Lumbard, Chief Judge, Moore and Smith, Circuit Judges. Moore, Circuit Judge (dissenting).
James Ernest Manning was convicted in the Southern District of New York before Judge Cannella and a jury for concealment of heroin and cocaine, 21 U.S.C. §§ 173, 174 and was sentenced to twelve years imprisonment. Eight months before trial, Manning moved to suppress the narcotics seized by federal agents. Following a hearing, Judge Wyatt denied the motion in open court.
Manning presses three main arguments here: (1) there was no probable cause for the agents' forced entry into the apartment, and, alternatively, the informant's identity should have been disclosed; (2) failure of the arresting officers to comply with 18 U.S.C. § 3109, which permits forcible entry only after notice of the officers' authority and purpose; (3) erroneous application of the presumption of illegal importation and knowledge to the charge of possession of cocaine. As we agree that there was no probable cause for the forced entry into Manning's apartment, the items seized by the federal agents were improperly admitted into evidence, and the conviction must be reversed.
The facts known to the federal agents leading up to the search appear from the testimony of Agent Devine upon the hearing of the motion to suppress. Approximately two weeks before the search, a previously unknown informant told Agent Devine that Manning was engaged in the distribution of heroin and cocaine, and that Manning had a prior federal narcotics conviction. The informant supplied Manning's address, the make and license number of his car, and the address of Manning's girl friend, Audrey (later identified by the government as Audrey Abbott). He claimed that Manning used Audrey's apartment as his base of operations.
Agent Devine, who had already heard of Manning as a major violator, confirmed Manning's ownership of the car observed the car at both his and Audrey's addresses, and confirmed that Manning had three prior narcotics convictions. The informant also identified Manning's picture.
On October 8, 1968, Devine received a call from the informant, who stated that Manning was on his way to Audrey's apartment with narcotics. Devine instructed the informant to go to Audrey's apartment, and to telephone again if Manning returned with drugs. Without attempting to secure a warrant, Devine then proceeded to that address and observed Manning's car parked outside. Devine then was informed by his office that the informant had called to confirm seeing the drugs in Audrey's apartment. Together with other agents, Devine then went to the apartment door, announced that he was a federal agent, and, after hearing running inside, kicked the door down. Manning, Audrey Abbott, and one other person eluded apprehension via the fire escape, one woman was arrested while trying to escape, and two other persons picked the wrong window and thus plunged to their death. Inside the apartment, the agents seized heroin and cocaine, together with the usual paraphernalia, lying together on the bed. These items were admitted into evidence. Manning surrendered at his attorney's office one week after the search.
Manning contends that there was no probable cause for the attempted arrest on October 8, 1968. We agree. The investigation by the agents to corroborate what the previously unknown informant had told them disclosed nothing to support even a suspicion that Manning was dealing in narcotics at Audrey's apartment. Manning's ownership of a car and his visiting at Audrey's apartment were by themselves wholly innocent acts. The advice which Devine received just before going to the apartment, that the informant had called Devine's office to say that he had seen drugs in the apartment, was not confirmed in any particular before the agents broke down the door. Although the informer had been instructed to go to the apartment and to telephone again, the agents did not have any independent knowledge that he had in fact been there. Thus the agents proceeded to the apartment solely on the basis of what they had been told by an undisclosed informant whose reliability had not been tested or confirmed as to any suspicious fact. The agents then knocked on the door and announced their identity. They heard running and scuffling inside, and, when their continued knocking went unanswered, they broke in. In view of the complete absence of any knowledge by the agents of any suspicious act to indicate that the persons in the apartment might be engaged in violations of the narcotics laws, we do not see how the failure of the persons inside immediately to respond to the agents' knocking and their announcement of identity could constitute sufficient probable cause. It is equally likely that the persons inside may not have believed that those knocking were in fact federal agents as there had been no confrontation and the agents had failed to announce their purpose. Wong Sun v. United States, 371 U.S. 471, 482-484, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); Miller v. United States, 357 U.S. 301, 78 S. Ct. 1190, 2 L. Ed. 2d 1332 (1958). It seems to us that, absent confrontation or some indication that those inside knew that the persons seeking entry were in fact federal agents engaged in the lawful performance of their duties, it would be a dangerous precedent to say that this circumstance -- at best merely suspicious -- was enough to transform such skimpy corroboration into the probable cause which the law requires to justify a warrantless invasion of living quarters.
