United States v. Burruss, 19877.

• Decision Date: 19 November 1969
• Docket Number: No. 19877.,19877.
• Citation: 306 F. Supp. 915
• Parties: UNITED STATES of America v. Gary BURRUSS.
• Court: U.S. District Court — Eastern District of Pennsylvania

306 F. Supp. 915

UNITED STATES of America v. Gary BURRUSS.

No. 19877.

United States District Court E. D. Pennsylvania.

November 19, 1969.

Anthony List, U. S. Atty., Philadelphia, Pa., for plaintiff.

Jack Myers, Philadelphia, Pa., for defendant.

OPINION

TROUTMAN, District Judge.

This matter appears before the Court upon defendant's timely motion for the return of seized property and the suppression of evidence pursuant to Rule 41(e), F.R.Cr.P., 18 U.S.C.A.

On October 30, 1968, the defendant was arrested at his apartment in Philadelphia by special agents of the Bureau of Narcotics and Dangerous Drugs and was charged with the unlawful sale and possession of drugs in violation of 21 U.S.C. § 331(q). By his motion to suppress, defendant contends that he was the victim of an unlawful arrest and an unlawful entry of his apartment and that as a result the special agents conducted an illegal search and seizure in violation of the guarantees of the Fourth Amendment. Defendant seeks suppression of the following items:

1. One tablet allegedly analyzed as S. T.P.

2. A small quantity of marijuana

3. One marijuana cigarette

4. A large quantity of identified Government funds used to make the alleged sale, including twenty dollars from an alleged prior sale involving other persons.

An evidentiary hearing upon the motion disclosed the following facts:

Theodore S. Handoga, a special Federal Narcotics Agent, and various other narcotics agents had made numerous purchases of dangerous drugs from one Philip Coran during a five-month period prior to October 30, 1968. Coran was not arrested during this period since it appears that the agents' primary concern was to locate and apprehend Coran's supplier.

On October 30, 1968, at about 4 P.M., Agent Handoga arranged with Philip Coran to purchase a quantity of S.T.P. tablets in the vicinity of the Grange Manor Apartments at Grange Street and Old York Road in Philadelphia. Prior notice of this pre-arranged "buy" was given to other agents who, while acting in an undercover capacity, kept Coran and Agent Handoga under surveillance. Some conversation took place between Coran and Agent Handoga in the agent's car parked outside the apartments to the effect that Agent Handoga should accompany Coran into the apartments to meet Coran's source of supply. When Coran rejected this suggestion, Agent Handoga refused to pay Coran for the drugs until Coran delivered them to him personally. Coran then went into the apartments and returned shortly thereafter with seventy tablets subsequently analyzed to be S.T.P. Agent Handoga then paid Coran with $400.00 in identified Government bills; Coran took the money and walked back to the apartments. Agent Handoga signalled the other agents that the buy had been completed. He related this in a conversation in his car to Agents Cassidy and Wilder who then followed after Coran into the apartments. Agent Becker was also in the apartment building attempting to locate Coran.

At first, Coran could not be located. However, Agent Cassidy heard a door open on the first floor and observed Philip Coran outside of Apartment A-1 "standing in the doorway talking to someone inside." After the conversation ended and the door closed, Agent Cassidy approached Coran, identified himself as a Federal Narcotics Agent and placed Coran under arrest. Agent Cassidy and Agent Becker, who had come from another part of the building, then brought Coran back to the door of the Apartment A-1. The entrance into defendant's apartment and his arrest is set forth in the following excerpt from Agent Cassidy's testimony at defendant's arraignment before the Commissioner:

"I asked him (Coran) to knock on the door of the apartment that he came out of, which he did. The door opened and inside was Gary Burruss * * *. Myself and another agent (Agent Becker) and Philip Coran were at the doorway. Burruss backed up very quickly and went for his right rear pocket with his hand. Agent Becker * * * went after him and subdued him, as it appeared he was going to take something out of his pocket. He was placed under arrest.¹

After the defendant was "subdued", the agents made a thorough search of his person and found a tear gas gun in his right rear pocket. A small quantity of marijuana about the size of a postage stamp and the identified Government bills were also found in the defendant's pockets. A complete search of the defendant's apartment was then conducted and one marijuana cigarette was found underneath a picture and one S.T.P. tablet was found elsewhere in the apartment.

