Government of Virgin Islands v. Hernandez

• Citation: 508 F.2d 712
• Decision Date: 31 January 1975
• Docket Number: No. 74-1654,74-1654
• Parties: GOVERNMENT OF the VIRGIN ISLANDS v. Felix Carrion HERNANDEZ, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 712

508 F.2d 712

GOVERNMENT OF the VIRGIN ISLANDS v. Felix Carrion HERNANDEZ, Appellant.

No. 74-1654.

United States Court of Appeals, Third Circuit.

Argued Dec. 6, 1974.

Decided Jan. 31, 1975.

Stanley M. Poplow, Philadelphia, Pa., for appellant.

Julio A. Brady, U.S. Atty., Robert S. Tignor and John S. Wilbur, Asst. U.S. Attys., St. Thomas, V.I., for appellee.

Appeal from the District Court of the Virgin Islands Division of St. Thomas and St. John, Crim. No. 74-59.

Before SEITZ, Chief Judge, and VAN DUSEN and ROSENN, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

After a jury trial in the United States District Court of the Virgin Islands, the defendant was convicted of distributing a controlled substance ¹ and was sentenced to fifteen years' imprisonment to be followed by a special parole term of three years. The principal issue raised by the defendant on appeal is whether the district court erred in failing to suppress evidence seized from him at the time of his arrest. We affirm.

I

At the trial, the Government of the Virgin Islands introduced the testimony of an informant who allegedly purchased heroin from the defendant, as well as the testimony of a policeman who observed part of the alleged transaction. In corroboration of this testimony, the Government introduced in evidence a ten dollar bill found on the defendant at the time of his arrest. This ten dollar bill, whose serial number had been recorded by the police before the alleged transaction, had been given to the informant for the purpose of purchasing heroin.

In advance of trial, the defendant moved to suppress the ten dollar bill. Although a search warrant for the defendant's person had been issued prior to his arrest, ² the Government's principal argument at the pretrial suppression hearing was that the search, which netted the ten dollar bill, was valid as incident to a lawful arrest. The district court denied the defendant's motion to suppress, ruling that probable cause existed for defendant's arrest and that an arrest warrant was not required.

The record of the suppression hearing reveals the following facts. On the morning of April 23, 1974, Officers Marcano and Wells of the Joint Narcotics Strike Force arrived at the home of Stephen Henthorn, whom they had arrested for possession of heroin the day before. After searching Henthorn and removing all objects found in his pockets, the officers returned Henthorn's wallet containing only a ten and a twenty dollar bill, having first recorded the serial numbers on the bills. The trio then proceeded by car to a point on Mafolie mountain overlooking a house known as No. 10 Hospital Line (No. 10) where Henthorn was to attempt to make a purchase of heroin. Officer Marcano there alighted and set up a telescopic device with which he could observe what was to occur below. Henthorn and Officer Wells then drove back down the mountain. Henthorn got out of the car and walked the rest of the way to No. 10.

Officer Marcano testified at the suppression hearing that, using the 40 power telescopic device, he observed No. 10 from a distance of approximately two hectometers (118.72 yards). Through the open door, Officer Marcano stated that he could 'not completely' see what was happening inside No. 10. He did testify, however, that he observed Henthorn hand 'something' to the defendant.

After Henthorn emerged from the house, he met Officer Wells back at the car. They then picked up Officer Marcano, who testified that, five minutes after the alleged transaction in No. 10, Henthorn produced 'three decks of heroin' ³ and gave them to Officer Wells. Some eight members of the Joint Narcotics Strike Force arrested defendant in the yard behind No. 10 at approximately six o'clock that evening. A search of the defendant's person yielded the recorded ten dollar bill.

The question here involved is 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 (defendant) had committed or was committing an offense.' Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964); see United States v. Lampkin, 464 F.2d 1093, 1095 (3d Cir. 1972). If the arrest was lawful, the search incident thereto was valid as well.

