United States v. Rivera

• Decision Date: 19 August 1963
• Docket Number: No. 409,Docket 28288.,409
• Citation: 321 F.2d 704
• Parties: UNITED STATES of America, Appellee, v. Mario RIVERA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

321 F.2d 704 (1963)

UNITED STATES of America, Appellee, v. Mario RIVERA, Defendant-Appellant.

No. 409, Docket 28288.

United States Court of Appeals Second Circuit.

Argued June 18, 1963.

Decided August 19, 1963.

Jack D. Samuels, Asst. U. S. Atty., Southern District of New York (Robert M. Morgenthau, U. S. Atty., and Arnold Enker, Asst. U. S. Atty., on the brief), for appellee.

Herbert S. Siegal, New York City, for defendant-appellant.

Before LUMBARD, Chief Judge, SMITH, Circuit Judge, and BRYAN, District Judge.

FREDERICK van PELT BRYAN, District Judge.

On June 11, 1963 appellant Rivera was convicted on a two count indictment after trial to the court without a jury in the United States District Court for the Southern District of New York. The first count charged possession of cocaine in violation of 21 U.S.C. § 173, and the second, possession of marijuana in violation of 21 U.S.C. § 176a. Rivera was sentenced to five years on each count, the sentences to run concurrently. He now appeals from the judgment of conviction.

The questions raised on the appeal relate solely to the denial of a motion by Rivera to suppress, and the admission at the trial, over objection, of evidence consisting of cocaine in a glassine envelope taken from Rivera's person at the time of his arrest and marijuana in a paper bag taken from his apartment shortly thereafter. The arrest was made by federal narcotics agents acting without a warrant. Rivera contends that the arrest was without probable cause and that the evidence which he moved to suppress was therefore seized in violation of his rights under the Fourth Amendment.

When the case was assigned to Judge Tyler for trial he first heard Rivera's motion to suppress. At the hearing on the motion Kreppein, one of the arresting agents, was the only witness. He testified in substance as follows:

Rivera was arrested by Kreppein and his partner, Agent Bailey, without a warrant at 3 a. m. on March 1, 1963 as he drove his Buick out of the Sinclair Garage on 173rd Street near Longfellow Avenue in the Bronx.

Rivera had been under observation by the agents for at least a month. On January 29, 1963 Kreppein, Bailey and other agents, had observed him in the company of a known interstate trafficker in narcotics. The next morning Bailey showed Kreppein a memorandum from Agents Wurms and Thompson of the Washington office of the Bureau of Narcotics dated January 20, 1963 relating to their investigation concerning one Warren Dora Miller. The memorandum stated that the Washington agents had received information from a confidential source that on January 13, 1963 Miller and a man named Mario had brought a large quantity of narcotics from New York to Washington in Mario's new Buick, which had been delivered to one Black Sammy; that Mario had returned to New York on January 15 in the Buick; and that Miller was a bartender at the Black Orchid Bar in New York where Mario "hangs out." There followed a full physical description of Mario. Bailey advised Kreppein that, as a result of investigation, he had determined that Mario was Mario Rivera, the appellant.

On that day Kreppein and Bailey began to work together as partners. Kreppein had Rivera under surveillance on six separate occasions thereafter before the night of the arrest. On the first occasion, on February 4, 1963, Kreppein observed Rivera leave the Black Orchid Bar and drive off in a black and white 1962 Buick Wildcat bearing New Jersey plates. The car was registered in Rivera's name at his wife's address in Bridgeton, New Jersey. On another occasion both agents observed Rivera meet one Huff, another known narcotics violator.

During the course of their surveillance the agents observed that Rivera's activities were restricted to the hours of the late night and early morning and that he drove his Buick with great circumspection and in a way which indicated plainly concern about being tailed.

The agents ascertained that Rivera lived in an apartment house at 1554 Longfellow Avenue in the Bronx. They learned that he had an unlisted telephone number and that he did not respond to telephone calls. Rivera did answer his telephone, however, when Bailey used a code of telephone rings to which he had been advised Rivera responded.

