The opinion of the court was delivered by: DUMBAULD
The defendant, a dentist, seeks to suppress as evidence: (1) certain counterfeit money taken from his automobile at the time of his arrest and (2) certain counterfeit money taken at his home after the arrest.
As to (2) it seems clear that this was obtained pursuant to defendant's consent, and is therefore lawful. This is true notwithstanding the fact that such consent was recorded in language written by a secret service agent on an old envelope who described the document as a "consent search warrant", somewhat of an innovation in legal terminology; and notwithstanding the fact that defendant and the agent fabricated a fictitious ground for the visit to Dr. Hecht's home so as not to alarm his wife.
By way of dictum, to resolve all issues presented by counsel, we believe and accept the agents' testimony (contradicted by defendant) that he was given the then customary warnings and that it was not until after he reflected on the matter for a time that he voluntarily and intelligently waived his constitutional rights and told the agents that he had additional counterfeit money at his home. The arrest was made on November 10, 1965, before Miranda. Agent Stewart admits that the warning did not include the information that if defendant were indigent an attorney would be made available at government expense under the Criminal Justice Act.
This candid admission by the agent simply makes his testimony more credible. We agree with the agent that it would be a counsel of supererogation to make such a charitable offer in the case of a professional man (dentist's earnings are commonly understood to exceed those of lawyers, though less than those of an M.D.), and that omission to do so would be harmless error even if Miranda applied.
We believe also that the rationale of Johnson excludes retroactive application of Miranda; certainly where, as here, the question is not one of the admissibility as evidence of the statements made by defendant under the circumstances involved, but simply whether knowledge gained by the arresting agent may properly be used as the stimulus to further investigation, effected by means of defendant's voluntary cooperation.
As to (1), the lawfulness depends on whether the agents making the arrest did so on probable cause.
It seems plain that they did have probable cause in fact, and also in law, if what they learned through overhearing defendant's conversation with a confederate Low by means of an electronic transmitter be includible as a legitimate part of their knowledge. We think use of this device lawful. There was no illegal "wire-tapping" by the agents. "Wire-tapping is prohibited by the force of a federal statute and not on constitutional grounds. The statute is not violated * * * by use of a transmitting device 'planted' where it will broadcast conversation in its vicinity", where there is no trespass quare clausum fregit. Dumbauld, The Bill of Rights and What It Means Today (1957) 75-76 and cases there cited; and the subsequent leading case of Lopez v. United States, 373 U.S. 427, 437, 440 83 S. Ct. 1381, 10 L. Ed. 2d 462 (1963).
But we are satisfied that even without such electronically acquired knowledge the arresting officers had sufficient knowledge to amount to probable cause.
It is true that defendant's confederate Low had not theretofore been a trustworthy informer, but was acting for the first time in that capacity. In fact, the agents were somewhat skeptical of Low's story implicating defendant, a professional man of standing in the community, as a member of a counterfeiting ring, and sought corroboration. This corroboration they secured, we are convinced, by the circumstantial evidence afforded by the delivery to defendant of the intercepted shipment of counterfeit money.
We therefore hold that there was probable cause for defendant's arrest, even without the electronic evidence. Hence the search and seizure, incident to the arrest and at the site thereof, was lawful.
The main thrust of defendant's motion to suppress and the arguments advanced orally and in brief in support thereof, are directed against the use of the seized counterfeit money as evidence, and against the use of the information obtained by electronic devices. For the reasons ...