U.S. v. Fernandez-Guzman

• Decision Date: 30 June 1978
• Docket Number: FERNANDEZ-GUZMA,No. 77-1954,D,77-1954
• Citation: 577 F.2d 1093
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose L.efendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1093

577 F.2d 1093

UNITED STATES of America, Plaintiff-Appellee, v. Jose L. FERNANDEZ-GUZMAN, Defendant-Appellant.

No. 77-1954.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 26, 1978.

Decided May 23, 1978.

Rehearing and Rehearing En Banc Denied June 30, 1978.

Edward J. Calihan, Jr., Chicago, Ill., for defendant-appellant.

John E. Burns, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before FAIRCHILD, Chief Judge, and PELL and SPRECHER, Circuit Judges.

FAIRCHILD, Chief Judge.

The defendant, Jose Fernandez, was arrested without a warrant on a public street shortly after midnight July 13, 1976, allegedly on probable cause to believe he was committing a federal drug offense. Incidental ¹ to his arrest, a brown paper bag containing about two kilograms of heroin was seized from the car he had been driving. Since the arrest was made without a warrant, the arresting officers filed complaints ² at the defendant's initial appearance before the federal magistrate, as required by Rule 5(a) of the Federal Rules of Criminal Procedure. Before trial, Fernandez moved to suppress the heroin, whereupon the district court conducted an evidentiary hearing, over the defendant's objection, on the question of probable cause at the time of arrest. The defendant had argued that the court's inquiry on his motion must be limited to the 5(a) complaints alone. The motion to suppress was denied and Fernandez was subsequently convicted in a trial to the court of possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1). The defendant was released on bond pending appeal.

The defendant makes the following arguments on appeal:

(1) Following a warrantless arrest, the trial court is precluded from holding an evidentiary hearing on the motion to suppress evidence; instead, inquiry into probable cause to arrest must be restricted to the complaints filed after arrest in accordance with Rule 5(a).

(2) The 5(a) complaints filed in this case fail to show probable cause to arrest the defendant and thus, since they are the only matter to be considered in testing the validity of the arrest, the motion to suppress should have been granted.

(3) Even if the 5(a) complaints are facially sufficient to support the arrest, inaccuracies in them, which became apparent at the suppression hearing, render them invalid and thus also the arrest.

(4) If holding an evidentiary hearing on the suppression motion was not error, the evidence adduced at it does not satisfy the probable cause requirement.

(5) The evidence at trial was insufficient to convict the defendant because of lack of proof on the essential elements of knowledge of the contents of the bag seized and intent to distribute the heroin.

We agree that the 5(a) complaints fail to show probable cause to arrest, even taking the allegedly inaccurate statements at face value. However, we affirm the district court's conclusion that the officers did know at the time of arrest sufficient facts to support a reasonable belief that the defendant was committing a crime, even though they failed to state enough of those facts when drafting the 5(a) complaints after the arrest for the complaints to demonstrate probable cause. Since we further conclude that it was proper for the district court to hear and consider evidence outside the 5(a) complaints on the defendant's motion to suppress, denial of that motion was not error. In addition, we find that the conviction is supported by sufficient evidence on all the elements. Consequently, we affirm.

The only question this opinion addresses is whether the trial court should have limited its inquiry to the 5(a) complaints on the suppression motion. Since our resolution of the other issues is not deemed to be of precedential significance, those issues are decided in an unpublished order filed at the same time as this opinion.

Prior to 1972, Fed.R.Crim.P. 5(a) required a complaint to be filed at the initial appearance of a person arrested without a warrant. This complaint, unlike the one for obtaining a warrant, was generally considered a jurisdictional requirement only, Byrnes v. United States, 327 F.2d 825, 834 (9th Cir. 1964), cert. denied 377 U.S. 970, 84 S.Ct. 1652, 12 L.Ed.2d 739 (1964); Gaither v. United States, 134 U.S.App.D.C. 154, 168-69, 413 F.2d 1061, 1075-76 (1969), and therefore, did not usually, if ever, show probable cause on its face, in spite of the Supreme Court's admonition that the purpose of procedural rules like 5(a), even before the 1972 amendment, was to require police with reasonable promptness to "show legal cause for detaining arrested persons." McNabb v. United States, 318 U.S. 332, 344, 63 S.Ct. 608, 614, 87 L.Ed. 819 (1943); Mallory v. United States, 354 U.S. 449, 454, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957); see also Gerstein v. Pugh, 420 U.S. 103, 124 n. 24, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).

