Opposition Brief — Brigandi v. New York

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4 1873

SUPREME CQURT, U. & . OCT

g ol , of the Rnited AH RODAK, JR..CLERK

October Term, 1973

ANTHONY BRIGANDI and DONALD BRIGANDI,

Petitioners,

agamst

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

On Petition for a Writ of Certiorari to the

Court of Appeals of the State of New York

BRIEF OF RESPONDENT IN OPPOSITION

TO PETITION FOR CERTIORARI

Frank S. Hocan

District Attorney

New York County

Attorney for Respondent

155 Leonard Street

New York, New York 10013

(212) 732-7300

MicHazt R. Juviwer

Barry M. Fauuick

Assistant District Attorneys

Of Counsel

LESS SOTA

TABLE OF CONTENTS

i LT

Statemnent of the Cage —............--.-..e-erseveensscssorsnsenvenseneess

The Evidence at the Motion to Suppress ........................

The Court’s Decision on the Motion to Suppress ........

aoaoormUcmsNlmlCUOOUCDSCO

Ne 1 edaiimaemabnenendetoh

Argument

Point I—Petitioners freely and voluntarily con-

sented to a seizure of two medals from their

45th Street store and twenty-four medals from

their 44th Street store 20.000... cette 10

Point II—Petitioners were not denied due process

by the court’s denial of their request for the

tape recording at the conclusion of the sup-

SOLIS ETE TN 17

ST AE RT TIT, EE Po EN OT NO 18

TABLE OF AUTHORITIES

Cases:

Anderson v. United States, 394 U.S. 165 (1969) .......... 17

Application of Fried, 60 F.Supp. 961 (S.D.N.Y. 1946) 14

Brady v. Maryland, 373 U.S. 83 (1963) 000.00 .. 17

Carroll v. United States, 267 U.S. 132 (1924) ............... 16

Channel v. United States, 285 F.2d 217 (9th Cir. 1962) 15

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ...... 3, 16

Frazier v. Cupp, 394 U.S. 731 (1969) ....-cecceccccccssseeee 16

Gatterdam v. United States, 5 F.2d 673 (6th Cir.1925) 12

II

PAGE

Hamilton v. North Carolina, 260 F.Supp. 632 (E.D.

i as sno laiiaswesenantonsis 12

udd v. United States, 190 F.2d 649 (D.C. Cir. 1951) 15

@Xatz v. United States, 389 U.S. 347 (1962) 00... 16

mKeegan v. United States, 385 F.2d 260 (9th Cir. 1967),

: cert. denied, 391 U.S. 967 (1968) 00.0.0... 12

@Moore v. Illinois, 408 U.S. 786 (1972) oo... 17

D’Toole v. Scafati, 386 F.2d 160 (1st Cir.), cert. de-

| sted, 390 U.S. 9B5 (1967) ounce eccceccsecccsessseeeseeeees 12

Warker v. United States, 315 F.2d 319 (5th Cir. 1963) 14

@People v. Post, 23 N.Y.2d 157 (1968) 2000... 14

People v. Rubino, 35 A.D. 2d 530 (2d Dept. 1970) ........ 14

Wobbins v. MacKenzie, 364 F.2d 45 (1st Cir.), cert.

denied, 385 U.S. 913 (1966) 20... 12

®ogers v. United States, 396 F.2d 944 (10th Cir. 1966),

3 cert. denied, Ferguson v. United States, 388 U.S.

eens SP ES Secale eT 12,14

Beay v. United States, 380 F.2d 358 (5th Cir.), cert.

denied, 389 U.S. 1047 (1967) 00... 11

hnechloth v. Bustamante, —— U.S. ——, 36 L.Ed.

a ca ae ea oe 16

Bimons v. Bomar, 230 F.Supp. 226 (M.D. Tenn. 1964) 12

Puited States v. Bracer, 342 F.2d 522 (2d Cir.), cert.

denied, 382 U.S. 694 (1965) ooo. 11, 12

@nited States v. Coleman, 322 F.Supp. 550 (E.D. Penn.

& “ei ane 14

| ‘Bnited States v. Curiale, 441 F.2d 744 (2d Cir.), cert.

i 3 demed, 396 U.S. 959 (1969) ooo... ecececececccccccseeeee 15

Pnited States v. Elrod, 441 F.2d 353 (5th Cir.1971)... 11

@nited States v. Gaines, 441 F.2d 1123 (2d Cir. 1971) 14

Pnited States v. Goosbey, 419 F.2d 818 (6th Cir. 1970) 11

@nited States v. Gorman, 355 F.2d 151 (2d Cir. 1965),

cert. denied, 384 U.S. 1024 (1966)

Ay RRP RL GN SPELT LEE TOE, ES OT Lili OL NEAR LT A TT

Iir

United States v. Harris, 453 F.2d 1317 (8th Cir. 1972) 11

United States v. Jimminez-Badilia, 434 F.2d 170 (9th

‘ onan une mionniam MC irene enkiy Ni noeerieLie 12, 14

United States v. Jordan, 399 F.2d 610 (2d Cir.), cert.

denied, 393 U.S. 1005 (1968) oo... cece ceeeenees 11

United States v. Macleod, 207 F.2d 853 (7th Cir. 1953} 13

United States v. Martin, 176 F.Supp. 262 (S.D.N.Y.

