United States v. Bianco, 10365.

• Decision Date: 04 May 1951
• Docket Number: No. 10365.,10365.
• Citation: 189 F.2d 716
• Parties: UNITED STATES v. BIANCO.
• Court: U.S. Court of Appeals — Third Circuit

189 F.2d 716 (1951)

UNITED STATES v. BIANCO.

No. 10365.

United States Court of Appeals Third Circuit.

Argued March 6, 1951.

Decided May 4, 1951.

Rehearing Denied June 21, 1951.

Irwin A. Swiss, Asst. U. S. Atty., Pittsburgh, Pa. (Edward C. Boyle, U. S. Atty., Pittsburgh, Pa., on the brief), for appellant.

Premo J. Columbus, Pittsburgh, Pa., for appellee.

Before MARIS, McLAUGHLIN and HASTIE, Circuit Judges.

HASTIE, Circuit Judge.

The appellee, Joseph Bianco, an interstate traveler, was arrested on his arrival at Pittsburgh, Pennsylvania by William Drew, a special agent of the Federal Bureau of Investigation, and charged with the interstate transmission of lottery materials.¹ Certain lottery materials were taken from his person and from his hand luggage. Prior to the return of an indictment against him, he filed the petition now before us for the suppression of these materials as evidence against him, and for their return. The petition was granted by the United States District Court for the Western District of Pennsylvania. The government has appealed.² The issue before us is whether the arrest of Bianco was lawful under Section 3052 of the Criminal Code, 18 U.S.C. § 3052 (Supp. 1950), 62 Stat. 817 (1948). If it was, the seizure was also lawful, and the materials seized can be used at trial under the indictment which has since been returned.³

Section 3052 provides that: "* * * agents of the Federal Bureau of Investigation * * * may * * * make arrests without warrant for felonies cognizable under the laws of the United States, where the person making the arrest has reasonable grounds to believe that the person arrested is guilty of such felony and there is a likelihood of his escaping before a warrant can be obtained for his arrest."

The statute, in terms, makes crucial the rationally founded belief of "the person making the arrest". Therefore, we consider first the information known to Drew, the arresting officer. Drew's knowledge was simply this. He had received a call in the evening of March 24, 1950 from H. B. Wood, a special agent in the Baltimore office of the Bureau. He was told that Maurice duBois, another special agent, working in Baltimore, "had received reliable information that Joseph Bianco would take the 8:25 plane from Baltimore to Pittsburgh, that he had lottery materials with him, and that he believed that he was identical with the Joseph Bianco who had previously been involved with lottery activities in Pittsburgh". Apparently he also was told that Bianco would be followed to Pittsburgh by an agent named McKinnell, and that McKinnell would identify himself and Bianco on the plane's arrival.

After preliminary identification by McKinnell, events at the Pittsburgh airport developed as follows, according to Drew: "* * * we followed Mr. Bianco through the Allegheny County Airport terminal and, as any passenger would, he went to the front steps to await the arrival of his baggage * * * after five or six minutes waiting * * * Mr. Bianco took off on foot around the circle where you park cars. On noticing this, Agent Hughes and I followed him, where we observed him getting into a * * * sedan. As the key was on, we felt that he was going to make an immediate departure. I immediately identified myself to Mr. Bianco, told him that he was under arrest and that we were going to take him to the Pittsburgh office of the F.B.I. * * *"

Except for his own independent recollection of Bianco's earlier involvement in the 1942 lottery investigations, this is all the information that Drew had. It is obvious that the core of Drew's information was simply the summary assertion of Wood, the Baltimore agent, that duBois, another Baltimore agent, "had received reliable information that Bianco would take the 8:25 plane and that he had lottery materials with him * * *." Wood offered no information as to why they believed this, and Drew requested none.

If we retrace the record, and Bianco, to Baltimore, however, we find a much fuller panoply of fact to explain why Joseph Bianco was arrested as he was. Sometime on the morning of March 24, 1950, Bianco came out of a grocery store in Baltimore in the company of two other men. At the time, the store was being watched by FBI agent Maurice duBois who knew that the store was a center for the distribution of lottery materials, and that Bianco's two companions were distributors of such materials. Therefore, when the three men got into a car and drove off, duBois followed them. According to his testimony, "They proceeded to the Baltimore Municipal Airport, and I observed Mr. Bianco go to the Capital Airlines counter and make some inquiries and thereafter he had some conversation with the two gentlemen that were with him. He got a large tan leather suitcase from the car which had brought him down and proceeded to check it in a locked locker". Bianco and his companions then left the airport. DuBois proceeded to make inquiries of the airline clerk, and discovered Bianco's identity, the fact that he had a reservation for Pittsburgh at eight-thirty that evening, that he had attempted to get an earlier plane out of Baltimore but was unable to do so because all the space was booked, and that he had arrived by plane from Pittsburgh about ten-thirty that morning.

