to give a good account of oneself and that the state must also prove that the accused is in the state for an unlawful purpose.
The case most heavily relied upon by the government is McNeilly v. State, 119 N.J.L. 237, 195 A. 725 (1937), from the former New Jersey Supreme Court which at the time was an intermediate appellate tribunal. The court stated that if all the prosecution had to prove was the defendant's failure to give a good account of himself, the statute would be unconstitutional, but that the Act required the additional factor that the defendant be "present in this State for an unlawful purpose." Although it would seem from this language that the court was vitiating the statutory presumption, it goes on to uphold the presumption on the basis that there was a rationale connection between the fact to be proved and the fact to be presumed. The court then deepened the enigma by concluding with the somewhat less than lucid sentence, "[and] notwithstanding the presumption * * * the prosecutor must, nevertheless, under all circumstances, properly prove the guilt of the accused in accordance with the standards prescribed by our law." McNeilly v. State, supra, at 242, 195 A. at 728.
In State v. Catalano, 30 N.J.Super. 343, 104 A.2d 705 (1954), the Superior Court, Appellate Division, which is presently the New Jersey intermediate appellate tribunal, was faced with the conviction of a defendant who allegedly had been wandering the streets and was seen peering into a woman's bedroom in the early hours of the morning. He was arrested and convicted under the same statute involved in this case.
The court declared that the prosecution must prove that the defendant could not give a good account of himself and that he was in the state for an unlawful purpose. It then proceeded to say that the former raises a rebuttable presumption of the latter and that for the presumption to lose its force and effect, "sufficient evidence [must be] adduced so that (apart from the presumption) reasonable men might honestly differ as to whether or not that is the fact * * *." State v. Catalano, supra at 347, 104 A.2d at 707.
Since the presumption had disappeared in Catalano, the court reversed on the grounds that the state had not proved the unlawful purpose, which in that case, was the intent to have unlawful sexual intercourse.
Cannon v. Krakowitch, 54 N.J.Super. 93, 148 A.2d 213 (1959), a more recent case from the Superior Court, Appellate Division, involved a civil action for damages for false imprisonment under the New Jersey "good account" statute. In discussing the act, the opinion said that the state must establish that the defendant has failed to give a good account of himself and that he is in the state for an unlawful purpose.
It added that proof of "the first element raises a rebuttable presumption as to the second." Cannon v. Krakowitch, supra at 98, 148 A.2d at 215.
The Supreme Court of New Jersey, presently the highest court in the state, passed upon the statute in State v. Salerno, 27 N.J. 289, 142 A.2d 636 (1958). The police had arrested one Tamburello while he was transferring cans of alcohol from a larger to a smaller truck on a vacant lot in Newark. The officers then waited in the event someone else might arrive. The defendant appeared in due course and was arrested five feet from the truck. In answer to the questions of the police, he gave his name and stated that he had entered the lot to relieve his bowels but declined to explain a slip of paper found on his person containing names, locations, and numbers.
The defendant contended that the "good account" provision was unconstitutionally broad and that the statutory presumption was invalid under Tot v. United States, supra. The court seemed to uphold the presumption by saying, "Usually provisions for a good account are associated with conduct or circumstances in themselves offensive or suggestive of an intent to commit a crime." State v. Salerno, supra 27 N.J. at 296, 142 A.2d at 639. It then went on to refer to the statement in McNeilly v. State, supra, that the statute would be unconstitutional if it required no further proof than that the defendant was unable to give a good account of himself. At this point, the court recognized that the constitutional issues were "formidable" and expressly declined to reach them in view of the fact that it was reversing the conviction on the ground of no evidence of a specific unlawful purpose.
From this holding, it might seem that the court was saying, in a somewhat oblique manner, that proof of a specific unlawful purpose was necessary to obtain a conviction, regardless of the statutory presumption. However, from the facts of the case, it appears that the accused introduced evidence to explain his presence on the vacant lot and his possession of the slip of paper. Consequently, the rebuttable presumption had undoubtedly disappeared.
From the New Jersey authorities, it is at best unclear whether or not the presumption has been read out of the statute but it seems that if the defendant fails to give a good account of himself and puts on no evidence to rebut the presumption, he still may be convicted. In any event, the government's contention that the cases have definitely eliminated the statutory presumption is without merit.
We have found any arrest of the defendants when they were initially stopped in the parking lot to be invalid. We have also held any apprehension based on the discovery of the revolver in the carton to be unlawful. Finally, we have determined the formal arrest under the New Jersey "good account" statute to be invalid. In short, we have been unable to discover any ground for probable cause, independent of an illegal search, that would lead us to sustain their arrests. The Court has no alternative therefore but to suppress all the evidence obtained as a result of the detention and apprehension of the defendants. The suppression, of course, includes the evidence obtained from Margeson's car some fifteen or twenty minutes after their arrest and that seized from the motel room the next day. All of this proof was the fruit of the initial illegal search.
