United States v. Drew, 29527.

• Decision Date: 16 February 1971
• Docket Number: No. 29527.,29527.
• Citation: 436 F.2d 529
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dennis Edward DREW and James Edward Gipson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

436 F.2d 529 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Dennis Edward DREW and James Edward Gipson, Defendants-Appellants.

No. 29527.

United States Court of Appeals, Fifth Circuit.

December 28, 1970.

Rehearing Denied February 16, 1971.

COPYRIGHT MATERIAL OMITTED

Pat Gardner, San Antonio, Tex. (ct. Appt.), for appellants.

Dennis E. Drew and James E. Gipson, pro se.

Jeremiah Handy, Asst. U. S. Atty., Seagal V. Wheatley, U. S. Atty., San Antonio, Tex., for appellee.

Before JONES, GEWIN and CLARK, Circuit Judges.

CLARK, Circuit Judge.

During the early morning hours of July 26, 1969, United States Customs officers arrested Herbert Ray McDaniel, Dennis Edward Drew, and James Edward Gipson at the San Antonio International Airport. Each was charged with violating various parts of the federal narcotics laws. An informer's tip was the first link in the chain of events which lead to their arrest and subsequent conviction, but additional links of credibility were fused to the informer's information by competent police surveillance. Because we find that there were sufficient independent observations by the arresting officers to corroborate the details of the tip and thus negate the possibilities that the informer fabricated his report or passed on unreliable rumor, we affirm the judgment of the district court.

I. BACKGROUND AND ISSUES.

On July 24, 1969, an informant contacted Leonard Williams, an agent with the United States Customs Bureau. This informant had been known by Agent Williams for approximately one year and had supplied correct and reliable information in the past. Williams had personally investigated some of the informer's previous tips and had found them to be true. Additionally, Williams knew that the informant's information had lead to two previous successful convictions.

At the time of the initial contact, the informant indicated that there were three Negro male subjects in Laredo from Kansas City and that they intended to acquire a large quantity of narcotics. The informer was also of the opinion that the men had been in the area before, at which time they had accepted delivery of narcotics in the San Antonio area. The following morning the informant called again, adding additional specifics. The subjects, he related, were staying at the Sands Motel in Laredo and were driving a black, 1969 Cadillac.

Agent Williams, with another agent, hastened to the Sands, where they verified the presence of such an automobile. Additional credence was given to the story since the car bore Missouri license plates. Surveillance was not established, however, until a third call came from the informant, who this time stated that the subjects were attempting to acquire a pound of narcotics and twenty pounds of marijuana, that they were planning to depart that evening, and that it was unknown if the subjects already had the narcotics or would take delivery at a point away from Laredo.

Shortly after surveillance was established, the suspects departed the Sands for approximately an hour, during which time an agent of the Customs Bureau was unable to follow them. After returning to the Sands, the subjects then departed for San Antonio, the city which the informant had previously linked to the suspects' drug trafficking.

Surveillance continued to San Antonio and in San Antonio until arrest, except for two occasions when the three defendants entered the Holiday Inn, for 5 to 10 minutes on one occasion and three to eight minutes on another. It was further stipulated that during this surveillance nothing was taken from the automobile nor placed in it except an attaché case which defendant Gipson carried with him, in and out, on his second entrance of the Holiday Inn.

At the San Antonio Airport, McDaniel, Drew and Gipson were arrested — McDaniel, in the car outside the terminal, Drew and Gipson inside the terminal. A search of the automobile revealed it contained 258.85 grams of heroin and twenty-three bags containing approximately twenty pounds of marijuana, as well as a pistol; heroin was discovered on Drew's person and a pistol was found in the attaché case he was carrying; a partially made marijuana cigarette and a small packet of marijuana were found on Gipson.

Drew, Gipson and McDaniel were indicted jointly by the Grand Jury; the indictment generally charged the three with illegal importation of and trafficking in heroin on which the tax had not been paid and possessing firearms during the commission of a felony.¹ All three pleaded not guilty; McDaniel later changed his plea to guilty and he did not appeal his conviction and sentence.

