United States v. Monticallos, 458

• Decision Date: 19 July 1965
• Docket Number: Docket 27810.,No. 458,458
• Citation: 349 F.2d 80
• Parties: UNITED STATES of America, Appellee, v. John MONTICALLOS, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

349 F.2d 80 (1965)

UNITED STATES of America, Appellee, v. John MONTICALLOS, Appellant.

No. 458, Docket 27810.

United States Court of Appeals Second Circuit.

Argued April 29, 1965.

Decided July 19, 1965.

Joshua N. Koplovitz, New York City (Anthony F. Marra, The Legal Aid Society, New York City, on the brief), for defendant-appellant.

Jay Gold, Asst. U. S. Atty., Southern District of New York (Robert M. Morgenthau, U. S. Atty., and Bernard W. Nussbaum, Asst. U. S. Atty., Southern District of New York, on the brief), for appellee.

Before LUMBARD, Chief Judge, and FRIENDLY and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge:

On November 30, 1960 Federal Narcotics Agents, Ward and Bailey, held a pre-arranged meeting with an informant at about 11:15 in the morning near 96th Street and Broadway in New York City. The informant told them that he had just come from the home of John Monticallos at 215 West 101st Street, Apartment 323, that Monticallos lived there with his wife and that he had at that moment about two ounces of heroin concealed under the bathtub in his apartment. The informant also told them that Monticallos was about to sell some narcotic drugs to a girl, who was to arrive at Monticallos' apartment momentarily, and that, if the agents hurried, they could get there while the transaction was taking place. The informant added that when he left the apartment, John Monticallos was in bed; he also told the agents that near apartment 323 on the third floor there was a stairwell beside the elevator where the agents could hide while waiting for the girl to arrive for the purchase of narcotics.

About a week prior to this occasion the informant had told the agents that he, himself, was a user, that he had purchased narcotics from several persons, whom he named, and that on several occasions he had purchased them from John Monticallos. Some of the information which the informant gave the agents the preceding week about persons other than Monticallos was checked and found to be accurate, though no arrests of such others had been made by November 30, 1960.

Following the informant's advice on the morning of November 30th, the Agents, Ward and Bailey, joined by Federal Narcotics Agent Coursey, went forthwith to Monticallos' apartment. As they stepped from the elevator on the third floor they saw a girl at the entrance door to apartment 323. They heard her knock; they also heard a female voice from within the apartment ask who was there and they heard the girl answer "Lucky." They also heard the voice of the woman inside ask what she wanted, and they heard Lucky respond, "Is John there?" The door to the apartment was then opened. Lucky entered and Agents Ward, Bailey and Coursey, in that order, entered closely after her, pushing her ahead. The entrance door led into a small vestibule where the agents stopped. They observed through a door at the right a man on a bed in a livingroom bedroom. Agent Ward identified himself as a Federal Narcotics Agent. He asked the man his name and the man said it was John Monticallos. Ward then placed Monticallos under arrest. The agents searched the apartment and found the heroin under the bathtub.

There are two grounds of appeal. The first is that the arrest of the appellant without a warrant was illegal for lack of probable cause and for improper entry and, therefore, the search and seizure made incidentally to it were unlawful, requiring the suppression of the evidence thus acquired. The second is that the trial judge erred in charging the jury that the sole issue before them was whether or not the accused possessed the drug on November 30, 1960.

With regard to the first ground we are satisfied that Judge Bryan's denial of the pre-trial motion to suppress and Judge Cashin's ruling admitting the evidence gained through the search and seizure were correct. When the agents crossed the threshold of Monticallos' apartment in the wake of Lucky, they had no specific reason to doubt or disbelieve the informant and they knew that the part of the information he had given them concerning persons other than Monticallos was true, that the location of the stairwell and the door to Apartment 323 was as he had described them; that a girl was seeking entrance to the apartment; that there was inside a woman and a man named "John." Coupled with proven accuracy of the informer's information regarding other sellers, there was sufficient confirmation of the informant's story to warrant a man of reasonable caution to believe that what the informant had said was true and that Monticallos was then and there illegally in possession of narcotics. The contention that the entry although peaceable was unlawful for lack of an announcement, scarcely sustainable in view of United States v. Garnes, 258 F.2d 530 (2d Cir. 1958); and Leahy v. United States, 272 F.2d 487 (9th Cir. 1959), cert. denied, 364 U.S. 945, 81 S.Ct. 465, 5 L.Ed.2d 459 (1961), was not raised below and will not be considered here, cf. Woo Lai Chun v. United States, 274 F.2d 708 (9th Cir. 1960). There was probable cause for the arrest, Draper v. United States, 358 U.S. 307, 79...