United States v. Irby

• Decision Date: 22 May 1962
• Docket Number: No. 8485.,8485.
• Citation: 304 F.2d 280
• Parties: UNITED STATES of America, Appellee, v. James Campy IRBY, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

304 F.2d 280 (1962)

UNITED STATES of America, Appellee, v. James Campy IRBY, Appellant.

No. 8485.

United States Court of Appeals Fourth Circuit.

Argued March 20, 1962.

Decided May 22, 1962.

A. Andrew Giangreco, Alexandria, Va., for appellant.

Plato Cacheris, Asst. U. S. Atty. (C. V. Spratley, Jr., U. S. Atty., on brief), for appellee.

Before SOPER, HAYNSWORTH and J. SPENCER BELL, Circuit Judges.

SOPER, Circuit Judge.

James Campy Irby appeals from a judgment of the District Court rendered on October 6, 1961 whereby he was sentenced to a fine and imprisonment for violation of the Federal Narcotic Acts after he had been found guilty as charged in two counts of an indictment. The first count charged that on March 31, 1961, at the Washington National Airport, in violation of 21 U.S.C.A. § 174, Irby received, concealed and transported 11.7 ounces of heroin knowing that the drug had been imported into the United States contrary to law. The second count charged that on March 31, 1961, in violation of Section 4704(a) of the Internal Revenue Code, 26 U.S.C. § 4704(a), he had purchased, sold and distributed 11.7 ounces of heroin which was not in the original stamped package. On each count he was sentenced as a second offender to imprisonment for a period of 20 years and fined $1000, the sentences to run concurrently. Information furnished to the court pursuant to Section 7237(c) of the Internal Revenue Code, 26 U.S.C. § 7237(c) showed that the defendant, on May 16, 1946, had pleaded guilty to the violation of 21 U.S.C.A. § 174, and had been sentenced to imprisonment for the period of 15 months to 4 years and fined $10.00.

Irby was arrested on March 31, 1961 at the Washington National Airport by Federal Narcotic Agents stationed in Washington, who acted without a warrant of arrest upon information furnished them by Federal Narcotic Agents stationed in New York. He was searched and 10 packets of heroin were found upon his person. This evidence was used against him at the trial. Reversal of the judgment is sought on the ground that the evidence was obtained through an illegal arrest and search of the person without a warrant of arrest and without probable cause. Prior to the trial the defendant moved the court to suppress the evidence on this account but the motion was over-ruled. The correctness of this ruling is the subject of this appeal.

Authority to make arrests without a warrant for violation of any law of the United States relating to narcotic drugs was conferred upon the agents of the Bureau of Narcotics, of the Department of the Treasury, by the Act of July 18, 1956, Chapter 629, § 104(a), 70 Stat. 570, codified as Section 7607 of the Internal Revenue Code, 26 U.S.C. § 7607. It provides that such agents may "make arrests without warrant for violations of any law of the United States relating to narcotic drugs * * * 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." Hence, the question for decision on this appeal is whether the District Judge was justified in finding that the agents in this case, at the time of the arrest, had reasonable grounds to believe that he had committed or was committing a violation of the narcotic statutes. The evidence presented to the Judge on this point may be summarized as follows.

The Washington agents had knowledge of Irby's prior conviction for violating the Narcotic Act in 1946, and they had had him under intermittent surveillance since 1958, and had seen him in contact with other violators of the narcotic statutes at various times, most recently within a month of the date of his arrest. In March 1961, prior to the arrest, narcotic agents stationed in New York received information about Irby from one Worthington Albert Alston who had previously sold narcotic drugs to an under cover Federal agent and had thereafter become a special employee of the Narcotics Bureau as an unpaid informer. The information related to Irby's activities in dealing with narcotics and specifically to a trip which Irby was to make from Washington to New York by air on March 31 in order to get narcotics and return with them to Washington. On March 30 the New York agents communicated with the Washington agents and told them of the planned journey and that Irby would leave the Washington airport on the morning of March 31 by plane of American Airlines due to arrive at New York at 11:48 A.M. As a result of this information the Washington agents were awaiting Irby at the airport and saw him purchase a round-trip ticket to New York on the flight predicted, under the assumed name of "C. Green", and take the plane. The time of his return could not be determined as Irby had not made a return reservation. The Washington agents then telephoned this information to the office of the narcotics agents in New York. Agents from the New York office met the plane upon its arrival at the LaGuardia Airport in New York City and followed Irby to 461 Central Park West in New York City, which was known to them as a place where many violators and suspected violators of the narcotic laws were accustomed to meet. They saw him leave the place about 2 o'clock in the afternoon but lost him and then picked him up again at about 3:30 P.M. at the Airport and saw him board a plane for Washington, D. C. They telephoned this information to the Washington agents who met the plane upon its arrival in Washington and arrested Irby and found the drugs upon his person as above set out.

Evidence of these facts was presented to the District Judge at the hearing of the motion to suppress the evidence. In addition, he was shown the record of his court in a criminal case in which Alston had been indicted in December 1960 for making a false claim against the United States. This record showed that on motions of the United States and of Alston's attorney filed in this case in January 1961 Alston was committed to the St. Elizabeth's Hospital in the District of Columbia to be examined in respect to his mental competency on the ground that he was a pathological liar and an anti-social maladjusted person who was unable to adjust himself to prevailing social standards and had been discharged from the United States Army for unfitness and had inflicted a gun shot wound upon himself with suicidal intent. A report of the superintendent of the hospital, under date of March 15, 1961, showed that after intensive study of the case by the psychiatric staff of the hospital, it was concluded that Alston was mentally competent to understand the proceedings against him and to assist properly in his own case. The record in the case also showed that when Alston was called for trial on September 11, 1961 he did not respond, and on October 19, 1961 his bail was forfeited.

It is the contention of the defendant that upon this testimony the District Judge should have granted the motion to suppress the evidence gained by the arrest on the ground that the information upon which the agents acted in making the arrest was unreliable and unworthy of belief because it was obtained solely from Alston who was known to be mentally sick as well as a pathological liar. Our examination of the testimony leads us to a different conclusion. It was known to the agents in Washington that Irby had a criminal record in the narcotic field and had been consorting with violators of the Narcotic Acts, and hence, when they received information of his impending trip to New York, it was proper and natural that they should investigate. It was known at...