United States v. Robert Candella

469 F.2d 173, 1972 U.S. App. LEXIS 6780

• Court: Court of Appeals for the Second Circuit
• Decided: November 9, 1972
• Docket: 180, Docket 72-1739
• Status: Published

Opinions

HAYS, Circuit Judge:

Robert Candella was indicted on a charge of knowingly transporting handguns in interstate commerce in violation of 18 U.S.C. § 922(a)(3). He moved to suppress certain handguns which had been seized at his home at the time of his arrest. During the hearing on his motion he asked that the motion be modified to include a request for the suppression of three inculpatory statements (two oral and one written) which he had made on the morning of his arrest. The district court entered an order suppressing the handguns and the defendant’s written confession. The United States appeals pursuant to 18 U.S.C. § 3731.

I. Factual Background

Candella was arrested at his home at approximately 7:30 on the morning of February 17, 1971, by agents Wessler, D’Atri and Dugan of the Alcohol, Tobacco and Firearms Division of the United States Treasury Department. After Candella had been given the Miranda warnings he was asked whether he had any of the firearms he was accused of purchasing in Maryland and transporting to New York. According to the undisputed findings of fact of the district court, Candella said, “ ‘Some of them are there,’ pointing to a carton about five feet or so from where he was standing, and Mr. Wessler with Mr. Dugan looked into the box and saw that it did have guns, which Mr. Duggan [sic] then took under his control, and Mr. Wessler turned back to Mr. Candella and asked whether he had any others, and Mr. Can-della, half turning, indicated a desk or other piece of furniture some five,Jeet away from him in another direction, and Mr. D’Atri went there and opened a drawer and found additional firearms in it. 29 firearms or thereabouts were found, all told. Apparently 10 or so in the desk and 19 or so in the carton.”

At approximately 8 :30 A.M. Candella was taken in a Government vehicle to the A.T.F. office. There, after some discussion of the facts, Candella signed the statement which the district court ordered suppressed. Candella was then taken to the office of the United States Attorney for the Eastern District of New York where he arrived at approximately 11:00 A.M. Counsel was then obtained for him and he was arraigned at approximately 11:30 A.M.

II. The Suppression of the Handguns

Candella’s conduct when he was arrested constituted consent to the seizure of the handguns. See United States v. Rothberg, 460 F.2d 223 (2d Cir. 1972);¹ United States v. Gaines, 441 F.2d 1122 (2d Cir.), vacated and remanded on other grounds, 404 U.S. 878, 92 S.Ct. 223, 30 L.Ed.2d 159 (1971). Candella, after being informed of his rights, pointed to the exact spots where the guns were located and told the officers where they were. Here, as in Roth-berg, there is “no evidence ... of coercion or other circumstances that would render the consent invalid.” 460 F.2d at 224. Consent was “freely and voluntarily given.” See Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 20 L.Ed.2d 797 (1968); United States v. Fernandez, 456 F.2d 638 (2d Cir. 1972). “[T]he mere fact that a suspect is under arrest does not negate the possibility of a voluntary consent. Neither does the suspect’s knowledge that the search will almost certainly demonstrate his guilt.” United States ex rel. Lundergan v. McMann, 417 F.2d 519, 521 (2d Cir. 1969).

In addition to the factor of consent to the seizure of the guns, they should have been held admissible because in practical effect they were in “plain view” of the agents. The agents were legally in Candella’s home for the purpose of making an arrest for which they had a valid arrest warrant. Their attention was directed by Candella to the very spot where the guns were situated. If the containers had been open there would be no doubt about the propriety of the seizure. Candella’s statement that the guns were in the containers was the equivalent of his opening the containers for the agents’ inspection. “Where . . . the arresting officer inadvertently comes within plain view of a piece of evidence, not concealed, although outside of the area under the immediate control of the arrestee, the officer may seize it, so long as the plain view was obtained in the course of an appropriately limited search of the arrestee.” Coolidge v. New Hampshire, 403 U.S. 443, 465-466, n. 24, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971) (emphasis added). Here, once the appellee told the agents where the guns were, they were no longer “concealed” and it was reasonable for the agents to seize them. The evidence was, in effect, in the “plain view” of the agents. See United States v. Titus, 445 F.2d 577 (2d Cir.), cert. denied, 404 U.S. 957, 92 S.Ct. 323, 30 L.Ed.2d 274 (1971).

The contrary holding of the district court must be reversed.

III. The Suppression of the Confession.

The district court ordered the suppression of the last of three statements made by Candella on the morning of his arrest. That statement was a written confession which merely reiterated Candella’s previous oral admissions. The court believed that the delay in bringing the defendant before a magistrate for arraignment was violative of Rule 5(a) of the Federal Rules of Criminal Procedure which mandates that “[a]n officer making an arrest under a warrant issued upon a complaint ... shall take the arrested person without unnecessary delay before the nearest available commissioner or before any other nearby officer empowered to commit persons charged with offenses against the laws of the United States.” Fed.R.Crim.P. 5(a) (emphasis added).

We hold that the time that elapsed between arrest and arraignment was not unreasonably long. See United States v. Price, 345 F.2d 256 (2d Cir.), cert, denied, 382 U.S. 949, 86 S.Ct. 404, 15 L. Ed.2d 357 (1965). The delay of less than four hours was for the proper purposes of routine processing such as allowing Candella to get dressed, traveling to the A.T.F. office, and fingerprint- __ ing and photographing him, and of re- \ ducing Candella’s prior oral admissions : to writing. These activities were not '“unnecessary” within the meaning of Rule 5(a). See United States v. Collins, 462 F.2d 792, 795-796 (2d Cir. 1972); 18 U.S.C. § 3501(a) and (b).

We hold that both the handguns seized in the defendant’s apartment and his written confession are admissible into evidence at trial.

1 . Because our decision in the Rotliberg case was handed down three months after the hearing in the instant case it is understandable that it played no part in the decision below.