Hawkins v. United States

• Decision Date: 05 April 1961
• Docket Number: No. 16571.,16571.
• Citation: 288 F.2d 537
• Parties: Lucius HAWKINS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

288 F.2d 537 (1961)

Lucius HAWKINS, Appellant, v. UNITED STATES of America, Appellee.

No. 16571.

United States Court of Appeals Eighth Circuit.

April 5, 1961.

Solbert Wasserstrom, Kansas City, Mo., for appellant.

Horace W. Kimbrell, Asst. U. S. Atty., Kansas City, Mo., for appellee.

Before SANBORN, VAN OOSTERHOUT, and MATTHES, Circuit Judges.

MATTHES, Circuit Judge.

In this jury-waived case, and on the evidence heard on motion to suppress evidence and to return seized property¹ the Court found Lucius Hawkins, some-times referred to as "defendant," guilty as charged under Count I of the information, of feloniously concealing and possessing a narcotic drug in violation of Title 21, § 174 U.S.C.A., and guilty as charged under Count II of the information of purchasing and possessing a narcotic drug in violation of Title 26, § 4704 (a) U.S.C.A. Judgment was pronounced committing defendant for a period of five years on Count I and two years on Count II, the sentences to be served concurrently.

The sole issue litigated below and presented on appeal goes to the validity of defendant's arrest and the search of his person which produced the narcotic drug and formed the basis for the prosecution. Concededly, defendant, was arrested and searched without benefit of a warrant previously issued. Title 26, § 7607 U.S.C.A.,² which defines the authority of narcotic agents in this respect, provides in pertinent part:

"The Commissioner, * * * and agents, of the Bureau of Narcotics * * * may —

"(2) make arrests without warrant for violations of any law of the United States relating to narcotic drugs * * * where the violation is committed in the presence of the person making the arrest or where such person has reasonable grounds to believe that the person to be arrested has committed or is committing such violation."

Thus the key question is whether the information possessed by the arresting agents here gave them probable cause within the meaning of the unreasonable search and seizure safeguards of the Fourth Amendment³ and reasonable grounds within the contemplation of § 7607, supra, to believe that defendant had "committed or is committing" a violation of the narcotic laws. If so, then, as stated by the Supreme Court in Draper v. United States, 358 U.S. 307, 310 and 311, 79 S.Ct. 329, 331, 3 L.Ed.2d 327, "the arrest, though without a warrant, was lawful and the subsequent search of defendant's person and the seizure of the found heroin were validly made incident to a lawful arrest, and therefore the motion to suppress was properly overruled and the heroin was competently received in evidence at the trial. Weeks v. United States, 232 U.S. 383, 392 34 S.Ct. 341, 344, 58 L.Ed. 652; Carroll v. United States, 267 U.S. 132, 158 45 S.Ct. 280, 287, 69 L.Ed. 543; Agnello v. United States, 269 U.S. 20, 30 46 S.Ct. 4, 5, 70 L.Ed. 145; Giordenello v. United States, 357 U.S. 480, 483 78 S.Ct. 1245, 1248, 2 L.Ed.2d 1503."

The hearing on the motion to suppress presented no problem with respect to crediting witnesses, for there was no conflict in the evidence. The controversy stems from application of the controlling legal principles, concerning which there is no substantial dispute, to the facts. In this situation it is deemed essential that a full resume of the evidence be made.

Defendant Hawkins is a Negro, 31 years of age at the time of the hearing. He was and for 14 years had been a member of the United States Army, and was stationed at Fort Riley, Kansas, living with his family in nearby Junction City, Kansas. The informer involved herein, one Clinton McLester, although not in military service, also resided in Junction City.

Captain John Flavin of the Kansas City Police Department, in charge of the narcotics division, testified that about the middle of January, 1960, he was informed that defendant, the informer McLester and one Herby Lewis were involved in narcotic traffic in the Kansas City area, supplying narcotics to Junction City, Kansas, and to soldiers at Fort Riley, Kansas. Immediately after receiving this information, the Captain passed it on to narcotic agents Norbert Adamski and Joseph Dino, Jr.; that shortly before May 1, 1960, he received additional information that defendant was going to Chicago to make a purchase of narcotics for which Lewis was to furnish part of the money; that on his return the defendant would "drop off some of this stuff at Lewis' home." Upon acquiring this information the Captain notified agent Dino and also gave him a physical description of the defendant.

Apparently as a result of the information supplied by the Kansas City police, McLester was arrested on March 14, 1960, on a warrant issued out of the Federal Court for the District of Kansas on a narcotics charge. Thereafter McLester offered to cooperate with agents Adamski and Dino in their efforts to curb violations of the narcotic laws.

McLester had known defendant for approximately five years, and although the defendant testified they were not close friends, they had visited in each other's home and were more than mere acquaintances. Furthermore, McLester, also a user of narcotics, testified, without dispute, that defendant had supplied him with narcotics. Additionally, McLester accompanied the defendant in the latter's automobile to Chicago in February, 1959, where defendant procured a supply of narcotics. Although there was some vacillation in the testimony of defendant and McLester as to whether the latter knew of the purpose of the trip, we are persuaded that the trial court was fully warranted in finding that McLester was aware thereof, if indeed he was not a party thereto, because under direct examination by his attorney, the defendant himself testified, "We made a trip up there to get some narcotics. Q. To Chicago? A. Yes."

Shortly after McLester had offered to cooperate with the narcotics agents, he testified that he furnished agent Adamski with names and other information concerning narcotic activities in Chicago. Adamski corroborated McLester in this respect and stated further that he had forwarded the information so received to the Chicago narcotics office, and that the report which was returned from Chicago verified some of the statements McLester had made.

Agent Dino stated that McLester had supplied him with information prior to defendant's arrest, that as to one matter still under investigation Dino had not completed his investigation, but the information checked had proved correct. Dino also testified that prior to May 1, 1960 he had been informed by Captain Flavin that defendant, in association with McLester and Herby Lewis, was involved in narcotic traffic.

On April 30, which was a Saturday, McLester testified that he saw defendant on a street in Junction City, but had no conversation with him. The next morning (Sunday) around 3:30 o'clock, McLester was in Birdland, a night club in Junction City, and overheard a conversation between some unidentified persons that defendant "had gone to pick up," which, according to McLester, was a slang phrase, meaning, in his words, that "it is the same as going to buy narcotics." At approximately 6:30 A.M. on the same morning, McLester called agent Adamski by long distance telephone and gave the "tip" which formed a link in the chain of circumstances resulting in defendant's arrest. According to Adamski's testimony, he was informed by McLester that defendant was going to Kansas City, Missouri, in his automobile; that McLester described the automobile as a 1957 Oldsmobile with Michigan license R B 5131; that defendant would probably park the automobile near the home of Herby Lewis at 27th and Benton Streets in Kansas City, Missouri, would then proceed by airplane to Chicago and would return by plane to Kansas City that same day. Additionally, McLester described defendant as being of dark complexion, 6 to 6 feet 2 inches tall, weighing about 190 pounds and wearing a mustache.

Adamski immediately called another agent and the two proceeded to the area of 27th and Benton Streets around 7:30 A.M. Being unable to locate the automobile which McLester described, they proceeded to the Kansas City municipal airport where they met agent Dino. The three were later joined by Captain Flavin and another officer of the Kansas City...