The opinion of the court was delivered by: CURTIN
The defendant has been indicted for manufacturing and possessing a stimulant drug, methylene dioxy amphetamine, in violation of Title 21, United States Code, Sections 331 and 360. Pursuant to Rule 41 (e) of the Federal Rules of Criminal Procedure, he has moved to suppress evidence obtained from him incident to his warrantless arrest and thereafter pursuant to two search warrants. After hearing the testimony of the arresting agents and the defendant, as well as the argument of counsel, the court makes the following findings of fact and conclusions of law.
On December 7, 1970 a federal narcotics agent working in the Boston, Massachusetts office of the Bureau of Narcotics and Dangerous Drugs telephoned the Buffalo office and informed Agent Mihok that Alfa Inorganics, Inc., a chemical supply house located in Beverly, Massachusetts, had received an order for three pounds of lithium aluminum hydride, a chemical used in the manufacture of amphetamines,
from Dr. Paul Burke, 92 Plymouth Avenue, Buffalo, New York. Since the order was written on stationary with the seal of Canisius College commercially imprinted on it, instead of the apparently customary purchase order form, the suspicions of Alfa Inorganics and the BNDD were aroused, and Agent Mihok was asked to investigate. A visit to the College revealed that Dr. Burke was not known to be associated in any way with the institution and that Canisius had not submitted this particular order. A surveillance of the Plymouth Avenue address and corresponding check of telephone company records disclosed that a Jenny Burke, daughter of Dr. Leslie Fiedler, resided there.
On December 28, 1970, with the cooperation of the United Parcel Service, the BNDD agents attempted a controlled delivery of the package of chemicals at the Plymouth Avenue address, but on this day as well as the next, the effort was unsuccessful because no one appeared to be home. United Parcel, later on the 29th, called the Burke apartment and learned that someone would pick up the package at the United Parcel office either that evening or early the following morning.
With Agent Mihok surveilling the United Parcel office, a man later identified as the defendant appeared the morning of December 30, signed for the package as "P. Burke," and left with it in his Volkswagen bus. At the time, Failla was wearing bell bottom blue jeans, a navy peacoat, a large hat, and long shoulder-length hair, and was unshaven. As he attended to a number of errands to the supermarket, bank, and so on, the defendant was surveilled by a team of agents. After momentarily losing track of the defendant, they observed his vehicle parked at 563 Hopkins Street, Buffalo and, through a check of motor vehicle records, learned that it was registered to the defendant at this address.
Between 11:30 A.M. on the 30th and 5:30 P.M. on January 1, the time of defendant's arrest, he was the subject of an around-the-clock surveillance. About 1:00 P.M. and again at 3:00 P.M. on the 30th, the defendant was observed carrying gray drums from his vehicle to his Hopkins Street residence. At 5:30 P.M., the defendant travelled to the general area of the University of Buffalo campus and was lost by the surveilling agents. At 9:00 P.M., his vehicle was observed parked near Plymouth Avenue at 512 Porter Avenue. Using field glasses, the agents observed the defendant in the third floor apartment at 512 Porter.
On December 31, 1970, the BNDD arranged for Agent Bush to enter the premises at 563 Hopkins Street under the pretext of looking for an apartment advertised for rent. While there, the defendant's father told Agent Bush that he lived in the house but his son lived on Porter Avenue. He showed Agent Bush the apartment for rent and a basement storage area. He explained to Agent Bush that his son, the defendant, had a Ph.D. in chemistry and used the storage area in connection with that interest. Agent Bush could not see inside the locked storage rooms, but did notice a propane torch on a basement table and, on the first floor, an opened crate marked "Alfa Inorganics, Beverly, Massachusetts." The crate appeared to be the same package earlier picked up by the defendant at United Parcel.
The defendant was observed leaving and returning to the Porter Avenue apartment on a number of occasions during December 31. On one occasion, he drove to a pizzeria, purchased a pizza and returned to the apartment. That evening, New Year's Eve, a number of visitors, including a female believed to be Jenny Burke, arrived at different times during the evening, but all had left by 1:15 A.M.
On January 1 at about 9:30 A.M., agents observed the defendant leave the Porter Avenue apartment and, at 10:00 A.M., he was observed in the basement of the Hopkins Street house by Agent Teresi, who was walking by on a sidewalk close to the windows. Later the same day, he saw the defendant working with laboratory equipment directly beneath the basement windows, but did not know what the defendant was doing.
Upon making this observation, Agent Teresi, on the advice of the United States Attorney, attempted to telephone two United States Commissioners and a District Judge to obtain a search warrant, but was unable to locate any of these persons at home. At 4:30 P.M., one hour later, he again observed the defendant working in the basement. Unsuccessfully, he again tried to reach the Commissioners and District Judge. At 5:15 P.M., the defendant was observed placing three brown paper bags in his Volkswagen bus parked alongside his father's residence and driving away in the vehicle. The agents followed for one block, but then immediately pulled the defendant's vehicle over and arrested him under the authority of Title 26, United States Code, Section 7607.
The three paper bags, containing a white powder, were seized at this time. A field check at the BNDD office in Buffalo, where the defendant was also brought, indicated the bags contained a controlled amphetamine substance.
That evening, search warrants for the house on Hopkins Street and apartment on Porter Avenue were obtained from a United States Commissioner. The affidavits accompanying the warrant applications recited the surveillance activities and circumstances of the defendant's arrest. On the basis of these affidavits, the Commissioner authorized the warrants to be executed that night.
The principal contention of the defendant at this point is that his arrest was without probable cause and, therefore, the paper bags seized at the time of his arrest and all items seized pursuant to the warrants must be suppressed.
While probable cause, of course, must be measured by the facts of the particular case, see Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441, at 450 (1963), certain principles relative to arrests and searches are generally pertinent. It is basic that an arrest with or without a warrant must stand upon firmer ground than mere suspicion. See Henry v. United States, 361 U.S. 98, 80 S. Ct. 168, 4 L. Ed. 2d 134, 137 (1959). Accordingly, although the arresting officer may be acting in good faith and although the customary search incident to arrest may produce the suspected contraband, as long as the arrest is based solely and entirely on mere suspicion, the arrest and incidental searches will be improper. In short, officers should search incident to arrest, not arrest incident to a search. See Whiteley v. Warden, 401 U.S. 560, 91 S. Ct. 1031, 28 L. Ed. 2d 306 (1971).
The court recognizes that the classic definition of probable cause is easy to recite but, for officers required to reach quick decisions, difficult of application. Probable cause is said to exist where "the facts and circumstances within [the arresting officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief" that an offense has been or is being committed. See Carroll v. United States, 267 U.S. 132, 161, 45 S. Ct. 280, 288, 69 L. Ed. 543, 555 (1925). Officers are not, however, expected to be legal technicians. As the Supreme Court noted in Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 1310, 93 L. Ed. 1879, 1890 (1949), "In dealing with probable cause . . . we deal with probabilities. These are not technical; they are factual and practical considerations of everyday life on ...