UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: July 15, 1971.
UNITED STATES OF AMERICA, APPELLEE,
JAMES ERNEST MANNING, APPELLANT
448 F.2d 992.
Friendly, Chief Judge, and Lumbard, Moore, Smith, Kaufman, Hays, Feinberg and Oakes, Circuit Judges. Oakes, Circuit Judge (concurring). J. Joseph Smith, Circuit Judge (dissenting).
On Rehearing en Banc.
FRIENDLY, Chief Judge:
On April 26, 1971, the Government petitioned for rehearing and, failing that, suggested consideration in banc of the decision of the panel, slip opinion 2197, which had reversed Manning's conviction on the ground that there was no probable cause for an entry for the purpose of arrest and the consequent seizure of 113.32 grams of heroin, 67.60 grams of cocaine, and cutting and packaging paraphernalia which were found in plain view. A central element in the showing of probable cause was the report of an informer, previously unknown to the police and of untested reliability. The Government represented that what it regarded as the panel's refusal to give any weight to the informer's report because he was previously unknown posed a serious threat to law enforcement and contended that the decision ran counter to United States v. Soyka, 394 F.2d 443, 452 (2 Cir. 1968) (in banc), cert. denied, 393 U.S. 1095, 89 S. Ct. 883, 21 L. Ed. 2d 785 (1969), and also to United States v. Gardner, 436 F.2d 381 (2 Cir. 1971). The panel having denied rehearing, Judge Moore dissenting as he had from the initial decision, a majority of the active judges voted for in banc consideration*fn1 to be had on the briefs already filed and such additional briefs as the parties might wish to submit. The Government rested on its petition for rehearing; Manning's able counsel filed a supplemental brief.*fn2 We disagree with the panel and affirm the decision of the district court.
A record of previous reliability of an informer with respect to the type of crime at issue is indeed crucial where probable cause is bottomed solely on the informer's unverified report. If the Government had proceeded to act on the information given on the informant's first visit, it surely would not have had probable cause or even reasonable grounds to suspect an on-going narcotics violation. See Williams v. Adams, 436 F.2d 30, 35 (2 Cir. 1970) (dissenting opinion), reversed by the court in banc, 441 F.2d 394 (2 Cir. 1971). However, when Agent Devine confirmed the informant's report of Manning's prior narcotics conviction, of his address and that of Audrey Abbott's apartment which the informer said was the base of the narcotics operation, when the informant identified Manning's picture, and when the agent observed the car identified by the informer and independently confirmed to be Manning's outside his girl friend's apartment where, according to the informer's subsequent call, a narcotics transaction was about to take place, the level was substantially raised. It was raised still more when Devine learned over the car radio that the informant had called back to report that he had been to the girl friend's apartment where he had spoken to Manning and seen the heroin and cocaine which was about to be cut and sold to two out of town customers who were also present. If the panel majority's statement that "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," at 994 of 448 F.2d, was meant to refer to the situation at that time, we think it defies reality. By this stage a great deal had occurred to confirm the informant's reliability, and it is strongly arguable that, under the Supreme Court's recent decision in United States v. Harris, 1971, 403 U.S. 573, 91 S. Ct. 2075, 29 L. Ed. 2d 723 probable cause may have existed, although the precise issue there was the sufficiency of an affidavit for a search warrant. However that may be, anything then lacking in the scales was supplied by the agents' hearing running, scuffling, and hurried conversations inside the apartment after Devine had knocked on the door and twice identified himself as a Federal agent. So far as concerns the issue of probable cause, this sufficiently distinguishes the case from Wong Sun v. United States, 371 U.S. 471, 482-483, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963), on which the appellant and the panel majority relied. While running and scuffling after such an announcement may be entirely innocent, narcotics agents are entitled to use their knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic, and particularly of those known to have had previous experience with the criminal law. Chief Justice Warren said in Peters v. New York, decided with Sibron v. New York, 392 U.S. 40, 66-67, 88 S. Ct. 1889, 1904, 20 L. Ed. 2d 917 (1968), "deliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea, and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime, they are proper factors to be considered in the decision to make an arrest." As Judge Moore observed in his dissent from the panel opinion, 996 of 448 F.2d, Agent Devine was confronted with a situation where failure to arrest would very likely have resulted in the destruction of evidence and the escape of persons whom he had good reason to believe were engaged in perpetrating a crime within a few feet of where he stood. If Devine had not acted, there was every likelihood that Manning and his confederates would introduce a considerable amount of hard narcotics into commerce; moreover, on the theory of the panel majority Devine would not have been entitled to an arrest or search warrant if he had sought one.
