United States v. Smith

Citation308 F.2d 657
Decision Date18 September 1962
Docket NumberDocket 27476.,No. 368,368
PartiesUNITED STATES of America, Appellee, v. Ruth SMITH, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Julius Itzkowitz, New York City (Myron G. Lasser, New York City, on the brief), for appellant.

Robert M. Morgenthau, U. S. Atty., Southern Dist. of New York (Robert M. Cipes, Arnold N. Enker, Asst. U. S. Attys., of counsel), for appellee.

Before CLARK, WATERMAN and MOORE, Circuit Judges.

WATERMAN, Circuit Judge.

After a trial before a judge sitting without a jury in the United States District Court for the Southern District of New York, appellant was convicted on March 15, 1962, on two counts of a five count indictment. The two counts under which she was convicted, counts three and four, charged her with receiving, concealing, and facilitating the transportation and concealment of narcotics in violation of 21 U.S.C.A. §§ 173, 174 (1958). The district court sentenced appellant to five years imprisonment upon count three, and seven years imprisonment upon count four, the two sentences to run concurrently. Appellant now appeals from her conviction.

Appellant made a motion, subsequently denied, for an order suppressing certain evidence, some taken from her person and some obtained by the officers from an apartment. The testimony and exhibits presented by the Government at the hearing on this motion and at appellant's subsequent trial developed the following facts relating to appellant's arrest and the events that followed. Appellant presented no evidence at either the hearing or the trial.

On October 11, 1961, shortly after 1:30 P.M. at an apartment in Hamilton Terrace in Manhattan, narcotics agents Robinson and Scott, acting in undercover capacities, were negotiating with one George A. Thompson for the purchase of one-quarter kilogram of heroin. Thompson told the agents that one-quarter kilogram would cost them about $3,200, but that he would have to go out and check on the price.

At approximately 2:05 P.M. Thompson left the apartment in order to check the price he had quoted to the agents. After leaving the apartment, Thompson was followed by two other narcotics agents, Wilcocki and Garofalo. Thompson entered a taxi and rode to the Manufacturers Trust branch bank at 125th Street and Eighth Avenue. He remained in the bank for about five minutes, then entered another taxi and went to a building at 169 East 115th Street, which he entered.

He emerged from the building five minutes later with appellant Ruth Smith. Then he caught a taxi back to Hamilton Terrace, arriving there at approximately 3:00 P.M.

Upon his return to the apartment at Hamilton Terrace where agents Robinson and Scott were waiting, Thompson informed them that one-quarter kilogram of heroin would cost $3,600. He showed the agents two one-ounce glassine bags containing a white powder that he claimed he had obtained from his source of supply. Agent Robinson asked Thompson who this source of supply was and was told that it was a woman who worked at a store. Thompson and agent Robinson then arranged to meet again at 2:00 P.M. the next day at 145th Street and St. Nicholas Avenue so that Robinson could purchase a quarter kilogram of heroin.

After their conversation in the apartment Thompson invited the two agents to lunch at a restaurant on 42nd Street. While at the restaurant the three men entered the men's restroom, where Thompson pulled out of his pocket two glassine bags of white powder and gave one of the bags to agent Scott. This bag contained heroin.

The next day, October 12, agent Robinson met Thompson at 2:30 P.M. at the corner of 145th Street and St. Nicholas Avenue. Thompson asked for the purchase price of $3,600, but agent Robinson refused to hand over the money. Instead, the officer opened the trunk of his car and showed Thompson what was supposed to be the $3,600. Thompson then told Robinson that he would go to his source of supply and find out if she would deliver the heroin, cash on delivery.

Thompson then caught a taxi and, under the surveillance of narcotics agents Wilcocki and Garofalo, drove to 169 East 115th Street. After ten minutes Thompson emerged from the building and returned to 145th Street and St. Nicholas Avenue, where he rejoined Robinson and informed the agent that the source of supply would deliver the heroin, cash on delivery. Since the federal officer was to meet the source and receive the heroin from her, he asked Thompson who she was. Thompson told him that she was a girl named Ruth who had "blue hair" and worked at Goody's drug store.

Next, Thompson and Robinson walked over to a telephone booth and Thompson placed a call. He said, "May I speak to Ruth?" (pause) "Okay, I will call back in 15 minutes."

