Hastings, Chief Judge, and Schnackenberg and Knoch, Circuit Judges.
Defendants Anthony J. Nori and John T. McCarthy were charged in a one-count indictment with a violation of Section 659, Title 18, U.S.C.A.*fn1 Following a plea of not guilty, defendants were tried by the court, without the intervention of a jury. The trial court found both defendants guilty and sentenced each of them to a term of four years. Defendants appealed from the judgment of conviction and sentence.
Specifically, the indictment charged that on or about May 14, 1964, defendants did unlawfully and knowingly have in their possession certain merchandise of a value in excess of $100, to-wit: 14 cases of Anacin, 2 cases of Dristan and 1 case of Bisodol, which goods were taken away from the platform and depot of Brady-Days Motor Freight, Inc., Chicago, Illinois,*fn2 at which date the said goods were moving as a part of an interstate shipment from Whitehall Laboratories, Elkhart, Indiana, to Gibson Products Company, Grand Junction, Colorado; and that defendants knew the same were stolen.
Prior to trial, defendants filed a motion to suppress the evidence. Government answered the motion, admitting that the Federal Bureau of Investigation agents, in seizing the goods in question, had neither an arrest warrant for defendants nor a search warrant, but denied that the arrests were made illegally. A hearing was held thereon, after which the trial court denied the motion to suppress.
On oral argument, defendants state that the sole question for decision on this appeal is whether there was an illegal search and seizure.
Hearing on Motion to Suppress
F.B.I. Agent Parfet, acting squad supervisor on the morning of May 15, 1964 received a telephone call in his office from an informant, whose voice he recognized, advising him that defendants, employees of Brady-Day Motor Freight, Inc., a trucking company with terminal facilities in Chicago, had in their possession pharmaceutical products, including Anacin, stolen from Brady-Day and that they intended to dispose of such products that day. At that time, Agent Parfet knew defendants were employed at Brady-Day as dock hands and had been suspects in prior thefts of merchandise from the dock there.
Shortly thereafter, on the same morning, Agent Parfet had a conference in the F.B.I. office with Agents Weatherwax, Lee and Noonan. He informed them of the above stated information he had received and of the suspected involvement of defendants.
The agents then proceeded to the vicinity of 3200 South Halsted Street in Chicago. Agents Weatherwax and Noonan were riding together. About noon, Agent Weatherwax recognized defendant Nori driving a 1964 white Chevrolet Impala station wagon, with defendant McCarthy as a passenger. The agents followed the station wagon and observed it enter an alley and proceed some distance down the alley. Nori backed the station wagon into a garage opening onto the alley at the rear of the McCarthy residence at 3453 South Lituanica Street. The garage doors were then closed.
Agent Weatherwax walked down the alley to the garage, stood outside it in the alley, heard male voices inside the garage and heard the movement of cartons or what sounded like merchandise being moved about inside. He then went to an open garage directly east across the alley the waited.
About 12:15 p.m., Agent Weatherwax observed the garage door being opened from the inside by defendant McCarthy. Nori drove the same white station wagon into the alley and stopped it outside the garage. McCarthy pulled the garage door down. Agent Weatherwax was about 25 feet from the station wagon when Nori stopped it in the alley.
Agent Weatherwax observed a quantity of cartons of pharmaceutical products in the rear of the station wagon, where he had previously observed nothing. He started walking toward the station wagon and as he did so, he motioned to Agent Noonan, who was walking down the alley toward the station wagon, to join him. When Agent Weatherwax was about 10 to 15 feet away from the vehicle, he observed that some of the cartons in the rear of the station wagon bore the word "Anacin" in large block letters, and that some of the cartons had what appeared to be shipping labels removed from them.
As Agent Noonan approached the station wagon, he observed the cartons piled in the rear, saw the word "Anacin" on them and that some of the cartons had what ...