With the greatest respect to our brothers who joined in the panel's majority opinion, we think they erred by treating each fact in isolation. We should bear in mind our own admonition concerning the futility of efforts of counsel "to show that each piece of testimony is susceptible of an innocent interpretation if it stood alone. The trier is entitled, in fact bound, to consider the evidence as a whole; and, in law as in life, the effect of this generally is much greater than the sum of the parts." United States v. Bottone, 365 F.2d 389, 392 (2 Cir.), cert. denied, 385 U.S. 974, 87 S. Ct. 514, 17 L. Ed. 2d 437 (1966). Although that was said with respect to the sufficiency of evidence of guilt, the principle applies with special force to an officer's on-the-spot determination of probable cause. In United States v. Soyka, 394 F.2d 443, 452, 454 (1968), the in banc court gave effect to this principle when it said:
All that the informant had said was reinforced by what Soyka did, and what Soyka did was colored by what the informant had said.
As earlier indicated, we believe also that the opinion attached too much weight to the lack of a previous record of accurate information by the informer.*fn3 This belief derives strong additional support from United States v. Harris, supra, which the panel did not have available to it. Such a record is indeed vital when the informer makes only a "meager report" that "could easily have been obtained from an offhand remark heard at a neighborhood bar," Spinelli v. United States, 393 U.S. 410, 417, 89 S. Ct. 584, 589, 21 L. Ed. 2d 637 (1969), rather than one "which in common experience may be recognized as having been obtained in a reliable way." Id. at 417-418, 89 S. Ct. at 590. Here the informer gave specific information on his first visit, and every bit of this was verified save for his statement that Manning was actually engaged in the distribution of heroin and cocaine. Then on October 8, he predicted Manning's movements, as the named and reliable, but also deceased, informer had done in Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959). Like the unidentified "prudent person" in Harris, he recounted "personal and recent observations of criminal activity, factors showing that the information had been gained in a reliable manner," particularly by telephoning that he had actually seen the drugs being about to be cut and sold in Audrey's apartment immediately prior to the arrest. And like the affiant in Harris, Agent Devine here had secured independent evidence of Manning's prior dealings in the illegal activity specified by his informant. These added circumstances are quite as impressive in establishing the informer's credibility as an agent's perfunctory and usually untested recital that on one or two previous occasions the informer had furnished facts leading to a conviction. See United States v. Gardner, 436 F.2d 381 (2 Cir. 1971). Finally, here, prior to their intrusion the agents heard sounds characteristic of those made in attempting to conceal drugs.*fn4
Appellant urges that even if there were probable cause, Devine did not make a sufficient announcement to justify kicking the door open.*fn5 The point was not raised in the motion to suppress and accordingly was not dealt with by Judge Wyatt who ruled upon it. We could thus simply refuse to consider the issue altogether. United States v. Indiviglio, 352 F.2d 276 (2 Cir. 1965), cert. denied, 383 U.S. 907, 86 S. Ct. 887, 15 L. Ed. 2d 663 (1966). In any event we are confined to "plain error" and the exercise of our power is discretionary. Id. at 280 and cases there cited.