DuBois returned to the neighborhood of the store and was told by informers, believed by him from past experience to be reliable, that the large suitcase which Bianco had checked contained lottery materials. He also recalled that the name of Joseph Bianco was familiar to him as that of a person who was involved in an extensive investigation of lottery activities in Pittsburgh from 1941 to 1943.

DuBois then called his immediate superior in the Baltimore office of the Bureau, Special Agent H. B. Wood, and reported "that I suspected Mr. Bianco was taking lottery material back to Pittsburgh on the flight at eight-thirty p.m. and I felt it would be desirable to have him surveilled from Baltimore to Pittsburgh". Pursuant to this suggestion, Agent McKinnell was sent by Wood to the airport to replace duBois and undertake the job.

DuBois' call to Wood was made at six-thirty p.m. At eight p.m. Wood called Pittsburgh and gave Drew, the arresting agent, the information we have earlier set out. From this, and the conduct of Bianco at the airport, the arrest resulted.

On these facts, we must determine whether at the time of arrest Drew had reasonable ground to believe that Bianco was guilty of the interstate transmission of lottery materials. And we must further determine whether there was a likelihood of his escape before a warrant for his arrest could be obtained. But a preliminary question must be answered first: whether in determining the existence of reasonable belief we are restricted to what was known to the arresting officer, Drew, or whether we may consider what was known to the agent duBois.

We have pointed out that the statute authorizing arrest without a warrant by Bureau agents refers to the grounds of belief of "the person making the arrest". The size and character of the Federal Bureau of Investigation however are alone enough to suggest that it must have been supposed that agents of the Bureau would have to rely on the summary conclusions of their fellow-agents. To require full inter-office report in a large organization that must act quickly would plainly hamstring its functioning. Moreover, the legislative record of Section 3052⁴ reveals that its principal function was to facilitate the ability of agents "to make arrests in emergency situations", that is where quick action was essential. Testimony of Attorney General before House Committee on the Judiciary, quoted in House Report No. 1824, 73rd Cong.2nd Sess. (1934); cf. United States v. Heitner, 2 Cir., 1945, 149 F.2d 105, certiorari denied sub nom. Cryne v. United States, 1945, 326 U.S. 727, 66 S.Ct. 33, 90 L. Ed. 432.

We hold that the arrest is not invalidated because detailed information as to its rational basis known to the Baltimore agent duBois was not communicated to the arresting agent Drew. But neither does the summary character of the disclosure between the agents place the full substance of the underlying information beyond our scrutiny or its adequacy to support arrest beyond adjudication. To rule otherwise would raise constitutional questions which need not now concern us. Cf. Grau v. United States, 1932, 287 U.S. 124, 53 S.Ct. 38, 77 L.Ed. 212; Nathanson v. United States, 1933, 290 U.S. 41, 54 S.Ct. 11, 78, L. Ed. 159.

The agent who relies on the summary assertions of his coagent can acquire therefrom no greater authority than could have been exercised by the coagent had he been in the arresting agent's position. A telephone message cannot immunize irresponsible investigation. This construction of the statute comports fully, we think, with an original legislative request which sought only minimally necessary, but effective, powers. See Testimony of Attorney General, supra. It imports a reading of the language chosen by the Congress in the light of elementary facts about the structure of the Federal Bureau of Investigation presumptively known to the Congress.

We reach then the question on the merits, whether on all the facts outlined above, it was reasonable to suppose that Joseph Bianco was guilty of having transported lottery materials across state lines.

We review some of the facts which seem to us to have made duBois' conclusion reasonable. Bianco was first seen by duBois emerging from a grocery store with two other men. DuBois, who had been assigned to investigation of lottery activities for some time knew from past experience that this grocery store was a center for distribution of lottery materials. He had observed the very men who were Bianco's companions, and other men come regularly to this store and take materials away. He had observed their operations after they left the store, and knew them to be distributing lottery materials to...