461 F.2d 1026 (3rd Cir. 1972), 71-1778, United States v. Davis

Docket Nº:71-1778, 71-1779.
Citation:461 F.2d 1026
Party Name:UNITED STATES of America v. Kelley DAVIS a/k/a Tee, Appellant in No. 71-1778, and Inez Davis. Appeal of Inez DAVIS, in No. 71-1779.
Case Date:May 31, 1972
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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461 F.2d 1026 (3rd Cir. 1972)



Kelley DAVIS a/k/a Tee, Appellant in No. 71-1778, and Inez Davis.

Appeal of Inez DAVIS, in No. 71-1779.

Nos. 71-1778, 71-1779.

United States Court of Appeals, Third Circuit.

May 31, 1972

Argued Jan. 6, 1972.

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Lloyd F. Engle, Jr., Kuhn, Engle & Blair, Pittsburgh, Pa., for appellants.

Charles F. Scarlata, Asst. U. S. Atty., Pittsburgh, Pa., for appellee.

Before KALODNER, GANEY [*] and MAX ROSENN, Circuit Judges.


MAX ROSENN, Circuit Judge.

Kelley Davis and Inez Davis appeal from the denial of their motion for judgment of acquittal and motion for a new trial after they were found guilty under a multi-count indictment charging them with receiving and concealing narcotic drugs in violation of 21 U.S.C. § 174 and of possessing narcotic drugs not in or from the original stamped package in violation of 26 U.S.C.§ 4704(a). 1 Judge Teitelbaum's opinion denying their motions in the district court is reported at 329 F.Supp. 493 (W.D.Pa.1971).

This appeal raises two questions: (1) the denial of a motion to suppress evidence allegedly seized in contravention of the Davises' fourth amendment rights; and (2) the inadequacy of the evidence on which the jury could find Inez guilty. Both questions must be answered in favor of the Government.


A. Probable Cause for Arrest

On June 19, four agents of the Bureau of Narcotics and Dangerous Drugs ("BNDD") and the Chief of Police of Braddock, Pennsylvania, arrested Kelley and Inez in Inez' apartment in Braddock. When they were arrested, the agents found sizeable quantities of heroin on Kelley and within the area immediately under the control of Kelley or Inez. These seizures were the basis for the federal prosecution. The agents had

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neither a search nor an arrest warrant when they entered the apartment.

Appellants contend that the agents did not have probable cause for an arrest or search, and that in any case, the agents had not shown that it was reasonable to proceed without a warrant. Unless this search was incident to a lawful arrest, they argue the evidence must be suppressed.

The arrest took place in Inez' apartment in the evening. Generally, the need for a warrant for such an arrest is still an open question in fourth amendment law. Coolidge v. New Hampshire, 403 U.S. 443, 481, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Jones v. United States, 357 U.S. 493, 499-500, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1957). However, Mr. Justice Stewart, speaking for himself and three other justices and with the concurrence of Mr. Justice Harlan, noted in Coolidge v. New Hampshire, supra, 403 U.S. at 477-478, 91 S.Ct. at 2044, that:

. . . [T]he notion that the warrantless entry of a man's house in order to arrest him on probable cause is per se legitimate is in fundamental conflict with the basic principle of Fourth Amendment law that searches and seizures inside a man's house without warrant are per se unreasonable in the absence of some one of a number of well defined "exigent circumstances."

See also, McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948). The Court of Appeals for the District of Columbia has in fact adopted this rule, requiring the issuance of a warrant before a seizure can take place in a man's own home. Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (1970).

However, all these cases note that in certain situations, generally grouped under the heading "exigent circumstances," there need be no warrant. The fourth amendment protects only against unreasonable searches and seizures. It, therefore, requires the police to obtain warrants only when they have time and opportunity to do so without obstructing their efforts to apprehend criminals and the evidence or fruits of their crimes. Therefore, when officers are in "hot pursuit" of a criminal, Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), when they "stop and frisk," Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), or when their attempt to secure a warrant might delay them sufficiently to cause the criminal to get away or destroy the fruits or evidence of his crime, Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); United States ex rel. Cardaio v. Casscles, 446 F.2d 632 (2d Cir. 1971); United States v. Titus, 445 F.2d 577 (2d Cir. 1971), they may proceed without a warrant. 2

This case comes within the last exception. On June 19, 1970, Agent D'Addio of the Pittsburgh office of the BNDD received a telephone call around 6:45 P.M. from an informant stating that Inez had gone to New York to pick up a shipment of heroin. She was to return that evening. Agent D'Addio immediately dispatched four fellow agents to the Greater Pittsburgh Airport to intercept Inez on her return.

