The opinion of the court was delivered by: FRANKEL
Defendant is named in a two-count indictment charging narcotics violations. He has moved under Rule 41(e), Fed.R.Crim.P., to suppress evidence taken in the search of an apartment. Upon the testimony adduced at a hearing and the submissions of counsel, the court holds that the motion must be denied. The findings and conclusions resulting in this determination are as follows:
On March 10, 1966, Commissioner Bishopp issued a search warrant authorizing a search of Apartment 2F, 470 West 150th St., New York City, for "a quantity of loose heroin and bundles of heroin * * *." In support of the warrant, Narcotic Agent Leo Thomas had made an affidavit which said:
"During Friday, March 4, 1966, I, Leo Thomas, received information that John Doe, a/k/a Lem was involved in the illicit traffic of heroin and kept a ready supply of heroin on hand in the aforementioned apartment. The source of this information stated that he had purchased heroin from Lem during the week of February 28, on several occasions and that Lem had brought him the heroin from the aforementioned apartment. On each occasion the source of this information stated he had telephoned Lem at the aforementioned apartment. I personally conducted surveillance of the aforementioned apartment on Tuesday and Wednesday, March 8 and 9, 1966 in the early evening hours and off and on during the course of those nights. I have been an Agent of the Federal Bureau of Narcotics for the past 2 and 1/2 years. During the course of these surveillances I saw an unusually large number of people enter and leave apartment 2F. I recognized some of those people as being addicts. On the night of Tuesday, March 8, 1966 I approached the apartment door and was able to see through the peephole and saw assorted paraphernalia which I recognized to be used in the mixing and bagging of heroin. This included glassine envelopes, rubber bands, a sifter, measuring spoons and what appeared to be a quantity of milk sugar. Agent Hampe on the same night was able to overhear a conversation inside the apartment concerning "one half ounce." The source of my information has given information to me on several previous occasions and on each occasion that information was correct by my own personal knowledge. I have checked the ownership of the above premises and it is listed to a Gertrude Gravenburg. Agent Gruden called the telephone number for the above apartment, which was also listed under the name Gravenburg and was informed that Lem was not in and there was nothing doing until tomorrow.
"For the above reasons I believe there is now a quantity of heroin secreted in the above apartment by John Doe a/k/a Lem."
Before signing the warrant, the Commissioner examined Agent Thomas concerning the allegations of his affidavit.
On March 13 Agent Thomas went to the neighborhood of 470 West 150th Street and made a telephone call to the number he had for Apartment 4F. When a female voice answered, he asked for "Lem." A male voice giving that name then came over the telephone, and Thomas asked to buy three bags of heroin for $17. "Lem" agreed to make the sale, telling Thomas to await him in front of the apartment building. Instead of waiting as thus suggested, Thomas and the two agents proceeded directly into the building toward Apartment 2F. As they neared that apartment, defendant (of whom the agents had a description) opened the door carrying in his left hand three small envelopes containing a white powder that proved later to be heroin. Thomas asked defendant if his name was "Lem." When defendant said it was, Thomas produced his badge, announced his identity, and said he had a search warrant to execute. The other two agents seized defendant in the apartment doorway and Thomas took the envelopes of heroin from his left hand. Fifteen similar envelopes were taken from his pocket. The material seized from defendant's person is the subject of the first count of the indictment.
The agents then pushed their way, with defendant, into the apartment. Defendant was handcuffed and placed on a living room couch while the agents proceeded to search the apartment. One of them soon found in the dining room another glassine envelope containing heroin, which is now involved in the indictment's second count.
Considering only the foregoing events of March 13 - the telephone call, the arrangements for a purchase from "Lem", defendant's emergence from the apartment following in expected sequence upon the telephone call, the apparent contents of his left hand at the time, the prior description the agents had, and his identification of himself as "Lem" - we conclude that the agents had ample ground for arresting defendant without a warrant. Cf. Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959). Furthermore, the circumstances justified the search of the apartment - to which the agent had telephoned to arrange the purchase, and from which defendant was just emerging - as incidental to that lawful arrest. United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430, 94 L. Ed. 653 (1950); Harris v. United States, 331 U.S. 145, 67 S. Ct. 1098, 91 L. Ed. 1399 (1947); Haas v. United States, 344 F.2d 56 (8th Cir. 1965); Williams v. United States, 260 F.2d 125 (8th Cir. 1958), cert. denied, 359 U.S. 918, 79 S. Ct. 596, 3 L. Ed. 2d 579 (1959). These conclusions might make it unnecessary to reach defendant's contentions attacking the validity of the search warrant. But these conclusions might be wrong. Accordingly, we have reached, considered, and ultimately rejected defendant's arguments - two of which are not unsubstantial - concerning the search warrant.
1. Among these points, the one requiring least discussion is the assertion that the affidavit supporting the warrant is insufficient on its face. Closely similar affidavits have been held adequate in recent and controlling precedents. Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960); Rugendorf v. United States, 376 U.S. 528, 84 S. Ct. 825, 11 L. Ed. 2d 887 (1964); United States v. Freeman, 358 F.2d 459 (2d Cir. 1966).
2. In his examination of the agent whose affidavit led to the issuance of the search warrant, defense counsel proposed to proceed by exploring generally the truth of the assertions in the affidavit. As stated by the defense, its position was that the statements in the affidavit "may or may not be true," and that a species of pleading denial by defendant was sufficient to make "a factual issue" for the hearing on every assertion in the affidavit. A Government objection to this form of general inquiry was sustained, reserving to defendant an opportunity to demonstrate in a post-hearing memorandum that the ruling was wrong and that the hearing should be reopened to allow such an exploration. In the memorandum accordingly filed, it is again claimed, without further specificity than this, that defendant "may test and challenge the existence and veracity of the facts or grounds upon which the search warrant was granted."
Viewing the problem in the broad terms of defendant's submission, we reject the contention. This is not to say that there may never be occasions for trying out the truth of an affidavit on which a search warrant issues. It is only to say that there is no justification for allowing such a de novo trial of the issuing magistrate's determination as a routine step in every case. Until or unless the defendant has at least made some initial showing of some ...