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United States v. Tucker

decided: June 28, 1967.


Lumbard, Chief Judge, and Waterman and Smith, Circuit Judges.

Author: Lumbard

LUMBARD, Chief Judge.

Edward Lee Tucker appeals from a judgment of conviction, after a jury trial in the Southern District, for receiving and possessing, and conspiring to receive and possess heroin, in violation of 21 U.S.C. ยงยง 173, 174. He was sentenced to 7 1/2 years on each count to be served concurrently. On appeal, he claims that the government failed to establish probable cause for his arrest without a warrant,*fn1 and that evidence obtained in a search incident to his arrest ought therefore to have been suppressed at the pretrial hearing. Judge Frankel, following the government's refusal to comply with an order to disclose the identity of certain informers, nevertheless found that there was probable cause for arrest. D.C., 248 F. Supp. 911 (1965). Appellant further contends that the evidence adduced at trial was insufficient to warrant submission of the case to the jury. We find that the evidence produced both on the motion to suppress and at trial was sufficient to establish probable cause for arrest and to justify a verdict of guilty, and we affirm appellant's conviction.

The arrest was made on the following information. During January 1964, federal narcotics agents Herman Scott and Walter Smith were conducting a surveillance in New York City of one David Wiggens, a suspected seller of narcotics.*fn2 On the evening of January 16, the agents saw Wiggens approach appellant, the two men converse, and appellant hand Wiggens some currency. That evening, appellant was observed driving a blue 1963 Cadillac convertible with Maryland license plates, entering the apartment building in which Wiggens lived, and thereafter leaving with him. Twenty minutes later, Wiggens sold Agent Scott some narcotics. Upon inquiring at the Baltimore office of the Bureau of Narcotics, Scott learned that the Cadillac convertible was registered to appellant, who was under investigation in Baltimore by both state and federal authorities for transporting narcotics between New York and Baltimore.

During July 1964, Smith received a second report, this one from the Bureau's New Orleans office, to the effect that a warrant to search appellant's automobile was issued while he was in New Orleans, and although the search disclosed nothing, he was subsequently found with a small quantity of marijuana on his person. Thereafter, in September and October 1964, Scott was given information about appellant's pattern of operations by four informants, all of whom, according to Agent Smith, had previously given information that had proved reliable.*fn3 According to the informants, appellant customarily drove to New York City with an associate in a new Cadillac convertible or Thunderbird with Maryland license plates, to purchase drugs. He would usually stay in a drive-in motel at 75 Macombs Place in Manhattan, registering under the name of Edward Perkins or Edward Johnson. Appellant would then canvass a number of sources of narcotics and purchase a supply of drugs to be adulterated and packaged in Baltimore for sale there, in Washington, D.C., and in New Orleans.

On the evening of October 20, agents Scott and Dennis Raugh learned from an informer that appellant, accompanied by one "Bippety Bop," had arrived in town to purchase a large quantity of heroin and that the two were traveling in appellant's green 1964 Cadillac convertible. Upon checking with the Bureau of Narcotics files, the agents learned that "Bippety Bop" was an alias used by one Raymond Worrell, a suspected Baltimore narcotics trafficker. At about 9:00 P.M. agents Smith, Scott and Raugh drove to a point opposite the Macombs Place motel. Within a short time they spotted appellant driving into the motel parking lot. Appellant got out, Worrell moved into the driver's seat and appellant handed him some money. As Worrell started to leave appellant recalled him and, according to Agent Scott, who by now had crossed the street and was standing nearby in the shelter of the motel entrance, appellant said words to the effect of "See if you can get a sample and make a meet for me as soon as possible." Agent Smith, continuing the surveillance from across the street, saw Tucker enter Room 211 on the upstairs balcony. Agent Scott then called the motel and learned that "Edward Perkins" had registered in Room 211. Within half an hour Worrell returned with the car, parked it in the motel lot, and went into Room 211. Fifteen minutes later, appellant came out alone and drove off to a nearby bowling alley on 146th Street, where, following a twenty minute wait, he met with one Thomas J. Carswell (Coswell?). Agent Scott, who had followed appellant into the bowling alley, overheard him admonish Carswell for keeping him waiting "on business like this." Tucker and Carswell then left the alley together, and drove to the motel where they joined Worrell in Room 211.

Within twenty minutes Worrell came downstairs and sat in the car, followed a few minutes later by Carswell, and the two drove off in appellant's green Cadillac, trailed by the agents. They drove first to a bar and grill, then to a restaurant, and lastly to a building at 69 East 123rd Street. Each time Worrell waited in the car while Carswell ran inside. Carswell and Worrell then parted company, and Worrell returned to the motel parking lot alone, where the agents moved in and arrested him. A search of appellant's automobile disclosed 12.38 grams of heroin, mannite, gelatin capsules, glassine envelopes, an eyedropper and a hypodermic needle. The agents then went to Room 211 where they arrested appellant.

Appellant does not claim that all of the above information would not constitute probable cause. Rather, he contends that the agents were not entitled to rely on the informers' reports to aid in showing probable cause without disclosing their identities and that, without the information furnished by the informers, probable cause was not established.

