The opinion of the court was delivered by: MACMAHON
MacMAHON, District Judge.
Defendant moves, pursuant to Rule 41(e), Fed.R.Crim.P., to suppress as evidence at trial 9,569.4 grams of hashish seized from him following a search without a warrant.
In the evening of March 20, 1973, at about 10:00 o'clock, defendant, carrying an attache case and a brown leather satchel, rang the buzzer of Apartment 8-C at 124 East 84th Street in Manhattan. The door was opened by two men who identified themselves as Agents Kobell and Sennett of the Drug Enforcement Administration. They told defendant to come in and, when he did, placed him against a wall and frisked him for weapons. Smelling a strong and distinctive odor of marijuana or hashish emanating from the attache case, the agents opened it and found four soles of hashish. They then told defendant to open the satchel and it contained 39 additional soles of hashish. Defendant was then arrested.
Defendant claims that the search of his articles was unlawful because (1) the searching agents had entered Apartment 8-C unlawfully and (2) assuming lawful entry, the search of his articles was nonetheless unlawful because it was made without a warrant and not as an incident to a lawful arrest. We turn, therefore, to a consideration of the facts relevant to these contentions.
It appears that following discussions with an informant, Agent Buceti asked him to arrange to buy a sample of cocaine from one Noel Nocks. The informant made the arrangments, and on the night of December 5, 1972 he accompanied Agent Buceti to an apartment house at 124 East 84th Street in Manhattan. When they arrived, the informant entered the building and went to Apartment 8-C where Nocks resided, but the agent remained outside in his car watching the apartment house entrance. While the informant was meeting with Nocks in Apartment 8-C, a man named "Steve" entered and sold and delivered a two-gram sample of cocaine to the informant for $25.00. The informant's description of "Steve" matched that of a man whom Agent Buceti had seen arrive in a car, get out and enter the apartment building at about the time of the transaction. Agent Buceti had noted the number of the license plate and a search of the motor vehicle records revealed that the car belonged to a Steven Bernstein.
After December 5, 1972, Agent Buceti negotiated for several months with Nocks for the purchase of 1/8 kilogram of cocaine. During this period, the informant advised Buceti that he had seen Bernstein in Apartment 8-C on several occasions.
The negotiations for the purchase of 1/8 kilogram of cocaine were inconclusive, and when the agents became satisfied that they would prove to be fruitless they decided to arrest Nocks and Bernstein for the earlier sale of the sample of cocaine. Accordingly, on March 20, 1973, Buceti and other agents of the Drug Enforcement Administration went to 124 East 84th Street to make those arrests. While waiting outside, they saw Nocks arrive, accompanied by a man later identified as Arthur Epstein. As Nocks entered the vestibule of the apartment building, the agents handcuffed and arrested him for the prior sale of the sample of cocaine.
Agent White asked Nocks if Bernstein was in the apartment, and he replied that he was not.
The agents, Epstein and Nocks then took the elevator to the eighth floor to search Apartment 8-C for Bernstein. Epstein opened the door using keys which the agents had taken from Nocks' pocket. The agents entered and while unsuccessfully searching the apartment for Bernstein discovered two large plastic bags of marijuana, shotguns, gun powder, shotgun shells and a shotgun loading machine.
A more extensive search, which the government concedes was unlawful, yielded various other articles of contraband which the agents catalogued. At about 9:30 P.M., Bernstein, accompanied by a woman named Ellen Ferrante, entered the apartment and was arrested. About half an hour later, at 10:00 P.M., defendant Blair arrived on the scene, he was frisked,
his bags were searched and he was arrested as previously described.
There is no question that the agents had neither a search nor an arrest warrant when they entered Apartment 8-C. Defendant claims, therefore, that under Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963), any evidence obtained by their search of his bags is inadmissible as the fruit of an unlawful entry into the apartment.
While conceding that the search of defendant's bags was illegal if the agents were in Apartment 8-C unlawfully, the government, nevertheless, asserts that despite the agents' lack of a search or arrest warrant their entry was lawful under 21 U.S.C. § 878(3). That statute authorizes agents of the Drug Enforcement Administration to "make arrests without warrant . . . for any felony, cognizable under the laws of the United States, if . . . [they have] probable cause to believe that the person to be arrested has committed or is committing a felony."
There can be no question that the agents had probable cause to believe that Bernstein had committed the felony of distributing cocaine.
The informant had so reported to Agent Buceti, and his information had been corroborated by Buceti's observation of Bernstein entering the building at the time of the sale. The agents also had reason to believe, from the informant's information and Buceti's observations, that Bernstein resided in Apartment 8-C.
Defendant's challenge to the constitutionality of the statute, 21 U.S.C. § 878(3), is without merit. The statute, as was its predecessor, 26 U.S.C. § 7607, is of unquestioned validity for it does not expand the authority of federal officers to arrest with probable cause beyond the scope of the Fourth Amendment.
This circuit has held that an officer may enter a dwelling to make a warrantless arrest of a person whom he has probable cause to believe has committed a felony.
Here, the agents clearly had probable cause to believe that Bernstein had committed a felony and that he was living in Apartment 8-C. They were, therefore, entitled to enter that apartment to arrest him.
The result is not altered by the fact that the agents had ample time (over three months) to obtain an arrest warrant. The statute, 21 U.S.C. § 878(3), authorizes a warrantless arrest regardless of whether the agents have sufficient time to obtain one.
We find the agents' entry into, and subsequent presence in, Apartment 8-C to have been lawful and therefore reject ...