United States v. Burch

• Decision Date: 12 January 1973
• Docket Number: No. 72-1415.,72-1415.
• Citation: 471 F.2d 1314
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wilford BURCH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

471 F.2d 1314 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Wilford BURCH, Defendant-Appellant.

No. 72-1415.

United States Court of Appeals, Sixth Circuit.

January 12, 1973.

Clifford R. Williams, Detroit, Mich., on brief for defendant-appellant.

Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., on brief for plaintiff-appellee.

Before PHILLIPS, Chief Judge, McCREE, Circuit Judge and BRATCHER,^* District Judge.

BRATCHER, District Judge.

Defendant appeals from judgment of conviction upon trial without a jury of the offense of illegal possession of heroin, in violation of 21 U.S.C. § 174. Three other counts dealing with importation and possession of cocaine and the purchase of heroin were dismissed for a variety of reasons, none of which are pertinent here.

The arrest and search of appellant climaxed several months of investigative work by agents of the Bureau of Narcotics. The federal agents first noticed appellant in the fall of 1969 when the Bureau processed a case against Burch and his son for possession of narcotics. On the day of the arrest, February 13, 1970, the agents were conducting a surveillance of the defendant. Their investigative activities had been intensified because of information received from a proven reliable informant that defendant was supplying quantities of contraband narcotics to cities in Ohio and Michigan. This unnamed informant had given over 50 tips to the agents concerning violations of the narcotics laws and the information had always proved reliable and accurate.

The information was that Burch used two female couriers to transport illicit drugs to certain cities, that the modus operandi would be for the female courier to travel from the city to be supplied to New York and then proceed to the Blue Star Supermarket, which was owned by the defendant. After making the pickup she would return to either Detroit or Chicago. The Detroit courier was described by the informant as a blond female Caucasian.

On the afternoon of February 13, 1970, the surveillance agents observed Burch, another male Negro, and a blond female Caucasian leave the Blue Star Market and drive away in a Plymouth automobile. They were followed to La Guardia Airport where Burch and his female companion, later identified as Catherine Wagner, boarded a plane for Detroit. During this period Burch carried the only luggage, a white overnight case. Upon the suspects departure, the foregoing information was communicated to federal agents assigned to Detroit.

Acting on this information the Detroit agents proceeded to the airport and, after a brief period of surveillance, arrested appellant and Mrs. Wagner. Contemporaneous with the arrest the agents seized and searched the suitcase and found 1200 grams of cocaine and 550 grams of heroin. In making the arrests the narcotics officers relied not only on the information supplied by the New York office but also on their own observations and their general knowledge of the illicit drug traffic in the Detroit area.

Prior to trial, appellant moved to suppress the seized evidence as having been secured through an unlawful arrest and search. After a hearing the trial Judge overruled the motion, holding that the arresting officers had probable cause to arrest defendant without a warrant. Therefore, the subsequent search of the luggage made incident thereto was valid and the evidence so obtained was admissible. At the trial the seized evidence was offered and over objection was admitted.

Appellant contends on appeal that:

(1) The narcotics agents lacked probable cause for his arrest without a warrant and the contemporaneous search and seizure of the luggage;

(2) The proof was insufficient to support by substantial evidence the verdict of guilty; and

(3) The trial Judge, in a jury-waived trial, may not participate in the examination of witnesses.

The critical question presented by appellant's first argument is the constitutional validity of the warrantless arrest. If the arrest itself was lawful, then the search made incident thereto did not exceed the permissible limits imposed on a search without a warrant. See Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L. Ed.2d 142 (1964); United States v. Simpson, 453 F.2d 1028 (10th Cir., 1972); Carroll v. United States, 267 U. S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

The rule was best expressed in the Beck decision, supra, where the Supreme Court stated:

"Whether that arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense."

The leading Supreme Court pronouncement on the question of probable cause sufficient to ground a warrantless arrest is Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327, a case factually similar to the instant case. The Court, in finding probable cause to support an arrest without warrant based upon information supplied by an unnamed paid informant, stated:

"There is a large difference between the two things to be proved (guilt and probable cause), . . . and therefore a like difference in the quanta and modes of proof required to establish them."

Continuing, the Court followed the criteria set forth in Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949):

"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."

It is felt that the imposition of more stringent standards would needlessly hamper effective law enforcement, and to demand a lesser showing to sustain a warrantless arrest would leave law-abiding citizens unprotected, subject to the policeman's whim or caprice. See Brinegar v. United States, supra.

In this Circuit hearsay information from an informant which otherwise satisfies...