Rule 5(a) was amended in 1972 to read in pertinent part:

(a) . . . If a person arrested without a warrant is brought before a magistrate, a complaint shall be filed forthwith which shall comply with the requirements of Rule 4(a) with respect to the showing of probable cause. (Emphasis added.)

We agree with the defendant that this amendment enlarges, or at least makes explicit, a function of the post-arrest complaint. The rule, as it now reads, clearly permits an arrested person to challenge further custody and the holding to answer on the basis of lack of probable cause shown in the complaint filed after a warrantless arrest. However, the defendant goes on to argue that if a 5(a) complaint is subsequently found to be deficient facially or subfacially ³ then any evidence seized incident to the arrest must be suppressed, either because the arrest itself is deemed to have been unconstitutional, or because the purposes of the 1972 amendment to Rule 5(a) require that result. We now discuss our reasons for rejecting these alternative positions.

I. CONSTITUTIONALITY OF THE ARREST

The Fourth Amendment stricture against the seizure of persons, i. e. arrest, on less than probable cause strikes what has been recognized as a proper balance between the often conflicting interests of government control of crime and individual privacy. Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Ideally, of course, a pre-arrest determination of probable cause by a disinterested judicial officer is preferred to that made by a possibly overzealous law enforcement officer "engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). Arrest warrants, as much as search warrants, obviously serve a preventative function against unconstitutional invasion of privacy by police. Yet in the area of arrests made in a public place, an arrest warrant has never been considered to be constitutionally mandated even when there was opportunity for one to be obtained. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976).

Necessarily, post-arrest judicial review of the decision to arrest cannot prevent or negative the intrusion which has already occurred and which may have been unconstitutional. Nevertheless, the Fourth Amendment has consistently been interpreted as being better served by such review, based on standards at least as stringent as those for securing an arrest warrant. Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Wrightson v. United States, 95 U.S.App.D.C. 390, 222 F.2d 556 (1955). Aside from its check on police conduct, a primary personal benefit gained by post-arrest review is the prevention of a continuing unconstitutional invasion if the suspect was in fact arrested without probable cause. Thus, obviously, the earlier the review, the better. Early review also helps to minimize the risks attendant upon hindsight justification of government action. Beck v. Ohio, supra. Accordingly, Rule 5(a) furthers these goals in the federal system by requiring officers to swear out a complaint showing probable cause before a judicial officer "without unnecessary delay" after a warrantless arrest, that is, at the initial appearance.

In Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), the Supreme Court stated that, following a warrantless arrest, the Fourth Amendment demands a prompt judicial determination of probable cause in order to test continued detention before trial. ⁴ The perspective taken in Gerstein is clearly from the post-arrest position. While an arrest and, therefore, a possibly unconstitutional invasion might be a "fait accompli," the Fourth Amendment's protection extends beyond the initial seizure to continuing detention, and post-arrest review serves to prevent continued violation.

While it is often true when probable cause is found to be lacking at a post-arrest determination, the arrest itself is also found to have been made without probable cause, it is not necessarily so. Obviously, if a post-arrest review results in a finding of no probable cause, government detention must end whether or not the arrest was actually valid. But the question of suppression of any evidence seized incident to the arrest remains dependent for constitutional purposes on whether probable cause existed at the time of arrest.

Now the defendant would have us hold that on a motion to suppress evidence made sometime after the initial appearance, the arrest must be deemed unconstitutional and any derivative evidence suppressed if the 5(a) complaints are found to be deficient, without regard to facts and circumstances outside those complaints yet still within the arresting officers' knowledge at the time of arrest. This result would take us well beyond Gerstein. Gerstein dealt only with the Fourth Amendment's...