Draper v. United States

• Decision Date: 23 October 1957
• Docket Number: No. 5593.,5593.
• Citation: 248 F.2d 295
• Parties: James Alonzo DRAPER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

248 F.2d 295 (1957)

James Alonzo DRAPER, Appellant, v. UNITED STATES of America, Appellee.

No. 5593.

United States Court of Appeals Tenth Circuit.

September 12, 1957.

Rehearing Denied October 23, 1957.

COPYRIGHT MATERIAL OMITTED

John J. Althoff, Greeley, Colo., for appellant.

John S. Pfeiffer, Asst. U. S. Atty., Denver, Colo. (Donald E. Kelley, U. S. Atty., Denver, Colo., was with him on the brief), for appellee.

Before BRATTON, Chief Judge, and HUXMAN and MURRAH, Circuit Judges.

BRATTON, Chief Judge.

The indictment in this case charged that appellant fraudulently and knowingly received, concealed, sold, and facilitated the transportation and concealment of 865 grains of heroin, after it had been imported into the United States, knowing it to have been brought in contrary to law. Appellant seasonably filed a motion to suppress as evidence two envelopes, certain heroin in the envelopes, and a hypodermic syringe, upon the ground that they had been taken from him by means of an unlawful search and seizure. A hearing was had upon the motion, at which evidence was adduced tending to establish these facts. John W. Marsh was an agent of the Bureau of Narcotics in Denver, Colorado. For approximately six months prior to September 3, 1956, James A. Hereford acted as a special employee for the Bureau in Denver. During that time, he furnished information to Marsh concerning violations of the Narcotics Act, for which he was paid small sums of money; and the information furnished was always found to be reliable. On September 3, Hereford informed Marsh that appellant lived upstairs at a certain address in Denver; and that he was peddling heroin to several addicts in Denver. Four days later, on September 7, Hereford informed Marsh that appellant had gone to Chicago the previous day; that he had gone by train; that he was going to bring back approximately three ounces of heroin; and that he would return by train either on the morning of the 8th or the morning of the 9th. And Hereford described appellant as a Negro, about 27 years of age, about 5 feet and 8 inches in height, weight about 160 pounds, and had a light brown complexion; that he wore a gray felt hat, brown slacks, black shoes, and a light brown raincoat; that he was carrying a light tan leather zipper bag; and that he habitually walked very fast. On the morning of September 8, Marsh and other officers went to the union station in Denver and watched incoming trains but they did not see anyone meeting the description which Hereford had furnished. On the following morning, Marsh and other officers again went to the station. Appellant alighted from a train arriving from Chicago. He met the description which Marsh previously received from Hereford. He walked very fast, was carrying a tan zipper bag, and had his left hand in his raincoat pocket. Without any warrant of arrest or search warrant, Marsh and a member of the police force walked up behind appellant. One took him by the left arm and the other by the right. They identified themselves and asked appellant his name. He replied that his name was Carl Francis. Marsh inquired whether he had any identification. His billfold was removed from his pocket and through that source Marsh found that he was in fact appellant. Marsh told him that he was under arrest; and with some difficulty, his left hand was pulled out of the raincoat pocket. His clenched fist was around two glassine paper bags which contained approximately one ounce of heroin each. The zipper bag was opened by the officers and it contained among other things a hypodermic syringe. The testimony 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 appealed.

