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UNITED STATES v. JANKOWSKI

April 18, 1979

UNITED STATES of America
v.
Howard JANKOWSKI



The opinion of the court was delivered by: MARSH

The defendant Howard Eugene Jankowski has been indicted for violations of 18 U.S.C. ยงยง 1341 and 1342. It is alleged that the defendant caused checks written by his employer to be sent to him rather than to the payee and that the defendant opened a checking account by representing himself to be an officer of the payee corporation. Defendant has filed a "Motion to Suppress Eyewitness Identification," a "Motion to Suppress," and a "Motion to Dismiss Indictment. " An evidentiary hearing was held and the parties requested an opportunity to submit briefs following the filing of the transcript. After consideration of the evidence presented, and after review of the briefs submitted, the court makes the following findings of fact and conclusions of law with respect to defendant's motions.

I

 On the afternoon of October 9, 1978, Janet Mihun, a customer service representative at the Oliver Plaza office of Equibank, was approached at her desk by a man who stated he wanted to open a business account. He identified himself as Mr. Jankowski and produced a Georgia driver's license as identification. He also gave her a corporate resolution and two signature cards. Ms. Mihun opened an account for Mr. Jankowski in the name of KVR, Incorporated. A large check from Koppers Company payable to KVR was deposited in the account, and Mr. Jankowski received a starter kit of temporary checks. This transaction took approximately twenty minutes during which time Ms. Mihun was seated about two feet away from Mr. Jankowski while the details of the new account were discussed and completed. The lighting in the bank office was good, and Ms. Mihun was able to observe the man throughout the transaction. She noticed him to be a thin man in his fifties with grayish hair who wore glasses and acted nervous.

 After Mr. Jankowski left the bank, Ms. Mihun took the KVR account application to her supervisors for approval. They immediately were suspicious because all of the papers were from Georgia and the corporate resolution had no seal. The bank's fraud investigation manager, John T. Stevenson, was contacted. In examining the new account application, Mr. Stevenson noticed the name Jankowski and recalled that twelve forged corporate checks cashed at another Equibank office in March 1978 had been endorsed with the name Howard Jankowski. Stevenson then compared the new account signature with the signatures on those previously forged checks and noted a similarity. That same afternoon, Stevenson returned to Ms. Mihun's office to show her a file picture of Howard Jankowski. He placed the picture in front of her and asked if the man in the photograph was the customer she had waited on. Without hesitation, she replied that it was.

 Defendant asserts in his motion to suppress eyewitness identification that this single photographic display was unduly suggestive and a violation of due process. In weighing the appropriate factors, the court finds that Ms. Mihun had an opportunity to view Mr. Jankowski with considerable attention for approximately twenty minutes while he provided her with the information for the new account, and that Ms. Mihun identified Mr. Jankowski's photograph with certainty only a few hours after the crime. The court cannot conclude that there is a substantial likelihood of irreparable misidentification. See Manson v. Brathwaite, 432 U.S. 98, 114-116, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). Furthermore, the allegedly suggestive identification procedure was carried out by a bank employee before any law enforcement officer had been contacted about the suspected criminal activity. The motion to suppress eyewitness identification will be denied.

 II

 On the following morning, October 10, 1978, Mr. Stevenson called Postal Inspector Ronald Pry to advise him that a large check from Koppers Company payable to KVR, Incorporated, of Highland, Indiana, apparently had been stolen from the mail, and had been presented at the bank by a man identified as Howard Jankowski. Inspector Pry contacted Koppers and KVR to verify that the check had been mailed by Koppers in Pittsburgh but had not been received by KVR in Indiana. Pry determined that the Pittsburgh post office box address which appeared on the check was registered to Howard Jankowski. Thereafter, Pry obtained an arrest warrant charging Jankowski with possession of a stolen check and then went to Equibank to await Jankowski's return. That afternoon, Pry learned from Koppers Company that a man named Howard Jankowski had been working in that company's invoicing section for about a week and that the check to KVR would have passed through that section prior to being mailed.

 Inspector Pry and Inspector Lee Hickson went to the Koppers Company building and, pursuant to the warrant, arrested the defendant in a third-floor hallway. The defendant was frisked for weapons and handcuffed. As he was being escorted away, the defendant requested permission to get his sport coat. A Koppers employee went into another room and retrieved the defendant's coat and a binder-style briefcase which the defendant had left on a shelf above his coat. *fn1" Pry and Hickson took the defendant to a waiting automobile driven by Inspector Jeff Fowler, and the Koppers employee placed defendant's coat and briefcase on the front seat of the car. Neither Pry nor Hickson saw the briefcase.

