United States of America Ex Rel. Nicholas Cardaio v. J. Leland Casscles, Warden of Sing Sing Prison

duty re- contingency. The Railroad’s did eliminate

pair not the elevator UNITED STATES of America rel. ex duty employees Thrifty’s protect its CARDAIO, Nicholas Petitioner- dangerous condition, known Appellant, from a Thrifty. Res- Hemmen v. Clark’s See v. Enterprises, Wash.2d taurant CASSCLES, J. Sing Leland Warden of 729, 732; P.2d Presnell Sing Prison, Respondent-Appellee. Stores, Safeway Inc., Wash.2d No. Docket 35329. 671, 674, is P.2d 941. There Appeals, States Court of manager, Thrifty’s branch evidence Second Circuit. Strange, personally on elevator used the Argued Feb. accident, day 1971. that the found working properly, and did door Decided June Thrifty’s nothing protect employees, danger. including Broxson, from the against finding jury’s The for Broxson necessarily absolve Railroad does not Thrifty. jury need not have an- negli- Thrifty’s question

swered the

gence negli- once found the Railroad

gent. parties

None of the contends that the

Railroad, promising repair ele-

vator, thereby right its in- waived by Thrifty.

demnification Because

indemnity provision applicable and is

cause the verdict in favor of Broxson question

does not eliminate the Thrif-

ty’s indemnity liability provi- under the

sion, inappropriate. dismissal was

Thrifty argues that the Rail

road’s action is indemnification barred Compensation

under the Act Workman’s Washington. Anno. Rev.Code Wash. argument predicated 51.04.010. is

§ inapplicability in the lease’s

demnity provision. provision But that apply, Thrifty may

does found li circumstances,

able under it. In such indemnification action be main Sons,

tained. Tucci & Inc. Carl T. Inc.,

Madsen, 1970, Wash.App. 1035,

1039-1043, 467 P.2d 389-391. judgment for Broxson is af- judgment

firmed. The of dismissal Thrifty Railroad’s claim is

vacated and ease remanded for proceedings relating

further to that

claim. City Shaw, Jr., York

Thomas A. New (Richard Landfield, City, York on New brief), petitioner-appellant. for Hoffman, Atty. Asst. Gen. Hillel (Louis Lefko- York J. New State witz, Atty. New of the State Gen. Hirshowitz, First York, A. and Samuel Gen., brief), Atty. for re- on the Asst. spondent-appellee. Judge, FRIENDLY, Chief

