Long v. United States

• Decision Date: 26 January 1970
• Docket Number: No. 22384.,22384.
• Parties: Eugene Wendell LONG, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

422 F.2d 1024 (1970)

Eugene Wendell LONG, Appellant, v. UNITED STATES of America, Appellee.

No. 22384.

United States Court of Appeals, Ninth Circuit.

January 26, 1970.

Eugene W. Long, in pro. per.

Eric A. Nobles, Asst. U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Wm. Matthew Byrne, U. S. Atty., Los Angeles, Cal., for appellee.

Before BARNES, BROWNING and KILKENNY, Circuit Judges.

KILKENNY, Circuit Judge:

Appellant, a black man, appeals from convictions on a jury verdict in connection with an indictment charging him with violations, in two counts, of 21 U. S.C. § 174 and, in a one count violation, of 26 U.S.C. § 4705(a). After the convictions, the Government filed an information showing the appellant's prior narcotic conviction. Subsequently, appellant was sentenced to 10 years confinement on each of the three counts, the sentences to run concurrently. We affirm.

The events which led to the indictment of appellant, and others, commenced on the morning of April 4, 1967. On that morning, he received a telephone call from Lydia Russo, a co-defendant. He promised her to make the necessary arrangements to procure a quantity of narcotics. After several phone calls, he arranged to obtain for Russo a substantial quantity of heroin.

Meanwhile, an undercover agent of the Federal Bureau of Narcotics, Charles Underwood, met with other federal agents, at which time $225.00 in marked money was given to Underwood to pay for the narcotics. The other agents kept Underwood under observation. At approximately 2:00 P.M., appellant arrived at a point in the vicinity of an apartment house, then under observation. He was then a passenger in a 1953 Chevrolet. After a short conversation with the driver, appellant got out of the passenger side of the car and entered the front courtyard of the apartment complex. The apartment in question was located on the second floor and could be entered from both front and rear. Appellant used the rear entrance and once inside the apartment he spoke to Russo and Gary Moyer Scrivens, another co-defendant. At that time, neither Russo nor Scrivens, later Government witnesses, were working with the Government. Appellant spoke to both Scrivens and Russo in connection with supplying Russo with narcotics. Russo told appellant that the buyer had not yet arrived. Then, leaving the apartment, he walked to the driver's side of the automobile in which he arrived, spoke to the driver and returned to the apartment to await the arrival of Underwood, the purchaser. In the kitchen, he took a balloon containing heroin from his mouth and placed it on the table. In the meantime, Underwood arrived in the apartment area, parked his car and went to the apartment door. Russo answered the door and told him that her connection had arrived. Underwood displayed the money he brought with him, but refused to deliver the money until he had the heroin in his possession. Appellant remained in the kitchen and was told by Russo that the buyer had arrived. Appellant then split the balloon he had previously placed on the table. Part of the heroin was placed in another balloon and taken by Scrivens to the living room and there placed on a table. Underwood took the money from his shirt and handed it to Russo, who proceeded to count it. Underwood took the heroin, left the apartment and went to the car. He drove a short distance and handed the heroin to a Narcotics Agent. Russo gave appellant the money. He took it and left the apartment by the rear entrance. He entered the Chevrolet and within minutes was placed under arrest by the Narcotic Agents. They took from appellant's hands the marked money.

As a result of an earlier transaction between Underwood and Russo and Scrivens, the Government knew that their source was a male Negro. Prior to that transaction, the agents also knew that a 1953 Chevrolet or Plymouth with two male Negro occupants was observed arriving in front of the apartment complex where defendant Russo resided. One of these men was observed leaving the car and walking into the apartment. Some five to ten minutes later, after the transaction had occurred, Scrivens and the male Negro were observed walking from the apartment to the sidewalk. The male Negro crossed the street and returned to the Chevrolet. Consequently, prior to the occurrence on April 4th, the Government agents had clear cut information that the source of narcotic supply of defendants Russo and Scrivens was a male negro. Likewise, the Government agents had observed a male Negro arrive and leave in the same type of automobile, at the time of the March 27th transaction. On April 4th, Russo told Underwood that her source would arrive between 1:00 and 2:00 P.M. Shortly after 2:00 P.M., the 1953 Chevrolet with the two male Negroes arrived. Underwood was outfitted by the Federal Agents with a transmitter. By use of the transmitter the Agents learned, through Underwood, that the source had arrived and that he was in the back room. After the events in the apartment, Underwood was observed leaving the apartment and entering his vehicle. At about the same time, appellant was observed leaving the apartment. Immediately thereafter, Underwood gave a prearranged signal that he had made the purchase of narcotics. This acknowledgement was radioed to Agent Walker who then ordered the arrest of appellant and his companion in the 1953 Chevrolet.

First, appellant contends that the officers had no probable cause for his arrest. We do not agree. Probable cause must be evaluated from the viewpoint of prudent and cautious police officers on the scene at the time of arrest. The issue is whether police officers, acting together, in particular circumstances, all conditioned by their observations and information and guided by their total police experience, reasonably could have believed that a crime had been committed by the person to be arrested. We have no doubt but that the police officers arresting the appellant, armed with their previous information and current observations, had probable cause to arrest the appellant. United States v. Cleaver, 402 F.2d 148 (9th Cir. 1968); Reyes v. United States, 417 F. 2d 916 (9th Cir., 1969); Davis v. United States, 409 F.2d 458 (D.C.Cir. 1969), cert. denied 395 U.S. 949, 89 S.Ct. 2031, 23 L.Ed.2d 469; Johnson v. Middlebrooks, 383 F.2d 386 (5th Cir. 1967), and United States v. Rowlette, 397 F.2d 475 (7th Cir. 1968), are in complete support of a finding of probable cause for the arrest on the facts here presented.

We hold there was probable cause for the...