Even if the arrests were valid, the money found in Margeson's car must be suppressed for the additional reason that the search was too remote in time and place to be incidental to the arrest.
In Preston v. United States, 376 U.S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777 (1964) a case similar to the one now before us, the local police in Newport, Kentucky had received a telephone call at 3:00 A.M. that three men acting suspiciously had been seated in a car for several hours in the business district. The officers who went to the scene were not content with the "unsatisfactory and evasive" answers to their queries and arrested the three for vagrancy. The police searched them and took them to head-quarters. The car was not searched at this time but was driven by an officer to the station and then towed to a garage. Shortly after the men had been booked and held in custody, some of the policemen went to the garage and searched the automobile. They found loaded revolvers and other paraphernalia of a criminal nature. The Supreme Court assumed without deciding that the arrest was legal but held the search unlawful because it was made without a warrant. It reiterated that the reason for permitting a search without a warrant when it was incidental to an arrest was to prevent a defendant from destroying evidence in his control and to deny him the use of any weapons that might be nearby. The Court asserted, however, that there was no indication that the three occupants of the car could have used any weapons or destroyed evidence at the time of the search since they were in jail. Moreover, there was no danger that the car would be moved out of the jurisdiction.
Likewise, in the case at bar, the two defendants had been in custody at the station house for about 20 minutes when the police took the attache case from Margeson's car and opened it without having obtained a warrant. There was no testimony that the police feared that the automobile was going to be moved. On the basis of the reasoning in the Preston case, supra, the money contained in the attache case cannot be considered the fruit of a search incidental to a lawful arrest and must be suppressed. See United States v. Rabinowitz, supra; Agnello v. United States, 269 U.S. 20, 46 S. Ct. 4, 70 L. Ed. 145 (1925); Carroll v. United States, supra; Staples v. United States, 320 F.2d 817 (5th Cir. 1963); Rent v. United States, 209 F.2d 893 (5th Cir. 1954).
The defendants have also moved for the return of the evidence that we have suppressed. Specifically, Crehan has asked for the return of $500 more or less taken from his person and the box containing three masks, three guns with bullets, three caps, gloves, keys in a leather pouch, numerous sets of old license plates, a bag of bank wrappers, a padlocked canvas bank bag containing money and checks, a jacket, garbage bags, and shopping bags. Margeson for his part has moved for the return of $1200 more or less found on his person, the attache case containing $20,000 more or less taken from his automobile, and some rubber bands.
Rule 41(e) of the Federal Rules of Criminal Procedure provides:
"A person aggrieved by an unlawful search and seizure may move the district court * * * for the return of the property and to suppress for the use as evidence anything so obtained * * *. If the motion is granted the property shall be restored unless otherwise subject to lawful detention * * *."
From the facts gleaned at the suppression hearing, there is strong evidence that the checks and money seized, which included bait money, was the fruit of the robbery committed at the Cheltenham Branch of the Fidelity-Philadelphia Trust Company. Consequently, they come within the provision of Rule 41(e) which subjects them "to lawful detention." In addition, we consider the masks, guns, bullets, keys, gloves, license plates, bank wrappers, and the padlocked canvas bank bags to be criminal implements here or at least contraband. They fall within the same proviso of Rule 41(e) and will not be returned at this time. See Trupiano v. United States, 334 U.S. 699, 710, 68 S. Ct. 1229, 92 L. Ed. 1663 (1948); United States v. Howell, 240 F.2d 149 (3d Cir. 1956); Welsh v. United States, 95 U.S.App.D.C. 93, 220 F.2d 200 (1955); United States v. Scott, 149 F. Supp. 837, 842 (D.D.C.1957). We will, however, restore the box, the three caps, the jacket, and the garbage and shopping bags to Crehan and the rubber bands and the attache case without the money to Margeson.
Our failure to return any of the other property is, of course, without prejudice to the right of the defendants to initiate any appropriate legal proceedings to establish their title to it.
Both defendants have also moved for a severance. Crehan contends that Margeson's flight and attempted escape from the police station would be highly prejudicial to him if they were tried together. He also claims that Margeson made certain statements to the police inculpating him, but none of them was brought to the court's attention at the hearing.
Margeson contends that Crehan made statements implicating him in the crime and that the portions which implicated him cannot be severed from the others so as to remove the prejudice that will result. Here again, none of the statements was produced at the hearing held before this court.
Rule 8(b) of the Federal Rules of Criminal Procedure provides:
"Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. * * *"