooling, Jr., Judge of the United States

District Court for the Eastern District of New York; grant-

ing the motion to Suppress as to this petitioner and denying

the motion as to three co-defendants who did not appeal

and subsequently pleaded guilty. The indictment charging

the violation of 18 U.S.C., Sees. 659 and 2 is still pending

_ only as to this petitioner.

The Facts"

The petitioner, Frank Wolfe,ewas the proprietor of a

service station which also rented out U-Haul type trucks

and had a parking lot on the premises for other similar

vehicles. Based upon the affidavit of Special Agent’ Taylor

of the F.B.I. a seareh warrant was obtained on October 15,

1970. The affidavit except for totally innocent observations

of Agent Taylor relied completely on information passed

on by an informer who received it from another person and

did not state the basis of his information, :

The F’.B.I. agents did not execute the warrant but set

up a surveillance of the station ahd observed three vehicles

leave including a U-Haul truck. They followed ‘the truck

and the two cars for a Short time and then placed the three

drivers under arrest and returned to the station without

searching the truck. At the station the petitioner was placed

under arrest also at which time the keys were taken from

him. : , :

In granting the motion to suppress the keys, Judge

Dooling said:

. “The affirmative evidence as to Mr. Wolfe was he

had not been seen to have any contact with either of

the U-Hauls at all other than simply directing them

and getting them out of his parking lot; and that

Seems to me the kind of totally unsuspicious conduct

that a man appearing to protect his stock of rentable

trucks, disaster would indulge in. It does not mean

that he is part of it.” -

ARGUMENT

POINT I

The .District Court properly distinguished between the

right to search the trucks and the right to make a search

incidental to an arrest at a place far removed. |

_ Judge Dooling found that at. the time. the agents re-

turned to the service station they had not-seen the contents

of any of the trucks involved, including the one which had

been stopped while traveling in the. caravan. The record is

clear that the only contact Wolfe had with any of the

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4

trucks was in directing the one truck out of his parking -

lot in broad daylight, totally reasonable conduct for a

station owner trying to avoid accidents. The informer had

allegedly told the agent that the station was being used as

a drop for stolen goods but never stated that Wolfe per-

sonally was involved. Wolfe did not take part in the

caravan but remained at his business of running a service

station, parking lot, and rental of U-Haul type trucks.

This Court has delineated those situations justifying

the searches of moving vehicles without the necessity of

an arrest warrant or a search warrant. Presto» Vv. United

States, 376 U.S. 364, 84 S. Ct. Ss] (1964); Chambers y.

Maroney, 399 U.S. 42, 90 S. Ct. 1975 (1970); Coolidge y.

New Hampshire, 403 U.S. 573, 91 8. Ct. 2022 (1971). cf.

United States vy. Payne, 429 F.2d 169 (CA 9, 1970). But the

warrantless arrest of Wolfe without probable cause and the

search incident thereto at a place substantially removed

from the seizure of the truck in the earavan cannot be justi-

fied as a search incidental to a lawful arrest. Harris y.

United States, 331 U.S. 145, 67 S. Ct. 1098 (1947).

POINT I

The Government's reliance on United States y. Manning

is misplaced. ©

In United States y. Manning, 448 F.2d 997 (24 Cir.

1971) the Court of Appeals held that probable cause for a

search existed where an informant who had not been pre-

viously reliably communicated information to the narcotic

agents that a sale of narcotics was going to take place at a

particular time and place and that he would telephone them

when he was sure that the narcotics were present. He gave

them other preliminary information of Manning's prior

criminal background which checked out and then telephoned

that the sale was actually taking place. When the agent

knocked on the door they heard suspicious noises and entered.

5

In this case the informer did not tell the F.B.I. agent

that he had been at the service station himself, or that he

had seen the whiskey, but did tell the agent that he had

- Yeceived the information from someone else and the agent

did not state who this other party was.

The distinction between the cases is clear. Wolfe himself

Was “never discussed by the informant, the stolen property

itself had not even been seen by the agents or by the in-

former, the ‘basis of the informer’s information was un-

known, the agents arrested Wolfe before making the search

and attempted to justify the seizure of the keys from the

person of Wolfe as incidental to a lawful arrest.

It is clear that Judge Dooling was correct in ruling that

there was no probable cause for the arrest of Wolfe.

POINT III

The “scattering” of the vehicles was not gnough to sus-

tain probable cause.

SS

The Court of Appeals in reversing the District Court

relied too heavily on “the subsequent scattering on signal”

of the three motor vehicles. To draw this inference of

consciousness of guilt from such ambiguous conduct where

the F.B.1. agents had not announced themselves; allowed

their presence to be known: or made any move th close in

on the motor vehicles driven by the suspects runs contrary

to the principle set forth in Wong Sun v. United States, 371

U.S. 471 (1963).

Since the search warrant was invalid and the tip given

by the informer did not include the basix of his information

the Government must look to other circumstances to sustain

the arrests. The fact situation is weaker than in Wong

Sun where the suspect immediately started to flee when the

ugents identified themselves. If that was insuflicient to

5 peat, Me ee. one

tit ee a ~~

CONCLUSION

It is respectfully prayed that the petition for a writ of

certiorari be granted.

Respectfully submitted,

RicHarp I. Rosenkranz

Attorney for Petitioner

66 Court Street

Brooklyn, New York 11201

Tel: 875 - 9440

PD CSIR le Meare

la

APPENDIX -

Exhibit A P

UNITED STATES COURT OF APPEALS

For THE SECOND CIRCUIT

> Si

No. 544—September Term, 1971,

(Argued February 24, 1972 Decided March 20, 1972.)

