Giordenello v. United States, 16065.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation241 F.2d 575
Docket NumberNo. 16065.,16065.
PartiesVeto GIORDENELLO, Appellant, v. UNITED STATES of America, Appellee.
Decision Date17 May 1957

Clyde W. Woody, William H. Scott, William F. Walsh, Houston, Tex., for appellant.

Malcolm R. Wilkey, U. S. Atty., C. Anthony Friloux, Jr., James T. Dowd, James E. Ross, Asst. U. S. Attys., Houston, Tex., for appellee.

Before RIVES, TUTTLE and CAMERON, Circuit Judges.

TUTTLE, Circuit Judge.

This appeal from the conviction of appellant of the offense of unlawfully purchasing five ounces of heroin, in violation of Section 4704, I.R.C.1954, 26 U.S.C.A.,1 presents the single question whether the trial court erred in admitting in evidence the heroin which was found on his person when he was arrested. The answer to this question in turn hinges on the legality of Giordenello's arrest.

On January 26, 1956, William T. Finley, an enforcement agent for the Bureau of Narcotics, obtained from the United States Commissioner in Houston, Texas, a warrant for the arrest of Giordenello on a complaint sworn to by Finley and asserting that Veto Giordenello did receive, conceal, etc. narcotic drugs, to wit: heroin hydrochloride, with knowledge of unlawful importation, in violation of 21 U. S.C.A. § 174.2 At 6 P.M. the following day, having seen Giordenello several times meanwhile and having followed him to a residence other than his own, Finley and another agent waited for him to reappear. He did so about half an hour later, coming out of the back of the house, going into a garage, and then emerging and approaching the gate in the fence of the backyard. They identified themselves and put him under arrest, asserting they did so under the above described warrant, and took from him a paper package he was carrying in his hand containing five ounces of heroin. After being warned of his rights, appellant freely admitted the possession, telling the officers he had obtained the heroin in Chicago and that he had adulterated it and put it into small "bindles" or packets. He was later indicted and tried for purchasing these five ounces of heroin, which of course could not be the offense for which the warrant had been issued.

Before the trial, appellant filed a motion to suppress the evidence of the officers relating to the seizure and admission of the possession as well as the heroin itself. The ground for such motion was that appellant was searched without a search warrant and without probable cause. The court overruled the motion to suppress. The case proceeded to trial before the court without a jury and resulted in a judgment of guilty and sentence of eight years for a second offense.

The real basis of the attack on the admissibility of the evidence is appellant's contention that the seizure was made without a search warrant (which is, of course, undisputed) and that it was not permissible as incidental to an arrest under United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, and earlier cases, because the arrest was illegal. This was so, appellant says, because the arrest either was not made under the warrant issued on January 26th, or if it was, then the warrant was void.

Taking these latter two points in reverse order, we shall consider first the contention that the warrant was void when the arrest was made. Appellant contends that a warrant can be issued by the United States Commissioner, or judge, only upon a complaint sworn to by the prosecuting witness, stating the essential facts constituting the offense charged;3 that the complaint here, fn. 2, supra, did not contain a statement of the essential facts; and that upon the taking of the testimony of the affiant it was apparent that the statements made by him were not within his personal knowledge, but must have been based upon information furnished by others.

The Government counters by saying that the allegation of receiving and concealing heroin hydrochloride with knowledge of unlawful importation was substantially in the words of the statute,4 and that this was sufficient to state the crime of which appellant was charged. Further the Government says that so long as the complaint is sworn to positively and not on information and belief, it is immaterial on the question of validity of the warrant that the officer did not acquire his knowledge of the facts from personal observation. Finally the appellee takes the position that the preliminary hearing is the place to raise all questions as to the validity of the arrest, and a waiver of such hearing makes such defense unavailable to the accused later in the trial.

In view of the fact that the ground for our decision makes unnecessary an inquiry into the questions whether the arrest was actually made on the warrant; whether the complaint contained an adequate statement of the essential facts; and whether the warrant was valid if issued without the personal knowledge of the affiant of the facts asserted, we go directly to the final point made by the Government.

