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UNITED STATES v. WAXMAN

October 4, 1983

UNITED STATES OF AMERICA
v.
FRANK WAXMAN



The opinion of the court was delivered by: DITTER

 September 30, 1983

 In this criminal matter, defendant has moved to suppress his statement given to law enforcement officers and 172 art objects seized from his residence during the execution of a search warrant and subsequent occupation order. *fn1" At an evidentiary hearing on the motion, 10 witnesses testified. In addition, counsel have submitted numerous exhibits and lengthy memoranda. After careful consideration of the evidence and the arguments of counsel, I conclude defendant's motion must be granted in part and denied in part for the reasons which follow.

 Background

 On April 2, 1982, Philadelphia and Los Angeles law enforcement authorities executed a search warrant at the Philadelphia residence of Dr. Frank Waxman describing three art objects which had been stolen from Los Angeles art galleries in December, 1981. During the course of the search, 172 art objects, including the ones described in the warrant, were seized. That same day, Dr. Waxman voluntarily submitted to arrest on Los Angeles and Philadelphia charges. Late on April 2 into the early hours of April 3, 1982, Dr. Waxman gave a statement to police confessing to the Los Angeles thefts *fn2" and describing his sources and methods of payment for the other art objects at his residence.

 In addition to being charged with Pennsylvania and California state crimes, Dr. Waxman eventually was charged by a federal grand jury with seven counts of interstate transportation of stolen property *fn3" and 22 counts of receiving stolen property in interstate commerce. *fn4" Defendant's motion to suppress, which is the subject of this opinion, was filed only with regard to the federal charges. *fn5"

 Probable Cause to Search

 Defendant launches a multi-pronged attack at the sufficiency of the affidavit supporting the search warrant and the investigatory techniques which generated his identification by two persons employed in the Los Angeles art galleries. Specifically, defendant first contends the affidavit is riddled with material false statements, includes tainted evidence, omits evidence weighing against probable cause, contains stale information, and lacks information linking the stolen Los Angeles art objects to defendant's Philadelphia residence. Then, he suggests that because his picture was the only one shown to the witnesses, their identification resulted from an overly suggestive and coercive technique and thus is tainted. Defendant concludes by arguing that when the tainted statements are removed from the affidavit, the remaining information is insufficient to establish probable cause to search his residence. I disagree with defendant that certain statements must be stricken from the affidavit and conclude it established probable cause to search.

 Facts

 In late December, 1981, three art galleries in similar locations in Los Angeles, California, fell victim to thefts of small modern art objects: 1) on December 23, a collage box by Joseph Cornell was stolen from the Corcoran gallery; 2) on December 24, a sculpture by Pablo Picasso was stolen from the Palmer gallery; and 3) on December 26, a sculpture of a hand by August Rodin was stolen from the Feingarten gallery. The personnel at each gallery described their suspect as a white male of medium height, slight build, and dark hair and eyes. *fn6" They further described him as casually dressed, clutching a plastic bag, and interested in modern art. In two of the galleries, the suspect had represented he was Mr. Hurst. Detective Don Riggio of the Los Angeles police department, who was assigned to investigate the thefts, eventually uncovered the name Frank Waxman. *fn7" Riggio contacted Dr. Waxman by telephone in Florida to discuss the thefts. Having learned that Dr. Waxman resided in Philadelphia, Riggio, in January, 1982, contacted the Philadelphia police department and requested a photograph and the prior record of Waxman. The matter was assigned to Detective John Gallo. In February, 1982, Gallo sent to Riggio photocopies of 3 photographs of Dr. Waxman from his medical school yearbook. *fn8"

 Desiring to display Dr. Waxman's picture to the gallery personnel, Riggio tried to gather pictures of other persons of like description to produce a photo array. Detective Riggio testified he failed in this effort, however, because the photographs of Dr. Waxman were larger than the photographs in the Los Angeles police department collection and the dress of Waxman, a white coat in one photograph and a stethoscope in another, could not be matched. Acting on advice from a Los Angeles district attorney, in late February, 1982, Riggio displayed only the photographs of Waxman to the gallery personnel. *fn9" Gail Feingarten of the Feingarten gallery stated she was 85 percent sure one of the photographs was the person who had been in her gallery just before the Rodin hand was missed. Similarly, Curt Klebaum of the Corcoran gallery immediately identified the photograph of Waxman in which he is wearing a white jacket and a wide tie.