Docket No. 71-1835

ee

UNITED STATES oF AMERICA,

Appellant,

—against—

FRANK WOLF,

Appellee.

eee

Before:

LUMBARD, MANSFIELD and MULLIGAN,

Circuit Judges.

Geman z

Appeal from an order of the United States District Court

for the Eastern District of New York, John F. Dooling, Jr.,

Judge, granting appellee's motion to Suppress evidence

seized from his person on the ground that the federal

agents lacked probable cause to arrest him.

Reversed.

ee

Epwarp R. KORMAN, Assistant United States

Attorney (Robert A. Morse, United States

Atorney, Eastern District of New York,

David G. Trager, Asst. United States At-

torney, of counsel), for A gellant.

Ricuarp I. ROSENKRANz, Brooklyn, New York,

for Appellee,

i,

PERE Pere reg ce: tee.

7

PHM.

ys

PrER CpRIAM:

This is an appeal from an order of the United States

District Court for the Eastern District of New York, John

F. Dooling, Jr., Judge, granting the motion of the appellee

Frank Wolfe to Suppress keys taken from him upon his

arrest. We reverse.

The defendant Frank Wolfe ‘was the proprietor of a

gasoline station in Brooklyn known as the Four Star Ser-

Vice Station. On October 13, 1971, the Federal Bureau of

Investigation was advised that a large quantity of Canadian

Club liquor had been hijacked. On Ociober 14, 1971 a spe-

cial agent of the F.B.1., who headed the hijacking squad,

received a phone call at home from an informant, who had

previously given reliable information, advising that a mem-

ber of the group which had hijacked the liquor had told

the informant that the stolen Canadian Club liquor was

stored in two U-Haul trucks at the Four Star Service Sta-

tion. This special agent also had been advised by another

agent of his squad that a reliable informant had indicated

that the Four Star Service Station was being used as a

drop for stolen merchandise. A surveillance of the station

on October 14 disclosed that two U-Haul trucks were

parked there. Four Star was a franchised Ryder Truck

Rental Agency. On October 15, 1971 the F.B.I. procured

a search warrant to search the vehicles. The surveillance

' continued, until the afternoon of October 16, 1971, and dur-

ing all of this time no other U-Haul trucks were seen to

enter or leave the Four Star premises. At about 1:15 p-m.

on October 16, 1971 an entourage of three vehicles was

seen to leave the garage—a brown Buick, followed by one

U-Haul truck, followed by a green Cadillac—personally

directed out by Wolfe. After driving a few blocks in pro-

cession, followed by three unmarked F.B.I. cars, the oper-

ator of the brown Buick was seen to make a rapid set of

gestures to the following truck. The Cadillac picked up

speed and passed the truck and the Buick. The F.B.1. inter-

cepted the three and arrested the occupants. All vehicles

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and drivers were escorted back to the garage. At that

point, Wolfe was arrested. Plainly visible, hanging from

his belt was a set of keys. The keys were taken from him

by an agent and were used to open the two U-Hauls, which

contained the stolen Canadian Club liquor, as well as a

Ryder truck which contained stolen stereo, equipment,

The District Court, although expressing misgivings con-

cerning the validity of the October 15th search warrant for

the vehicles, did find that the search of the vehicles on

October 16th was lawful in view of the behavior of the

caravan on that afternoon which corroborated and rein-

forced the initial information of the informants. The Dis-

trict Court therefore denied the motion to suppress the

contents of the U-Hanl trucks, but did grant Wolfe’s mo-

tion to suppress the keys, finding no probable cause for his

arrest and the incidental search: It is ‘not disputed that if

the arrest was lawful, the personal search which resulted

in the seizure of the keys, was proper. Chimel y. California,

395 U.S. 752 (1969). .

The facts are not in controversy, and there is no issue of

credibility of the witnesses. The court below characterized

Wolfe’s conduct in directing the three car procession out

of the garage as “totally unsuspicious” and his only connec-

tion with the crime. We find this to be error. This fact

cannot be viewed in isolation: the evidence must be viewed

in its.totality United States y. Manning, 448 F.2d 992, 998-

99 (2d Cir. 1971) (en Bane). Looking at the totality of the

evidence, the agents did have probable cause to arrest

Wolfe_and take the keys which were hanging from his belt

in plain view. One previously reliable informant had ad-

vised the F.B.I. that the stolen Canadian Club was to be

found in the two U-Haul trucks at the garage: the two

vehicles matching the description were observed there and

none others were observed there during the surveillance.

Another previously reliable informant had described the

premises generally as a “drop” for stolen goods. The cara-

van ( Buick-track-Cadillac) , which Wolfe directed out of the

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garage, would not seem to be the normal procession of

_ routine business. The Subsequent scattering on signal was

clearly suspicious dnd justified the search of the vehicles.

This maneuver corroborated the information that the ‘ga-

rage was a “drop”. Under the circumstances here we can-

-not sensibly separate the character of the situs from that

of its proprietor. It is not reasonable to assume that two

truckloads of high price, high proof liquor would be en-

trusted to the casual custodianship of a public garage on

a busy street in Brooklyn for several days without the as-

Surance of some degree of cooperation and knowledge on

the part of the proprietor. The only alternative left. to the

agents was to smash open the truck if they could not use

the keys. Here the agents proceeded sensibly; they had

obtained a search warrant and there was no indication of.

threats, force or violence on their part.

Reversed.

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