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 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 ...