 Additional investigation by Riggio revealed Dr. Waxman was an avid art collector and that within the previous two years he had been seen in possession of a collage box by Joseph Cornell. An expert at the Smithsonian Institute informed Riggio that most owners of the boxes register them and Dr. Waxman was not a registered owner.

 In late March, 1982, Detective Riggio travelled to Philadelphia to discuss the results of his investigation and to obtain a search warrant for Dr. Waxman's residence in Philadelphia. First, Riggio met with Detective Gallo and Sergeant James Burke to discuss the results of Riggio's investigation. At this meeting, Riggio also told Gallo and Burke of the single person identification procedure performed in California. Additionally, Sergeant Burke requested that Riggio secure a California arrest warrant for Dr. Waxman because, in his view, its existence would make it easier to obtain a search warrant for Waxman's residence. On April 1, 1982, Detective Gallo swore out an affidavit in support of an application for a search warrant reflecting the results of Riggio's investigation. The search warrant issued on April 1, 1982, and was executed at approximately 7:00 A.M. on April 2, 1982.

 Photo Identifications

 Defendant first contends the identification procedure used by Detective Riggio was unconstitutional and thus, the identifications of defendant unconstitutionally obtained. Citing Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963), the defendant argues the statements in the affidavit regarding the identifications must be stricken. Defendant maintains without said statements the affidavit is insufficient to establish probable cause. While I agree that the identification procedures used by Riggio were overly suggestive and coercive, because the identifications themselves were reliable, defendant's constitutional rights have not been violated. Therefore, the identification statements should not be stricken from the affidavit.

 In Wong Sun, the Supreme Court held that unlawfully obtained evidence cannot be used to establish probable cause for an arrest warrant. 371 U.S. at 484-85. The holding applies equally to evidence used in support of a search warrant. When the latter situation arises, the "ultimate inquiry on a motion to suppress . . . is . . . whether, putting aside all tainted allegations, the independent and lawful information stated in the affidavit suffices to show probable cause. United States v. Giordano, 416 U.S. 505, 555, 40 L. Ed. 2d 341, 94 S. Ct. 1820 (1974) (Powell, J., concurring in part and dissenting in part). Accord: United States v. Lace, 669 F.2d 46 (2d Cir. 1982); United States v. Marchand, 564 F.2d 983 (2d Cir. 1977) cert. denied, 434 U.S. 1015, 54 L. Ed. 2d 760, 98 S. Ct. 732 (1978). Thus, the focus of my inquiry must be whether the identification allegations are tainted; stated more simply, whether the evidence supporting said allegations was unlawfully obtained.

 In Manson v. Brathwaite, 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977), the Supreme Court rejected as overly harsh a per se rule requiring exclusion of all evidence gained from an unnecessary and suggestive single photo identification. Id. at 104. Rather, the Court said the central inquiry is whether under the totality of the circumstances, the identification was reliable even though the confrontation procedure was suggestive. *fn10" Id. at 106. If the identification possesses sufficient aspects of reliability, the defendant's due process rights have not been violated. Id. In making its reliability determination, a court must examine the witness' opportunity to view, degree of attention, accuracy of description, and level of certainty. Neil v. Biggers, 409 U.S. 188, 197-99, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972). The court also must examine the conditions of the view and the time lapse between the crime and the confrontation. Id. The court then must weigh the reliability factors against the corrupting effect of the suggestive identification procedure and determine whether the totality of the circumstances gives rise to a very substantial likelihood of irreparable misidentification. Manson v. Brathwaite, supra, 432 U.S. at 114; Simmons v. United States, 390 U.S. 377, 383, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968).

