United States v. Bracer, 325

• Decision Date: 09 March 1965
• Docket Number: No. 325,Docket 29364.,325
• Citation: 342 F.2d 522
• Parties: UNITED STATES of America, Appellee, v. Albert BRACER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

342 F.2d 522 (1965)

UNITED STATES of America, Appellee, v. Albert BRACER, Defendant-Appellant.

No. 325, Docket 29364.

United States Court of Appeals Second Circuit.

Argued January 27, 1965.

Decided March 9, 1965.

Philip Segal, New York City (Samuel Segal, New York City, on the brief), for defendant-appellant.

R. Harcourt Dodds, Asst. U. S. Atty., Southern Dist. of New York (Robert M. Morgenthau, U. S. Atty., and Jack D. Samuels, Asst. U. S. Atty., Southern Dist. of New York, on the brief), for appellee.

Before WATERMAN, SMITH and ANDERSON, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

After a trial by jury in the United States District Court for the Southern District of New York, McLean, J., the appellant Bracer was found to have violated 21 U.S.C. §§ 173-174 by receiving, concealing, selling, and facilitating the transportation, etc., of approximately 4 grams and 340 grams of heroin on two separate occasions on April 10, 1963, and to have conspired with co-defendants Torres and Solero to violate §§ 173-174. He received concurrent 7-year sentences on all counts. Bracer was arrested without a warrant on April 10, 1963 following the arrest on April 8 of Solero, who informed the agents that he had been obtaining his heroin from Bracer. At the time of his arrest, Bracer's car was searched and a package of heroin discovered on the floor, and while being interrogated Bracer volunteered to the arresting agent that he had additional heroin stored in his apartment. Bracer then consented to a search of his apartment. Bracer now contends that the search of his home was without his consent and hence unlawful, that his arrest without a warrant was illegal, in that probable cause was lacking, and that the heroin obtained at the time of his arrest was hence inadmissible evidence, and that there was insufficient evidence to support the conspiracy conviction. He has failed to demonstrate error on either of the substantive counts, and we affirm the judgment on the substantive counts. We do not reach the conspiracy count.

In the first place, the arresting agent Bailey had probable cause to make the arrest and to search Bracer's automobile. The evidence outlined below, obtained through the agents' surveillance showed to a high degree of probability that the appellant was an integral part of the distribution scheme and further served to substantiate Solero's claim that Bracer was the source. When, on April 1, Solero ventured out to obtain an additional ounce of heroin for Bailey who was acting as a purchaser, Solero was seen by the agents to proceed directly to Bracer's apartment and to return immediately to Bailey with the additional heroin. Furthermore, the files of the narcotics bureau showed that Bracer had previously been convicted for a narcotics violation, and information Bailey had received from a fellow agent disclosed that appellant was engaged in the narcotics trade. Finally, on April 3, Solero told Bailey that he was going to meet his connection. Agents watching Solero then saw him proceed to a street corner in the Bronx where, after waiting a short while, he twice motioned to Bracer who drove past him on two different occasions without stopping; and, when Solero returned to Bailey, he told Bailey that he had just seen his connection, but that his connection for some reason did not stop.

26 U.S.C.A. § 7607 empowers a narcotics officer to make arrests without a warrant for violations of the narcotics laws when he has "reasonable grounds to believe that the person to be arrested has committed or is committing such violation." "Reasonable grounds" is construed to mean probable cause, and probable cause is defined to mean more than mere suspicion, but not...