ROGER D. FOLEY, District Judge.
We are met at the threshold with a motion by the Government to remand the case for proper judgment and sentence.
Appellant was convicted by a jury of violation of Title 21, U.S.C. § 174 and for conspiracy to violate the said section.
The trial judge sentenced Appellant to imprisonment for a period of two years as to each of Counts 13 and 15, to run concurrently, adjudging that the Appellant has been convicted upon his plea of not guilty and a verdict of guilty of the offense of violation of Title 26, U.S.C. § 4704 — Conspiracy To Sell Narcotics Not From Stamped Package.
The Government would have us remand, contending that since Appellant was indicted under and convicted of a violation of Title 21, U.S.C. § 174, and since Appellant was not charged and convicted under 26 U.S.C. § 4704, the judgment and sentence is based on a non-existent verdict, so that there is no reviewable judgment or order before this Court.
The Judgment and Commitment is an appealable order under Rule 37, F.R.Cr.P., 28 U.S.C. Sections 1291 and 1294(1). We need not decide whether the Court below had the authority to sentence Appellant as it did. Should we reverse, the question is moot. If we affirm, the Government, after the mandate comes down, may move to correct the alleged illegal sentence under Rule 35, F.R. Cr.P.
We are next concerned with two questions:
First, whether or not the arresting officers had probable cause to arrest Appellant without a warrant.
Second, whether or not the entry by the officers into Appellant's dwelling place to execute the arrest and incidental search and seizure was proper.
The statement of facts set out in the Government's brief find ample support in the record and we therefore adopt the same, in part:
"On October 23, 1963, Customs Agent David C. Muegge received information from Customs Port Investigator Harlan Wong that `Chinese crew members of the Norwegian motor ship "Hoegh Dene" would deliver a quantity of opium to appellant, Ng Pui Yu, who lived at 730 Jackson Street in San Francisco; that the narcotics would be smuggled ashore by each participating seaman concealing it in his rectal cavity.\' Upon receipt of this information, Agent Muegge took steps to corroborate the facts received from the informant, for the Federal Agent had no prior knowledge that the information was reliable. In the course of his investigation, Agent Muegge learned from the Federal Bureau of Narcotics that one Ng Pui Yu had lived at 730 Jackson Street in Rooms 10 and 11, and had been convicted nine times for narcotic violations since 1933. The Agent further determined a vessel called the `Hoegh Dene\' was enroute to San Francisco with Chinese crew members; the Agent then compared the names of the Chinese crew members aboard the `Hoegh Dene\' with his intelligence files and found that his files contained the names of certain crew members.
"On the evening of October 26, 1963, the `Hoegh Dene\' docked at Pier 23 in San Francisco, and Customs Agents began a surveillance of the foreign crew members. A surveillance team observed several groups of Chinese crew-men leave the vessel at approximately 8:00 p. m. and walk from the Pier into Chinatown. Three of the crewmen entered 730 Jackson Street, stayed a few minutes and left. About 45 minutes later the same three Chinese crewmen returned to 730 Jackson Street, stayed a few minutes and left. At 10:00 p. m. the same three Chinese crewmen again entered 730 Jackson Street, stayed for approximately 20 minutes and then left. They walked up Jackson Street and went back to the vessel.
"The next day, October 27, 1963, Agent Muegge had 30 officers working with him on the case. He was monitoring radio transmissions from the various surveillance teams. At approximately 9:30 a. m., Chinese crewmen in separate groups were observed leaving the vessel `Hoegh Dene\' and departing the Pier. Physical descriptions of the crewmen and their movements were reported by one surveillance team to another. Four Chinese crewmen were observed walking to Chinatown and going into 730 Jackson Street. They were followed inside a few minutes later by two more Chinese crewmen; a few minutes later two more Chinese crewmen went into 730 Jackson Street. All remained inside for a few minutes. They all came out and then walked back to the vessel.