Neither Agent Cassidy nor Agent Becker identified himself or his purpose prior to the time when the defendant opened his door in response to Coran's knock. However, as the agents came through the doorway to subdue the defendant they shouted "police". When the defendant was informed he was under arrest, the agents made a proper identification.

Defendant in effect makes three arguments before this Court: first, that his arrest and the ensuing search were unlawful because the arrest was made without probable cause; second, that the arrest and search were unlawful because the officers failed to state their identity and purpose before entering his apartment in violation of 18 U.S.C. § 3109; third, that, assuming his arrest to have been lawful, the search went beyond the permissible scope of a search "incident to a legal arrest".

The Arrest

It is clear that the evidence at issue in order to be admissible must be the product of a search incident to a legal arrest since it is admitted here that the officers had neither an arrest warrant nor a search warrant. Federal Narcotics agents are authorized to arrest without a warrant pursuant to 26 U.S.C. § 7607(2) where "the violation is committed in the presence of the person making the arrest or where such person has reasonable grounds to believe that the person to be arrested has committed or is committing such violation." Reasonable grounds within the statute and probable cause are required by the Fourth Amendment to the United States Constitution are substantial equivalents. Ng Pui Yu v. United States, 352 F.2d 626 (9th Cir. 1965); Elkanich v. United States, 327 F.2d 417 (9th Cir.) cert. denied 377 U.S. 917, 84 S.Ct. 1182, 12 L.Ed.2d 186 (1964). The probable cause or reasonable grounds sufficient to authorize an arrest without a warrant exist where "`the facts and circumstances within their the arresting officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed." Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543, 39 A.L.R. 790 (1925); Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949). It is basic, therefore, that a warrantless arrest must stand on firmer grounds than mere suspicion. Henry v. United States, 361 U.S. 98, 101, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). However, this does not mean that the arresting officer must have evidence in hand which would be sufficient to convict. United States v. Rivera, 321 F.2d 704 (2d Cir. 1963). The quantum of evidence which would constitute probable cause can by no means become an inflexible rule, but rather, such must be measured by the facts of each particular case. Carroll v. United States, supra, at 162, 45 S.Ct. at 280.

Turning to the facts of the instant case, we cannot agree with defendant's contention that his arrest was made without probable cause. Agents Cassidy and Becker were part of a surveillance team which personally observed the transaction between Philip Coran and Agent Handoga. From Agent Handoga's signal they could reasonably be aware that a sale of dangerous drugs had taken place. Furthermore, Agent Cassidy was personally informed by Agent Handoga that Coran was returning into the Grange Manor Apartments apparently to pay his supplier with the identified Government funds. This was their reason for following Coran into the building. Admittedly, the information given by Agent Handoga upon which the agents acted would be hearsay. However, probable cause may be predicated upon hearsay evidence as long as the source is known to be reliable. See Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); United States v. Nicholas, 319 F.2d 697 (2d Cir.) cert. denied 375 U.S. 933, 84 S.Ct. 337, 11 L.Ed.2d 265 (1963). We cannot say that the information given by Agent Handoga in these circumstances was so untrustworthy as to vitiate a finding of probable cause. Considering the prior knowledge at the agents' disposal when Philip Coran was observed leaving the defendant's apartment, we think it was reasonable to believe that Coran was there to pay his supplier, and that there were reasonable grounds for the agents to believe that the person inside that apartment had been a participant in an illegal sale of "dangerous drugs" to Philip Coran. When assessing probable cause it must be remembered that "as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Brinegar v. United States, supra, 338 U.S. at 175, 69 S.Ct. at 1310. Noting these practical considerations, we believe that Agents Cassidy and Becker had probable cause to make the arrest.

It is further contended by the defendant that since the Narcotics Agents had Philip Coran under investigation for approximately five months, they had ample time to secure a warrant for the defendant's arrest. The fact, however, that Coran was under investigation for this period does not indicate that there was knowledge of the defendant's activities during this time. The testimony in fact indicates the contrary. It was stated in the suppression hearing that October 30, 1968, was the first time that the agents'...