It was a matter of complete unimportance to him how Damore disposed of the trash. He stated that once Damore took it, it was his property, and that he did not even know whether he took it to a dump or where the dump was located. Once the trash left the premises Noll's obligation was complete. Damore testified that ordinarily he comingled it with trash collected from other buildings on the project; took it to an outlying dump and merely threw it with other refuse on the dump.
After the interview with Noll, the two Internal Revenue Agents contacted Damore at his home and explained that they were making an investigation of Minker in connection with alleged gambling activities. They requested Damore to segregate the trash taken out of the barrel at 1955 and 1957 Hampden Boulevard and to turn it over to them for such use as might be warranted. The arrangement contemplated that this trash would be picked up either at Damore's warehouse in the City of Reading, or at some place on the streets of Reading, during the collection days of trash from the apartments, which were Tuesday, Thursday and Saturday. Damore testified that he thought it was his duty as a patriotic American citizen to comply with their request and did so.
The evidence clearly shows that at no time did the Internal Revenue Agents enter upon the premises, nor did any of the so-called evidence ever come into their hands at or near the premises involved. The testimony indicates that Damore faithfully segregated the trash from the particular barrel and turned it over to the Agents for the period from November, 1959, up until February 1st of 1961. The dates, which were furnished to the defendant at the hearing, of trash collections involved in the present indictment extended from approximately November 18, 1959 to March 20, 1960.
The Agents testified that the tapes, records, slips and other data secured by them indicated the operation of a numbers bank, a gambling casino, a pinball operation, and other matters indicating illegal gambling activities.
Defendant strongly contends that this activity of the Agents was completely illegal and falls within the proscription of Work v. United States, 1957, 100 U.S. App.D.C. 237, 243 F.2d 660. Just as strongly the Government contends that the ruling in Abel v. United States, 1960, 362 U.S. 217, at pages 240 and 241, 80 S. Ct. 683, 4 L. Ed. 2d 668, controls.
It appears to the Court that this case is more nearly analogous to the Abel case and that the doctrine of bona vacantia applies here.
An analysis of the evidence permits of no other conclusion than that defendant Minker abandoned the property involved by placing it in the trash barrel. Superintendent Noll made his contract with Damore, and Damore lawfully removed the rubbish. It was his to do with what he pleased. He could keep it and sell it as waste paper; he could burn it, if he son desired, or he could do as he ordinarily did -- place it on the dump. He could also lawfully do what he actually did do, turn it over to the Internal Revenue Agents.
Defendant argues that actually Minker never relinquished control and that he had a right to assume that the property would be destroyed and not fall into the hands of the Revenue Agents; that the Agents by making the arrangement with Damore in some mysterious way made him an agent of the government so that his actions were those of A United States Agent rather than of a patriotic lawabiding American citizen, who was willing to cooperate with the government in the suppression of crime. This argument, of course, must be rejected in its totality. Minker abandoned the property. It was lawfully removed by Damore. Damore had every right, if not an absolute duty, to turn over to the Internal Revenue Agents documents evidencing the commission of a crime over which documents he exercised complete dominion. No constitutional rights of the defendant were invaded. The motion, therefore, was denied.
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