We believe that the record of the suppression hearing demonstrates that the officers had probable cause when they arrested the defendant. They knew that Henthorn entered No. 10 without any heroin in his possession and that he emerged with three packages which appeared to contain heroin. Moreover, when he rejoined Officers Marcano and Wells, Henthorn no longer had the thirty dollars which they had given him. Officer Marcano, it must be admitted, was unable to observe the whole transaction inside No. 10 and did not see the defendant hand the three packages to Henthorn. However, he did observe Henthorn deliver something to the defendant. We consider the inference reasonable that Henthorn gave the recorded bills to the defendant in exchange for the three packets which Officer Marcano concluded contained heroin.

The defendant relies heavily upon Wong Sun v. United States to support his contention that probable cause did not exist. 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In that case, Hom Way, who had just been arrested and who had not previously acted as an informant, told a narcotics agent that one 'Blackie Toy,' proprietor of a laundry on Leavenworth Street in San Francisco, had sold him an ounce of heroin the night before. Federal agents then closed in on one of the many laundries on Leavenworth Street and arrested James Wah Toy as he fled to the rear of the building. ⁴ The name 'Toy,' however, was nowhere displayed on the laundry's exterior. Moreover, no evidence in the record identified James Wah Toy and 'Blackie Toy' as the same person. On that record, the Supreme Court held that probable cause for Toy's arrest had not been demonstrated.

In the instant case, the record of the suppression hearing is markedly more probative of probable cause than the record in Wong Sun. Here the Government did not rely on anything Henthorn told Officers Marcano and Wells. Rather, the Government adduced visual evidence of an arresting police officer tending to show that the defendant and Henthorn engaged in a transaction and that immediately thereafter Henthorn had acquired three packages of what appeared to be heroin and had parted with the thirty dollars which the officers had given him. The defendant was not, as in Wong Sun, one of many who might fit an informant's description. On the contrary, the defendant was identified by Officer Marcano as the person he observed receiving something from Henthorn, and was arrested on the very premises where the transaction was observed.

In searching this record for probable cause, 'as the very name implies, we deal with probabilities.' Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949). We do not seek evidence which would be sufficient to support a conviction. Rather, we must determine whether

'the facts and circumstances within their (the 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. Id., quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925). We conclude that the Government met this test at the suppression hearing and that the district court did not err in finding probable cause.

II

We also agree with the district court that an arrest warrant was not required in the circumstances of this case. The defendant does not contend that he was constitutionally entitled to be arrested pursuant to a warrant. We agree that he was not so entitled in this case. The defendant requests only that we, in the exercise of our supervisory powers, invalidate the arrest and order suppression of the evidence seized incident thereto.

Although we are not reluctant to employ our supervisory powers in appropriate cases, we decline to do so in this instance. We are aware that the police had time to procure an arrest warrant and that, in fact, they did procure a search warrant. The record shows, however, that during the approximately six hours which intervened between the observed transaction in No. 10 and the arrest, Officers Marcano and Wells were engaged in staging another heroin purchase at the same location. Thus, although we strongly favor the use of the arrest warrant procedure and might exercise our supervisory powers in other circumstances, we do not think that the failure to obtain an arrest warrant in this case requires reversal.

We are hesitant, moreover, to exercise our supervisory powers where, as here, the Legislature has addressed itself to the subject.

A peace officer . . . may, without a warrant, arrest a person

(1) for a public offense committed or attempted in his presence;

(2) when a person has committed a felony, although not in his presence;

(3) when a felony has in fact been committed and he has reasonable cause for believing the person to have committed it;

(4) on a charge made, upon a reasonable cause, of the commission of a felony by the party; or

(5) at night when there is reasonable cause to believe that he has committed a felony.

5 V.I.C. 3562.

Although we find the opaque language of section 3562 confounding, we believe that clause (2) can be construed to authorize the arrest here at issue. Literally read, clause (2) might be interpreted to require, as a prerequisite to a warrantless arrest, more than 'reasonable cause' to believe that a person has committed a felony. We note that clause (2) does not explicitly incorporate a 'reasonable cause' standard. Moreover, the...