Before Judge, Mc WATERMAN, Circuit Judge.* LEAN, District McLEAN, Judge: District prisoner iswho Petitioner is a state serving sentences of concurrent 7% years imposed years and 5 to 10 Court, Queens Supreme Coun- him the York, ty, upon his conviction New posses- of felonious 1965 of the crimes intent to sell sion of marijuana. possession felonious July petition a writ of filed a for 1969 he corpus in the District Court habeas York, of New District Southern claiming with- that he had arrested been out a warrant and without cause, was se- and that his conviction in violation cured obtained evidence rights Amend- under the Fourth Judge unneees- Palmieri found it ment. * York, by designation. sitting District J Of the the Southern istrict of New Court hearing ground hearing third on the that a wit- sary on these claims. hold a by the ness who testified hear- accepted found at the first facts as ing testify hearings permitted pe- should have in a series state court again Cardaio, People suppress, at the second. in which titioner’s motion 28 A.D.2d 284 N.Y.S.2d 940 petitioner made the same contentions 1967). Dept. fairness of here. The that he makes hearings adequacy of their these hearing place third The took before finding procedures not chal- fact lenged by petitioner. were Shapiro February Mr. in Justice 1968. 28 U.S.C. See § Both sides rested on the record of the facts, 2254(d). of these theOn basis previous hearings, except peti two Judge petitioner’s Palmieri held that tioner introduced the minutes of a hear rights vio- constitutional had not been ing suppress by on a motion to made Tod by petition or- lated. dismissed the in Konrad another case. Konrad awas 16, 1969, with an der dated October key figure case, petitioner’s in will as unreported. opinion which presently February 23, 1968, appear. On petitioner’s the court denied motion granted July In 1970 this court a cer- Appellate af third time. The Division tificate of assigned cause and thereafter Cardaio, People firmed the order. v. 30 represent petitioner counsel 843, (2d Dept. A.D.2d 294 N.Y.S.2d 579 examining appeal. on his After the rec- 1968). 1969, April In the New York ord, agree the district court’s we judgment Appeals Court affirmed the conclusion, and, accordingly, affirm we People Cardaio, 24 conviction. N.Y. v. the order. 988, 818, 2d 302 N.E.2d 227 N.Y.S.2d proceedings court, in the state (1969). extensive, which were rather began summarized as Petitioner follows. this federal Petitioner Queens Court, Supreme proceeding indicted in the within a months after the few County, in Appeals’ October He moved in did Court of decision. He suppress advance of trial juana the mari in the seek a writ error coram nobis Nevertheless, ap which had seized his sides state both court. apartment at pear the time of his arrest on has ex to assume hearing remedies; any June 1964. After a held at rate hausted his state January 1965, Conroy Mr. Justice denied no claim is made that he has not. We by January litigated the motion order dated take the same Petitioner view. 1965. Petitioner then tried and con four claim for over constitutional by jury appealed victed appeal. years verdict. He direct the course of his judgment by from both finally of conviction him It was determined denying highest purpose from the order his motion the state’s court. No suppress. Appellate perceive af Division that we can would have been People Cardaio, again starting firmed both. v. 25 A.D. all on the served over Allen, 2d (2d Dept. N.Y.S.2d Brown coram nobis route. See 1966). Appeals, The New York Court of 73 S.Ct. L.Ed. 97 946, however, rehearing denied, withheld determination of the appeal and (1953). remanded the case to the Su L.Ed. preme Court, Queens County, for fur developed in a relevant facts were hearing suppress. ther on the motion to piecemeal three somewhat fashion People Cardaio, 18 N.Y.2d hearings. suppression new facts Some N.Y.S.2d N.E.2d hearing. at successive were added each testimony hearing held, again repeated A further in the Some were be- fore trial of the indictment. have Conroy, Justice We Mr. in March 1967. whole, May In treated state record as a he denied the motion for a Although regardless Appellate second facts time. Di- order in which findings fact, out, vision them here affirmed his came we summarize chronological nevertheless remanded order. the ease for a 1, 1964, They parked the Manhattan rant or a On June search warrant. up received their car information narcotics could across street and took P.M., in an be found 31 Bedford observation. At 8:30 about a man Street, building. Mulligan came Manhattan. Lieutenant out of the The officers brought back, and other went to that address. followed him but him waiting he While at the door of turned out to be no one more sinister apartment, appeared. Konrad than Tod a tailor. inquiry, answer to the officer’s Konrad King ag- then decided a more apart- said that he had in his gressive knocked course. He at the door ment. He further remarked that he was opened woman, which was later dis- night “a nervous because the wreck” petitioner’s covered aunt, to be who up” fore he had been “stuck and robbed shortly joined by peti- at the door eight approximately pounds of mari- King tioner’s wife. if asked Nick was juana. He said that one of his assail- answered, “Yes, just The aunt home. a gun. ants was armed with a He charac- King minute.” then announced that he type terized this man as a “beatnik police was a officer and that he had come kid,” hair, long twenty years with about up Thereupon “to lock Nick.” he walked old, gave whose Nick. name was the apparently in. The two women did not telephone officers Nick’s number. It was protest, but it would doubtless be stretch- Queens number. ing say they matters to that somewhat Mulligan thereupon Lieutenant tele- Arrington invited him in. and Rannie phoned in his Manhattan and office King followed within two or three min- Queens spoke King, to Detective detec- utes. tive, Mulligan happened who to be there. just emerged King Petitioner had told from the what he had learned from Kon- shower,and apartment was in the rad. found He told that he had him received a draped King only placed complaint in a towel. him man who from a said he had arrest, pro- under marijuana him and been assaulted handcuffed and robbed apartment, looking gun ceeded to search that “there was involved in the gun. King King for a case.” He find He found none. testi- instructed out petitioner fied telephone company that he asked from where it was whether the petitioner telephone belonged and that said that he had number to someone night so, thrown it in named a vacant lot Nick and if be- ascertain the ad- King fore. proceed further testified that he ask- dress and to to that address with petitioner marijuana partners get ed his where the was or he could “whoever petitioner pointed shopping and that his to a hands on” make observations. bag bag shopping in approxi- a closet. This This con- conversation occurred at eight mately bags marijuana weighing tained 5:15 P.M. pounds According King, on all. 6% King ascertained Detective way house, petitioner their to the station telephone number was that Nicholas showed the vacant lot where he Lane, Cardaio of Auburndale 43-10 gun, said he had but thrown the the offi- Queens. address, Petitioner lived at that cers did not find it. two-family apart- house. The other occupied by peti- ment in the house was arraigned Queens Petitioner was father, tioner’s named also Nicholas Car- County charges marijuana on and in entirely daio. It is not clear whether the robbery charge. County New York telephone number was that of the father eventually dropped The latter be- or the son. sign cause Konrad refused to a com- detec-, Queens King plaint. charged pos- other collected two Konrad was tives, Arrington Rannie, charge narcotics, and all session of but three perforce drove to 43-10 Auburndale dismissed Lane him was when where suppress arrived about 8:00 P.M. his motion narcotics seiz- They granted. apartment did obtain either an arrest war- ed in his suppres- 961, 22 L.Ed.2d 176 at the first Konrad testified S. hearing (1969); that he knew see Simmons v. sion and denied L.Ed.2d had Lieutenant S.Ct. or that he told “Nick” Mulligan tes- him. Petitioner also Jones about sharp testimony 4 L.Ed.2d 697 His was at tified. King’s. court’s decision United He denied rob- variance with bery Edmons, possession explained 432 F.2d 577 States v. stating May 31, petitioner, marijuana by holds 1970), relied that on contrary. Williams, nothing ad- to the a man named whose know, had asked him to dress he did not second claim is that Petitioner’s Conroy keep it Mr. Justice for him. gave the Konrad the information which testimony lieved police to constitute not sufficient rejected petitioner expressly that of cause them believe right Konrad, had the to do. as he robber who the armed Peti taken from Konrad. petitioner makes these facts On argues failed that the information tioner three His first claim is contentions. satisfy de either of the two criteria because the state court held Konrad’s veloped in the search warrant eases case that the narcotics found Konrad’s determining adequacy of inform an illegally seized, had been information which is used as ant’s given by Kon therefore the information e., police affidavit, officer’s i. basis for a police petitioner rad to the cannot about (1) some statement that there be deciding be considered in whether underlying circumstances from which police probable that had cause to believe the facts were informant that petitioner concluded This had committed a crime. be, (2) and that as he stated them to theory is on the that the information ob believing in there be some reason for tained of the from Konrad was the “fruit reli his information formant credible or poisonous Wong tree.” Sun v. United Texas, Aguilar 378 84 v. U.S. able. States, 471, 488, 371 U.S. 83 S.Ct. see L.Ed.2d (1963). may assume L.Ed.2d We States, Spinelli also 410, U.S. v. United police that Konrad’s statements to (1969). 