RSIS om airs Cen Ra as Raley 17

United States v. Myers, 378 F.2d 398 (3d Cir. 1967),

cert. denied, 396 U.S. 847 (1969) oo... 11

United States v. Nelson, 459 F.2d 884 (6th Cir. 1972) 17

United States v. Rundle, 274 F.Supp. 364 (E.D. Pa.

1961), aff’d, 393 F.2d 635 (3d Cir. 1965) ................ 13

United States v. Smith, 308 F.2d 557 (2d Cir.), cert.

denied, 372 U.S. 908 (1962) 0.0.0... 11, 13, 14, 15

United States v. Strouth, 311 F.Supp. 1088 (E.D.

Repressor eer es rere 11

United States v. Tchack, 296 F.Supp. 500 (S.D.N.Y.

ee cat cishanah cok eee ommindebntnnion a lance’ 13

United States v. Thompson, 356 F.2d 216 (2d Cir.

DN sod aa sais Scaed ceienigl gr aa eal analcaiia 14

United States v. Vihotti, 323 F.Supp. 425 (S.D.N.Y.

REAR DRESS ee UNIMON TERIA Nic, net oy rene a ea 14

United States ex rel. Dunham v. Quinlan, 327 F.Supp.

Se RI I oor secre ncenceac nso enteeeeseneentins 11,15

United States ex rel. Lungergan v. McMann, 417 F.2d

RE IN cere eesti crcthcrmeereanienc mrad 11,15

Vale v. Louisiana, 399 U.S. 30 (1969) 0.00.0. 16

Zap v. United Sttaes, 328 U.S. 624, rev’d on other

grounds, 330 U.S. 800 (1947) oo... eeeeeteeeees 16

Statutes:

WY. Frome Taw SIGE q....n-...ccsccssesescccssss NR eT 2

| ERS IC ea Oe eee ce er RO eo 3

a eae ee

I!

PAGE

Hamilton v. North Carolina, 260 F.Supp. 632 (E.D.

Lia accaeneeniceianbesdiawnrpicamirimkin 12

Judd v. United States, 190 F.2d 649 (D.C. Cir. 1951) 15

Katz v. United States, 389 U.S. 347 (1962)... 16

Keegan v. United States, 385 F.2d 260 (9th Cir. 1967),

cert. dented, 391 U.S. 967 (1968) 0.0.00... eee 12

Moore v. Illinois, 408 U.S. 786 (1972) 0.00.0... 17

O’Toole v. Scafati, 386 F.2d 160 (1st Cir.), cert. de-

ted, 390 U.S. 965 (1967) ...............cecccscsossesssssssecceeeees 12

Parker v. United States, 315 F.2d 319 (5th Cir. 1963) 14

People v. Post, 23 N.Y.2d 157 (1968) 0.0.00... 14

People v. Rubino, 35 A.D. 2d 530 (2d Dept. 1970) ........ 14

Robbins v. MacKenzie, 364 F.2d 45 (1st Cir.), cert.

denied, 385 U.S. 913 (1966) uuu... eee 12

Rogers v. United States, 396 F.2d 944 (10th Cir. 1966),

cert. denied, Ferguson v. United States, 388 U.S.

8, RRR EN th Catto atte See 12, 14

Seay v. United States, 380 F.2d 358 (5th Cir.), cert.

denied, 389 U.S. 1047 (1967)

Schnechloth v. Bustamante, —— U.S. ——, 36 L.Ed.

RIDES ere tune eee nea een eOe Ee 16

Simons v. Bomar, 230 F.Supp. 226 (M.D. Tenn. 1964) 12

United States v. Bracer, 342 F.2d 522 (2d Cir.), cert.

denied, 382 U.S. 694 (1965) ooo. 11, 12

United States v. Coleman, 322 F.Supp. 550 (E.D. Penn.

