United States v. Clark, 14584.
| Decision Date | 15 September 1939 |
| Docket Number | No. 14584.,14584. |
| Citation | 29 F. Supp. 138 |
| Parties | UNITED STATES v. CLARK. |
| Court | U.S. District Court — Western District of Missouri |
Maurice M. Milligan, U. S. Atty., and Richard K. Phelps, Asst. U. S. Atty., both of Kansas City, Mo.
Frank Rader and Jesse I. Moritz, both of Kansas City, Mo., for defendant.
The question presented in this criminal case is whether defendant's motion to suppress the evidence shall be sustained or denied.
On the evening of April 13, 1939, Jeannette Clark, the defendant, was sitting in an automobile in a parking station in Kansas City. She was accompanied by a male companion. They just had driven into the station. A federal narcotic agent, who had observed the pair drive into the station, approached the stationary automobile, placed the defendant under arrest (although he had no warrant of arrest), searched her person (although he had no search warrant), found concealed in her clothing seventy grains of heroin not in the original stamped package, which he seized. The government proposes to offer the seized drug in evidence at the trial of the defendant who has been indicted of the crime of receiving and concealing seventy grains of heroin theretofore unlawfully imported into the United States.
The testimony offered at the hearing of the motion to suppress was to the following effect: Fact 1. The agent who arrested the defendant had seen her enter and then leave a certain grocery store shortly before the time of the arrest. It was known to the agent that this grocery store was a place where not only groceries were sold, but where also there had been unlawful transactions in narcotic drugs. Fact 2. The agent knew the defendant was an addict. Fact 3. Immediately before the arrest the defendant's companion, who was an informer, known to the agent and officers with him to be reliable, indicated to the agent (by a signal in accordance with a pre-arranged code) that "the defendant actually had narcotics in her possession" (we quote here from the government's brief).
If the arrest of the defendant was lawful the search was lawful. The contention is that the arrest was lawful for that the agent arresting the defendant had reasonable grounds to believe that the defendant had committed (and was even then committing) the felony of receiving and concealing narcotic drugs. Is the contention sound?
What we have set out as Facts 1 and 2 may add a little but they certainly do not add much to Fact 3. Fact 3 is all important. No one would say that seeing an addict coming out of a suspected grocery store supplies a reasonable ground for believing that that addict has committed a felony. The question is: Is the positive statement by a citizen of good reputation to an officer that another citizen has committed a felony a reasonable ground which will justify an arrest without a warrant.
It is said in 6 Corpus Juris Secundum, Arrest, § 6, p. 599, that an officer may acquire the knowledge that will justify an arrest without a warrant "from information imparted to him by reliable and credible third persons." Of the several federal cases cited in that most admirable and extraordinarily accurate encyclopedia to support the rule announced (cases decided as late as 1939 are cited) only one is sufficiently in point to the precise question we are now discussing to justify a reference. It was ruled in that case, United States v. Gowen et al., 2 Cir., 40 F.2d 593, 596, that an officer was justified in making an arrest on information received "from his superior officer, whose own investigations had corroborated the facts reported. * * *"
Learned counsel for the government has cited several cases from district courts and courts of appeals and we have read them all. None of them, we think, supports the doctrine — indeed counsel does not specifically cite them as supporting the doctrine — that mere information from a third party, however reliable the third party, is reasonable ground for an arrest. One of the cases cited, Wisniewski v. United States, 6 Cir., 47 F.2d 825, 826, expressly intimates that mere information from a third party, known to be reliable, is "insufficient in itself to constitute probable cause." The defendant in that case was arrested because, in addition to the "information" (which was "insufficient" to justify the arrest), the arresting officers "saw" him talking to "a known bootlegger," "saw" him get "a burlap sack and a jug out of the bootlegger's car" and place it in another car and drive away. Ten minutes later he was arrested, the burlap sack, obviously containing a jug, being seen beside him. But how different from those facts, confirming the information received from the third party, are Facts 1 and 2 which we have set out above. It is not to be supposed that the Sixth Circuit Court of Appeals, which said the information...
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City of Bremerton v. Smith, 30474.
...and, Poldo v. United States, 9 Cir., 55 F.2d 866. A case bearing directly upon the question presented here is that of United States v. Clark, D.C. 29 F.Supp. 138, 139. that case it appears that a federal narcotic agent who had observed defendant drive in to a station, approached the automob......
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Draper v. United States
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