United States v. Robinson

• Citation: 354 F.2d 109
• Decision Date: 22 November 1965
• Docket Number: No. 429,Docket 28883.,429
• Parties: UNITED STATES of America, Appellee, v. George ROBINSON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

354 F.2d 109 (1965)

UNITED STATES of America, Appellee, v. George ROBINSON, Defendant-Appellant.

No. 429, Docket 28883.

United States Court of Appeals Second Circuit.

Argued April 30, 1965.

Submitted May 26, 1965.

Decided November 22, 1965.

John T. Curtin, U. S. Atty. for the Western District of New York, Buffalo, N. Y., for appellee.

Joel M. Handel, New York City (Anthony F. Marra, New York City, on the brief), for defendant-appellant.

Before LUMBARD, Chief Judge, and WATERMAN, MOORE, FRIENDLY, SMITH, KAUFMAN, HAYS and ANDERSON, Circuit Judges.

Submitted to the In Banc Court May 26, 1965.

LUMBARD, Chief Judge.

On this second appeal from his conviction in the United States District Court for the Western District of New York for possession of narcotics and conspiracy in violation of 21 U.S.C. § 174, George Robinson urges for the first time that it was error to receive in evidence at his trial an oral statement made to a federal narcotics agent that some of his money had been used to purchase heroin found on his companion by the Buffalo, New York, police. The statement was elicited at a Buffalo police station to which Robinson and his companion had been taken so that their persons and their baggage could be searched for narcotics. Prior to making the admission, Robinson had not been advised that he was entitled to remain silent, that anything he said might be used in evidence, and that he had a right to counsel.

Robinson's only objection to this evidence at trial and on the first appeal was that it stemmed from an illegal arrest and search, but he now claims that, in view of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), the statement was received in violation of his Sixth Amendment rights. Robinson also urges, as he has at trial and throughout, that there was insufficient probable cause for the arrests and subsequent search by the Buffalo police. After a panel of this court had heard argument, the active circuit judges, sua sponte on May 26, 1965, ordered in banc consideration of this case and six other cases which involve related questions of importance to the administration of criminal justice. We hold that there was probable cause for the arrests and that Robinson's statement was properly received into evidence, and we affirm the conviction.

Robinson was tried together with his companion, Annita Daniels, and both were convicted of possession of heroin and conspiracy. Although we have granted the government's motion to dismiss Daniels' appeal for failure to prosecute,¹ we set forth the facts relating to both Robinson and Daniels as they are relevant to Robinson's claims.

At about 10:40 A.M. on September 17, 1962, Edward J. Clohessy and Pat Quale of the Buffalo Police Department spotted Robinson and Daniels on Michigan Avenue carrying luggage toward their home three-and-one-half blocks away. The police had been alerted about an hour earlier by Federal Narcotics Agent Salvatore J. Giovino that Robinson and Daniels were expected back that day from New York City with narcotics. When Daniels stated that she and Robinson had just returned from New York, the officers asked Robinson and Daniels to accompany them to headquarters. In our first decision in this case, we agreed with the trial judge that this was an arrest. We remanded for a further hearing as to probable cause for the arrest because the trial court had not permitted defense counsel to inquire into the identity and reliability of Agent Giovino's informant and because there was insufficient corroborating evidence to justify the arrest unless the informant was disclosed and the reliability of his information was established. United States v. Robinson, 2 Cir., 325 F.2d 391 (1963). At the subsequent hearing, Agent Giovino and the informant, Javan Corley, were extensively examined. Judge Henderson made detailed findings of fact, fully supported by the record. He held that there was probable cause for the arrest because Agent Giovino had ample reason to consider Corley a reliable informant. Accordingly, the court entered a new final judgment of conviction from which Robinson takes this appeal.