1971)

United States v. Curiale, 441 F.2d 744 (2d Cir.), cert.

dented, 396 U.S. 959 (19GB) ono... cceceeccccssseseeees 15

United States v. Elrod, 441 F.2d 353 (5th Cir.1971) ... 11

United States v. Gaines, 441 F.2d 1123 (2d Cir. 1971) 14

United States v. Goosbey, 419 F.2d 818 (6th Cir.1970) 11

United States v. Gorman, 355 F.2d 151 (2d Cir. 1965),

cert. denied, 384 U.S. 1024 (1966)

Iir

PAGE

United States v. Harris, 453 F.2d 1317 (8th Cir. 1972) 11

United States v. Jimminez-Badilla, 434 F.2d 170 (9th

A, TI saovecssesistnriniacinbicisenicsemewiosierenaiantrnaniaes 12, 14

United States v. Jordan, 399 F.2d 610 (2d Cir.), cert.

denied, 393 U.S. 1005 (1968) 0.00... ccc eseseenees 11

United States v. Macleod, 207 F.2d 853 (7th Cir. 1953) 13

United States v. Martin, 176 F.Supp. 262 (S.D.N.Y.

I ss sesssuscacevishcsstedlces anpsoceceansenincdlbebsdieconrenannminaiiptte 17

United States v. Myers, 378 F.2d 398 (3d Cir. 1967),

cert. denied, 396 U.S. 847 (1969)... 11

United States v. Nelson, 459 F.2d 884 (6th Cir. 1972) 17

United States v. Rundle, 274 F.Supp. 364 (E.D. Pa.

1961), aff’d, 393 F.2d 635 (3d Cir. 1965) ................ 13

United States v. Smith, 308 F.2d 557 (2d Cir.), cert.

denied, 372 U.S. 908 (1962) 0.0.0.0... 11, 13, 14, 15

United States v. Strouth, 311 F.Supp. 1088 (E.D.

MN, I os acersssnsnrenscsisinenescccneunpss lions auanciepeinnien 11

United States v. Tchack, 296 F.Supp. 500 (S.D.N.Y.

SI aise) ss scprsssasesacroipsncleah telesales lacaceescapslensntvorvstente 13

United States v. Thompson, 356 F.2d 216 (2d Cir.

IER No mieshsPaiRek ties veers aceevre etn ta nt! 14

United States v. Vihotti, 323 F.Supp. 425 (S.D.N.Y.

nian k hast ote tporaleceacay anacoame wen canton kacaeeiek 14

United States ex rel. Dunham v. Quinlan, 327 F.Supp.

i I SI 2 cup crcrrserancaammunivncnoeenel 11, 15

United States ex rel. Lungergan v. McMann, 417 F.2d

I I een oniecnieastss kiero meareee 11, 15

Vale v. Louisiana, 399 U.S. 30 (1969) 0.00. 16

Zap v. United Sttaes, 328 U.S. 624, rev’d on other

grownds, 330 U.S. 800 (1947) oo. ee cee ceeseeseeeees 16

Statutes:

ee I ED 2, 5p Secpniiebiuconiiesinalnmainiome 2

CGE, GROUT ER) an snesccsscsecscscsvev sss ane 3

fats OR gead:

HRN HRT tie

Co isin RETR AAS ROAD St UA INE

IN THE

Supreme Court of the United States

October Term, 1973

AntHoNny Bricanpr and Donatp Bricanpt1,

Petitioners,

against

THe PEoPLE oF THE StTaTE oF New York,

Respondent.

On Petition for a Writ of Certiorari to the

Court of Appeals of the State of New York

Rn

BRIEF OF RESPONDENT IN OPPOSITION

TO PETITION FOR CERTIORARI

Preliminary Statement

Petitioners Anthony Brigandi and Donald Brigandi

seek a writ of certiorari to review a judgment of the Court

of Appeals cf the State of New York, rendered June 6,

1973, unanimously affirming their convictions of criminal

possession of stolen property in the first degree [N.Y. Penal

Law §165.50].

Statement of the Case

In the afternoon of November 18, 1970, the petitioners,

Anthony Brigandi and Donald Brigandi, were found to

have in their possession, stolen Apollo XII commemorative

medals bearing the name ‘‘ Medallic Art Company.’’ There-

after, petitioners were arrested and indicted (1809-71) for

two counts of criminal possession of stolen property in the

first degree [N.Y. Penal Law §165.50] and for one count

of criminal possession of stolen property in the second

degree [N.Y. Penal Law 165.45]. Prior to trial the peti-

tioners moved to suppress the introduction into evidence

of the medallions seized on November 18, 1970 by Detectives

Douglas Keables and Alfred Halikias. After a pre-trial

suppression hearing the court denied the motion.

The trial commenced on January 19, 1972, and the peti-

tioners were convicted of criminal possession of stolen

property in the first degree [New York Penal Law §165.50].

Judgment was rendered on February 28, 1972, and Donald

was sentenced to probation and Anthony was sentenced to

a maximum of three years imprisonment and to pay a fine

of $2000.

