Before SWAN, WATERMAN and MOORE, Circuit Judges.
This is an appeal from a judgment of conviction by verdict of the jury upon a two-count indictment filed October 3, 1963 which charged violations of the federal narcotics laws, 21 U.S.A. §§ 173, 174, committed on September 23 and 24, 1963. Count one relates to the violation on September 23 and count two to the violation on September 24. The trial took place in March 1964. On March 31 appellant was sentenced to five years imprisonment on each count, sentences to be served concurrently.
I. The evidence is sufficient to support the verdict
Having had a tip from a person not named, two agents of the Bureau of Narcotics, Bailey and Kreppein, met one Charles West, in lower Manhattan, about 8 P.M. on September 23, 1963. After a conversation, West accompanied the agents in their car to 147th Street, between Lenox and Seventh Avenue. There West was searched with his con sent. He had a roll of $130 and some small change but no narcotics. West left the agents and they saw him enter the Peacock Bar at 148th Street and Eighth Avenue. After a few minutes West returned and spoke with the agents. As they drove past the Peacock Bar they saw Miguel sitting inside the bar and saw West re-enter. Shortly thereafter, on the sidewalk in front of the bar they saw West paying money to Miguel, who put it in his pocket. Miguel then took a taxi-cab which the agents followed. He entered the lobby of an apartment building at 630 Lenox Avenue through the northern entrance. Agent Bailey entered the lobby through the southern entrance, when the door was opened by a woman coming out. Miguel was not in sight but Bailey saw the elevator rise to the sixteenth floor. Bailey opened the lobby door to admit Kreppein, and a few minutes later they saw the elevator rise to the sixteenth floor and start to descend. When the elevator stopped at the lobby floor Miguel stepped out. He was immediately arrested and searched. In his pockets were fifty glassine envelopes containing heroin. He admitted that he had more heroin in his apartment but refused to identify the apartment number. The next morning he told the agents it was 16-L.
II. Arrest of appellant was legal
Since the agents had no arrest warrant for Miguel he contends that his arrest was illegal. But what the agents had themselves observed of the transactions between Miguel and West and of Miguel's subsequent conduct, interpreted in the light of West's prior disclosures to the agents, was ample evidence to justify their belief that a narcotics violation had already been or was about to be committed*fn1
III. Denial of Miguel's motion to suppress evidence obtained on search of his person after arrest
This motion was denied by Judge Palmieri in January 1964 after a hearing. The motion was based on the theory that the lobby of the apartment building at 630 Lenox Avenue was within the "curtilage" of appellant's residence*fn2 As stated in Care v. United States, 10 Cir., 231 F.2d 22, 25, cert. den. 351 U.S. 932, 76 S. Ct. 788, 100 L. Ed. 1461, whether a given area is within the protection of one's dwelling depends upon a number of factors of which location is but one. We have been cited to no authority which would include the lobby of a multi-tenanted apartment house within the "curtilage" of each tenant. Such authority as there is points the other way. We agree with Judge Palmieri's decision.
IV. Claim that search of apartment 16-L was illegal
It is unnecessary to decide this contention. Since the sentences were to be served concurrently, appellant's imprisonment will be the same if the sentence on count one of the indictment is affirmed, even though the sentence on count two were to be reversed. We note, however, that since the arrest was valid, there is no "poisonous tree" to bear this fruitful search. Moreover, even assuming appellant has standing to object to that search, cf. Wong Sun v. United States, 371 U.S. 471, 491-492, 83 S. Ct. 407, 9 L. Ed. 2d 441, the circumstances and manner of the agents' peaceful entry were justified by appellant's prior deceptive statement that he lived there alone. Thinking that, and having a key, they could properly consider that knocking and announcing themselves would be "useless gestures." In any case, these they did as soon as it appeared that the apartment was occupied.
V. Failure of the prosecution to call West as witness
Appellant complains vehemently of the Government's failure to call West as a witness at the hearing on the motion to suppress and at the trial. We hold no error was committed.
At the hearing to suppress evidence Agent Bailey identified West by name, described his physical appearance, and gave the address where Bailey met him, adding that his present address was unknown. Bailey testified that West told him he had been an addict for twenty-seven years and had obtained heroin in the vicinity of 149th Street. Judge Palmieri ruled that this was relevant to a showing of probable cause, but reserved decision as to Miguel's right to obtain the presence of West. Appellant did not demand the production of West. This is fatal to its claim that the Government was obligated to produce him. See United States v. Gernie, 2 Cir., 252 F.2d 664, 668, cert. ...