In his direct testimony at the suppression hearing Devine said only that in knocking he identified himself as a Federal agent. When first asked on cross-examination what he stated when he knocked, he replied, "I identified myself as a Federal agent." Defendant's attorney then asked, "And when you knocked again did you again announce your purpose and authority?" Devine replied, "Yes, I did." In direct testimony in the reconvened suppression hearing Devine adverted only to having identified himself as a Federal agent. And on cross on this occasion, he denied having stated why he was there at the time that he knocked. While this somewhat confusing record may well have been due to defense counsel's failure to raise the point, we shall assume arguendo in Manning's favor that no express statement of purpose was made.
If we were writing on a clean slate, it would seem that when an officer knocks on the door of an apartment occupied by an experienced narcotics violator, which is reasonably believed by him to be so, and clearly identifies himself as a Federal agent, there is sufficient compliance with the spirit of the statute even if perhaps not with the strict letter. A knock is at least a request for entry, and a trafficker in narcotics who has been told that this is being made by a Federal agent can have no real doubt that the purpose is arrest, search, or both, or that, if the request is not honored, something more will speedily follow. In the Case of Richard Curtis, Fost. 135, 168 Eng.Rep. 67 (1756), cited with approval in Mr. Justice Brennan's dissent for four Justices in Ker v. California, 374 U.S. 23, 48, 83 S. Ct. 1623, 1637, 10 L. Ed. 2d 726 (1963), a majority of the judges were of the view "that no precise form of words is required in a case of this kind. It is sufficient that the party hath notice, that the officer cometh not as a mere trespasser, but claiming to act under a proper authority." While the burden of an express announcement is slight, if the officer thinks about it, as Devine very likely did not, the importance of it, at least in a case like this, is equally small. However, it can be argued with some force that a contrary view was taken by the Supreme Court, speaking through Mr. Justice Brennan, in Miller v. United States, 357 U.S. 301, 78 S. Ct. 1190, 2 L. Ed. 2d 1332 (1958), unless that case rests, as it may, on the basis that the officer's statement was in such a low voice that it may not have been understood. See 357 U.S. at 303, 78 S. Ct. at 1193.*fn6
We think, however, that the seeming rigidity of Miller has been tempered by the combined effect of a portion of Justice Brennan's dissent in Ker v. California, supra, and the incorporation of it by reference in Sabbath v. United States, 391 U.S. 585, 88 S. Ct. 1755, 20 L. Ed. 2d 828 (1968).*fn7 The issue in Ker here relevant concerned an entry into an apartment effected by a pass-key obtained from the building manager. Although California had a statute, Penal Code, § 844, similar to 18 U.S.C. § 3109, the question before the Supreme Court necessarily turned on the Fourth Amendment itself. A majority found there was no violation in the entry; Mr. Justice Brennan, writing for four Justices, thought there was. However, he stated his position in a considerably less strict fashion than in Miller, saying, 374 U.S. at 47, 83 S. Ct. at 1636:
Even if probable cause exists for the arrest of a person within, the Fourth Amendment is violated by an unannounced police intrusion into a private home with or without an arrest warrant, except
(1) where the persons within already know of the officers' authority and purpose, or
(2) where the officers are justified in the belief that persons within are in imminent peril of bodily harm, or
(3) where those within, made aware of the presence of someone outside (because, for example, there has been a knock at the door), are then engaged in activity which justifies the officers in the belief that an escape or the destruction of evidence is being attempted.
While it could have been argued at the time that these exceptions related only to the Fourth Amendment as such and not to 18 U.S.C. § 3109, any basis for such a contention is removed by Sabbath v. United States, 391 U.S. 585, 591 n. 8, 88 S. Ct. 1755, 20 L. Ed. 2d 828 (1968),*fn8 where Mr. Justice Marshall said:
Exceptions to any possible constitutional rule relating to announcement and entry have been recognized, see Ker v. California, supra, 374 U.S. at 47, 83 S. Ct. at 1636 (opinion of Brennan, J.), and there is little reason why those limited exceptions might not also apply to § 3109, since they existed at common law of which the statute is a codification.*fn9
We see no reason why the instant case should not be considered to fall within the first exception. In addition to the general factors already reviewed, the informer's report indicates that those within the apartment knew he had been there only moments earlier, and if this is so, the idea that he had squealed, whether of his own volition or on being apprehended, must have occurred to them. In any event the case comes within the letter of the third exception, and we perceive no reason for not reading it to mean what it says, particularly in a case like this where more detailed explanation by the agents, however desirable, would not have made the slightest practical difference, since the conduct of the occupants of the apartment, of which Devine was aware in some degree before actual entry, showed that they knew his purpose full well.
