The opinion of the court was delivered by: MOTLEY
Memorandum Decision and Order
Defendant is charged with a violation of Title 21, Sections 173 and 174, in that he did unlawfully, wilfully, and knowingly, receive, conceal and facilitate the transportation and concealment of approximately 333 grams of heroin hydrochloride, after, and knowing that, such drugs had been brought into the United States contrary to law.
Defendant moved to suppress the heroin on the grounds that it was unlawfully seized from his dwelling. Fed.R.Cr.P. 41(e). The government admitted that the heroin was seized without a warrant and conceded that it had the burden of sustaining the seizure. The contention of the government is that the heroin was seized incident to a lawful arrest; the arrest was concededly made without a warrant.
A hearing was held, on December 18, 1967, to determine whether the seizure was legal. The government presented two witnesses - the federal narcotics agents who made the arrest and who seized the narcotics. The defendant put on no witnesses.
The government contended that the arrest, though without a warrant, was legal, and the search incident thereto also legal, because the narcotics agents had probable cause to believe that defendant was violating the narcotics laws.
Defendant makes two contentions. First, defendant contends the narcotics agents did not have probable cause to make the arrest. Second, he contends that even if they did have probable cause to arrest, they had time to procure a search warrant, and therefore the arrest and seizure are illegal.
On November 5, 1965, Agent Halpin received a phone call from a woman who refused to give her name. Her voice sounded like she was of Spanish extraction. The woman informed Halpin that she knew a Samuel Perez whose real name was Manuel Hernandez, and that Perez resided at 966 East 181st Street, Bronx, Apartment A-5. The woman further said that Perez was Cuban, illegally in the United States, and that he had been previously arrested by the New York City police for violating narcotics laws. The female informer said Perez dealt in narcotics and had large amounts of heroin in his apartment. She described Perez as being 5 ft. 7 inches; 150 lbs.; black, receding hair and brown eyes. At that time, she did not know Perez' phone number.
The same woman called later in the day and furnished Halpin with the number CY 8-9353. The agents determined from the telephone company that this number was listed as that of Samuel Perez, at the address given by the woman. Con Edison records showed that the utilities at that address were subscribed to by Samuel Perez.
A check of the Bureau of Narcotics files revealed two documents. The first is a letter to the Bureau from the F.B.I. This letter relates that on September 2, 1965, the F.B.I. received an anonymous telephone call containing substantially the same information that Halpin had been given. The caller was also a woman. She added, to the F.B.I., that Perez was a painter, and a member of the union, and in his early 40's.
The second document is an October 11, 1965, report by another narcotics agent. This reports the results of the agent's inquiries following the Bureau's receipt of the F.B.I. letter. This report shows that a Samuel Perez, of 966 East 181st Street, had been a member of the painters union. His date of birth is given as March 20, 1926. A check of the Bureau records showed nothing on Hernandez. The records did cite the "alias", Samuel Perez, but the place of origin and place of birth did not correspond with this Manuel Hernandez, also known as Samuel Perez, as to his alleged origin and place of birth. The report states that inquiry to the New York city police revealed a narcotics arrest of Samuel Perez, born in Puerto Rico, March 21, 1926, living at 637 East 140th Street.
The criminal record revealed no deportation proceedings. Finally, this second document reveals that Immigration and Naturalization, New York, New York, had no record of Manolo Hernandez known as Samuel Perez.
The two narcotics agents who testified had procured, from the New York Police Department, a photograph of Perez.
Later in November the anonymous tipster again called the agents. This time she told them that Perez had a brother living at 637 East 140th Street and that the 181st Street apartment had a peephole in the door. The agents determined that one James Hernandez resided at the 140th Street address.
On November 29, 1965, the two agents by means of surveillance, determined that the defendant lived at the 181st Street address, and that the apartment did have a peephole. They identified defendant from ...