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October 31, 1978

Harold A. ZEPP

The opinion of the court was delivered by: NEWCOMER


The defendant Harold A. Zepp is charged with possession of goods stolen from an interstate shipment in violation of Section 659 of Title 18 of the United States Code. He has moved to suppress certain physical evidence on the grounds that the search and seizure which produced the evidence were unconstitutional. He also seeks to suppress the fruits of that evidence. Hearing was held on the defendant's motion, and the Court has made findings of fact about the conduct of the search and seizure. For the reasons set forth below, the defendant's motion is DENIED.

 On July 28, 1978, a tractor-trailer loaded with a cargo of miscellaneous freight was stolen from the premises of the Jones Motor Freight Company in Philadelphia. The truck was recovered three days later, but most of the cargo was missing. One of the items of missing cargo was a bright yellow Gould battery, serial number KRD 653-0, the outer dimensions of which were 38 by 30 by 16 .

 Jones Motor Freight informed the Federal Bureau of Investigation (FBI) soon after the theft of the truck that they suspected that Mr. Zepp had something to do with the crime. The Company also supplied a fairly complete list of the items stolen, a physical description of most of the items, and the serial numbers of some of the items. A detailed description of the Gould battery, including its color, size and serial number was contained in the information passed along by the Company.

 Meanwhile, the FBI was developing other information about the case. On about August 2, 1978, the FBI received an anonymous phone tip that two of the employees of Jones Motor Freight had been seen with merchandise stolen from the truck. The caller did not mention the defendant by name, but the FBI began to focus its investigation on company employees.

 About a week before the arrest of the defendant the FBI obtained information about the case from a confidential informant. The informant had been reliable in the past, and his information corroborated other leads in the Jones Motor Freight investigation.

 The informant told the FBI that Zepp was in possession of the Gould battery. Special Agent William Fleming, who was primarily responsible for dealing with the informant, testified at hearing that he had had approximately six conversations with the informant up to the time of the arrest of the defendant, and that the informant implicated Zepp each time.

 On August 10, 1978, the FBI began surveillance of the defendant. Agents Macko and Stodt soon observed Mr. Zepp driving a flat-bed truck upon which was an object about the size of the missing Gould battery. From prior briefings the agents were familiar with the physical characteristics of that battery, including its color. The object on the truck was partially covered by a black cloth, but the agents were able to see a strip of bright yellow between the cloth and the pallet upon which the battery was resting. The agents estimated the strip of yellow to have been from three to six inches wide. As they followed the vehicle, the agents were able to see onto the bed of the truck from their car, and the strip of yellow was clearly visible to them.

 Based on the knowledge obtained at the briefing, and their sighting of what they thought was the Gould battery, the agents stopped the defendant's truck, arrested him, and uncovered and seized the battery. The serial number of the seized battery matched that of the battery stolen from Jones Motor Freight on July 31.

 The FBI actually had a great deal more probable cause to arrest the defendant than is indicated by the facts set forth above. The defendant argues, and the Court finds, that the FBI had reason to believe that the defendant had arranged to sell the battery at the intersection of Front and Lehigh Streets in Philadelphia sometime on the evening of August 10. The FBI also had reason to believe that the defendant planned to be present at the sale. Those expectations proved to be true; the FBI found Zepp (for a second time) on August 10th by waiting for him at Front and Lehigh. The Court also finds that the FBI had received the information about the impending sale from a reliable informant sometime on or before August 9th.


 The defendant argues, rather ingeniously, that a search warrant was required in this case because the FBI had more than enough probable cause and sufficient time to obtain a warrant to search him and his vehicle. *fn1" The Court agrees that there was probable cause both to arrest the defendant and to search his truck for the battery. That probable cause was based on information supplied by the Company, and information supplied by a previously reliable informant whose information was based on first hand knowledge. *fn2"

 The defendant's argument finds strong support in certain language in Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971): "(No) amount of probable cause can justify a warrantless search or seizure absent "exigent circumstances' ".

 If that statement in Coolidge were still the law, this Court would perhaps be required to grant the defendant's motion to suppress. However, in subsequent cases the Supreme Court has modified the position taken in Coolidge. *fn3" The "exigent circumstances" exception to ...

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