 After the short ride to the Post Office and Courthouse building, Pry and Hickson escorted the defendant to their office. Fowler parked the car and then brought the coat and briefcase to the office. As Fowler handed the coat to Pry, a long business envelope slid out of the inside coat pocket. The envelope bore the name and return address of Koppers Company in large blue letters. Through the window of the envelope, a cashier's check with the words "Pay to the order of CES-KVR" was visible. Beneath these words was the same Pittsburgh post office box address which had appeared beneath the name of the payee on the check deposited at Equibank the previous day.

 The defendant was fingerprinted, and he told the inspectors that his address was 181/2 South 13th Street, Pittsburgh. The inspectors gave defendant his coat and took him before a Magistrate who set a surety bond for defendant at $ 10,000. After escorting the defendant to the Marshal's Office, Inspector Pry returned to his own office. It was at this time that Pry and Hickson first noticed the briefcase. The inspectors deduced that the briefcase must belong to the defendant, and Pry picked it up with the intention of returning it to the defendant at the Marshal's Office. Both Hickson and Pry had been advised that the defendant had two prior weapons convictions. Noticing a bulge in the middle of the briefcase, Hickson decided that it should be checked for weapons before it was returned to the defendant. The briefcase contained no lock, and Hickson opened it by unfastening the single clasp. She immediately saw that the briefcase contained no gun and that an Equibank check was protruding from one of the inside pockets of the binder. The name KVR was typed on the upper corner of the check.

 On October 11, 1978, the postal inspectors obtained a search warrant for 181/2 South 13th Street. Upon arriving there, they asked about Mr. Jankowski and they were told that "Howard" did not live there but that he did come to that address occasionally to receive messages. The inspectors were told that Jankowski actually lived in an apartment at 2130 Carey Way. After obtaining a search warrant for this second address, the inspectors searched defendant's apartment on October 12, 1978, and found a Koppers Company envelope containing the bottom stub from a cashier's check for $ 14,000 and a booklet of Equibank temporary starter checks.

 Defendant has filed a motion seeking to suppress the Equibank temporary check discovered by Inspector Hickson in defendant's briefcase. The court does not doubt that in undertaking that search, Inspector Hickson and Inspector Pry were making a good faith effort to check the briefcase for weapons before promptly returning it to the defendant. Their good faith, however, is no substitute for a search warrant. The fact that a warrantless search of the briefcase might have been reasonable at the time of arrest does not justify a warrantless search at a later time after the briefcase was in the exclusive control of the postal inspectors. United States v. Chadwick, 433 U.S. 1, 15, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977); United States v. Schleis, 582 F.2d 1166, 1172 (8th Cir. 1978). While there is necessarily a strain in any comparison between the defendant's unlocked vinyl briefcase with open sides and the double-locked 200-pound footlocker in Chadwick, it is not disputed that defendant's briefcase was "intended as a repository of personal effects." 433 U.S. at 13, 97 S. Ct. at 2484. Once the briefcase was within the exclusive control of the inspectors and there was no danger that the defendant might gain access to the briefcase to seize a weapon, the defendant reasonably was entitled to the protection of a search warrant before his privacy interest in the contents of the briefcase was invaded. 433 U.S. at 15-16, 97 S. Ct. 2476. As to the check found in defendant's briefcase, the motion to suppress will be granted.

 Defendant argues that the search of the apartment on Carey Way is tainted by the reference in the search warrant affidavit to the check found in the briefcase. The court finds this argument unpersuasive. The affidavit itself indicates that Inspector Pry had independent lawful evidence pertaining to the Equibank temporary starter checks prior to the search of defendant's briefcase. This independent evidence as set forth in the affidavit (Government Exhibit 3) was sufficient to support a finding of probable cause for a search of defendant's residence. The inclusion in an affidavit of allegations based on illegally obtained evidence does not render the resulting warrant invalid where the independent and lawful information stated in the affidavit is sufficient when considered alone to support a finding of probable cause. See United States v. Giordano, 416 U.S. 505, 555-556, 94 S. Ct. 1820, 40 L. Ed. 2d 341 (1973) (Powell, J., concurring and dissenting). *fn2" Defendant's request to suppress the evidence seized during the search of the Carey Way apartment will be denied.

 In his brief, defendant also argues that the search warrant for the apartment is invalid because the inspector relied upon uncorroborated facts from informants whose credibility was not demonstrated to the Magistrate. Specifically, defendant relies upon the decisions of the Supreme Court in United States v. Harris, 403 U.S. 573, 91 S. Ct. 2075, 29 L. Ed. 2d 723 (1971), Spinelli v. United States, 393 U.S. 410, 89 S. Ct. ...


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