Within an hour of the first call, the informant called again to tell D'Addio that Inez had already returned from New York. She was said to be back at the apartment at 26 Braddock Avenue "cutting" the heroin for immediate distribution. The informant warned the BNDD agent that if he did not hurry to the Braddock address, the heroin would be "on the street."

D'Addio conferred with his superior who ordered him to make an immediate arrest. Time was of the essence.

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D'Addio testified at the suppression hearing that it takes only about fifteen minutes to "cut" an ounce of heroin and prepare it for retail sale. The nearest United States Commissioner was approximately forty-five minutes away at his home in suburban Pittsburgh. Although a United States district judge might have been closer, Agent D'Addio stated that it would still take time to find someone, prepare a statement, and type it up.

Instead of doing that, he called the agents at the airport and asked them to go immediately to the Braddock area to rendezvous with him near the apartment. He also asked the Chief of Police of Braddock to meet him. Defense counsel suggested at the suppression hearing that this local officer could have obtained a state warrant from the magistrate in Braddock. However, Agent D'Addio noted that the chief did not have all the information necessary to obtain a warrant and that he, D'Addio, was not going to explain all the details over the telephone for fear that there might be a "leak."

Taking all these facts into consideration, we find that the federal agents acted reasonably in proceeding to the apartment to make the arrest without a warrant. The situation is analogous to the dilemma presented to the officers in United States ex rel. Cardaio v. Casscles, supra. In that case, the court approved the warrantless arrest because the preparation of the affidavit and the searching out of a magistrate would have given the defendant a considerable amount of time to effect his escape. See also United States v. Sherman, 430 F.2d 1402, 1406 (9th Cir. 1970); cert. denied, 401 U.S. 908, 91 S.Ct. 865, 27 L.Ed.2d 805, rehearing denied, 401 U.S. 1015, 91 S.Ct. 1249, 28 L.Ed.2d 552 (1971). In our case, although defendant had been under surveillance for several months the police had only short notice of the fact that he was in the process of packaging heroin for distribution. Their quick action was imperative, and therefore justified, to prevent the completion of the crime and the disappearance of the evidence. United States v. Burrus, 306 F.Supp. 915 (E.D.Pa.1969). In this regard, the situation is different from Coolidge v. New Hampshire, supra, and McDonald v. United States, supra, where the defendants posed no immediate threat to escape or destroy evidence or the fruits of the crime. While in retrospect, a judge might conclude that the BNDD agents could have obtained a warrant without delay prior to making the arrest, that does not change the result. United States v. Titus, supra, 445 F.2d at 579. The arrest was legally made without a warrant because at the time the agents reasonably believed that their immediate action was necessary to avoid the removal of the heroin from the apartment for sale.

In any case, under 26 U.S.C. § 7607 (2), as in effect at the time of these arrests, 3 agents of the BNDD could make an arrest without a warrant if they had "reasonable grounds to believe that the person to be arrested has committed or is committing [a narcotics] violation." This statute, whose constitutionality has been repeatedly upheld, United States v. Squella-Avendano, 447 F.2d 575, 578 (5th Cir. 1971), cert. denied 404 U.S. 985, 92 S.Ct. 450, 30 L.Ed.2d 369 (Dec. 7, 1971); Spurlock v. United States, 295 F.2d 387 (9th Cir. 1961), cert. denied, 369 U.S. 877, 82 S.Ct. 1149, 8 L.Ed.2d 280 (1962), 4 accommodates the needs of law enforcement officials to the difficult problems in dealing with narcotics. United States v. Squella-Avendano, supra, 447 F.2d at 578-579. Because of the speed with which narcotics can be dispersed or

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destroyed, agents must be able to move as quickly as possible. United States v. Santiago, 327 F.2d 573 (2d Cir. 1964). The law in effect, recognizes that whenever the Government attempts to control narcotics and narcotics peddlers, it is dealing with a type of exigent circumstance, the disappearance of evidence or contraband, long recognized as creating an exception to the need for an arrest or search warrant. Ker v. California, 374 U.S. 23, 42, 83 S.Ct. 1623, 10 L.Ed. 2d 726 (1963). 5

Even if the agents could dispense with a warrant, nonetheless we must determine whether at the moment of the arrests the facts and circumstances within the knowledge of the agents and of which they had reasonably trustworthy...

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