584, 21 L.Ed.2d 637 89 S.Ct. concerning petitioner properly be can “fruit,” said to that is de be as word it clear first We think that re- Wong Sun, fined in of the officers’ action quirement infor- met here. Konrad’s was entering searching Konrad’s based on mation was It was firsthand. although apartment warrant, without a knowledge. personal that the He said his wholly point not free from doubt. is him been taken from posi petitioner Nevertheless, is not in a gave police gunpoint. a robber at profit by tion to this fact. It Kon young was description his assailant as a searched, rad’s that not was man, twenty, type” about “beatnik petitioner’s, and the Fourth Amendment name, long He furnished his hair. rights which that search was held to have “Nick,” telephone number. In- and his rights, peti were Konrad’s violated vestigation telephone that the confirmed illegal product of the “Nick,” tioner’s. name listed under the search could not have Konrad, used been e„ offi- When the i. Cardaio. Nicholas against pe but used be Lane arrived at the Auburndale cers house, petitioner has titioner. This because they is inquired there if “Nick” was standing complain no ad of or Upon take enter- and were told that he was. vantage infringement, of the of someone ing, pre- petitioner, who observed rights. principle else’s set descrip- is well sumably to Konrad’s conformed States, tled. Alderman v. United 394 U. that there another tion.1 The fact any explicit position We have been unable to find in a observe these court was testimony petitioner’s in the record as to is made for itself. No claim matters age length description pe- or as to the fit his hair. did not Since that Konrad’s hearing, testified at titioner. father, victim, reporting petitioner’s from an Cardaio, came unknown Nicholas robbery giving descrip- address, a somewhat inac- is immaterial. description obviously apply curate to the fa- of the defendant and tion could not automobile, held that Konrad’s directly ther. There is no doubt sufficient. pe- pointed police court out that “the victim’s re- information led the port being per- has the to induce virtue of based on titioner. It was sufficient observation,” peti- likely part their sonal “is less belief on reasonable colored self-interest than is that of tioner was the man who had committed an informant.” 365 F.2d at 979. the crime. hold We were entitled requirement, to the second we As rely upon information Konrad’s evidence of have found no case which that it afforded them cause to previous reliability informant has of the petitioner. arrest As far as this claim is necessary thought infor been where the concerned, therefore, the arrest was val- person who is mation comes from the id, petitioner’s apart- and the search of about himself the victim of the crime gun matter, and, ment for the for that complains. require he To such which marijuana, for the if indeed there was a proof impossible would create a standard latter, search for the valid as in- an matter, attainment, practical for, as a cident to the arrest.2 pointed as has out: third is Petitioner’s claim that “Most of crime are total victims strangers arresting the search occur because arrest and officers as are petitioner’s home, persons they red in Pen most arrest.” dergrast required obtain an arrest warrant and (1969), App.D.C. warrant, a search failure to their ob 416 F.2d petitioner’s denied, tain either Fourth violated cert. 89 S.Ct. rights. Amendment The claim based 23 L.Ed.2d 243 primarily upon McDonald In United States ex rel. Walls Man cusi, 406 F.2d 1969), cert. that, (1948), L.Ed. held under which 153 denied, 958, 2099, 395 U.S. 89 S.Ct. 23 presented, the the circumstances there privacy (1969), L.Ed.2d 745 court found this the home not be violated of probable cause where the victim of a grave except without in “some a warrant holdup, previously police, unknown to the emergency,” and must “a that there be nearby policeman told a of the attack showing by exemption seek those who gave description and a assailants. the the mandate that from the constitutional exigencies culprits To sure, the were still in made that of the situation sight running and away, were observed 456, 455, imperative.” course U.S. at 335 thereby tending to corroborate the vic 69 S.Ct. at 193. regard tim’s accusation. We do not that strong fact, however, think that We the evidence as such a vital distinction test, enough satisfy require McDonald as to a the different in result present Pendergrast, even if we all that was In should assume case. the vic picked applicable tim to an in that to be out the said entry case defendant a from onlookers, here, stoutly crowd of as it was cf. and effected defendant McMillan, 810, (2d denied 812 prior 368 F.2d accusation States his arrest. 1966), denied, 909, In 87 States, Brown cert. 386 U.S. U.S.App. v. United Cir. 125 43, (1967). 856, (1966), D.C. 365 F.2d L.Ed.2d 976 S.Ct. 17 1783 informa police tion for broadcast over case more than a mere hunt a involves radio which 646, States, prior 2. This incident 401 91 occurred to the deci liams U.S. v. United California, sion in Chimel v. Unit 28 L.Ed.2d 388 S.Ct. Bennett, 23 415 F.2d 1113 L.Ed.2d ed States v. Hay (1969), 1969), nom. hence we not cert. sub need consider denied respect doctrine of that case with to the wood v. United U.S. permissible scope of the search. 24 L.Ed.2d Wil S.Ct. looking (1948)] Trupiano police for and v. United 436] contraband. robber, ar- States U.S. S.Ct. [334 [68 known to be armed.' a 1663], (1948)], resting sit- of the defendant first learned L.Ed. fleeing seeking escape. afternoon. not or o’clock uation after five apprehend pe- a prepare obtain Officers were an affidavit there to To time- been titioners in case warrant would have tried to search leave. magistrate property process Nor consuming, was the in the find a at and to likely would destruction nor as de- warrant to be hour to issue the that stroyed Indeed, opium paraphernalia delay. as the it further have involved * * * reason, Johnson case. No not that a warrant could seems following except inconvenience the officers been until secured have delay get- preparing papers meantime, day. In would ting magistrate, appears opportunity escape. before for ample have had necessary. the failure to seek a search warrant. Prompt action was We justification fairly But those reasons no are can that “the lieve that it be said by-passing exigencies re- the constitutional situation” im- of the made it quirement getting once, perative a search war- proceed [of at rant], as we held in Johnson v. United attempting without to obtain warrant. States, supra, page 15, at McDonald, In been the officers had page at S.Ct. watching defendant’s house for some two Here, robbery of Konrad Car- they finally months before entered with- reported daio which Konrad to the Trupiano out a warrant. on the afternoon of at June 1 Konrad’s previous had occurred (1948), by petition- L.Ed. 1663 also cited night. report This was not the “hot” er, government agent disguise frightened just victim who had operation worked with defendant in the And, up gunpoint. stuck robbed illegal of an still for several weeks be- except for the fact he had been ar- fore the raid was launched. warrantless custody rested and of Mul- Lt. opportunity in those for ob- cases ligan’s highly unlikely patrol, it is taining entering warrant before de- Konrad have ever confessed to would greater, fendant’s home was far illegally eight pounds possessed have less, need for haste was much than it marijuana and have been “robbed” was here. Those eases fall one side Quite obviously, contraband. seems present the line. We believe me, supposed that Cardaio could not have properly case falls on the other. he would be informed could opportunity express We take this to expected the have that he would be ob- gratitude assigned petitioner’s our to investigation by ject robbery the of a counsel, Shaw, Jr., Esq., Thomas A. police; police could hence not even the argument petition- his able brief and on feared arrest or believe that Cardaio er’s behalf. attempt flight, would immediate or would hastily destroy The order is affirmed. claimed to the forcefully taken from Konrad.