When, as here, a person is arrested upon a warrant issued on a complaint he must be brought before the nearest United States Commissioner, without unreasonable delay.5 It then becomes the duty of the Commissioner to inform the defendant of the charge and of his right to a preliminary hearing at which he can inquire into the probable cause of the arrest. If the defendant waives preliminary examination the Commissioner holds him forthwith to answer in the district court.6

Here appellant was represented by counsel at his commitment hearing, and, as authorized under the rules, he waived preliminary examination, a proceeding at which he would have had full opportunity to test out the sufficiency of the complaint and legality of the warrant and the legality of his arrest under it or the presence of probable cause if arrested without a valid warrant.

We are much persuaded by the language of the opinion in United States v. Walker, 2 Cir., 197 F.2d 287, certiorari denied 344 U.S. 877, 73 S.Ct. 172, 97 L.Ed. 679, where the court dealt with the three important points here at issue: Sufficiency of the complaint as to statement of essential facts; sufficiency of the complaint as to the personal knowledge of the offense; and the waiver of defects in the complaint by waiving preliminary examination. There the court said:

"The appellant contends that his arrest was illegal because (1) the complaint did not set forth `the essential facts constituting the offense charged,\' as required by Rule 3, F.R. Cr.P.; (2) the complaint did not set forth the source of the government agent\'s information. Taking up these points seriatim, it appears that the complaint, printed in the margin, substantially follows the statutory language of the offense charged, 18 U.S.C.A. § 2314. Since an indictment in the words of the statute may be sufficient, Carter v. United States, 10 Cir., 173 F.2d 684, certiorari denied 337 U.S. 946, 69 S.Ct. 1503, 93 L.Ed. 1749, a complaint in the same form may likewise be; such is the case here. Point (2) seems to be answered by the fact that on its face the complaint appears to be based on personal knowledge of the complainant. See Rice v. Ames, 180 U.S. 371, 376, 21 S.Ct. 406, 45 L.Ed. 577. When arraigned before the commissioner in Maryland the appellant could have challenged the complaint on the ground that the complainant did not have personal knowledge, but his waiver of examination and consent to removal would, in our opinion, preclude a later assertion that the complaint was not sustained by legally competent evidence. In our opinion the appellant has not established that his arrest was illegal."

United States v. Walker, 2 Cir., 197 F.2d 287, at page 289. To be sure, the waiver in the Walker case was held by the court to apply only to the raising of the objection to the fact that the affiant did not have personal knowledge of the facts alleged. We can see no basis for not applying the same rule to the other objection, the sufficiency of the statement of fact. Both are based on the same provision of the Fourth Amendment to the Constitution, and neither is less subject to waiver than the other. Nothing to the contrary appears in the opinion of Judge Augustus N. Hand in the district court case of United States v. Ruroede, D.C.S.D.N.Y., 220 F. 210, 213. In that case there was no suggestion of the gist of the offense of which the defendant was charged, and the court properly held there would be no waiver, because the invalidity was plain on the face of the complaint and warrant. Here there is no such defect. There can be no serious contention made that Giordenello was not clearly apprised of the offense for which he was arrested.

We conclude therefore that if there were defects in the warrant and if the arrest was made without proper warrant or probable cause, which we discuss later but do not here decide, such defects could have been inquired into at the preliminary examination; that the waiver by appellant of the preliminary examination constituted a waiver of any such defects, and that he will not be permitted to raise the issues by motion later.

Much can be said moreover in support of the other points on which the Government relies to sustain the trial court's action.

As to the sufficiency of the statement of the offense, it is difficult to comprehend what more would be necessary to apprise Giordenello of the offense of which he was charged than the language of the statute here used in the complaint. This is legally sufficient. Brown v. United States, 9 Cir., 222 F.2d 293. The warrant would therefore not be invalid for this reason.

As to the objection that it must affirmatively appear that the officer made the complaint on his own personal knowledge, it has been held by the Supreme Court that if a complaint purports to be on the knowledge of the affiant this is sufficient to authorize the issuance of the warrant. Rice v. Ames, 180 U.S. 371, 21...

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