At the hearing, Javan Corley testified that he had known Annita Daniels as a narcotics addict and sometime peddler for a number of years. For many weeks prior to September 17, 1962, Corley and his "girlfriend," Toni Freeman, who was an addict, had purchased narcotics daily from both Robinson and Daniels at their residence. Two or three days before September 17, Corley and Freeman had gone to the Robinson-Daniels apartment to purchase a "spoon" (¼ ounce) of heroin; when they asked for credit Robinson said he needed all the cash he could get as he was going to "the city," meaning New York City, where many Buffalo peddlers went to get their narcotics. To Corley, who knew that Robinson had made previous trips to New York to purchase heroin and that Robinson had been in short supply earlier in September, "it was clear that Robinson intended to travel to New York City to buy narcotics." During the next two or three days, Corley went to the Robinson-Daniels residence three times but found no one home. On the last visit an upstairs neighbor, whom Corley had seen in the Robinson-Daniels apartment on earlier occasions, told Corley that their return was imminent. Corley then called Agent Giovino and told him that Robinson and Daniels would soon be returning from New York City with narcotics. Giovino immediately telephoned the Buffalo police who picked up Robinson and Daniels on Michigan Avenue.

The evidence at the hearing amply supports Judge Henderson's finding that Agent Giovino was fully warranted in considering Javan Corley a reliable informant. Giovino knew that Corley was a former user and peddler of narcotics who at that time was generally accepted in the Buffalo narcotics community. Prior to September 17, 1962, Corley had given Agent Giovino information relating to local drug activity which in one instance led to arrest and conviction of a narcotics peddler. In another instance prior to the Robinson-Daniels arrest and known to Agent Giovino, Corley had introduced a peddler to an undercover agent, and purchases by the agent led to an arrest and conviction. In addition, other information previously supplied by Corley had been independently verified, and in no case had Agent Giovino found that Corley's information was not accurate. Indeed, prior to September 17, Agent Giovino had applied to have Corley hired by the Bureau of Narcotics as a "special employee" (paid informant); authorization for Corley's appointment was received by Agent Giovino the very day Robinson and Daniels were arrested.

Under these circumstances, the Buffalo police officers had probable cause for the arrest of Robinson and Daniels. This case is strikingly similar to Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), in which the Supreme Court held that federal narcotics agents had probable cause to arrest for a violation of 21 U.S.C. § 174 when a reliable "special employee" carefully described a suspect to the agents and related that the suspect would be returning to Denver by train within a day or two carrying three ounces of heroin. In Draper, the informant died four days after the arrest and therefore did not testify, but the Court still found the arresting officers' actions justified. Here, we have ample evidence that Corley had proven himself reliable in the past. In addition, Corley's own testimony at the hearing indicates that his belief that Robinson and Daniels would be returning to Buffalo with narcotics was entirely rational. Agent Giovino had sufficient knowledge both of Corley's reliability on other occasions and of Corley's basis for inferring that Robinson and Daniels would be returning with narcotics to justify Giovino's call to the Buffalo Police Department requesting an immediate arrest. Probable cause demands no more. See United States v. Jones, 362 U.S. 257, 267-271 (1960).

The major difference between this case and Draper is that here the arrest by Buffalo police officers must be justified under state law.² United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L. Ed. 210 (1948). But, as we pointed out in our first opinion, 325 F.2d at 394-395, there was probable cause for arrest under the New York Code of Criminal Procedure, § 177(4)³ so long as Agent Giovino's informant was reliable. Officers Clohessy and Quale knew the defendants by sight (unlike the situation in Draper where the informant had to describe the suspect) and knew that Daniels was an addict and that Robinson had a prior narcotics conviction. When the officers confirmed that Robinson and Daniels were returning from New York as Agent Giovino had informed them, arrest without a warrant was justified.⁴ People v. Coffey, 12 N.Y.2d 443, 240 N.Y.S.2d 721, 191 N.E.2d 263 (1963), cert. denied, 376 U.S. 916, 84 S.Ct. 671, 11 L.Ed.2d 612 (1964), upheld on collateral attack, United States ex rel. Coffey v. Fay, 344 F.2d 625 (2 Cir. 1965).

We now turn to the question whether Robinson's incriminating statement made after his arrest should have been admitted at trial and to the events leading up to that statement. When Officers Clohessy and Quale first spotted Robinson and Daniels at 10:40 A.M. on Michigan Avenue walking toward their nearby home, Robinson was carrying two large suitcases and Daniels a small suitcase and a shopping bag. When Quale asked them what they were doing with the suitcases, they said that they had come from New York and had just gotten off the bus from Rochester at Michigan Avenue and Main Street. Clohessy then told them he had information that they were "dirty" (i. e., carrying narcotics); Robinson and Daniels protested that they were "clean" and had not brought back anything from New York. The officers instructed Robinson and Daniels to accompany them to police headquarters where a search could be made. On the way to the police...