United States v. Bradley

• Decision Date: 27 January 1972
• Docket Number: No. 71-1186 to 71-1189.,71-1186 to 71-1189.
• Citation: 455 F.2d 1181
• Parties: UNITED STATES of America, Appellee, v. Charles B. BRADLEY, Jr., et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — First Circuit

455 F.2d 1181 (1972)

UNITED STATES of America, Appellee, v. Charles B. BRADLEY, Jr., et al., Defendants-Appellants.

Nos. 71-1186 to 71-1189.

United States Court of Appeals, First Circuit.

Heard November 1, 1971.

Decided January 27, 1972.

On Rehearing March 10, 1972.

COPYRIGHT MATERIAL OMITTED

William P. Homans, Jr., Boston, Mass., for Byron H. Johnson and William Helliesen, appellants.

Stanley R. Lapon, Cambridge, Mass., for Charles B. Bradley, Jr., appellant.

Edward M. Altman, Cambridge, Mass., on brief for Robert T. Odell, Jr., appellant.

Paul F. Ware, Jr., Asst. U. S. Atty., with whom Herbert F. Travers, Jr., U. S. Atty., was on brief, for appellee.

Before ALDRICH, Chief Judge, BREITENSTEIN, Senior Circuit Judge,^* and McENTEE, Circuit Judge.

McENTEE, Circuit Judge.

This is the consolidated appeal of four defendants, Bradley, Johnson, Odell, and Helliesen, who were tried together before a jury on a six-count indictment. All were found guilty of conspiracy to sell a narcotic drug not in pursuance of a written order¹ (Count 1). All but defendant Johnson were charged with and convicted of carrying firearms during the commission of a felony² (Counts 4, 5, and 6). Defendants Johnson and Bradley were also charged with selling cocaine³ (Counts 2 and 3), but the jury acquitted them on those two counts. The defendants urge reversal of their convictions on a number of grounds, generally attacking the legality of arrests and searches, the sufficiency of the government's evidence, and the conspiracy instructions given by the trial judge.

The case involves a proposed narcotics transaction between the defendants and federal undercover narcotics agents. The agents, through an informer named Arthur Motsis,⁴ contacted defendant Bradley, who said he could arrange for the sale to them of one and a half pounds of cocaine. Preparations for this transaction began on March 4, 1971, and continued until March 12. On that day, at approximately 9:20 p. m., Motsis and Agents Egan and Ross went to the first floor apartment at 73 Magazine Street, Cambridge, Massachusetts. Bradley, apparently alone in the apartment, admitted them,⁵ and five minutes later these four went outside to the agents' car to count the money. Bradley stated that the price was $9,500, which was $500 more than the agents had with them. The agents and Motsis then left to get the extra money, and returned at approximately 11:05 p. m.

Upon their return, the agents and the informer were admitted by defendant Odell, and within the next few minutes all the defendants were present in the apartment. In the course of conversation, Bradley admitted that he had a gun. Defendant Johnson produced a sample of the cocaine in a tinfoil packet, which was placed on a scale by Agent Egan. Each of the defendants sampled a bit of the cocaine, which remained on the scale after this sampling. Several minutes later, defendants Johnson, Helliesen, and Bradley left the apartment. Johnson and Helliesen were to get the main supply of cocaine from their car; Bradley apparently just drifted out to the courtyard of the apartment building. Agent Egan and informer Motsis left to get the money from the government vehicle; Agent Ross remained in the apartment with Odell.

After a quick drive around the block to check the area, Johnson and Helliesen exited from their car and started toward the apartment. Johnson was carrying a flight bag later determined to contain sixteen plastic bags of cocaine. Motsis remained in the government car, and Egan followed Johnson and Helliesen from the street to the apartment building. A ten-man government surveillance team was in the immediate vicinity.

It is at this point, the time of re-entry into the apartment building at 11:35, that the evidence adduced at the pretrial hearing on defendants' motion to suppress becomes contradictory. Agent Egan testified that Johnson and Helliesen preceded him through the unlocked outer door, at which time Odell opened the apartment door and saw them standing there. Odell buzzed open the foyer door, and Johnson, Helliesen and Egan entered. Egan stated that when the foyer door was opened, Agent Maloney was a few steps behind him, followed by the rest of the surveillance team. Agent Ross, who was inside the apartment with Odell discussing the pending sale, testified that Odell opened the apartment door, looked out, and then buzzed open the foyer door. Helliesen and Johnson entered, followed by Egan and then the surveillance team. Johnson, Helliesen, and Odell were arrested immediately. A third agent testified that he peaceably arrested Bradley on the steps outside the apartment building after Egan had passed through the foyer door. Bradley, however, testified that Helliesen and Johnson were totally inside the apartment when Egan and the other agents ran up to the apartment building, grabbed Bradley, opened the unlocked outer door, and then shoved Bradley against the foyer door, causing the lock to break and spring open. Bradley did not recall how the apartment door was opened. Odell testified that while in the apartment with Johnson and Helliesen he heard a loud bang from the direction of the foyer door, and seconds later the apartment door was opened from the outside and about ten agents streamed in.