About 8 p. m. on February 28, 1963, the night of the arrest, Bailey called Kreppein and asked Kreppein to join him. When Kreppein did so Bailey told him that he had received word from a reliable informant that Rivera was going to make delivery of narcotics that night. The agents went directly to Rivera's apartment house where they arrived about 9 p. m. They found that the lights in his apartment were on. After locating Rivera's Buick in the Sinclair garage nearby, they kept the entrance to the apartment house under surveillance until 3 a. m. the following morning. Rivera then emerged from the apartment house and walked to the garage. As he drove his Buick out of the garage he was arrested by the agents.

Agent Bailey asked Rivera where he had the cocaine and Rivera replied that he had cocaine in his short pocket and marijuana cigarettes in his coat pocket. The agents removed the cocaine and two marijuana cigarettes from Rivera's person. They then asked him whether he had more narcotics and Rivera answered that he had marijuana in his apartment. The agents told him that, in that event, they would have to get a search warrant in order to search the apartment. However, Rivera stated that this was not necessary and that he would take them to his apartment to get the marijuana. He did so and opened the door to the apartment with his own keys. Agent Kreppein found and seized a brown paper bag on a table in the living room with loose marijuana in it.

At the conclusion of Kreppein's testimony both sides rested. There was no denial of his account of what had occurred. Though Agent Bailey was also available to testify, neither side called him. Judge Tyler found that there was probable cause for the arrest and that Rivera had voluntarily admitted the agents to his apartment. He denied the motion to suppress in all respects.¹

At the trial before Judge Tyler which immediately followed, appellant renewed his motions to suppress the seized narcotics. They were again denied and the cocaine and marijuana which had been seized were admitted in evidence over objection. Both sides rested on the conclusion of the Government's case and Judge Tyler found defendant guilty on both counts.

The sole question presented on this appeal is whether the arrest of Rivera without a warrant in the early morning of March 1, 1963 was a legal arrest. If it was not, the search of Rivera's person was not an incident of a lawful arrest, and was therefore illegal. Under such circumstances the narcotics taken from his person would have been inadmissible as evidence of his guilt. Moreover, the marijuana seized at his apartment immediately thereafter would also be the fruits of an illegal arrest and would likewise have been inadmissible. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925).

Under § 104(a) (2) of the Narcotics Control Act of 1956, 26 U.S.C. § 7607(2), agents of the Bureau of Narcotics are authorized to

"(2) make arrests without warrant for violations of any law of the United States relating to narcotic drugs * * * or marihuana * * where such person has reasonable grounds to believe that the person to be arrested has committed or is committing such violation."

Thus, under the Act, whether or not an arrest by narcotic agents without a warrant is valid depends on whether the arresting agent had reasonable grounds for believing that the person arrested had committed or was committing a violation of the Narcotics Laws. This requirement is substantially the same as that imposed on law enforcement officers generally by the Fourth Amendment requirement of probable cause.² The constitutional and statutory requirements are virtually coextensive. Wong Sun v. United States, 371 U.S. 471, 478, n. 6, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Draper v. United States, 358 U.S. 307, 310, n. 3, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); United States v. Smith, 308 F.2d 657, 661 (2 Cir., 1962); United States v. Walker, 246 F.2d 519, 526 (7 Cir., 1957).

While probable cause means more than mere suspicion, it is also plain that the arresting officer "need not have in hand evidence which would suffice to convict." Wong Sun v. United States, supra, 371 U.S. p. 479, 83 S.Ct. pp. 412-413, 9 L.Ed.2d 441. In the oft quoted language of Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925), there is probable cause where "the facts and circumstances within their the arresting officers' knowledge and of which they had reasonably trustworthy information were sufficient in themselves to warrant a man of reasonable caution in the belief that" a crime had been or was being committed.

The test of probable cause is designed to strike a reasonable and proper balance between the protection of the rights of the individual citizen against "unreasonable interferences with privacy and from unfounded charges of crime," on the one hand, and the countervailing reasonable necessities of law enforcement for the protection of the community at large on the other. Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). The test is plainly a practical compromise and the probabilities with which it deals must be viewed in the light of "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Brinegar v. United States, supra, 338 U.S. p. 175, 69 S.Ct. p. 1310, 93 L.Ed. 1879. "The quantum of information which constitutes probable cause * * * must be measured by the facts of the particular case." Wong Sun v. United States, supra, 371 U.S. p. 479, 83 S.Ct. pp. 412-413, 9 L.Ed.2d 441.

In order...