284 F.2d 897 (2nd Cir. 1960), 349, Di Bella v. United States

Docket Nº:349, 26049.
Citation:284 F.2d 897
Party Name:Mario DI BELLA, Appellant, v. UNITED STATES of America, Appellee.
Case Date:November 23, 1960
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 897

284 F.2d 897 (2nd Cir. 1960)

Mario DI BELLA, Appellant,

v.

UNITED STATES of America, Appellee.

Nos. 349, 26049.

United States Court of Appeals, Second Circuit.

November 23, 1960

Argued June 14, 1960.

Jerome Lewis, for appellant.

Cornelius W. Wickersham, Jr., U.S. Atty., Eastern District of New York, Brooklyn, N.Y. (Joseph J. Marcheso, Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for appellee.

Before WATERMAN, MOORE and HAMLIN, [*] Circuit Judges.

HAMLIN, Cirucit Judge.

Mario DiBella, appellant, appeals from an order of the District Court denying his motion to suppress certain evidentiary

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items seized in his apartment by agents of the Federal Bureau of Narcotics on March 9, 1959, at the time of his arrest. The motion was made after arrest and arraignment of appellant but before his indictment.

On November 30, 1959, subsequent to his indictment, the motion was denied by the District Court, with leave to renew it at the time of trial. On December 3, 1959, appellant gave notice of appeal to this Court from the order of the District Court. There has as yet been no trial of appellant.

Initially, the United States, appellee, raises the question as to whether such an order in appealable.

Over a period of many years this Court has consistently held that where the application is made prior to indictment, as it was in this case, that a defendant may appeal to this Court from an order denying his motion to suppress. United States v. Poller, 2 Cir., 1930, 43 F.2d 911, 74 A.L.R. 1382; Cheng Wai v. United States, 2 Cir., 1942, 125 F.2d 915; cf. United States v. Klapholz, 2 Cir., 1956, 230 F.2d 494; United States v. Russo, 2 Cir., 1957, 241 F.2d 285.

We hold the order made by the District Court in this case to be appealable.

The motion was argued before the District Court by counsel on either wide and affidavits and counteraffidavits were presented for his consideration. From the showing there made, the following factual situation appeared. On October 15, 1958, one David W. Costa, a special agent of the Federal Bureau of Narcotics, presented to United States Commissioner Epstein in the Eastern District of New York a complaint praying for the arrest of appellant. This complaint stated:

'That upon information and belief, the defendants, Mario DiBella and Samuel Panzarella, did on September 10, 1958, at Jackson Heights, Long Island, New York * * * unlawfully sell, dispense and distribute a narcotic drug, to-wit: approximately one ounce of heroin hydrochloride, a derivative of opium, which said heroin hydrochloride was not in or from an original package bearing tax stamps required by law * * *.

'That the source of your deponent's information and the grounds for his belief are your deponent's personal observations in this case, the statements of Samuel Panzarella, and other witnesses in this case, and the reports and records of the Bureau of Narcotics.'

Upon the basis of this complaint Commissioner Epstein issued a warrant of arrest.

On March 9, 1959, the narcotic agents saw appellant sitting in his living room in his apartment. At 8:15 p.m. Agent Costa, with the warrant of arrest in his possession, went with other agents to appellant's apartment. It was nighttime. The agents rang the bell and the door was opened by appellant's stepdaughter. The agents identified themselves, showed her their credentials, and walked into the living room, where they identified themselves to appellant, showed him a copy of the arrest warrant, and placed him under arrest. A quantity of narcotics was found, which, together with other items, the agents seized. 1

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In Application of Fried, D.C., 68 F.Supp. 961, 964, consideration was given to the sufficiency of a complaint upon which a warrant of arrest was issued. There, the complaint, after alleging that the defendants had in their possession certain goods and chattels knowing the same to have been stolen, contained the following statement:

'The sources of deponent's information and the grounds of his belief are an investigation conducted by him in the course of his official duties.'

The Court there held 'Such a complaint will not support a warrant of arrest. United States v. McCunn, D.C.S.D.N.Y., 1930, 40 F.2d 295; United States ex rel. King v. Gokey, D.C.N.D.N.Y., 1929, 32 F.2d 793; * * * United States v. Pollack, D.C.N.J., 1946, 64 F.Supp. 554; United States v. Ruroede, D.C.S.D.N.Y., 220 F. 210.'

