U.S. v. Levy

• Decision Date: 31 January 1984
• Docket Number: 420,Nos. 354,D,s. 354
• Citation: 731 F.2d 997
• Parties: 14 Fed. R. Evid. Serv. 1469, 15 Fed. R. Evid. Serv. 305 UNITED STATES of America, Appellee, v. Chaim LEVY, Defendant-Appellant. ockets 83-1226, 83-1227.
• Court: U.S. Court of Appeals — Second Circuit

Page 997

731 F.2d 997

14 Fed. R. Evid. Serv. 1469, 15 Fed. R. Evid.

Serv. 305

UNITED STATES of America, Appellee, v. Chaim LEVY, Defendant-Appellant.

Nos. 354, 420, Dockets 83-1226, 83-1227.

United States Court of Appeals Second Circuit.

Submitted Nov. 9, 1983.

Decided Jan. 31, 1984.

Ivan S. Fisher, Dorothy T. Zeman, Jonathan Diller, Law Clerk, New York City, for defendant-appellant.

Raymond J. Dearie, U.S. Atty., E.D.N.Y., Allyne R. Ross, Mark A. Summers, Asst. U.S. Attys., E.D.N.Y., Brooklyn, N.Y., for appellee.

Before MESKILL and PIERCE, Circuit Judges, and METZNER, ^* District Judge.

MESKILL, Circuit Judge:

This is an appeal from two judgments of conviction entered against Chaim Levy on June 8, 1983 in the United States District Court for the Eastern District of New York, Glasser, J. The first judgment, entered after a non-jury trial, was for possession with intent to distribute approximately ten ounces of heroin in violation of 21 U.S.C. Sec. 841(a)(1) (1982). A second judgment, entered after a jury trial, was for the distribution of approximately one ounce of heroin in violation of 21 U.S.C. Sec. 841(a)(1) (1982) and 18 U.S.C. Sec. 2 (1982). Levy was sentenced to eight years imprisonment and a lifetime special parole for possession with intent to distribute and ten years imprisonment and a lifetime special parole term for distribution, the sentences to run concurrently.

In his appeal from the conviction for possession, Levy alleges that the district court erroneously denied his motion to suppress the heroin seized without a warrant in violation of the Fourth Amendment. He claims that the arrest itself was unlawful because the arresting Drug Enforcement Administration (DEA) agents had ample time to procure an arrest warrant but failed to do so.

Levy challenges his conviction for distribution of an ounce of heroin on two grounds. He claims that the district court improperly admitted evidence of "other acts" as defined by Fed.R.Evid. 404(b) (Rule 404(b)) ¹ that should have been excluded pursuant to Fed.R.Evid. 403 (Rule 403) ² and that even with evidence of the "other act" before the jury, there was insufficient evidence to support his conviction.

We affirm Levy's conviction for possession with intent to distribute ten ounces of heroin. We reverse his conviction for the distribution of one ounce of heroin and remand to the district court for a new trial.

1. Possession With Intent to Distribute

A. Background

An earlier DEA investigation of Chaim Levy became inactive when he was arrested in Israel on a passport violation. In early 1982, Special Agent James Kibble learned from several informants that Levy was trafficking in narcotics in the Brooklyn area and that he "dealt" from a gas station, usually on weekends when fewer police were around. The sources also stated that the narcotics were stored in a safe deposit box in an unidentified bank. DEA agents watched Levy's Brooklyn gas station and identified vehicles entering the premises as being registered to suspected narcotics dealers. In addition, the activities of the drivers of the vehicles and station personnel did not appear to be related to the purchase of petroleum products or mechanical repairs or maintenance. Levy was also seen conversing with known drug users.

On Monday, February 22, 1982, several DEA agents, including Agent Kibble, observed Levy hurriedly leaving the gas station and driving to a nearby branch of the Metropolitan Savings Bank. The bank closed before Levy's arrival and his attempts to enter were fruitless. The following morning bank authorities informed Kibble that Levy had access to two of their safe deposit boxes. On Friday, February 26, agents observed Levy entering the bank shortly before closing time and going to the safe deposit box area. Levy was wearing a heavy outer coat and nothing was seen protruding from his pockets. When Levy emerged from the bank, Agent Kibble noticed "a brown paper bag which was protruding from [Levy's] right pocket." Levy walked across the street where he was approached by Kibble and Special Agent Higgs. Kibble drew his weapon and held up his DEA shield. Levy reached for the bag and Kibble ordered him to "freeze" and raise his hands. Kibble then walked Levy to a wall, had him stand spread-eagle, patted him down for weapons and removed the protruding brown paper bag. Kibble opened the bag and saw a powdered substance packaged in plastic "baggies." Levy was informed that he was under arrest and advised of his constitutional rights. Laboratory analysis confirmed that the powder was heroin.

Levy conceded that the agents had probable cause to arrest him, but nevertheless moved to suppress the heroin on the grounds that (1) his arrest was unlawful because the agents failed to obtain an arrest warrant when they had ample opportunity to do so, and (2) he had been illegally searched without a search warrant. At a hearing on July 7, 1982, Judge Glasser denied the motion.

