United States v. Chin Dan Fook

• Decision Date: 15 July 1969
• Docket Number: No. 641,Docket 33441.,641
• Citation: 413 F.2d 1016
• Parties: UNITED STATES of America, Appellee, v. CHIN DAN FOOK, a/k/a George Young, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

413 F.2d 1016 (1969)

UNITED STATES of America, Appellee, v. CHIN DAN FOOK, a/k/a George Young, Appellant.

No. 641, Docket 33441.

United States Court of Appeals Second Circuit.

Argued June 11, 1969.

Decided July 15, 1969.

H. Elliot Wales, New York City (Gilbert S. Rosenthal, New York City, on the brief), for appellant.

Abraham D. Sofaer, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty. for the Southern District of New York, Jack Kaplan, Asst. U. S. Atty., on the brief), for appellee.

Before MOORE, SMITH and ANDERSON, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

The defendant, Chin Dan Fook, a/k/a George Young, was charged in a one-count indictment with the illegal possession of heroin in violation of 21 U.S.C. §§ 173, 174. A pre-trial motion to suppress was denied by Judge Weinfeld, and the case was tried without a jury to Judge MacMahon, who found the defendant guilty and sentenced him to the mandatory minimum term of five years imprisonment. On appeal the only question is whether there was probable cause to sustain the arrest and incidental search in this case. Since we believe that there was ample probable cause, we affirm.

The defendant was arrested by narcotics agents on the basis of a tip given by an informant previously unknown to them. The informant told the agents that one Gordon Brindell was selling narcotics from an apartment in Chinatown, and that Brindell was being supplied with narcotics by a 50-year-old Chinese man who called himself George Young.¹ The supplier's Chinese name, the informant said, was Chin Dan Fook. The informant told the agents that he had previously bought narcotics from both Fook and Brindell, and said that Fook supplied Brindell at the Chinatown apartment at least twice a day, usually at noon and again at midnight. The informant also said that occasionally Fook would make an unscheduled visit to the apartment when it appeared that Brindell had run out of stock. According to the informant, persons purchasing narcotics from Brindell would call ahead from a nearby telephone booth and then come to the apartment to be supplied.

On January 4, 1968, the agents established a surveillance of Brindell's apartment and observed an addict named Nam purchase a small quantity of narcotics from Brindell. When the agents apprehended Nam, he told them that Brindell regularly supplied him and other addicts with narcotics, and said that Brindell in turn was supplied by a "Mr. Young." On January 9, the informant telephoned the agents and told them he had just spoken to Fook. The informant said that Fook had already made one delivery of narcotics to Brindell that day, and quoted Fook as saying that he "would be back" later that night. The agents again established a surveillance of Brindell's apartment, and spent the early part of the evening watching Brindell transact business in precisely the way that the informant had described. Shortly after midnight Fook arrived by taxi, and Brindell called down from a window, "Come on up, George, come on up." At this point the agents arrested Fook, and when they searched him they found a large quantity of heroin hidden in a pack of cigarettes taped inside his umbrella.

The defendant makes much of the fact that the informant was not of proven reliability, and asks us to conclude from this single fact that the informant could not possibly give reliable information. Even though the informant was not of proven reliability, compare McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967), we cannot agree that probable cause is to be determined simply on the basis of the informant's prior reliability, especially where, as here, there was...