On appeal to the Supreme Court of the State of New

York, Appellate Division, First Judicial Department, the

petitioners argued that the evidence did not establish that

they were guilty of criminal possession of stolen property

beyond a reasonable doubt. Further, they argued that the

police officers did not have reasonable cause to arrest them,

that they did not consent to a seizure of medals by the de-

tectives from their stores, that the police had ample time to

obtain a search warrant, that the court’s charge to jury

GP AS ATRL ESRB

was improper, and that they were prejudiced by the court’s

ee ee ee ee

clusion of the suppression hearing.

The Supreme Court rejected these contentions and unan-

imously affirmed petitioners’ convictions on January 16,

1973.

| On March 7, 1973, Chief Judge Stantey H. Fup of the

| Court of Appeals of the State of New York granted peti-

tioners’ motion for leave to appeal to the Court of Appeals.

On June 6, 1973, the Court of Appeals rejected petitioners’

identical contentions as in the Supreme Court and unani-

mously affirmed their convictions.

In the instant petition, petitioners seek certiorari pur-

suant to 28 U.S.C. §1257 (3). In their petition they allege

that the petitioners did not consent to a search by the po-

lice of their stores, that the court below misconstrued the

doctrine of Coolidge v. New Hampshire, 400 U.S. 443 (1971)

with respect to items in plain view, and that they were en-

titled to pretrial discovery of a tape recording.

The Evidence at the Motion to Suppress

On June 18, 1970, Detectives Douglas Keables and

Alfred Halikias of the Safe, Loft and Truck Squad were

assigned to investigate a series of thefts of medallions from

the Medallic Art Company. Keables, during the course of

his investigation, conversed with Raymond Rivera, an em-

ployee of Medallic Art, and Larry Leaf, a private investi-

gator hired by Medallic Art (Keables, A-93, 84, 96).*

* References are to the minutes of the hearing.

’ On November 18, 1970, Keables met Rivera and Leaf at

West 43rd Street and Sixth Avenue in Manhattan (Keables,

A-93).

At that time, Leaf told Keables ‘‘that Rivera had been

stealing medals from the Medallic Art Company and had

been selling them to the proprietors at the store’’ located at

103 West 45th Street (Keables, A-94, 116, 129-30, 136). Leaf

also apprised Keables that Rivera was then wearing a

‘*recording device’’ and that Rivera had been provided by

Ray Ruete, an officer of the Medallic Art Company with a

box of medallions (Exh. 9) which was similar to the medal-

lions that Rivera had previously stolen and sold to the

owners of the West 45th Street store (Keables, A-94, 130-

31). Keables instructed Rivera ‘‘to do exactly what he

did in the past to deal with the individual at that location”’

(Keables, A-94).

Shortly thereafter, the wired Rivera, carrying the box

of medallions, entered the West 45th Street store, while

Keables and Halikias waited outside (Keables, A-95, 134;

Halikias, A-135, 138). Keables, from his position approxi-

mately twenty-five feet away, saw Rivera wait while two

customers departed and then join Anthony Brigandi, Don-

ald Brigandi and Robert Brigandi, Anthony’s 19-year-

old son, behind the counter (Keables, A-95, 97, 125, 128,

134; Halikias, A-136-37, 140). After a few minutes Rivera

came to the front of the store, and Keables saw what ap-

peared to be money being exchanged between Anthony and

Rivera (Keables, A-95; Halikias, A-138).

Approximately five or ten minutes after Rivera emerged

from the store, Detectives Keables and Halikias entered

SEY ORR SVT OL

5

(Keables, A-95-6, 117). Keables testified that prior to en-

tering the store he did not listen to the conversation re-

corded by Rivera (Keables, A-114-15). Upon entering the

store, Keables identified himself as a police officer (Keables,

A-95-6). He noticed to the left of the entrance door a

display case which contained an Apollo XIII medallion

(Exh. I), a Dawn of America medallion (Exh. II); a Lin-

coln heritage medallion (Exh. III); and a George Roth of

Pennsylvania medallion. The medallions were displayed

in open boxes (Exhs. 2A, 3A) with the name Medallic Art

Company imprinted on the side of the boxes (Keables, A-97,

100-2, 113). After identifying himself, Keables told An-

thony Brigandi that he was investigating a loss of Medallic

art medals which were similar to those displayed in the

store’s showcase (Keables, A-103). Brigandi stated that

he had just purchased a box of the medallions, a few min-

utes earlier, from a Spanish male, and that he had bought

medallions on other occasions from other unidentified indi-

viduals (Keables, A-104). Mr. Ruete, an officer of the

Medallic Art Company, then appeared at the store and

identified the medals in the showcase as belonging to the

Medallic Art Company (Keables, A-104). Keables then

placed Anthony and Donald Brigandi under arrest and

gave them their ‘‘rights and warnings’’ (Keables, A-105).