It is urged that the judgment should be reversed for error in denying the motion to suppress the evidence. The argument is that the arrest of appellant was unlawful; that since the arrest was unlawful, the search and seizure were unlawful; and that the incriminating evidence obtained by means of the search and seizure was inadmissible. Section 104(a) (2) of the Narcotic Control Act of 1956, 70 Stat. 567, 26 U.S.C. § 7607 (2), provides in presently pertinent part that an agent of the Bureau of Narcotics may make arrests without warrant for violations of any law of the United States relating to narcotic drugs where such agent has reasonable grounds to believe that the person to be arrested has committed or is committing such violation. The statute does not define "reasonable grounds" to believe that a violation has been or is being committed. That question must be determined in each case depending upon the particular facts and circumstances. But it may be said in general language that "reasonable grounds" for such belief exist when the facts and circumstances, together with the reasonable inferences fairly to be drawn from them, are such as would lead a reasonably intelligent, discreet, and prudent person to conclude that there is good ground to believe that the law relating to narcotic drugs has been or is being violated. Compare, Bruner v. United States, 10 Cir., 150 F.2d 865; McIntire v. United States, 10 Cir., 217 F.2d 663, certiorari denied 348 U.S. 953, 75 S.Ct. 442, 99 L.Ed. 745; United States v. McCall, 10 Cir., 243 F.2d 858. And it is not essential that the agent have before him legal evidence of the suspected violation. It suffices if the apparent facts coming to his attention are sufficient to lead a reasonably discreet, cautious, and prudent man to believe in good faith that the illegal act has occurred or is occurring. Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629; United States v. Sebo, 7 Cir., 101 F.2d 889; United States v. Heitner, 2 Cir., 149 F.2d 105, certiorari denied 326 U.S. 727, 66 S.Ct. 33, 90 L.Ed. 432; United States v. Li Fat Tong, 2 Cir., 152 F.2d 650.

Information coming to an agent of the Bureau of Narcotics from an anonymous, undisclosed, or unverified source, standing alone and without more, is not enough to furnish such agent reasonable grounds to believe that a person has committed or is committing a violation of the Narcotics Act, and therefore may be arrested and searched without authorizing process. Worthington v. United States, 6 Cir., 166 F.2d 557; Contee v. United States, 94 U.S.App.D.C. 297, 215 F.2d 324; Wrightson v. United States, 95 U.S.App.D.C. 390, 222 F.2d 556. But the arrest, search, and seizure in this case were predicated upon more than information coming from an anonymous or undisclosed source. It came from a special employee of the Bureau of Narcotics. He had furnished information on previous occasions and it had unfailingly proved to be reliable and trustworthy. The information given on this occasion went into details. The informer gave the address of appellant; described him in respect to race, complexion, age, weight, dress, walk, and bag carried. In addition, the informer gave the time of appellant's departure from Denver, his destination, the time of his return, and his mode of travel. And the information thus furnished the agent of the Bureau was verified by the officers as far as it could be done by observation after appellant alighted from the train. He alighted from a train inbound from Chicago. He arrived at the time specified in the information. The officers observed his race, complexion, height, weight, walk, dress, and kind of bag carried. And in respect to each and all of these details, the information furnished by the special employee was verified. The information furnished, together with the verification thereof after appellant alighted from the train, was sufficient to give the agent reasonable grounds to believe that appellant was committing a violation of the Narcotics Act. King v. United States, 9 Cir., 1 F. 2d 931; Coupe v. United States, 72 App. D.C. 86, 113 F.2d 145, certiorari denied 310 U.S. 651, 60 S.Ct. 1105, 84 L.Ed. 1417; United States v. Li Fat Tong, supra; United States v. Bianco, 3 Cir., 189 F.2d 716; United States v. Walker, 7 Cir., 246 F.2d 519. And therefore the arrest was authorized by section 104, supra.

The Fourth Amendment to the Constitution of the United States protects a citizen against unreasonable searches and seizures without a search warrant. But the provision does not prohibit all searches and seizures without a search warrant. It denounces only those which are unreasonable. But it does not undertake to define unreasonable searches and seizures. And there is no fixed formula for determining in every case whether a search and seizure was unreasonable. The frequently recurring question must be determined by reference to the particular facts and circumstances. United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L. Ed. 653.

An arrest may not be used as a pretext to search for evidence of a crime. United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877. But when one is lawfully arrested, a search of his person without a search warrant is not forbidden by the Fourth Amendment; and anything found upon his person which is unlawful for him to have in his possession may be seized and used as incriminating evidence against him. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145; United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210; United States v. Rabinowitz, supra.

Since the arrest was authorized by section 104, supra, and since the search and seizure incident to the arrest was not an unreasonable one, within the purview of the Fourth Amendment, it follows that the motion to suppress was not well founded and that the incriminating evidence obtained by means of the search and seizure was...