Ballou v. Commonwealth of Massachusetts, 6892.

• Decision Date: 10 March 1969
• Docket Number: No. 6892.,6892.
• Citation: 403 F.2d 982
• Parties: Thomas J. BALLOU, Jr., Petitioner, Appellant, v. COMMONWEALTH OF MASSACHUSETTS et al., Respondents, Appellees.
• Court: U.S. Court of Appeals — First Circuit

403 F.2d 982 (1968)

Thomas J. BALLOU, Jr., Petitioner, Appellant, v. COMMONWEALTH OF MASSACHUSETTS et al., Respondents, Appellees.

No. 6892.

United States Court of Appeals First Circuit.

December 3, 1968.

Certiorari Denied March 10, 1969.

Henry N. Berry, III, Portland, Me., by appointment of the Court, with whom Gagan, Trynor, Berry & Cummings, Portland, Me., was on brief, for appellant.

Willie J. Davis, Asst. Atty. Gen., with whom Elliot L. Richardson, Atty. Gen., was on brief, for appellees.

Before ALDRICH, Chief Judge, STALEY^*, Senior Circuit Judge, COFFIN, Circuit Judge.

Certiorari Denied March 10, 1969. See 89 S.Ct. 1024.

COFFIN, Circuit Judge.

This appeal from the district court's denial of a petition for habeas corpus presents a question of the propriety of police-conducted search of petitioner's person.

On September 14, 1965, at 12:45 p.m., Detective McLean received a telephone call at Boston Police Headquarters from an unidentified informant. The informant asked to speak with Detective-Sergeant Lynch, who had formerly been assigned to the Charlestown area. Upon learning that Detective Lynch was unavailable, but that McLean was Lynch's partner, the informant told Detective McLean that "Buddy McLean, Ballou, and Winters or Winston were in Driscoll's Cafe on Medford Street in Charlestown and that they all had guns." Though asked, the informant declined to give his name.

The informant's message was then transmitted by Detective McLean through Sergeant Sweeney at Headquarters to Captain Bulens in Charlestown. In the transmittal, the identity of the cafe was lost, Bulens being told only that Ballou, McLean, and a third person were at a "joint in Charlestown". Both Sweeney and Bulens knew that Ballou had served time in prison on a gun carrying charge; that he was a friend of Buddy McLean, a leader of a faction involved in a current gang war with a McLaughlin faction which had already resulted in some killings; and that Ballou was known to carry a gun. Bulens also had information that McLean was known to carry a gun.

Captain Bulens, accompanied by Detective Ingemi, proceeded to Driscoll's Cafe (after stopping at several other such places) and approached Ballou and Buddy McLean who were standing on the sidewalk in front of the cafe. Detective Ingemi first approached McLean in the doorway and searched him with his permission, finding no weapons. Then Ingemi rejoined Ballou and Captain Bulens who "patted down" Ballou without his permission and found a .38 caliber revolver stuck inside his belt.¹

Ballou was tried and convicted of carrying a concealed revolver. A timely motion to suppress the revolver was denied by the trial court and this denial was affirmed on appeal. Having exhausted his state remedies, petitioner sought relief on habeas corpus in the federal district court. It is from the denial of that petition that this appeal is taken.

Petitioner challenges his conviction on the ground that it was based on evidence which was the product of an unlawful search. Specifically, petitioner argues that the search was violative of the Fourth and Fourteenth Amendments of the Constitution in that it was not incident to a lawful arrest.

The Commonwealth's position is that there was probable cause for arrest thereby justifying a search incident thereto, and alternatively, even if probable cause was lacking, the search must be upheld on the authority of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L. Ed.2d 889 (1968), and Sibron v. New York, 392 U.S. 40, 41, 88 S.Ct. 1912, 20 L.Ed.2d 917 (1968).

The justification for this warrantless search must rest either on the ground that it was a search incident to an arrest for which there was probable cause or a limited search in an on-the-street encounter based on reasonable suspicion as defined in Terry v. Ohio, supra. We do not confront here, as we did in Niro v. United States, 388 F.2d 535 (1st Cir. 1968), a situation where police officers demonstrably had time to procure a warrant but failed to do so.

In considering whether there was probable cause for arrest without a warrant, our first inquiry must be whether the arrest preceded the search, and if it did not, whether any significance can be attributed to this fact. It is clear that a search may not precede an arrest and thereby serve as justification for arrest. Sibron v. New York, supra, 392 U.S. at 67, 88 S.Ct. 1912. That is not to say, however, that if an arrest is justified, it must in all cases precede a search. Indeed, in many cases it will not be possible to pinpoint the time of arrest. In any event, in the present case if there was probable cause for arrest a self-protective search prior to arrest would have been justified.²

The existence of probable cause in this case is arguable. cf. Recznik v. City of Lorain, Nov. 18, 1968, 393 U.S. 166, 89 S.Ct. 342, 21 L.Ed.2d 317. No one of the relevant precedents exactly matches the factors present here. For we are concerned with the extent to which hearsay evidence, specifically hearsay from an informer unknown even by the police, conjoined with other facts, can rise to the level of probable cause. The Supreme Court has sanctioned the use of information from undisclosed informants in a number of cases. See e. g., McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). All of these cases where probable cause was held to have existed involved both an informer known to the police as having given reliable information in the past and the giving of specific information which was corroborated in the course of police follow-up on the tip. In this case the informer was unknown, even though the information as to the location of named people at a specific location and time proved to be accurate.

In the circumstances of this case, what is the significance of the lack of identity and proven reliability of the informer? While we observe that an informer's first tip must always be without the force of prior reliability, and thus that this reason for acceptance has a kind of boot-strap effect, we acknowledge that there are other ways of accrediting reliability than by acting on faith — e. g., by surveillance and stake-out to verify the informer's tip. But even if Detective-Sergeant Lynch had received the call from the informant in this case — who had asked for him by name and title and presumably because of his past assignment to Charlestown — if the informant had identified himself, and if Lynch had been able to say the informant had proven reliable in the past, would this have added measurably to the probable cause content of the tip? Our answer is that it would if the information related to individuals unknown to the police. But where the individuals, their records, roles in gangland warfare, and propensities for gun carrying were familiar to the police, and where the information as to where they could be found proved accurate, we are not overly impressed by the missing factor of proven reliability. Indeed, the Supreme Court refers to the need for ...