Halikias also advised the Brigandis of ‘‘their rights under

Miranda”’ (Halikias, A-139). Halikias then asked Donald

Brigandi, ‘‘If there were any other medals in this shop,’’

and Donlad replied, ‘‘there may be one or two, or three

pieces in the back’’ (Halikias, A-137). Donald then asked

Halikias if he had a search warrant, and Halikias replied

**that it would not be much effort to obtain one and that

he would come back here.” Donald then stated, ‘‘I will

3 DARPA iS Tle carat OTS

get them for you,’’ and he then went to the back of the

store, opened the safe and two Apollo XII medals were

**recovered’’ (Halikias, A-137-38; Exhs. 5 and 6).

Halikias gave the two Apollo XII medals to Keables,

who then asked Anthony Brigandi, ‘‘whether he had any

other Medallic art at his other store located at 120 West

144th Street’? (Keables, A-106-07). Anthony replied that

**he thought he may have a few pieces, less than seven or

eight’’ (Keables, A-107). Keables asked for permission to

go to the other store and Anthony said, ‘‘yes, you may’’

(Keables, A-107-08). However, on cross-examination, Kea-

bles stated that Anthony in reply to Keables’ request to

go to the other store, stated ‘‘Do what you want’’ (Keables,

A-121). Keables also asked Anthony, ‘‘if he ever checked

or inquired as to the medals you are buying in such quan-

tities from one man?’’ Anthony replied ‘‘that he does not

question the honesty of his customers’’ (Keables, A-133).

Keables left the 45th Street store, and accompanied by

Detective Robert went to the Brigandi’s 44th Street store

(Keables, 4-108). After being admitted to the 44th Street

store, Keables told Samuel Metterson, a clerk at the store,

that he was investigating the loss of Medallic art and that

he had received permission from Mr. Brigandi to visit the

store (Keables, A-108). He further stated that Metterson

could call Mr. Brigandi at the 45th Street store, and ask

him if Keables had permission to see the Medallic art in

the 44th Street store (Keables, A-108). Metterson gave

Keables an Apollo XII medal (Exh. 7) which was displayed

in the showcase of the 44th Street store (Keables, A-109).

Metterson then made a call to the 45th Street store and

MP PE ERC *

7

Keables took the phone and apparently spoke to Leaf or

Halikias (Keables, A-111, 133-134). Metterson then gave

Keables twenty-three other silver medals, which were placed

in a canvas bag (Exh. 8). Keables had Ruete come to the

store and identify the medals that were given to him by

Metterson (Keables, A-111, 134).

The Court’s Decision on the Motion to Suppress

At the conclusion of the hearing on defendants’ motion

to suppress, Mr. Justice Murracn ruled as foliows:

‘‘By order dated September 15, 1971 a hearing was

directed with respect to a motion to suppress physical

evidence being sought to be used in the prosecution of

the indictment herein. The hearing was held before

me on January 10, 1972.

‘‘Having heard all of the evidence on the hearing

the motion for a suppression of the evidence is in all

respects denied.

“‘The police seized initially the following items:

**1. Dawn of America Medal

**2. Apollo 13 commemorative medal

‘*3. George Ross of Pennsylvania medal

**4. Lincoln Heritage Trial medal

**5. Two manila boxes containing Legend Me-

dallic Art Company

‘*As stated by one of the defendants, Dorald Bri-

gandi, in an affidavit dated April 23, 1971, submitted

in support of the motion io suppress, the items were

seized in a store referred to as ‘our store at premises

103 West 45th Street, New York City, New York.’

es Oe

Pete take ho TOS eS a EE

~The above items were seized, being in plain view of

the arresting officers, and as an incident to the arrest

of the defendants Anthony Brigandi and Donald Bri-

gandi. Accordingly, the seizures were legal. The sei-

zares were in complete conformity with the dictates

of Chimel v. California, 395 U.S. 752 (1969).

‘‘Other items of physical evidence were seized at |

said premises and at premises refrered to in Donald

Brigandi’s affidavit as ‘our other store located at 120

West 44th Street, New York City, New York.’ These

items were seized with the consent of the defendant

Anthony Brigandi. The seizures were legal under the

doctrine stated in Coolidge v. New Hampshire, 403

US. 443 (1971); U.S. v. Smith, 308 F.2d 657 (1962),

cert. den. 372 U.S. 906; U.S. v. Bracer, 342 F.2d 522

(1965), cert. den. 382 U.S. 954.

‘*Tt is evident that the defendant Anthony Brigandi

consented to show the items to the officers in order to

convey the appearance that he had nothing to hide.