Recently the question of the sufficiency of a complaint to justify a warrant of arrest was considered in Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 1247, 2 L.Ed.2d 1503.

The complaint in that case read as follows:

'The undersigned complainant being duly sworn states: That on or about January 26, 1956, at Houston, Texas * * *, Veto Giordenello did receive, conceal, etc., narcotic drugs, to-wit: heroin hydrochloride with knowledge of unlawful importation; * * *

'And the complaint further states that he believes that......................... are material witnesses in relation to this charge.'

In striking down the complaint as insufficient in that case, the Court said:

'The complaint contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein; it does not indicate any sources for the complainant's belief; and it does not set forth any other sufficient basis upon which a finding a probable cause could be made.'

The Court further said:

'Criminal Rules 3 and 4 provide that an arrest warrant shall be issued only upon a written and sworn complaint (1) setting forth 'the essential facts constituting the offense charged', and (2) showing 'that there is probable cause to believe that (such) an offense has been committed and that the defendant has committed it * * *.' The provisions of these Rules must be read in light of the constitutional requirements they implement. The language of the Fourth Amendment, that '* * * no Warrant shall issue, but upon probable cause, supported to Oath or affirmation, and particularly describing * * * the persons or things to be seized * * *, ' of course applies to arrest as well as search warrants.'

We hold that the complaint upon which the warrant of arrest was based was deficient in this case, and would not support the warrant of arrest which was

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issued under it. It is particularly deficient in setting forth the sources of his information or grounds for his belief. True, it recites that his belief an offense had been committed was grounded on his 'personal observations in this case, the statements of Samuel Panzarella, and other witnesses in this case, and the reports and records of the Bureau of Narcotics, ' but what other sources could there possibly be? Such a shotgun, all encompassing enumeration is no better than none at all. There is no indication of what he had personally observed, what he had heard from others or what he learned from the reports and records of the Bureau of Narcotics. Neither is there presented the basis for crediting the hearsay of the nameless 'other witnesses' or the unidentified 'reports and records.' The complaint is no better than that in Giordenello v. United States, and the warrant is invalid for the same reasons.

Appellee, however, contended in the court below (as it contends here) there regardless of any objection of appellant that the warrant of arrest was improperly issued, that Agent Costa had probable cause to effect a valid arrest of appellant under the authority of 26 U.S.C. § 7607, which states that, among others, agents of the Bureau of Narcotics may:

'(2) Make arrests without warrant for violations of any law of the United States relating to narcotic drugs (as defined in section 4731) or marihuana (as defined in section 4761) where the violation is committed in the presence of the person making the arrest or where such person has reasonable grounds to believe that the person to be arrested has committed or is committing such violation.'

The District Court, in its opinion agreeing with the position of appellee, stated (178 F.Supp. 7): 'However, quite apart from the question of the propriety of the issuance of the warrant, Agent Costa and grounds for believing that DiBella had committed a violation of the Narcotics Acts sufficiently reasonable to justify his arrest without a warrant.' To properly evaluate this contention, we shall examine some of the further facts that were presented upon the hearing to the District Judge.

It appears that on October 6, 1958, Agent Costa and another agent, one Daniel D. Moynihan, in an endeavor to obtain a search warrant each signed and presented to United States Commissioner Abruzzo an affidavit which set forth the knowledge each agent had from personal observation and from information received, concerning the activities of appellant in connection with possession and sale of narcotics.

These affidavits set forth in detail certain events occurring on August 26, 1958, and on September 10, 1958, from which it could be inferred that there was a sale of narcotics on each of those two occasions by appellant to the narcotics agents through one Panzarella. These affidavits are set out in full in a footnote. 2

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A search warrant was not issued by United States Commissioner Abruzzo, to whom the affidavits were presented, but the affidavits were presented to the District Judge for his consideration on the instant motion to suppress.

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In Draper v. United States, 358 U.S. 307, at page 310, 79 S.Ct. 329, at pages 331, 332, 3 L.Ed.2d 327, it was held that where a narcotic agent had 'probable cause' within the meaning of the Fourth...

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