Even if our reading of the Supreme Court's intentions should be mistaken, the issue is at least sufficiently close that we do not have here a case of "plain errors or defects affecting substantial rights" F.R.Cr.P. 52(b). The error, if there was one, was far from "plain," and it is clear that the occupants of the apartment would not have behaved one whit differently if the agent had uttered a few more words. Indeed, even if the point had been raised at trial, the case would seem a proper one for refusing suppression under the criteria stated in ALI, A Model Code of Pre-Arraignment Procedure § 8.02(2) (Tent.Draft No. 4, 1971), quoted with apparent approval in an appendix to the Chief Justice's dissent in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, decided June 21, 1971.
Manning's supplemental brief suggests that if we should disagree with the panel's ruling on suppression, we should return the case for it to consider his contention that the joinder of charges concerning heroin and cocaine in a single count indictment under 21 U.S.C. §§ 173-74, was improper in light of the differing rulings in Turner v. United States, 396 U.S. 398, 90 S. Ct. 642, 24 L. Ed. 2d 610 (1970), with respect to the constitutionality of the statutory "presumption" as applied to the two drugs. While we could do this, as we have done in cases where there remained important appellate issues other than that leading to in banc consideration, the argument is so patently devoid of merit on the facts here that the in banc court should dispose of this also, as we have done in other cases.
The judgment of the district court is affirmed.
OAKES, Circuit Judge (concurring):
I concur in the result. On a very close question, it seems to me that United States v. Harris, 403 U.S. 573, 91 S. Ct. 2075, 29 L. Ed. 2d 723 (1971), does tip the scales for a finding of probable cause. I do not believe, however, that Miller v. United States, 357 U.S. 301, 78 S. Ct. 1190, 2 L. Ed. 2d 1332 (1958), and its requirement that an officer give notice of his purpose before bursting into a house, has been weakened as the majority apparently believes. The suggestion that Miller rests on the basis that the officer there spoke in a low voice, 357 U.S. at 303, 78 S. Ct. at 1193 is, I fear, wishful judicial thinking, for footnote 3 at 304 of Miller seems to me to make it plain that the failure to make a formal announcement of the purpose of police presence is the point on which that case turns. Nor is announcement of purpose a mere formality which may be disregarded at police whim. See Accarino v. United States, 85 U.S.App.D.C. 394, 179 F.2d 456, 462 (1949), Mr. Justice Brennan's dissent in Ker v. California, 374 U.S. 23, 46-64, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963), adds to, and does not detract from, Miller. His first exception referred to by the majority here speaks of "the officers' authority and purpose," 374 U.S. at 47, 83 S. Ct. at 1636 (emphasis supplied). Sabbath v. United States, 391 U.S. 585, 20 L. Ed. 2d 828, 88 S. Ct. 1755 (1968) and its footnote 8 at 591, 391 U.S. 585, 88 S. Ct. 1755, 20 L. Ed. 2d 828, simply reiterate Mr. Justice Brennan's exceptions mentioned in Ker v. California, supra.
Appellant Manning, however, did not raise this point below and, on the confused state of this record, adverted to in the majority opinion, I would not consider this "plain error" within Rule 52 (b), Fed.R.Cr.P.; see United States v. Indiviglio, 352 F.2d 276 (2d Cir. 1965), cert. denied, 383 U.S. 907, 86 S. Ct. 887, 15 L. Ed. 2d 663 (1966).
