The opinion of the court was delivered by: GURFEIN
This is a motion by the defendants to suppress the evidence consisting of approximately 1,733 grams of marihuana. The defendants are charged in a single count information with the possession of marihuana in violation of 21 U.S.C. § 844 and 18 U.S.C. § 2. A hearing was held and decision was reserved.
Two agents of the Bureau of Narcotics and Dangerous Drugs testified for the Government and I find their testimony to be credible. It may be summarized as follows:
On September 16, 1971 at about 6 p. m. Agent Beachell was told by an informant that a group of young Cuban males were trafficking in marihuana, utilizing a 1964 white Oldsmobile, New Jersey registration RJH 370. The informant named the traffickers as Elliott Ricardo, Tarzan, Rafael and Miguel Bartley. He described these Cubans as "short medium in height" and medium weight and build, and stated that they came primarily from New Jersey.
The informant told the Agent that he himself had dealt with and purchased marihuana from these individuals and that on one occasion he himself had observed approximately 70 pounds of marihuana in the trunk of the automobile mentioned. The informant also stated that he had observed this automobile in the vicinity of 77th and 78th Streets between Amsterdam and Columbus Avenues, New York City, almost every evening. Following this conversation Agents Beachell and Dunham conducted a surveillance at the corner of 79th Street and Amsterdam Avenue. About 10 p. m. Agent Beachell observed Tito Caamano having conversations with several individuals and moving from corner to corner at that location. On one occasion Caamano passed an envelope to an individual and received money for it. In the light of his experience, Agent Beachell believed this to be a narcotics transaction, probably marihuana.
After the transaction had taken place Caamano continued to have several conversations with other individuals. At one point he was met by three other males and a female and began to walk South on Amsterdam Avenue. Agent Dunham followed on foot while Agent Beachell circled the area in the Government vehicle. Reaching the corner of 78th Street and Amsterdam Avenue, Agent Beachell observed Dunham who was pointing East on 78th Street, indicating that the people he was following had gone in that direction. Driving slowly up that street Beachell observed the 1964 Oldsmobile that had been described to him by the informant with Rafael Romero, keys in hand, about to enter it and Tito Caamano seated on the passenger side. He placed them under arrest and advised them of their constitutional rights. He asked Romero for the keys to the car and then proceeded to open the trunk. Romero stated that the only thing Beachell would find was clean laundry. Beachell found 4 bags of marihuana weighing approximately 4 pounds in the trunk. Agent Dunham testified that he later searched the vehicle and found about an ounce of marihuana stuffed under the driver's seat.
The Court asked him why he did not obtain a warrant, and Agent Dunham stated that the Agents had gone to that location expecting merely to conduct a surveillance, and that when they saw the observed transaction and the subject's suspicious actions the Agents did not have time to get a warrant.
Upon questioning by the Court it appeared that Agent Beachell had known the informant for a month, that he had dealt with him before and that from the Bureau point of view the informant had proved successful.
Since the evidence was seized as a result of the search of Rafael Romero's car and the search was made without a warrant, it would be a presumptively unreasonable search unless covered by an exception. There was such an exception if the search was incident to a lawful arrest, or if there was probable cause for the search itself, regardless of the lawfulness of the arrest. The Government, of course, has the burden of showing that a warrantless arrest was valid. Beck v. Ohio, 379 U.S. 89, 97, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964).
The search was clearly incident to the arrest. It was contemporaneous with the arrest and was "confined to the immediate vicinity of the arrest." See Shipley v. California, 395 U.S. 818, 89 S. Ct. 2053, 23 L. Ed. 2d 732 (1969); Chimel v. California, 395 U.S. 752, 764, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). One defendant, Caamano, was in the car, and the other, Rafael Romero, was at the car with keys in hand. In connection with the arrest it was reasonable to search the automobile for weapons and for contraband.
To support the search as a proper incident to a warrantless arrest, the arrest must have been lawful. Chimel v. California, supra. The arresting officer must have had authority to arrest, and the arrest must be based on probable cause. Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969).
The agents of the Bureau of Narcotics had specific statutory authority to make the arrest without a warrant for violations of any law relating to marihuana "where the violation is committed in the presence of the person making the arrest or where such person has reasonable grounds to believe that the person to be arrested has committed or is committing such violation." 26 U.S.C. § 7607 (2).
"Reasonable grounds," the language used in this statute, means the same as "probable cause." See Draper v. United States, 358 U.S. 307, 310 n. 3, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959); United States v. Acarino, 408 F.2d 512, 514 n. 2 (2 Cir.), cert. denied, 395 U.S. 961, 89 S. Ct. 2101, 23 L. Ed. 2d 746 (1969). We come back, therefore, to the meaning of "probable cause" as a constitutional requirement. As the Supreme Court said in Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 1310, 93 L. Ed. 1879 (1949): "In dealing with probable cause, however, as the very name implies, we deal with probabilities. . . 'The substance of all the definitions' of probable cause 'is a reasonable ground for belief of guilt.'" That is the touchstone in this Circuit. See United States v. Soyka, 394 F.2d 443, 453-454 (2 Cir. in banc 1968) (arrest in an apartment), cert. denied, 393 U.S. 1095, 89 S. Ct. 883, 21 L. Ed. 2d 785 (1969). ...