There is no evidence of an attempt by the officers to

coerce or dominate the defendants. To hold that the

conduct of the police was an illegal search and seizure

The Evidence at Trial

The Medallic Art Company located at 325 East 45th

Street in New York County was commissioned by the Pres-

idential Art Company to manufacture an Apollo moon land-

ing series of medals (498).* Medallic manufactured 6100

unserialized Apollo medals and shipped 5,800 of the medals |

to Presidential while keeping 300 of the silver Apollo XII |

in its shipping room for inventory purposes (542). In

March 1970, Presidential sent 531 unserialized Apollo XII

medals back to Medallic because of their imperfect condi-

* Refers to the minutes of the trial.

RRs wine ER

tion (503, 542). Meanwhile, Presidential had advertised

in the major numismatic publications and local newspapers

that the silver Apollo XII medals would be serialized and

would sell for $35 per medal (498). The wholesale price

of the medals was $26 and the metallic value of the medal

was approximately $8 (501).

From April, 1970 to September 1970, Mark Adrian a

16 year-old boy, who was a receiving clerk and engraver

at Medallic and Raymond Rivera, who worked in the ship-

ping department at Medallic, stole hundreds of unserialized

Apollo XII medals bearing the name ‘‘Medallic Art Com-

pany’’ and sold them to the petitioners for less than the

issue price, and for less than their silver content value.

Expert testimony established that serialization is the hall-

mark of modern silver medals and that its absence on these

medals would have conclusively indicated to someone in

the trade that they did not come out of the general market

and that an error or mistake was present (A-454, 495).

However, the petitioners never asked either Adrian or Ri-

vera for their names or addresses, and never even inquired

as to where they had gotten the medals, or whether they

had owner or parental permission to sell them (A-204, 285-

87). This conduct on the part of petitioners was unusual

in the extreme, especially because expert testimony further

established that it was common business practice to require

parental consent before engaging in transactions with mi-

nors, and to require even adults to produce identification

before purchasing articles from them (A-461, 464, 466, 494,

614, 631).

Finally, Anthony continued to buy medals from Rivera,

who had been introduced to him as Adrian’s partner, even

10

after Adrian had told him that he worked for Medallic and

Gould obtain an additional $10,000 worth of medals, to which

Anthony replied ‘‘that he could handle it’’ (A-214-15). At

this point, Adrian had already told Anthony that ‘‘he could

get busted for keeping the medals in a safe’’ (A-214-15).

ARGUMENT

POINT I

Petitioners freely and voluntarily consented to a

seizure of two medals from their 45th Street store and

twenty-four medals from their 44th Street store.

Petitioners erroneously argue that Donald’s surrender

of two medals to Detective Halikias and Anthony’s reply

to Detective Keables’s request for permission to go to their

44th Street store to recover other pieces of Medallic Art

did not constitute consent.

The uncontradicted testimony of. Detective Halikias

clearly supports the State courts’ findings of consent by

Donald. After being placed under arrest and advised of

his rights under ‘‘Miranda’’ (A-105, 139), Donald was

asked by Halikias, ‘‘if there were any other medals in the

shop,’’ and he replied ‘‘there may be one or two, or three

pieces in the back’’ (A-137). Donald then asked Halikias

‘¢if he had a search warrant, and Halikias responded ‘‘that

it would not be much effort to obtain one and that he would

come back here’’ (A-137). Donald then stated ‘‘I will get

them for you.’’ He then went to the back of the store,

opened a safe and two medals were recovered (A-137-8).

RATER aie. WO

there is no evidence to suggest that Donald was subjected

to any form of coercion, duress or Pressure into opening

the safe. There was no suggestion that he could not refuse.

United States v. Harris, 453 F. 24 1317 (8th Cir. 1972).

To be sure, appellant was in custody at the time Halikias

asked him about other medals in the store, but the fact that

an individual is under arrest does not of itself render in-

voluntary actions or words of consent. United States v.

Elrsd, 441 F.2d 353 (5th Cir. 1971); United States v. Goos-

U.S. 1005 ( 1968) ; Seay v. United States, 380 F.2d 358 (5th

Cir), cert. denied, 389 U.S. 1047 (1967) ; United States v.

Bracer, 342 F.2d 5292 (2d Cir.), cert. denied, 382 U.S. 594

(1965); United States v. Smith, 308 F.2d 557 (2d Cir.),

cert. denied, 372 U.S. 908 (1962) ; United States ex rel. Dun-

ham v. Quinlan, 327 F. Supp. 115 (S.D.N.Y. 1971) ; United

States v. Strouth, 311 F. Supp. 1088 (E.D. Tenn. 1970).