have been given by Moreover, the leads Kon- from Judge WATERMAN, (dissent- Circuit rad, King, by quick and effec- Detective ing) : work, possession all of was tive respectfully I dissent. pertinent needed to obtain information States, and a for Cardaio I deem McDonald United both an arrest warrant 191, 451, for 43-10 Auburndale 93 L.Ed. warrant U.S. search S.Ct. controlling. (1948), to As stated Lane. be 455, McDonald, at at 193: S.Ct. McDonald, the Additionally, as Here, premises under surveillance as in v. United States were soon Johnson 367, L.Ed. search and it is inconceivable S.Ct. [333 [68

«SQ safely permis- ob- less arrest. Such an arrest could not have warrant any premises the time the sible “for violations of of the tained between law relating plans drugs” United identified and consultative States to narcotic night-time agents safely person when the “believe that the be made for could points majority opinion to arrested has committed As the or is com- search. nightfall job King (“whose mitting is as out, violations.” after such Inasmuch agent, of four of crime and the arrest sales been made to the detection an aggres- criminals”) on this its the decided a more statute face authorized majority jus- they act, agents, and the course would whenever to sive tify wished to holding action the ex- this “that an arrest McMillan then to conduct igencies of the situation made that course search for the incidental narcotics imperative.”1 premises living. where he was the Here policemen City officers were of of the credulity say submit that it strains to I York, and the warrantless search New they any “emergency” here so as existed gun conducted to find a justify to the officers’ of the violation uncovering purpose of mari- not juana. the right per- of a well-known fundamental son to be secure in from unrea- his home night-time. searches in