Defendants Drew and Gipson made a motion to suppress all evidence, claiming the same had been obtained in the search which was incident to an illegal arrest. On October 15, 1969, evidence and arguments were heard on these motions. During this hearing the district judge sustained the objections of the government to questions which would have lead to the identity of the informer. After the close of the evidence and argument, the court held that there was probable cause for arrest and denied their motion to suppress.

On October 21, 1969, the defendants filed a motion in limine to preclude the government from placing the seized marijuana into evidence; this motion was also denied. In November, trial was held to the court, which found Drew and Gipson guilty on all counts and sentenced them accordingly.²

In this appeal Drew and Gipson allege three bases of error: the trial court erred in denying their motion to suppress evidence obtained as a result of an illegal search and seizure; the trial court erred in limiting cross-examination concerning how the informant acquired his information; and, the trial court erred in admitting against appellant Gipson the seized marijuana. All three assignments of error are without merit.

II. ILLEGAL SEIZURE

Drew and Gipson contend that the heroin found in the car and on the person of Drew, the revolver found in Drew's attaché case, the twenty-three bags of marijuana found in the automobile, the partially smoked marijuana cigarette found on Gipson's person, and several additional items seized incident to the arrest could not be admitted into evidence against them since the arrest was made without a warrant and without probable cause.

It is undisputed that an informer's tip can play a part in establishing probable cause. Such was the situation in the case at bar. While it is true that proof was not adduced in open court as to how the informant obtained his information, Agent Williams did offer a factual basis for the informant's reliability. Moreover, in the absence of a statement detailing the manner in which an informant came by his information, an informant's tip can still remain viable if it describes the accused's criminal activity in sufficient detail so that the arresting officers may know that the informant is credible and is relying on something more substantial than casual rumor or the general reputation of the accused. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), provides an important legal benchmark for gauging the adequacy of detail necessary to constitute probable cause, which we find to be controlling in the case at bar.

In Draper the government's informant did not state the way in which he had obtained his information, but he did report that Draper had gone to Chicago the day before by train to obtain narcotics and that he would return to Denver by train on one of two specific mornings. Moreover, the informant described the physical appearance, the clothes, the walk and the bag Draper would be carrying. Police went to the station on the designated days and observed a person having the exact physical attributes and wearing the precise clothing described by the informant. All the information supplied by the informant was corroborated by the observations of the police. Draper was then searched, and the heroin, which eventually lead to his conviction, was found.

The Supreme Court, in finding that the information supplied by the informant was sufficient to show probable cause, declared that the government agent would have been derelict in his duties had he not pursued the tip. In language which answers the assertion of the instant appellants that the arresting authorities observed only innocent activity and did not actually know a crime had been committed, the Draper court declared that it would have been wrong not to act when the agent

* * * had personally verified every facet of the information given him by Hereford the informant except whether petitioner had accomplished his mission and had the three ounces of heroin on his person or in his bag. And surely, with every other bit of Hereford\'s information being thus personally verified, Marsh the agent had "reasonable grounds" to believe that the remaining unverified bit of Hereford\'s information — that Draper would have the heroin with him — was likewise true. Draper v. United States, supra, at 313, 79 S.Ct. at 333.

The Draper facts bear great similarity to the facts in the case at bar. In each case the suspects were identified with sufficient detail to permit location and surveillance. Each informant had a tested period of reliability. Each suspect appeared or was located at the exact place, in the exact manner, and during the exact time designated. Put more simply, Agent Williams verified the details of a reliable informant's tip. This verification corroborated the presence of three Negroes, driving a black, 1969 Cadillac, with Missouri license plates, staying at the Sands Motel, departing at the time indicated, going to a city linked to the subjects' trafficking in drugs. Here, as in Draper, had the agents failed to act, they would have been derelict in their duties. Here, as in Draper, because of personal verifications by the officers of the numerous details, there was probable cause to believe that the remaining bit of information...