Nor can the fact that the agents knew that Manning had previously been convicted of violations of the narcotics laws be accorded any weight in view of the total reliance on an unknown informant. Were we to hold otherwise it would result in rendering previous offenders subject to warrantless searches upon the unsworn and unexamined allegation of the agents that some unknown informant had advised them that the person investigated was in the business again. Probable cause requires that the agents themselves know enough from their own surveillance and corroboration of suspicious facts to show that there is a real likelihood of factual basis for the informer's information, where the agents' observations alone are insufficient to constitute probable cause.
In the cases cited by the government the information was supplied by a previously reliable informant or from personal observation by the agents which corroborated incriminating details supplied by the informant, and in many cases both sources supplied the probable cause: McCray v. Illinois, 386 U.S. 300, 87 S. Ct. 1056, 18 L. Ed. 2d 62 (1967); Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960); Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1957); McCreary v. Sigler, 406 F.2d 1264 (8th Cir.) cert. denied, 395 U.S. 984, 89 S. Ct. 2149, 23 L. Ed. 2d 773 (1969). Compare also United States v. Gazard Colon, 419 F.2d 120 (2d Cir. 1969); United States v. Malo, 417 F.2d 1242 (2d Cir. 1969), cert. denied, 397 U.S. 995, 90 S. Ct. 1135, 25 L. Ed. 2d 403 (1970); United States v. Cappabianca, 398 F.2d 356 (2d Cir.), cert. denied, 393 U.S. 935, 89 S. Ct. 294, 21 L. Ed. 2d 271 (1968). In United States v. Chin Dan Fook, 413 F.2d 1016 (2d Cir. 1969), cert. denied, 397 U.S. 928, 90 S. Ct. 936, 25 L. Ed. 2d 107 (1970), the incriminating details of the unknown informant's story were overwhelmingly corroborated.
In Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1968), the Supreme Court held the information insufficient for a warrant to issue even though the informant was alleged to have been reliable, the agents had themselves observed a course of conduct on four different days which altogether was far more suspicious than what the agents observed about Manning, and the affiant claimed that Spinelli was a known violator.
Nor do United States v. Soyka, 394 F.2d 443, 452 (2d Cir.), cert. denied, 393 U.S. 1095, 89 S. Ct. 883, 21 L. Ed. 2d 785 (1969), United States v. Mont, 306 F.2d 412 (2d Cir.), cert. denied, 371 U.S. 935, 83 S. Ct. 310, 9 L. Ed. 2d 272 (1962), or United States v. Williams, 219 F. Supp. 666 (S.D.N.Y.1963), aff'd per curiam, 336 F.2d 183 (2d Cir.), cert. denied, 379 U.S. 857, 85 S. Ct. 112, 13 L. Ed. 2d 60 (1964), give any support to the government's claim that the failure of persons inside the apartment to answer the door established probable cause. In each of these cases, there was a direct confrontation between the agents and the defendant, and the defendant attempted either to flee or to destroy evidence. Moreover, the informant in Soyka had previously given accurate information on twelve or fifteen occasions, and two convictions had been obtained as a result of his tips. In Williams, the "informant" had just been arrested and had named defendant as her supplier, and her description of defendant's modus operandi was verified by the agents prior to the confrontation.
We therefore find that there was no probable cause for the forced entry and search on October 8, 1968, of the premises occupied by Manning's girl friend, and the evidence seized must be suppressed.*fn1 The district court is directed to vacate the judgment of conviction so that there may be a new trial, if the ...