Even if we were required to decide the issue as it has been framed by the appellant, there is much to suggest that probable cause for arrest had been established solely on the basis of the agents' personal observations and the reports received from other Bureau of Narcotics offices in Baltimore and New Orleans. Compare, e.g., Scher v. United States, 305 U.S. 251, 59 S. Ct. 174, 83 L. Ed. 151 (1938); United States v. Santiago, 327 F.2d 573 (2 Cir. 1964). Nine months prior to arrest, agents Smith and Scott had observed a transaction between appellant and David Wiggens, who was then an active seller. During the three and one-half hour surveillance prior to arrest, agents Smith, Scott and Raugh observed the passing of money by the appellant to "Bippety Bop" Worrell and they overheard conversation about a sample and making a "meet," appellant's meeting and conversation with Carswell, and the midnight travels of Worrell and Carswell, all of which, coupled with the use of an assumed name at the motel, gave good cause to believe that a narcotics transaction was under way. For purposes of appeal, however, we think it is enough that we agree with Judge Frankel that the agents' direct observations and the information received from official files "went most if not all of the way toward justifying the arrests". 248 F. Supp. at 916.

The issue before us then is whether, in light of the decisions of the Supreme Court and this court and of the policies which underlie the "informer's privilege," some use can be made of the information received from the four informants in order to establish probable cause, without disclosing their identities and without setting forth "underlying circumstances" to support the reliability of the informers or the basis of their information to the extent suggested by Aguilar v. State of Texas, 378 U.S. 108, 114, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1963), see, e.g., United States ex rel. Rogers v. Warden, 381 F.2d 209 (2 Cir., June 15, 1967), where a portion of the information received has been corroborated by the agents' own surveillance. It is our view that since the information received from undisclosed sources was not "the essence or core or main bulk of the case for probable cause", 248 F. Supp. at 915, and since the informants' description of the appellant's modus operandi was corroborated in sufficient detail to lend an aura of credence to the remainder of the information and to entitle it to consideration apart from a showing of reliability as to the individual informers, it was unnecessary to require disclosure of their identities. Cf. Jones v. United States, 362 U.S. 257, 269, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960); United States v. Elgisser, 334 F.2d 103 (2 Cir.), cert. denied sub nom. Gladstein v. United States, 379 U.S. 879, 85 S. Ct. 148, 13 L. Ed. 2d 86 (1964); Buford v. United States, 308 F.2d 804 (5 Cir. 1962); United States v. Irby, 304 F.2d 280 (4 Cir.), cert. denied, 371 U.S. 830, 83 S. Ct. 39, 9 L. Ed. 2d 67 (1962); United States v. Woodson, 303 F.2d 49 (6 Cir. 1962); United States v. Williams, 219 F. Supp. 666 (S.D.N.Y.1963), aff'd, 336 F.2d 183 (2 Cir.), cert. denied, 379 U.S. 857, 85 S. Ct. 112, 13 L. Ed. 2d 60 (1964).

There is no absolute constitutional right to disclosure of the identity of an informer at every hearing on a motion to suppress.*fn4 See, e.g., McCray v. Illinois, 386 U.S. 300, 87 S. Ct. 1056, 18 L. Ed. 2d 62 (1967). The Supreme Court in the exercise of its power to formulate evidentiary rules for federal criminal cases, has continued to recognize the importance of the "informer's privilege." See, e.g., United States v. Ventresca, 380 U.S. 102, 108, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1964), cf. Lewis v. United States, 385 U.S. 206, 210, 87 S. Ct. 424, 17 L. Ed. 2d 312 (1966).

Appellant's position on appeal is that the Supreme Court dictum in Roviaro v. United States, 353 U.S. 53, 61, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957), to the effect that disclosure had been held necessary in probable cause cases "unless there was sufficient evidence apart from [the informer's] confidential communication" was adopted as the law of this circuit by United States v. Robinson, 325 F.2d 391, 393 (2 Cir. 1963), see United States ex rel. Coffey v. Fay, 344 F.2d 625, 633 (2 Cir. 1965), and the word apart, as it was used, requires us to find probable cause on evidence wholly independent of any confidential communication received. This interpretation, as pointed out in Judge Frankel's opinion below, 248 F. Supp. at 915-916, is necessarily rejected by other language in Roviaro and our decisions that have followed it.

Roviaro cautioned that "no fixed rule with respect to disclosure is justifiable," and that the problem presented by the claim of informer privilege "is one that calls for balancing the public interest in protecting the flow of information" against the interest of the individual that would be served by disclosure. 353 U.S. at 62, 77 S. Ct. at 628. If, as appellant suggests, disclosure were required "whenever an informer's report plays some role in the proof of probable cause * * *, there would never be anything to weigh in these cases," and "the perplexities [that] the courts have faced would have been imaginary all along." 248 F. Supp. at 915-916. It would seem therefore that if any rule requiring disclosure might be extracted from the language of Roviaro, it would be that disclosure would be required only where independent evidence was so insubstantial that in essence "the existence depends solely upon the reliability of an informer * * *." United States v. Elgisser, supra 334 F.2d at 110; see United States ex rel. Coffey v. Fay, supra 344 F.2d at 633-634; also People v. Malinsky, 15 N.Y.2d 86, 93-94, 262 N.Y.S.2d 65, 72-73, 209 N.E.2d 694, 699-700 (1965). See, however, McCray v. Illinois, supra at 311-312 n. 11.*fn5

Viewing other language found in Second Circuit cases, that disclosure is compulsory whenever the informants' communications are "essential to the establishment of probable cause * * *." United States v. Elgisser, supra 334 F.2d at 110, see United States v. Santiago, supra 327 F.2d at 575; United States v. Rosario, 327 F.2d 561, 564 (2 Cir. 1964); United States v. Robinson, supra 325 F.2d at 393-394, in the light of the foregoing it is difficult to read "essential" as synonymous with any quantum ; rather, "essential" must be read to mean "the essence or core or main bulk" of the evidence brought forth which would otherwise establish probable cause. The Robinson case, cited and relied upon so heavily by appellant, cannot be said to stand for any proposition to the contrary, for in that case the showing of probable cause for the arrest was ...

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