Moreover, Halikias’s statement that he could get a

search warrant and return to the store was not coercion. A

defendant may not assert the illegality of a search made

with consent, even if given in response to a threat to procure

a search warrant. United States v. Myers, 378 F.2d 398 (3d

Cir. 1967), cert. denied, 396 U.S. 847 (1969) (After arrest,

agents told defendant that they believed his premises con-

tained certain evidence and that they were going to get a

search warrant in order to look for it, defendant responded

“that will not be necessary, you can search for anything

you want as long as you put everything back in place where

it was.’’ Defendant then handed a detective the keys to

A Se hl ARIES ORE Bl SC IT a RY

12

his house.) ; United States v. Bracer, supra (After arrest,

Bracer informed agents that they would have to obtain a

search warrant for his apartment. After agents told him

that they were going to get one, he voluntarily took them

to his apartment where additional heroin was found) ; Gat-

terdam v. United States, 5 F.2d 673 (6th Cir. 1925) (Agent

stated to defendant, ‘‘you might as well consent, because

if you don’t, we will go and get a search warrant’’);

Hamilton v. North Carolina, 260 F.Supp. 632 (E.D.N.C.

1966) (Police told defendant ‘‘that he did not have a search

warrant with him but that he could get one.’’ Defendant

replied ‘‘that there was no need for that, you can search

my car.’’ Defendant then handed key of car to the police

officer.) Simons v. Bomar, 230 F. Supp. 226 (M.D. Tenn.

1964). (Fair consent to search was given in response to

announced intention to leave and secure a warrant if per-

mission was denied) ; cf. O’Toole v. Scafati, 386 F.2d 160

(1st Cir.), cert. denied, 390 U.S. 985 (1967); Robbins v.

MacKenzie, 364 F.2d 45 (1st Cir.), cert. denied, 385 U.S.

913 (1966).

Furthermore, Donald did more than consent to the

search, he went to the safe and delivered up the two coins

himself. Voluntary assistance given by a defendant is

strong evidence of consent. United States v. Jimminez-

Badilla, 434 F.2d 170 (9th Cir. 1970) (Defendant volun-

teered information that additional heroin was in the kitchen

aleove area); Keegan v. United States, 385 F.2d 260 (9th

Cir. 1967), cert. denied, 391 U.S. 967 (1968) (Defendant

voluntarily tended credit card belonging to owner to deputy

sheriff) ; Rogers v. United States, 396 F.2d 944 (10th Cir.

1966), cert. denied, Ferguson v. U.S., 388 U.S. 922 (1967)

et A at Bs Ace tit ae

a

sisting them) ; United States v. Smith, supra (Defendant,

after arrest took agents to apartment of another, showed

them suitcase which she stated contained heroin and handed

shelves).

Petitioners further allege that Anthony did not ‘freely

and unequivocally”’ give his consent for Keables to visit

the 44th Street store and recover the Medallic art found

there. This claim is also without merit. Anthony’s con-

sent for Keables to go to the 44th Street store was intel-

ligent and voluntary. After Halikias gave Keables the

two medals he recovered from Donald, Keables asked An-

thony ‘‘if he had any pieces of Medallic art at his 44th

Street store’? (A-106-107). Anthony responded ‘that he

thought he may have a few Pieces, less than seven or eight”?

(A-107). Keables asked for permission to go to the store

and Anthony replied ‘‘yes, you may”’ (A-107-108). How-

ever, on cross-examination, Keables stated that Anthony,

in reply to his request, stated ‘Do what you want.’’ In

14

either circumstance his consent was unequivocal and intel-

ligently given. ‘‘Appellant need not have a positive desire

that the search be conducted in order for his consent to be

voluntary.’’ United States v. Gaines, 441 F.2d 1123 (2d

Cir. 1971); United States v. Thompson, 356 F.2d 216 (2d

Cir. 1965) ; United States v. Vihotti, 323 F.Supp. 425 (S.D.

N.Y. 1971). Detective Keables requested permission to

search the other store; he did not instruct Anthony to grant

him such permission. The record is devoid of any evidence

of displeasure on Anthony’s part. There was no evidence

to indicate coercion or trickery by the police and there was

nothing inherently coercive about the circumstances sur-

rounding the request to go to the other store. People v.

Rubino, 35 A.D. 2d 530 (2d Dept. 1970). There was no

evidence of exhaustive questioning or persistent demands,

nor was Anthony’s consent given only after repeated refu-

sals. United States v. Thompson, supra; Parker v. United

States, 315 F.2d 319 (5th Cir. 1963). Anthony did not

merely acquiesce to police demands but voluntarily admitted

to Keables that he possibly had ‘‘seven or eight pieces’’ of

Medallic art in his other store. United States v. Jimminez-

Badilla, supra; Rogers v. United States, supra. Anthony

was under no compulsion when he told the officers about

these other medals. United States v. Smith, supra.