Then, on the pretext of calling his girl friend, Robinson telephoned his office and told the agents there that Thompson's source of supply was a girl by the name of Ruth who worked at Goody's drug store and had blue hair.

At 4:00 P.M. Thompson again telephoned the number he had called earlier and was heard by Robinson to say, "Okay, in 30 minutes at 131st and Seventh Avenue."

At this point Robinson gave a prearranged signal; then the covering agents Wilcocki and Garofalo placed Thompson under arrest, searched him, and found in his pocket a glassine envelope containing heroin. Upon subsequent interrogation of Thompson these two agents learned that a girl named Ruth Smith was to deliver a quarter of a kilogram of heroin at 4:30 P.M. at the corner of 131st Street and Seventh Avenue. Agents Wilcocki and Garofalo also "arrested" agent Robinson and placed him in a separate car from the one in which they put Thompson.

The three agents, with Thompson, then drove to 131st Street and Seventh Avenue. By this time several other narcotics agents had converged on this location. They observed appellant, who had come from Goody's drug store, enter a building at 108 West 131st Street, emerge after ten or fifteen minutes, and start to walk across Seventh Avenue on 131st Street. At she crossed Seventh Avenue, two additional narcotics agents, Krueger and Cantu, arrested her, searched her purse, and found a small package containing 131 grams of heroin. Krueger and Cantu did not possess a warrant of arrest.

The facts recited above relate to appellant's first contention upon this appeal: namely, that appellant was illegally arrested and searched. The following factual account relates to her second contention, that after her arrest officers committed an illegal search of premises at 108 West 131st Street.

Having arrested appellant, Krueger and Cantu seated her in the back seat of Garofalo's car. At this point there is a divergence in the testimony of agent Cantu and that of another participating agent, Manley. Cantu testified that appellant was driven up Seventh Avenue about to 142nd Street in agent Garofalo's car; and that en route, a trip of five to ten minutes, agents Garofalo and Tripodi asked her where she got the package, and who was in the apartment house they had been watching (presumably at 108 West 131st Street), to which she replied that she did not know. He also testified that they parked at 142nd Street, that appellant remained in the car, and that there agent Manley assumed the bulk of the interrogation, questioning appellant for more than half an hour.

Agent Manley testified, however, that at 131st Street, immediately after the arrest, he put appellant in his own car, that with agent Rahas he drove her to 142nd Street and Seventh Avenue, that en route there was no conversation with appellant, and that once the car was parked he began to interrogate her. From either account we conclude that appellant was driven ten blocks up Seventh Avenue and that agent Manley commenced his interrogation as soon as the trip was ended.

During his questioning Manley asked appellant where the rest of the narcotics were. She said she did not have any more. Agent Manley said, "Come on, Ruth, you know better than that."

Mrs. Smith then began to cry and said, "Yes, I have some more but I don't want to get anyone else in trouble." She informed the narcotics agent that she had thrown out her husband because he had been dealing in narcotics and now she herself felt ashamed to be in the position she was in.

The agent replied, "Ruth, if that is your own, you won't be getting anybody else in trouble."

Appellant answered, "All right. I will take you to it but I will only take two of you. I don't want anyone else to go with me because I don't want to cause any trouble."

Appellant led the narcotics agents back to 108 West 131st Street, the building she had been observed to enter just prior to her arrest. Mrs. Smith took agents Manley and Rahas to a top floor apartment. There she knocked. An old man answered the door. Mrs. Smith said to him, "Danny, there is no trouble. I just want my suitcase." The old man stepped aside, and, followed by the two federal officers, appellant entered the apartment. She walked over to a bed, reached behind it, pulled out a suitcase, and placed it on the bed.

To Manley she said, "The stuff is in the suitcase."

He replied, "Okay, Ruth, I will get it out." Then appellant handed him a key, with which he opened the suitcase. In the suitcase Manley found a brown paper bag which contained eleven packages of heroin, weighing over two and a third kilograms.

After Manley had shown the contents of the bag to Rahas, the agents, with appellant in custody, left the apartment, taking with them the heroin which they had discovered there. The agents made no further search of the premises.

From 131st Street the narcotics agents drove to appellant's residence on 115th Street near Second Avenue. Agents Rahas and Garofalo went with appellant to her apartment and there recovered $500.00 which the Government had used to purchase narcotics on previous occasions, appellant taking the money out of a suitcase and handing it to...

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