Levy then waived his right to a jury trial pursuant to Fed.R.Crim.P. 23(a). The parties stipulated to the facts as presented in the suppression hearing and the district court found Levy guilty as charged on November 26, 1982.

B. Discussion

Levy claims that the district court erred by refusing to suppress the heroin seized from his person in violation of the Fourth Amendment because the search and seizure took place without a warrant. Levy asserts that the facts do not fit any exception to the Fourth Amendment search warrant requirement because it was neither a search incident to a valid arrest nor an investigative "stop and frisk." Levy also suggests that the agents' failure to procure an arrest warrant, despite ample time to do so, rendered the arrest and the search illegal. We reject both claims and agree with the district court that the heroin was admissible.

A search is presumed to be unreasonable and in violation of the Fourth Amendment unless a warrant is first secured. Jones v. United States, 357 U.S. 493, 497-99, 78 S.Ct. 1253, 1256-57, 2 L.Ed.2d 1514 (1958). However, the courts have identified some "jealously and carefully drawn" exceptions to the warrant requirement. Id. at 499, 78 S.Ct. at 1257. Such an exception is a search incident to a valid arrest. Id. The exception exists to allow an arresting officer to "disarm the suspect in order to take him into custody ... [and] to preserve evidence on [the suspect's] person for later use at trial." United States v. Robinson, 414 U.S. 218, 234, 94 S.Ct. 467, 476, 38 L.Ed.2d 427 (1973). "It is the fact of the lawful arrest which establishes the authority to search," and such a search is a "reasonable" search under the Fourth Amendment. Id. at 235, 94 S.Ct. at 477.

To qualify as an exception, the arrest giving rise to the search must be valid. Id. at 234, 94 S.Ct. at 476. To make a public arrest valid for purposes of the Fourth Amendment, the arresting officer must have probable cause. Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 412, 9 L.Ed.2d 441 (1963). A DEA agent must meet the same probable cause standard as any other arresting officer in making a constitutionally valid warrantless arrest. See Henry v. United States, 361 U.S. 98, 100, 80 S.Ct. 168, 170, 4 L.Ed.2d 134 (1959) (FBI agents' statutory authority to arrest upon "reasonable grounds" to believe felony committed states the constitutional standard of probable cause); United States v. Shyvers, 385 F.2d 837 (2d Cir.1967) (narcotics agent's arrest on probable cause found valid and evidence seized therein found admissible), cert. denied, 390 U.S. 998, 88 S.Ct. 1203, 20 L.Ed.2d 98 (1968). Levy has conceded that probable cause existed at the time of the search and arrest. Therefore, his arrest was valid.

As incident to the valid arrest, the DEA agents could search Levy for weapons or evidence. Carroll v. United States, 267 U.S. 132, 158, 45 S.Ct. 280, 287, 69 L.Ed. 543 (1925); Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 344, 58 L.Ed. 652 (1914). Levy claims, however, that the search was not incident to the arrest because it preceded the arrest and the arrest would not have occurred if the search had not revealed the presence of narcotics. Therefore, according to Levy, the heroin seized in the search should have been excluded under Sibron v. New York, 392 U.S. 40, 63, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917 (1968). We disagree.

The district court found that Levy had already been arrested at the time of the search. Before Agent Kibble searched Levy, he approached Levy with his weapon drawn, showed Levy his DEA shield, ordered Levy to "freeze" and forced Levy to stand spread-eagle against a wall. Precisely when an arrest occurs depends on the facts of the particular case. United States v. Richards, 500 F.2d 1025, 1028 (9th Cir.1974), cert. denied, 420 U.S. 924, 95 S.Ct. 1118, 43 L.Ed.2d 393 (1975). An arrest may occur even if the formal words of arrest have not yet been spoken if a person is restrained and his freedom of movement is restricted. See Henry v. United States, 361 U.S. 98, 102-03, 80 S.Ct. 168, 171-72, 4 L.Ed.2d 134 (1959); United States v. Skinner, 412 F.2d 98, 103 (8th Cir.), cert. denied, 396 U.S. 967, 90 S.Ct. 448, 24 L.Ed.2d 433 (1969); United States ex rel. Walls v. Mancusi, 406 F.2d 505, 508-09 (2d Cir.), cert. denied, 395 U.S. 958, 89 S.Ct. 2099, 23 L.Ed.2d 745 (1969). Without question, Levy was restrained and his freedom of movement was restricted before Agent Kibble removed the bag from his pocket. Therefore, the district court's finding that arrest preceded the search is not clearly erroneous.

Appellant next argues that an arresting officer is constitutionally required to procure an arrest warrant if there is ample time to do so. This argument has been rejected by the Supreme Court. United States v. Watson, 423 U.S. 411, 423, 96 S.Ct. 820, 827, 46 L.Ed.2d 598 (1976). While a warrant may be preferable, it is not a constitutional requirement. See United States v....