sonable the I would reverse and remand in- structions issue the writ of habeas McDonald, majority, despite relies corpus, promptly unless the State retries upon the Second Circuit case United appellant without use of mari- the the McMillan, (1966) States v. F.2d juana unconstitutionally my seized. See an arrest and search after conducted States, in DiBella dissent v. United there had been four sales of narcotics rev’d, (2 1960), F.2d 904-909 agent. McMillan to a Cir. federal narcotics Thei’e, sales, 7 L.Ed.2d course, after the which, Baca, also see United States v. dealer, identified McMillan as a (10 1969); agents, pursuant 417 F.2d 103 Cir. Niro specifi- power to the (1 cally granted 388 F.2d 535 agents to federal narcotics 1968). under 26 U.S.C. made a warrant- § jective might weigh mind need 1. As stated in McDonald privacy order to enforce invade that right privacy single permissi law. 93 L.Ed. this is the precious exception requirement deemed too entrust ble to the that a job requires of those the de- delivery discretion whose is search advance searching tection crime of crim- arrest a search war thing; heady by magistrate. fact, inals. Power is a rant issued police acting history on quote portion shows amiss of the opinion their cannot be trusted. And so following own immediately McDonald requires magistrate quotation beginning Constitution at the of this dis pass ending desires quotation sent and with the here privacy fore violate the noted: cannot be true to that con- home. We dealing We are not with formalities. requirement presence excuse stitutional of a search warrant high a search warrant without absence of showing by serves a function. some Absent exemption grave those who seek emergency, the Fourth Amend- constitutional mandate interposed from the magistrate ment has exigencies of the situation made police. tween citizen imperative. that course done shield nor to criminals 455, 456, 69 S.Ct. at 193. illegal make the home a safe haven for It activities. was done so that an ob-

Case Details

Case Name: United States of America Ex Rel. Nicholas Cardaio v. J. Leland Casscles, Warden of Sing Sing Prison

Court Name: Court of Appeals for the Second Circuit

Date Published: Jun 22, 1971

Citation: 446 F.2d 632

Docket Number: 448, Docket 35329

Court Abbreviation: 2d Cir.