242 F. Supp. 382 | S.D.N.Y. | 1965
On his application for a Federal writ of habeas corpus, this Court held that petitioner had been denied fundamental fairness when the prosecution was permitted by the state court to withhold the identity of an informant, admittedly not of previous known reliability. The informant allegedly had furnished an FBI agent, Gilhofer, with information and also had permitted the agent to overhear a telephone conversation between him (the informant) and a third person, which constituted the main prop of the state’s claim of probable cause for peti* tioner’s arrest without a warrant and for an incidental search. Our Court of Appeals reversed, holding that due process does not require the rule of Roviaro v. United States
None of these claims, which arose out of the circumstances immediately surrounding petitioner’s arrest,
First, there is his claim that even if Gilhofer did have probable cause to believe him implicated in the Cartier burglary or possessed of its proceeds, the New York City detectives participating in the arrest did not, for Gilhofer omitted to tell them of the overheard telephone conversation between the informant and the man identified by the informant as DeNormand, which conversation formed an essential link in the chain of probable cause.
In light of the Court’s finding that both Federal and state law enforcement officers had probable cause to believe petitioner had committed or was committing a crime, little need be said of petitioner’s second contention: that his Federal rights were violated when he was arrested by FBI agents acting without statutory authority
Nor is there merit in petitioner’s final contention: that he was denied a Federal right when, in disregard of Section 180 of New York’s Code of Criminal Procedure, he was not immediately informed of the reason for his arrest.
Accordingly, on the basis of the Court of Appeals’ ruling that Gilhofer’s testimony is to be accepted without disclosure of the informant’s identity, petitioner’s application for habeas corpus is denied. A certificate of probable cause may issue.
. 353 U.S. 53, 60-61, 77 S.Ct. 623, 628, 1 L. Ed.2d 639 (1957), where the Court said:
“Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege [of nondisclosure] must give way. * * * Most of the federal cases involving this limitation * * * have arisen where the legality of a search without a warrant is in issue and the communications of an informer are claimed to establish probable cause.” Where disclosure is required, the Court noted that the informer’s identity should be revealed in response to a request for a pretrial bill of particulars. Id. at 65 n. 15, 77 S.Ct. 623.
. United States ex rel. Coffey v. Fay, 344 F.2d 625 (2d Cir. 1965).
. The facts are set out in this Court’s opinion at 234 F.Supp. 543, and will not be repeated here.
. See 234 F.Supp. at 550.
. In recounting what Gilhofer had told them, Detectives Egner and Keeney made no mention of the telephone call, although it does not appear they were specifically questioned about it. However, their superior, Lieutenant Holt, was also briefed by Gilhofer, who testified that he “advised [his forces] of the information that I had.” The record permits a finding that the telephone call information was imparted to the New York City police. The circumstance that when the task force
. See Conti v. Morgenthau, 232 F.Supp. 1004, 1006-1007 (S.D.N.Y.1964).
. While these circumstances would have been insufficient, standing by themselves, to justify an arrest, see 234 F.Supp. at 549, n. 19, they were of some value in corroborating Gilhofer in the eyes of the detectives, see Draper v. United States, 358 U.S. 307, 312-313, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).
. There is no express Federal authorization for FBI agents to make arrests on nonfederal charges. See 18 U.S.C. § 3052. And New York law does not confer such authority on them. See N.Y. Code Crim.P. §§ 154, 960.
. Compare Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233 (1956); United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948). See Cleary v. Bolger, 371 U.S. 392, 83 S.Ct. 385, 9 L.Ed.2d 390 (1963).
. Cleary v. Bolger, supra, at 407, 83 S. Ct. at 393 (Douglas, J., dissenting).
. The statute provides: “When arresting a person without a warrant the officer must inform him of the authority of the officer and the cause of the arrest, except when the person arrested is in the actual commission of a crime, or is pursued immediately after an escape.”
. See People v. Coffey, 36 Misc.2d 67, 72, 232 N.Y.S.2d 545, 550 (Sup.Ct.1962), aff’d, 12 N.Y.23 443, 453, 240 N.Y.S.2d 721, 727-728, 191 N.E.2d 263 (1963).
. See Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); 18 U.S.C. § 3109.
. 332 U.S. 581, 588, 68 S.Ct. 222, 92 L. Ed. 210 (1948).