Appeal by the Government from an order by the United States District Court, District of Connecticut, T. Emmet Clarie, Judge, suppressing evidence consisting of heroin and utensils seized from a table in front of the defendants at the time of their arrest. Order set aside and case remanded for trial.
Friendly, Anderson and Mulligan, Circuit Judges.
On the night of September 12, 1972, one Gregouir Bosques informed Detective Paul Slyman of the Willimantic, Connecticut, Police Department that the defendant Francisco Artieri, whom Slyman knew to be a "big heroin dealer in Willimantic," had asked him to help "cut and bag" heroin the following day; but Bosques said he did not know when or where the operation would occur. At about 11:00 p.m. Slyman relayed this information to Special Agent Joseph Keefe of the Federal Bureau of Narcotics and Dangerous Drugs. The next morning at 8:30, Keefe went to the home of Bosques, who then told him that Artieri and defendant Hiram Reyes Gonzales planned to divide a quantity of heroin at Gonzales' dwelling sometime that day. Bosques told the agent that Gonzales did not keep heroin in his apartment and that he did not know when it would be delivered there.
The arrangements called for Bosques to meet Artieri before going to Gonzales' residence. He arrived at Artieri's home at 9:15, but found that Artieri was sleeping, and Bosques waited outside until Artieri appeared. Six agents and Slyman also waited, not knowing from moment to moment when Artieri might awaken, but standing ready to follow him when he did. Artieri came out at 10:30 and Bosques drove him to Gonzales' home. The agents followed and continued their surveillance there. At 10:40, shortly after Bosques and Artieri, followed by the agents, had arrived, Gonzales drove up, and accompanied by Bosques and Artieri, went into his house, which was a three-floor apartment unit.
At 11:50, the informer gave the agents a prearranged signal indicating that heroin was being cut and bagged. Three of the federal agents immediately approached the front door. Special Agent O'Brien knocked loudly, and while the door, which was not latched, swung open, he shouted that they were federal agents; they paused for about three seconds and then entered. Keefe and Slyman, and the remaining two agents sought to gain entrance through the rear door but found it locked. There was evidence that Artieri was known to carry a gun and at least two of the agents, therefore, had their guns drawn.
None of the agents knew where in the house the defendants were, and two of them went upstairs, looking for them. Special Agent Sloboda, who had remained on the first floor, found them cutting heroin at the kitchen table. He placed them under arrest and opened the back-door for the agents waiting there. The other two agents had already joined him. Approximately 169.7 grams of heroin and paraphernalia were seized from the table. After the arrests, the upstairs rooms, their closets, bureau drawers and mattresses were searched. Some of the officers also searched the basement and found and seized some additional contraband there.
On February 5, 13, and 14, 1973, the district court held a hearing on a defense motion to suppress the evidence of the 169.7 grams of heroin seized from the table at the time of arrest. In reliance on Coolidge v. New Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022, reh. den., 404 U.S. 874, 92 S. Ct. 26, 30 L. Ed. 2d 120 (1971), the court excluded the evidence as the product of a planned, warrantless search in violation of the Fourth Amendment.
Because "the evidence is a substantial proof of a fact material in the proceeding" the United States has appealed under 18 U.S.C. § 3731 and contends that no warrant was required.
The trial court, at the time of its ruling did not have available the opinion of this court, decided October 1, 1973, in United States v. Santana, 485 F.2d 365, 369-370 and n.8 (2 Cir. 1973), which commented on the reach of Coolidge; nor did it have the very recent decisions of the Supreme Court in United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427; 412 U.S. 936, 93 S. Ct. 2770, 37 L. Ed. 2d 396; 410 U.S. 982, 93 S. Ct. 1500, 36 L. Ed. 2d 177 (1973) and Gustafson v. State of Florida, 414 U.S. 260, 94 S. Ct. 488, 38 L. Ed. 2d 456, 42 USLW 4068, 1973, which relate to seizures incidental to arrests. We are of the opinion that the trial court's conclusion that this was a planned warrantless search was a misinterpretation of the events.
The Court in Coolidge limited the scope of a warrantless search at the scene of an arrest but explicitly refrained from requiring a warrant for a search incidental to an arrest, 403 U.S. at 482. Two separate opinions warned against imposing such a limitation. Id., at 509 (Black, J.), and at 519 (White, J.). It is this view that has recently been reaffirmed in United States v. Robinson, supra. Instead of being concerned with incidental searches the plurality's discussion (section IIC) was directed against the proposition that an unlimited "plain view" exception should be recognized as a co-equal justification for seizure along with action taken pursuant to a search warrant or a seizure made incidental to an arrest. It said, "This Court has never permitted the legitimation of a planned warrantless seizure on plain-view grounds . . . . ." 403 U.S. at 471, n.27. (Emphasis in the original text.) " Coolidge teaches that where the police have ample opportunity to obtain a search warrant and the intention to seize the evidence is really the prime motivation for the arrest, the plain view exception does not apply." United States v. Lisznyai, 470 F.2d 707, 710 (2 Cir. 1972), cert. den., 410 U.S. 987, 93 S. Ct. 1516, 36 L. Ed. 2d 184 (1973). See also United States v. Santana, supra.
Although in the present case the narcotics were openly on the table, the plain view exception was not the basis for the seizure nor was any attempt made to claim that it was. The purpose of the entry was to arrest those whom the agents had probable cause to believe were in illegal possession of narcotics. The seizure was amply justified by the fact that the contraband was right in front of the defendants, and within their easy reach. It was plainly accessible to them and under their immediate control at the moment they were placed under arrest. United States v. Robinson, supra; Gustafson v. State of Florida, supra; Chimel v. California, 395 U.S. at 763.
In Robinson the Court said, "it is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment, " 42 USLW 4055, at 4057, and that the exception covers "the area within the control of the arrestee."
The district court based its conclusions on the assumption that "the prime motivation for the initial intrusion into the defendant's [Gonzales'] apartment and the arrest was the seizure of the heroin . . . ." But the initial effort upon entry was to locate the defendants, and the record points to the apprehension of Artieri (the big heroin dealer in Willimantic) and those operating with him as the prime motivation. The evidence sought to be suppressed in this proceeding consisted only of the 169.7 grams of heroin and ...