LUMBARD, Circuit Judge (dissenting):
I dissent and adhere to the views which I expressed in the panel's majority opinion.
I fail to see anything in United States v. Harris, 403 U.S. 573, 91 S. Ct. 2075, 29 L. Ed. 2d 723 (1971), that compels a different result. As the majority recognizes in its in banc opinion here, the issue in Harris was whether or not a law enforcement officer's affidavit was sufficient to constitute probable cause for a federal magistrate to issue a search warrant, whereas the issue here is whether or not there was probable cause for a warrantless entry into a private dwelling in order to arrest and for the consequent seizure of the narcotics and attendant equipment.
To me, this distinction is significant because in the case of a search warrant, the law enforcement officer has to appear before the magistrate who can question him further and call for more information or clarification if he is not satisfied that the officer's affidavit constitutes sufficient probable cause for issuing the warrant. Indeed, it is the intervention of an impartial judicial officer in deciding when probable cause exists that makes the search warrant an important safeguard against unwarranted intrusions by government agents into private dwellings. See United States v. Robinson, 325 F.2d 391, 394 (2d Cir. 1963). That safeguard, of course, is not present when the law enforcement officers themselves make the determination that they have probable cause for an entry in order to arrest. Hence, in my view, the test of probable cause required for entry without a warrant should be more stringently applied than that for obtaining a search warrant. Otherwise, private dwellings would be subject to warrantless invasions upon the law enforcement officers' suspicion, with the scantiest sort of corroboration, that a crime was being committed inside, and the policy underlying the search warrant requirement could be subverted. As I pointed out in the panel opinion, the circumstances leading to the entry in this case, in my opinion, fell far short of those which would justify a warrantless intrusion.
Furthermore, the indicia of the unknown informant's reliability in Harris were, in any event, stronger than those here. For example, the informant in Harris made a statement against his own penal interest when he admitted his illicit liquor purchases; and such a statement, of course, is a good indication of an informant's reliability. In fact, it was solely on this basis that Mr. Justice White joined in the Supreme Court's judgment thus making the necessary five-man majority. There is nothing in the record here to show that the unknown informant made any such statement; and the indications of his reliability were very slight indeed. His information had been confirmed solely as to facts which by themselves were wholly innocent -- Manning's ownership of a car and his visiting at Audrey's apartment -- and not as to any fact tending to show that Manning was actually engaged in the distribution of narcotics.
At the very least, in such circumstances, we should remand the case for a further hearing on the identity and reliability of the informant, as we did in United States v. Robinson, supra, in order to give defense counsel the opportunity to cross-examine the government agents regarding that informant. If at that hearing the government could not introduce additional corroborating evidence so that the arrest might be supported by that other evidence, the government should be required to disclose the informant's identity or run the risk of having the arrest and subsequent search held invalid. Here, of course, it is possible that the purpose of such a further hearing would be frustrated because the informant is dead and thus cannot be produced and cross-examined himself. But for the Court today to uphold a warrantless entry based primarily upon the word of an unknown informant, untested as to any suspicious fact, without requiring any disclosure whatsoever, is, in my opinion, a dangerous undermining of Fourth Amendment rights.
The fact that the majority also relies on the agents' hearing running, scuffling, and hurried conversation inside after they had knocked on the door and announced their identity does not persuade me. As I pointed out in the panel opinion, the response of the people inside to the knocking of persons identifying themselves as federal agents can hardly be said to constitute probable cause for entry into a private dwelling, when the agents had no prior knowledge of any suspicious acts to indicate that the persons inside might be dealing in narcotics, when the agents had failed to announce their purpose, and when there had been no face-to-face confrontation between them.
J. JOSEPH SMITH, Circuit Judge (dissenting):
I dissent. As pointed out in Judge Lumbard's panel opinion, the information given by the totally unknown informant was not corroborated in any non-innocent aspect, sufficiently to justify breaking into a dwelling.