United States v. Rubio

• Decision Date: 21 April 1969
• Docket Number: No. 15899.,15899.
• Citation: 404 F.2d 678
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose RUBIO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

404 F.2d 678 (1968)

UNITED STATES of America, Plaintiff-Appellee, v.Jose RUBIO, Defendant-Appellant.

No. 15899.

United States Court of Appeals Seventh Circuit.

December 11, 1968.

Certiorari Denied April 21, 1969.

Terence MacCarthy, Chicago, Ill., for defendant-appellant.

Thomas A. Foran, U. S. Atty., Lawrence T. Stanner, Asst. U. S. Atty., Chicago, Ill., for appellee; John Peter Lulinski, Michael B. Nash, Asst. U. S. Attys., of counsel.

Before KILEY, SWYGERT and KERNER, Circuit Judges.

Certiorari Denied April 21, 1969.See89 S.Ct. 1482.

SWYGERT, Circuit Judge.

Jose Rubio appeals his conviction and sentence for violation of the federal narcotics laws, 21 U.S.C. §§ 174,176a, which respectively prohibit the receiving and concealing of any narcotic drug (heroin) and marihuana.After a court trial and the denial of his post-trial motions in arrest of judgment and for a new trial, the defendant was sentenced to a term of imprisonment.

Two errors are urged by the defendant in this appeal, the trial court's denial of his motion to suppress certain evidence and the court's failure to order the return of a sum of money seized from the defendant at the time of his arrest.

This case originated with the arrest about 4:30 a. m. on August 19, 1964 of Juan Rodriguez, Crispin Galvin, and Jose Rubio in an apartment in Chicago.Five agents of the Federal Bureau of Narcotics, without arrest warrants, had gone to the apartment under instructions from their superior to arrest Rodriguez and Galvin, each of whom had previously made separate sales of heroin to a narcotics agent.

After arriving at the apartment where the agents were told they could find Rodriguez and Galvin, two agents stationed themselves at a rear door of the apartment, while agent Patch and the remaining two agents approached the front door.Agent Patch knocked on the front door; it was opened by Rodriguez.The agent identified himself and told Rodriguez that he was under arrest.When Rodriguez attempted to shut the door, Patch and another agent forced it open.The agents testified that, after gaining entrance to the apartment,¹ a brief struggle ensued during which they were continually shouting their identification.As Rodriguez was brought under control, the two agents heard a commotion in the adjoining bedroom.Agent Patch opened a connecting door with gun drawn and observed Galvin and Rubio in the room.When the two agents entered the room, Rubio, clad only in his undershorts and a T-shirt, was holding in his right hand a small case, variously described as a vanity case or a small suitcase.According to the testimony of an agent, Rubio had one leg over a window sill in the room, or on it, as though he was in the process of leaving the building.This window was about fifteen feet above the ground.Agent Patch, after identifying himself as a federal agent, ran to the window where he restrained Rubio and placed him under arrest.When Patch opened the vanity case, he found $2,796 in cash and quantities of substances, later identified as heroin and marihuana.At the time, Rubio claimed ownership of the money, but denied any knowledge of the drugs.

A complaint was filed with the United States Commissioner on the day of arrest and counsel was appointed.One week later, Rubio filed a petition seeking return of the funds that were seized at the time of his apprehension.Three days thereafter, the Internal Revenue Service, pursuant to 26 U.S.C. §§ 6851and6862, served Rubio with notices and demands for tax payments based on the marihuana that he had possession of at the time of his arrest and his failure to file an income tax return in any prior year.The narcotics and income tax deficiencies totaled $2,796, the exact amount which had been seized from Rubio.

The defendant prior to trial moved for the suppression as evidence of the narcotics seized from him at the time of his arrest.After a hearing, the district court denied the motion.The principal error assigned for reversal is that this motion should have been granted.The defendant contends that he was the victim of an illegal search inasmuch as there was no probable cause for his arrest and that a valid search incident to an arrest must be premised on a legal arrest.Thus, the central issue is whether the agents had reasonable grounds to believe that Rubio was violating the federal narcotics laws at the time of his arrest.²

The thrust of the defendant's argument is that his arrest must be viewed as one in which flight was the primary and only substantial reason for his apprehension.We believe that this is an overly restrictive interpretation of the facts which the arresting agent could relevantly consider prior to making the arrest.Although flight alone is insufficient to create probable cause for an arrest, Wong Sun v. United States, 371 U.S. 471, 483, 83 S.Ct. 407, 9 L.Ed. 2d 441(1963), andMiller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L. Ed.2d 1332(1958), it may be crucial when, considered with other relevant facts.³For example, the Second Circuit in United States v. Soyka, 394 F.2d 443(2d Cir.1968), held that there was probable cause where a narcotics suspect, upon seeing a federal agent in the hall near his apartment, "jumped back toward the inner recess of the apartment."The en banc decision of that court concluded that the defendant's flight was the "culmination of instances" justifying the arrest.

Unlike Wong Sun, where the only reliable fact which the arresting officer had at the time of the defendant's arrest was his flight, the case before us presents a factual situation, where prior to Rubio's arrest, the Government agent had observed a variety of incriminating circumstances unrelated to his attempted flight.The arresting agent had the following knowledge at the time of...