"At approximately 11:00 a. m. a surveillance team observed appellant, Ng Pui Yu, leave 730 Jackson Street, go to 20 Beckett Alley, come back out to Jackson Street, speak to an unidentified man and then return to 730 Jackson Street. At approximately 12:45 p. m., surveillance teams observed three Chinese crewmen leave the `Hoegh Dene,\' walk toward Chinatown, and enter 730 Jackson Street. As the three crewmen approached 730 Jackson Street, another group of three Chinese crewmen left the `Hoegh Dene.\' The latter three, Cheung Hung Yan, Cheung Yuk Hi and Kwok Yu Chi, were stopped by Customs Agents who identified themselves and told the seamen in English and Chinese that they wished to search them. The crewmen were taken into an unoccupied premise at 99 Broadway.
"The Agents advised these crewmen that they were suspected of carrying narcotics and asked them to deliver the contraband. Thereupon Cheung Yuk Hi and Kwok Yu Chi delivered containers of suspected opium which each had concealed in his rectal cavity. When the Agents at 99 Broadway had obtained suspected opium, they advised the other surveillance officers of this information by radio. By this time the first group of three Chinese crewmen had gone inside 730 Jackson Street. The information that suspected narcotics had been found was communicated over the radio to other officers who were in the vicinity of 730 Jackson Street. The officers then entered 730 Jackson Street and proceeded towards Rooms 10 and 11 for the purpose of arresting appellant. The agents had neither arrest nor search warrants.
"Customs Agent Milton K. Wu was one of the lead group of Agents who were to arrest Ng Pui Yu at 730 Jackson Street. Advised of all the previous day\'s activities, the activities on this day and the information transmitted over the radio from the Agents from 99 Broadway, Agent Wu met the other Agents inside the building. The Agents gathered in the hallway in front of Rooms 10 and 11 at 730 Jackson Street. They were about to make the arrest. Customs Agent Niblo was standing directly in front of the door to Room 10. Before any action was taken by the Federal Agents either to knock or otherwise announce themselves, the door to Room 10 was opened from the inside by appellant, Ng Pui Yu. The door swung inward and appellant looked as if he was going to take a step forward. When he saw the Agents at the door, he stepped backward. Agent Niblo entered Room 10. Appellant retreated. One of the seamen inside Room 10 grabbed Agent Niblo around the neck. At the same time, Agent Wu said in a very loud voice that they were Federal Agents and that the people in the room were under arrest. The appellant made no attempt to close the door.
"Agent Wu recognized two Chinese crewmen from the `Hoegh Dene,\' Ng Chun Wan and Liu Tin Hing, in the room. Immediately thereafter, Agent Wu saw Agent Niblo walk appellant away. Where the appellant had been standing, Agent Wu retrieved contraband opium, Government Exhibit 3. Agent Wu searched further and seized more contraband opium in the room, Government Exhibits 4 and 6."
In its statement of facts, the Government neglected to indicate that Customs Agent Milton K. Wu, who participated in the arrest of Appellant, was in possession of all of the pertinent information known to Customs Agent David C. Muegge (see Reporter's Transcript, Motion to Suppress, Pages 53 et seq.).
Appellant urges that there was no probable cause for his arrest without a warrant and therefore the search and seizure of Exhibits 3, 4 and 6 were not incident to a lawful arrest and the trial court should have granted Appellant's motion to suppress the evidence seized in Room 10 at 730 Jackson Street in San Francisco.
The Fourth Amendment to the United States Constitution enjoins unreasonable search and seizure.1
26 U.S.C. § 7607 provides, in pertinent part, that the Commissioner and 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 * * * 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."
Both the Appellant and the Government cite Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327. At page 313, 79 S.Ct. at page 333 the Supreme Court states:
"`In dealing with probable cause, * * * as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.\' Brinegar v. United States, supra, 338 U.S. at page 175, 69 S.Ct. at page 1310. Probable cause exists where `the facts and circumstances within the arresting officers\' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that\' an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288 69 L.Ed. 543."
In Wong Sun v. United States, 371 U.S. 471, at page 479, 83 S.Ct. 407, at page 413, 9 L.Ed.2d 441, we find this language:
"* * * The
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