United States v. Kancso, 164

• Decision Date: 07 February 1958
• Docket Number: Docket 24686.,No. 164,164
• Citation: 252 F.2d 220
• Parties: UNITED STATES of America, Appellee, v. Frank KANCSO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

252 F.2d 220 (1958)

UNITED STATES of America, Appellee, v. Frank KANCSO, Defendant-Appellant.

No. 164, Docket 24686.

United States Court of Appeals Second Circuit.

Argued December 2, 1957.

Decided February 7, 1958.

Arthur B. Kramer, Asst. U. S. Atty., S.D.N.Y., New York City (Paul W. Williams, U. S. Atty., S.D.N.Y., New York City, and Album C. Martin, Asst. U. S. Atty., New York City, on the brief), for appellee, United States.

Henry K. Chapman, New York City, for defendant-appellant, Frank Kancso.

Before CLARK, Chief Judge, MOORE, Circuit Judge, and SMITH, District Judge.

MOORE, Circuit Judge.

The appellant, Frank Kancso, appeals from a judgment of conviction and sentence of five years imprisonment for possession of narcotics in violation of 21 U.S.C.A. §§ 173 and 174, after a trial before the court without a jury. Prior to the trial appellant had moved for an order pursuant to Rule 41(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., to suppress as evidence seven ounces and one hundred grains of heroin on his person at the time of his arrest on the grounds that the heroin was illegally seized without a search warrant and that the search was not an incident of a lawful arrest. A hearing was held and the court (Murphy, D.J.) denied the motion. Upon the trial appellant called no witnesses, did not cross-examine government witnesses and did not take the stand. Objection to the introduction of the seized evidence was overruled by the trial court (Levet, D.J.).

The sole issue upon this appeal is whether the narcotics agent had "reasonable grounds to believe that the person to be arrested" had committed or was committing a violation of the narcotics act (26 U.S.C.A. § 7607). Congress added this section in July 1956 after it had been conducting extensive hearings on the subject of the narcotics traffic in this country (ch. 629, Title I, § 104(a), 70 Stat. 570).

To justify arrest without a warrant the agent must not only have a belief but also reasonable grounds therefor. Conversely stated in terms of the Fourth Amendment, he must refrain from "unreasonable searches and seizures."

Narcotics Agent Groff made the arrest. All information in his possession, fair inferences therefrom and observation made by him are pertinent to a determination of whether he had reasonable grounds at the time of arrest.

Groff, a narcotics agent with twenty-three years of experience, had been told by an informer, who on previous occasions had supplied him with reliable information, that a person known as "Freddie" had replaced Jack Russo as a runner or distributor of narcotics. The informer furnished a detailed physical description of "Freddie." Checking to ascertain the place of operations of Russo, known to Groff as having recently been convicted for trafficking in narcotics, Groff learned that it was in the vicinity of the Squeeze Inn Bar on 4th Street near Second Avenue, New York City. It was logical for Groff to go to this area and look for a person answering Freddie's description. When in the neighborhood of the Squeeze Inn Bar on December 3, 1956 he saw a person who fitted this description talking to an addict who addressed his companion as "Freddie," a first link had been forged.

On December 21, 1956 Agent Groff again saw appellant in the vicinity of the Squeeze Inn Bar. Appellant, Groff following, boarded a subway train and rode directly to 167th Street in the Bronx. Emerging from the station (McClellan Street exit) appellant met a man known to Groff as "Maxie," previously seen by Groff in the company of known addicts and suspected of being an addict himself. Appellant and Maxie touched hands but the agent could not see what, if anything, passed between them. After two or three minutes of conversation appellant re-entered the subway and returned downtown to Second Avenue and 4th Street where he peered into the Squeeze Inn Bar.

Appellant's brief visit to the Bronx would seem to be more consistent with a prearranged plan to meet Maxie for a special purpose rather than a trip to have a social chat with a friend. The agent's suspicions led him to seek additional proof which was forthcoming.

On December 26, 1956, Groff, keeping a look-out at the McClellan Street exist, saw appellant again come out of the subway and meet Maxie and another person. This second meeting with Maxie would indicate a possible pattern to be investigated further.

Two days later, on December 28, at approximately the same time and place, appellant again emerged from the subway but this time passed so closely to Groff that Groff was able to observe that he appeared "startled and agitated." After passing Groff appellant turned around to look at Groff again with "agitation written on his face." At this point, Groff, believing that the cumulative results of his surveillance compelled him to make an arrest, approached appellant, put his hand on his arm and said "All right, Freddie, give me the stuff." Appellant, thereupon, produced from his person a paper bag, followed by two more bags. They contained 60 packages of heroin which appellant said he intended to deliver to some of his customers.

Summarizing the grounds which prompted the arrest, the agent had received information from a reliable informer which was corroborated both by "Freddie's" appearance and his area of operations. His role as a runner was a normal inference from his three trips to the Bronx, not for sightseeing or social visits but for short meetings with a particular person known to associate with drug addicts. The agent might and probably would have carried the surveillance further but for the apparent recognition on December 28. He then had to act at once or not at all. Had appellant started to run or dart into an alleyway there would be no doubt that immediate arrest would have been proper. Yet to an agent of long experience with drug peddlers, facial expressions and general demeanor could indicate guilt as convincingly as physical flight. With his background knowledge it was not unreasonable for the agent to believe that appellant had narcotics on his person and was about to deliver them. After recognition by appellant it would be highly unreasonable to suggest that...