United States v. Draper
| Decision Date | 11 December 1956 |
| Docket Number | Cr. A. No. 15063. |
| Citation | 146 F. Supp. 689 |
| Parties | The UNITED STATES of America, Plaintiff, v. James Alonzo DRAPER, Defendant. |
| Court | U.S. District Court — District of Colorado |
Donald E. Kelley, U. S. Atty. for the Dist. of Colorado, John S. Pfeiffer, Asst. U. S. Atty., Denver, Colo., for United States.
John J. Althoff, Denver, Colo., for defendant.
This matter arises upon the timely motion of defendant under Rule 41(b) F.R.Cr.P. 18 U.S.C.A. "for the return of seized property and the suppression of evidence." The defendant has been indicted for receiving and facilitating the transportation of heroin in violation of 21 U.S.C.A. § 174. By his motion he alleges in effect that certain law enforcement officers committed an illegal and unreasonable search of his person and possessions, and thereafter seized from him a quantity of heroin and a syringe. His motion seeks to suppress evidence of the heroin and a return to him of the syringe.
A hearing had upon the motion disclosed the following facts: John W. Marsh, a narcotics agent for the U. S. Treasury Department, received information from one James A. Hereford, since deceased, on or about September 3, 1956, that the defendant was "peddling" heroin to addicts in Denver. This was the first notice Agent Marsh or his department had of the defendant and his alleged activities. Mr. Hereford had been a special employee of the Bureau of Narcotics for some six months prior to that time, receiving small sums of money for information. His information in the past had always been corroborated and found to be reliable.
Thereafter, on September 7, 1956, Agent Marsh received information from the same source that the defendant had left by train for Chicago the day before and would return by train to Denver on either the morning of September 8 or 9, with a quantity of heroin. A complete description of the defendant and his wearing apparel was given, and also that he was carrying "a tan zipper bag" and habitually walked "real fast."
Agent Marsh and other law enforcement officers went to the Denver Union Station on September 8, but the defendant did not show up. The surveillance was repeated on the morning of the ninth. The defendant at that time was seen to alight from a train. He fit the description given Agent Marsh precisely, was walking in a hurried manner, carrying the zipper bag in his right hand, and with his left hand thrust in his coat pocket. Marsh, in conjunction with a Detective Seaton of the Denver Police Department, approached the defendant, showed him his identification badge, and placed him under arrest. Following this, the defendant was asked his name, his reply was false; his bill-fold was taken from him which disclosed his correct identity; his left hand was pulled from his coat pocket disclosing two paper packages containing heroin, and his zipper bag was searched disclosing the syringe. Thereafter, he was taken to the office of the Bureau of Narcotics and retained in custody.
The officers proceeded as above set forth without a warrant of arrest or search warrant.
The Government seeks to sustain the search and seizure upon the ground that it was made incident to a lawful arrest. United States v. Rabinowitz, 1950, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653; United States v. DiRe, 1948, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210; Harris v. United States, 1947, 331 U.S. 145, 67 S.Ct. 1527, 91 L.Ed. 1871.
Thus, we are faced with the question of whether Agent Marsh, and those under his direction, had reasonable grounds, or probable cause, to believe that the defendant had committed or was committing an offense.
It is strongly urged by the defendant that there was no probable cause for the arrest, for it is alleged, probable cause cannot be based upon uncorroborated hearsay information standing alone. Worthington v. United States, 6 Cir., 1948, 166 F.2d 557; Wisniewski v. United States, 6 Cir., 1931, 47 F.2d 825; United States v. Clark, D.C.Mo.1939, 29 F.Supp. 138; United States v. Hill, D.C. D.C.1953, 114 F.Supp. 441; United States v. Castle, D.C.D.C.1955, 138 F. Supp. 436; United States v. Turner, D. C.Md.1954, 126 F.Supp. 349. Apparently, were the Second Circuit to be faced with the precise question, its view would be contrary. United States v. Li Fat Tong, 2 Cir., 1945, 152 F.2d 650; United States v. Heitner, 2 Cir., 1945, 149 F.2d 105, certiorari denied Cryne v. U. S., 326 U.S. 727, 66 S.Ct. 33, 90 L.Ed. 432; Somer v. United States, 2 Cir., 1943, 138 F.2d 790; United States v. Gowen, 2 Cir., 1930, 40 F.2d 593, reversed on other grounds Go Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374. See also Cannon v. United States, 5 Cir., 1946, 158 F.2d 952, certiorari denied 330 U.S. 839, 67 S.Ct. 980, 91 L.Ed. 1286; King v. United States, 9 Cir., 1924, 1 F.2d 931.
An examination of the authorities by the Court has disclosed no decisions of the United States Supreme Court or the Tenth Circuit Court of Appeals directly touching upon this question. The Government contends that a phrase contained in the decision of McIntire v. United States, 10 Cir., 1954, 217 F.2d 663, 666, certiorari denied 348 U.S. 953, 75 S.Ct. 442, 99 L.Ed. 745, to the effect that a peace officer may arrest without warrant on reasonable, trustworthy information, is controlling here. The phrase, however, is taken from the context of a decision which was not rendered upon the force to which the Government attributes the phrase. However, the efficacy of the principal authority relied upon by the defendant in support of his contention, Worthington v. United States, supra, as such authority, is open to some doubt. The decision of Grau v. United States, 1932, 287 U.S. 124, 53 U.S. 38, 77 L.Ed. 212, in so far as it held that a search warrant may issue only on facts competent before a jury on the trial of the offense, met with...
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Draper v. United States
...a warrant ane that the subsequent search and seizure were therefore incident to a lawful arrest, and overruled the motion to suppress. 146 F.Supp. 689. At the subsequent trial, that evidence was offered and, over petitioner's renewed objection, was received in evidence, and the trial result......
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United States v. Mitchell, 19798.
...After careful study of Mr. Justice Whittaker's opinion and the opinions of the lower courts reported as United States v. Draper, 146 F.Supp. 689, 690-691 (D.Colo.1956), and Draper v. United States, 248 F.2d 295, 297 (10 Cir. 1957), we conclude that the facts of that case and the facts of th......
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Draper v. United States
...establishing these facts was given by Marsh. Hereford died before the hearing and therefore did not testify. The motion was denied, 146 F.Supp. 689; the seized effects were admitted in evidence on the trial of the case; appellant was convicted; and from the sentence imposed, he It is urged ......
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Perry v. United States, 17846.
...and even his identity, were shown at Draper's trial. See Draper v. United States, 248 F.2d 295, 297 (10th Cir. 1957); 146 F.Supp. 689 (D.Colo.1956). 4 There is some indication that the police did not investigate or know of any such "underlying circumstances". "Defense counsel: And in this t......