The opinion of the court was delivered by: FRANKEL
Defendants have moved under Rule 41(e) of the Federal Rules of Criminal Procedure "to suppress for the use as evidence" materials seized from them when they were arrested without warrants on October 21, 1964.
In the evidentiary hearing on the motion prior to trial of an indictment charging defendants with narcotics violations (21 U.S.C. §§ 173 and 174), the issue narrowed to the question whether there was probable cause for the arrest without a warrant. Ultimately, the problem before the Court has become still narrower: it is whether the motion must be granted because the Government has refused to disclose the identities of informants whose communications led to the surveillance and arrests of the defendants. Cf. United States v. Robinson, 325 F.2d 391 (2 Cir. 1963); United States ex rel. Coffey v. Fay, 344 F.2d 625 (2 Cir. 1965).
With the Government accepting the burden of going forward as well as the burden of proof, all the evidence at the hearing was given by two narcotics agents, Walter Smith and Herman H. Scott. Their testimony, which I find credible, reported the following facts:
In mid-January 1964 Agents Smith and Scott observed defendant Tucker standing on a Manhattan street next to an automobile bearing Maryland license plates. They saw him joined there by one Wiggens, a known (later convicted) seller of narcotics. As they watched, Tucker handed Wiggens a sum of money. Later that evening Agent Scott made a purchase of heroin from Wiggens, who was the immediate subject of investigation at the time.
Shortly thereafter the agents checked with the Baltimore office of the Federal Bureau of Narcotics and learned that the automobile they had seen was registered in Tucker's name. Their Baltimore colleagues also reported that Tucker was under active investigation for suspected trafficking in narcotics between Baltimore and New York City.
In June of 1964 the agents were told by their New Orleans office that named New Orleans police officers had reported the transportation by Tucker of a load of heroin from Baltimore to New Orleans. The New Orleans report also told of an arrest and search of Tucker in May of 1964 resulting in the discovery of a small amount of marihuana on his person.
Then, in September and October of 1964, the agents were told by some four informants - all described by the agents as sources of previous information that had been checked and found correct - that Tucker made it a practice to come to New York City to buy narcotics for disposition in Baltimore, the District of Columbia, and New Orleans. The informants also said, according to the agents, that Tucker commonly stayed during these New York trips at a drivein hotel on Macombs Place in Manhattan, registering as Edward Perkins. Finally, the informants were said to have reported that Tucker drove on this business in one of three automobiles, a 1964 green Cadillac, a 1964 white Thunderbird, or a 1963 blue Cadillac.
On the evening of October 20, 1964, Agent Scott and his colleague, Dennis Raugh, were told by an informant that Tucker was in New York City, driving the 1964 green Cadillac in the company of a man known as "Bippity Bop," and planning to purchase a large quantity of heroin. In response to a telephone call from Agent Scott, Agent Smith checked the Narcotics Bureau's files and learned that "Bippity Bop" was a nickname of defendant Raymond Worrell.
At about 9:00 p.m. on that evening Agents Scott, Smith, and Raugh drove to a point opposite the Macombs Place motel and parked their automobile there. Shortly thereafter the two defendants arrived in the previously described green Cadillac and drove into the motel parking lot. Tucker alighted from the car and Worrell slid over to take his place in the driver's seat. The two talked through the open door on the driver's side, and Tucker handed Worrell a sum of paper money. Tucker then started into the motel as Worrell began to back the car out of the lot. On an apparent further thought, Tucker came back out of the motel entrance and recalled Worrell, who drove back into the motel parking lot.
By this time Agent Scott had crossed the street and was standing under the shelter at the motel's entrance, ostensibly to avoid the rain which was falling at the time. In this position he heard Tucker, who was standing close by, tell Worrell to seek "a sample" for him and arrange "a meet" or an appointment "as soon as possible." With that Worrell drove off and Tucker re-entered the motel. Agent Smith, still watching from across the street, saw Tucker emerge on an outside veranda and enter Room 211. Agent Scott at this point called the motel, asked for Mr. Perkins, was told the line was busy, and was referred to room number 211 when he said he would call back later.
About a half hour later Worrell returned to the motel and entered Room 211. In about fifteen minutes Tucker emerged, entered the Cadillac, and drove to a bowling alley, followed by the agents. Agent Scott followed Tucker into the bowling alley and watched the latter walk about for a while and then take up a position from which he stood watching some ladies bowling. Scott stationed himself nearby. After some twenty minutes Tucker was joined by one Thomas Coswell. As Coswell arrived Agent Scott heard Tucker say to him, with some heat, approximately the following: "You know not to keep me waiting on business like this." Thereupon, Tucker and Coswell left the bowling alley and drove to the motel, where they joined Worrell in Room 211.
Some fifteen to twenty minutes later, Worrell came downstairs and sat in the car. He was joined there by Coswell after another fifteen minutes or so, whereupon the two drove away, trailed by the agents. They stopped first at a bar and grill, where Worrell waited while Coswell entered. Coswell returned in about five minutes, and the two proceeded to a restaurant about two blocks away, where Coswell made another visit of a minute or so while Worrell again waited. They drove next to a building at 69 East 123rd Street; Coswell again entered and emerged after about five minutes to rejoin the waiting Worrell in the automobile. At this point Worrell left Coswell and drove back to the motel.
As Worrell came to a stop in the motel parking lot, the agents placed him under arrest and proceeded to search the automobile. They found and seized 25 glassine envelopes containing white powder, a white envelope containing white powder, and a bag containing two boxes of 1,000 caps each. They then proceeded to Room 211 and arrested defendant Tucker.
Upon the evidence thus developed, this is obviously not a case in which the showing of probable cause for the arrest rests entirely, or almost entirely, upon information from secret informants. Thus, we are at a far remove from the situation in United States v. Robinson, 325 F.2d 391 (2 Cir. 1963), where the ...