 While the single photo identification procedure used here was unnecessary *fn11" and suggestive, Simmons v. United States, supra; Government of Virgin Islands v. Petersen, 553 F.2d 324 (3d Cir. 1977); United States v. Higginbotham, 539 F.2d 17, 23 (9th Cir. 1976), I conclude the identifications were reliable. Taking Mrs. Feingarten first, she possessed a good opportunity to see and paid a high degree of attention to the man in her gallery on December 26. He was in her presence for 45 minutes to an hour. They were alone. They talked. The lighting was good and they were close to each other because she was showing him various art objects. She was concentrating on him and their conversation and was not distracted by other people or other events. Next, her physical description of the man in her gallery matches that of defendant. Third, her identification was certain despite the fact that she was not 100 percent sure the man in her gallery was depicted in the photographs. While absolute certainty of an identification is ideal, it is unnecessary during the investigative stage. Rather, law enforcement officers must deal with probabilities. Here, where Mrs. Feingarten stated she was 85 percent sure, the certainty of her identification easily is established. Additionally, when it is kept in mind that 10 year old photographs were the basis of her identification, her statement supports the conclusion that her identification was certain. Finally, Mrs. Feingarten's identification occurred approximately two months after the crime. That Riggio may have told Mrs. Feingarten the man pictured in the photograph was a suspect is of no consequence because that suggestion, if made, was not until after Mrs. Feingarten positively identified the photograph.

 With the exception of time spent together, Curt Klebaum's opportunity to observe the man in the Corcoran gallery and Klebaum's degree of concentration on the man's features, were nearly identical to Mrs. Feingarten's. Mr. Klebaum, however, was with the man for only 15 minutes. As with Mrs. Feingarten, Mr. Klebaum's description of the man in the gallery matches that of defendant. Also, when shown the photographs, Mr. Klebaum immediately identified one as being the man in the gallery. Therefore, his identification was positive and certain. *fn12" Finally, Mr. Klebaum's identification occurred approximately two months after the crime. Considering all the circumstances, I cannot conclude there was a very substantial likelihood that either Mrs. Feingarten or Mr. Klebaum misidentified defendant. Both Mrs. Feingarten and Mr. Klebaum had an extensive opportunity to see the man under conditions of uninterrupted concentration. Additionally, there was little likelihood of confusing that customer with another: the man was Mrs. Feingarten's only customer that day and Mr. Klebaum's first. In both instances the fact that a theft had occurred was discovered immediately. Within hours of the events, Mrs. Feingarten and Mr. Klebaum were required to concentrate on recalling and describing the man whom they considered to be the thief. Both appeared as witnesses before me and both impressed me as being credible, sincere individuals who would be careful in supplying information and who would try to be accurate in making an identification. I consider it unlikely that either Mrs. Feingarten or Mr. Klebaum would be influenced by the fact that only the pictures of one individual were shown or that either would identify someone in a picture with a greater degree of certainty than was appropriate. This is borne out by what they said. Mrs. Feingarten told Detective Riggio the photographs looked very much like the man who had been in the gallery but she was not 100 percent sure. Mr. Klebaum said that one of the photos of the defendant resembled the man with whom he had dealt, but the other two pictures did not. Mr. Klebaum added that for all he knew, the other two pictures could be of someone else.

 The only circumstances supporting the possibility of misidentification are the approximately two months which elapsed between the crime and the showing of the pictures to the witnesses and whatever suggestiveness there may have been in the photographic identification. Both of these factors are less important here than in many cases because of the length of time both witnesses were with the thief, their degrees of concentration, the nature of the events, and the credibility which I afford to these witnesses. These were audacious, significant crimes which by their very nature would create lasting impressions. For all these reasons, therefore, I conclude the identifications were reliable and there was not a very substantial likelihood of irreparable misidentification. *fn13" Manson v. Brathwaite, supra; ...


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