Anthony is not a poor, illiterate, uninformed person,

but a proprietor of a business enterprise, and he was capa-

ble of understanding the consequences of such consent,

viz., that Keables would go to the 4th Street store and

seize the other items of Medallic art, that Anthony said

were there. United States v. Coleman, 322 F. Supp. 550

(E.D. Penn. 1971); Application of Fried, 60 F. Supp. 961

(S.D.N.Y. 1946) ; cf. People v. Post, 23 N.Y.2d 157 (1968).

PN IDE hla hae

pas Seistate pean

i

15

Moreover, Keables, while in the 44th Street store, told

Mr. Metterson, the clerk at the store, that he had permis-

sion to see the Medallic art, and that he could call Anthony

to verify this (A-111). Mr. Metterson called and then

handed Keables 23 medals (A-111), Despite the obvious

opportunity for Anthony to object to Metterson’s giving

the medals to Keables, no objection was made. ‘ Further-

more, the officers made no search or seizure in the store

beyond the seizure which Anthony agreed could be made.

United States vy. Smith, supra,

Finally, the petitioners’ consent to the search of their

stores which led to the discovery of evidence against them

does not itself render their consent ineffectual. United

States ex rel, Lungerman vy, McMann, supra; United States

v. Curiale, 414 F.2d 744 (2d Cir.), cert, denied, 96 U.S.

man stated:

‘Where, as here, no force or deception was either used

or threatened, we see no reason why a court should dis-

regard a suspect’s expression of consent simply be-

cause ef* sient and lawful investigation and his own at-

tempt to avoid apprehension had produced a situation

where he could hardly avoid giving it.’’ (355 F.2d at

159)

Petitioners also claim that the police had ample time to

obtain a warrant and the circumstances did not justify mak-

ing the search without a warrant. Petitioners are wrong.

Given the facts and circumstances of this case a search

warrant was not needed. Petitioners’ reliance on Coolidge

16

v. New Hampshire, 403 U.S. 443 (1971), is misplaced. In

Coolidge, the police ‘‘had ample opportunity to obtain a

valid warrant, they knew the automobile’s exact descrip-

tion and location well in advance, and they intended to

seize the automobile when they came upon Coolidge’s prop-

erty.”? Here, however, Detectives Halikias and Keables,

not knowing the exact description or location of any coins,

entered petitioners’ store for the purpose of continuing

their investigation, not with the intention of making a

search. However, once inside the store, Keables was for-

tuitous in seeing four Medallic coins being openly dis-

played in a showcase. Since his initial entry into the store

to investigate was justified, and since the search was not

anticipated, and because he inadvertently came across the

four pieces of Medallic Art, which were in open view,

Keables was entitled to seize them, absent a search warrant.

Coolidge v. New Hampshire, supra at 466. ‘‘Any require-

ment that the officers had to first secure a warrant before

seizing the medals would not have been practicable because

the petitioners were alerted and the evidence could have

been easily destroyed or have been removed. Cf. Carroll

v. United States, 267 U.S. 132 (1924).

Furthermore, the record also reflects that the seizure

of the twenty-four coins from petitioners’ 44th Street store

was not anticipated. Detective Keables had to ask Anthony

whether there were other Medallic coins at his other store,

and once Anthony’s consent was obtained, Keables was en-

titled to seize the medals absent a search warrant. Schnech-

loth v. Bustamante, U.S. —— , 36 L.Ed. 2nd 854 (1973) ;

Vale v. Louisiana, 349 U.S. 30 (1969) ; Frazier v. Cupp, 394

US. 731 (1969) ; Katz v. United States, 389 U.S. 347 (1962) ;

Zap v. United States, 328 U.S. 624 (1954), rev’d on other

17

grounds, 330 U.S. 800 (1947) ; United States vy. Nelson, 459

F.2d 884 (6th Cir. 1972); Anderson v. United States, 399

F.2d 753 (10th Cir. 1960); United States vy. Martin, 176

F.Supp. 262 (S.D.N.Y. 1959).

POINT II

Petitioners were not denied due process by the

at the canis! of their request for the tape recording

at the conclusion of the suppression b

ers made a request for the tape recordings (A-154). The

court stated ‘‘that these are motions that should be received

prior to trial. The defendants’ constitutional rights have

not been infringed upon. This is clearly not a wiretap, or

that he does not have any”’ (A-151). The prosecution was

not suppressing any evidence favorable to the appellants

Brady v. Maryland, 373 US. 83 (1963) ; accord, Moore v.

Illinois, 408 U.S. 786, 794 (1972). The contents of the

tape recording were not material or relevant to any is-

18

Conclusion

The petition for a writ of certiorari should be denied.

Respectfully submitted,

Frank 8. Hocax

District Attorney

New York County

MicHakgz R. Juviter

Barry M. Fatick

Assistant District Attorneys

Of Counsel

October, 1973

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