Based on this evidence the court found that the entry was not by force, Odell having voluntarily buzzed open the foyer door and opened the apartment door. The trial judge further found that any delay in order to obtain a warrant or any announcement of authority and purpose would likely have permitted the destruction of evidence. It therefore ruled that the arrests were legal and denied the motions to suppress.⁶

Defendants challenge the legality of the arrests on several grounds, the first being that they violated 18 U.S.C. § 3109.⁷ This statute is applicable to the entry of federal officers, Sabbath v. United States, 391 U.S. 585, 588-589, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968),⁸ and its standards apply to entry to execute a warrantless arrest, Miller v. United States, 357 U.S. 301, 306, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958). Defendants' contention that the agents employed force to enter at 11:35 is without merit, since the finding of no force by the trial court, which was far from "clearly erroneous," is binding on this court. Nor was the court obligated to reverse its ruling or reopen the hearing when evidence adduced at the trial allegedly contradicted the pre-trial evidence.⁹ The court did not refuse to consider the evidence, cf. Rouse v. United States, 123 U.S.App.D.C. 348, 359 F.2d 1014 (1966), but reasonably believed that it did not compel a different finding.¹⁰ There was no abuse of discretion in not conducting a further hearing on the matter.

Defendants contend that, notwithstanding the absence of force, 18 U.S.C. § 3109 was violated by use of a ruse.¹¹ While a physical breaking is not required for a § 3109 violation, Sabbath v. United States, supra, the Supreme Court has expressly reserved the question of a ruse. Id., 391 U.S. at 590, n. 7, 88 S.Ct. 1755. Since Sabbath the lower federal courts have spoken variously on the question,¹² and this court has not yet passed on it. While the matter is of substantial importance, we do not reach the question in this case due to the prior lawful entry of Agent Ross.¹³

When Agent Egan and the surveillance team entered at 11:35 on March 12, Agent Ross was already inside the apartment. His entry at 11:05 with Egan was clearly lawful. As in Lewis v. United States, supra note 11, the agents were invited into the apartment for the purpose of executing a felonious sale of narcotics, and the defendants' only concern was that the agents were willing purchasers, which they were. Following the lawful entry, Agent Ross remained in the apartment. The defendants do not allege, nor could they, that Ross's presence suddenly became unlawful or that their privacy suddenly was invaded solely because his role changed from undercover agent to arresting officer. To so hold, as was stated in Lewis v. United States, supra 385 U.S. at 210, 87 S.Ct. at 427, would "come near to a rule that the use of undercover agents in any manner is virtually unconstitutional per se." The lawful presence of a government agent precludes any argument that later entries violate the privacy of occupants. Since privacy is what § 3109 seeks to protect, the prior lawful entry and continued presence of Agent Ross vitiates any impropriety of subsequent entries. See United States v. Marson, 408 F.2d 644 (4th Cir. 1968), cert. denied, 393 U.S. 1056, 89 S.Ct. 695, 21 L. Ed.2d 698 (1969); Cognetta v. United States, 313 F.2d 870 (9th Cir. 1963); United States v. Viale, 312 F.2d 595 (2d Cir.), cert. denied, 373 U.S. 903, 83 S.Ct. 1291, 10 L.Ed.2d 199 (1963).

The defendants raise several objections to the searches apart from the alleged violation of § 3109. In that probable cause existed to arrest Johnson and Hellieson as they approached the apartment building, defendants argue that those arrests were unlawfully delayed to afford an opportunity to search the premises incident to arrest. However, any interior search incident to arrest could have been carried out with regard to Odell; and nothing was seized as a result of the delay which would not have been seized had Johnson and Helliesen been arrested outside. As we stated in United States v. Berkowitz, 429 F.2d 921, 926 (1st Cir. 1970), "we are unaware of any right of a defendant to be arrested at a particular time." There is absolutely no indication that the primary purpose of any momentary delay was to allow a search inside the apartment.¹⁴ Cf. McKnight v. United States, 87 U.S.App. D.C. 151, 183 F.2d 977 (1950).

Defendants also claim that the search and seizure of the flight bag containing cocaine violated the doctrine of Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L.Ed.2d 685 (1969).¹⁵ Agent Egan testified that as Johnson was being placed under arrest in one...