The opinion of the court was delivered by: TYLER
Ralph Thomas Copeland, who was arrested as an alleged violator of the narcotics laws at Eighth Avenue and 113th Street in Manhattan on November 30, 1965, moves, pursuant to F.R.Cr.P. 41(e), to suppress certain evidence found in a brown paper bag by two federal narcotics agents at the time of the defendant's apprehension. Hearings were held on this motion on November 22, November 25, and November 28, 1966. On the basis of the testimony adduced at those proceedings, it is determined that the motion should be, and hereby is, denied.
A principal issue to be resolved is one of credibility. The hearing produced a direct conflict in the testimony of Richard Slattery, an agent of the Federal Narcotics Bureau, and Rhonda Emanuel, a witness produced in behalf of the defendant. Such a resolution will yield the findings of fact which can be used as a basis for a discussion of the legality of the seizure of the evidence in question.
The events which occurred prior to the arrival of the defendant and the two agents in the vicinity of Eighth Avenue and 113th Street are uncontradicted.
Agent Slattery and his partner Agent Antonelli had been conducting an investigation for approximately three weeks prior to the evening in question, November 30, 1965. The subjects of that investigation were individuals known to the agents as Sinclair Small, Leroy Logan, and a "John Doe" known only as "Jake". On the evening of November 30, at around 7:20 p.m., Small and Logan left the former's apartment house and entered Small's car. After one stop, Small, who was driving, got out of the car at Concourse Village East and 158th Street. Logan took the wheel and proceeded to Fifth Avenue, between 115th and 116th Streets where he stopped, got out of the car, crossed the street and met "Jake". The two walked into the hallway of a nearby building and momentarily disappeared.
When they reappeared, they separated. The agents decided to concentrate on surveillance of "Jake". The time was 8:00 p.m. About ten minutes later, the defendant, whom the agents had never seen before, drove up in a tan 1966 Dodge Dart. He left his car, crossed the street, and met Jake. Jake in turn walked into a hallway, returned, and "appeared" to hand Copeland "something". The defendant returned to his auto and proceeded to Lenox Avenue and 116th Street where he stopped and picked up a passenger, subsequently identified as Ralph Stanley Morgan. The defendant then proceeded to the vicinity of the intersection of Eighth Avenue and 113th Street.
Shortly thereafter, Rhonda Emanuel first saw the defendant on the evening in question. Beginning at this point, therefore, the conflicting observations of the agent and the defendant's witness must be summarized.
According to Agent Slattery's testimony, Copeland, proceeding west, stopped and parked his car on the north side of 113th Street, approximately one hundred feet west of the intersection of Eighth Avenue and 113th Street. The agents stopped their vehicle on the south side of 113th Street, just east of the aforementioned intersection. Copeland left his car and entered the Hideout Bar, located on the northwest corner of Eighth Avenue and 113th Street.
Five minutes later, the defendant left the Hideout Bar and began walking toward his parked car. At this time, Agent Slattery started his vehicle, crossed the intersection and proceeded to a point on the north side of 113th Street approximately two or three car lengths in front of the defendant's vehicle. During this interval, Copeland reached and reentered his car.
Agent Slattery double-parked. He and his partner left their car and began walking back to the defendant's automobile, without showing any identification or weapon or saying anything to the defendant or his passenger. Agent Slattery walked in the street and Agent Antonelli on the sidewalk. Agent Slattery did not testify as to what he and his partner intended to do when they reached the car.
When the two reached the front of Copeland's car, Agent Slattery saw the defendant drop a brown paper bag out of the open right front window of the car. The bag dropped to the street and landed approximately under the vehicle's door panel. Agent Slattery stooped, picked up the bag and opened it. The contents appeared to him to be "half-loads" of heroin. Slattery signaled his discovery to Agent Antonelli, and a formal arrest of the defendant was immediately effected.
Rhonda Emanuel took the stand as a witness for the defendant and told a substantially different story, which is summarized below.
Miss Emanuel first saw the defendant, a casual friend of hers, on the evening of November 30, 1965, at about 8:45 p.m. in the Hideout Bar. After about a five-minute stay, Copeland left the bar. Miss Emanuel also left, by coincidence rather than by design. When the defendant reached his car
and placed his hand on the door handle, four or five men approached him,
pushed him up against the car and conducted a search of his person, which yielded nothing. The men then put the defendant "on the side", opened the car door and "went into the car", in which they found, on the front seat, an ordinary brown paper bag which they removed from the car. During this time, the defendant never reentered his car.
In my view, the credible version was that related by Agent Slattery. In every important aspect, his testimony was given in the logical and careful manner which is reflective of an eye and mind trained to observe and record detail accurately. On the other hand, Miss Emanuel's testimony could be characterized as vague and inconsistent in several instances, two of which are pointed out, supra.
I am not, of course, required to base a determination on credibility solely upon the contents of testimony; rather, as trier of the facts in this case, I "may, and indeed [I] should, take into consideration the whole nexus of sense impressions which [I] get from ...