The opinion of the court was delivered by: CARTER
Defendant Pjeter Shkoza, is charged with unlawfully transporting into New York a variety of handguns purchased or otherwise obtained outside the state. Defendant was arrested on June 18, 1975, on his arrival at the New York Port Authority Bus Terminal here in New York City. The suitcase he was carrying at the time was seized and searched. It contained seven handguns and approximately 250 rounds of ammunition. Shkoza's formal arrest followed the search of the suitcase which revealed the cache of firearms. There was no warrant authorizing either the arrest or seizure of the suitcase.
Defendant moves to suppress the seized contraband on the ground that probable cause was lacking to warrant his arrest or the search and seizure of his belongings. If the search was constitutionally unwarranted, the tainted evidence seized is inadmissible at trial, Weeks v. United States, 232 U.S. 383, 393, 34 S. Ct. 341, 58 L. Ed. 652 (1914); and the burden of persuasion is on the government to show that the warrantless arrest and search conformed to constitutional strictures. Beck v. Ohio, 379 U.S. 89, 97, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964). A suppression hearing was held on November 19-20, 1975, to determine whether the special agents of the Bureau of Alcohol, Tobacco & Firearms, United States Treasury Department (ATF) acted lawfully on June 18, 1975, in stopping Shkoza, seizing his suitcase, opening it to discover firearms, and arresting him thereafter.
On June 18, 1975, Vincent Mazzilli, ATF special agent and the arresting officer, swore out a complaint against Shkoza charging a violation of Title 18, United States Code, Section 922(a)(3). His sworn affidavit detailing the facts leading to Shkoza's arrest and the filing of the complaint state that information on Shkoza's alleged gun-running activities was obtained through the knowledge and personal observation of a confidential informant and from statements by Shkoza overheard by the informant. In August, Mazzilli filed a new affidavit modifying his June 18th statement to indicate that knowledge of the confidential informer concerning Shkoza was not based solely on personal knowledge and observation but was also based on information supplied by a third party who had overheard Shkoza make incriminating statements. The second affidavit helped generate defendant's motion to suppress.
The series of events leading directly to Shkoza's arrest began on June 17, 1975, at approximately 10:30 p. m. when Timothy P. Brian, ATF special agent headquartered in Cleveland, received a call from an informant advising him that the defendant would be leaving Cleveland at 10:45 p. m. that night on a Greyhound bus bound for New York. The informant advised Agent Brian that Shkoza was a white male, approximately 60-65 years of age, gray haired and balding, thin or skinny, weighing 140 pounds, and approximately 5'8" tall; that he would be wearing dark-rimmed glasses, a gray jacket with a black vest and beige trousers, and that he would be carrying a red suitcase containing a quantity of guns.
This informant had previously been a source of reliable information. The first time information had been supplied was in August, 1974. This earlier information had been obtained by ATF from the Cleveland Police Department which had dealt directly with the informant. The informant had next supplied information to the ATF on June 12, 1975; and between then and June 17, 1975, the informant had supplied information to the ATF from eight to twelve times. The information supplied in the past had been independently checked and verified. In August, 1974, the informant had advised Agent Brian that one Edward Manning was involved with defendant and drove a certain type of car, giving the license plate number. This material was checked and found to be accurate. On a subsequent occasion the informant had advised Brian that Manning had an interest in guns and maintained a collection of guns himself. This information proved to be reliable. Information concerning a Nicholas Koligi and the residence of Shkoza in Brooklyn had also been supplied by the informant and subsequently verified by the agents.
Brian relayed to Joseph Kalister, who was group supervisor in ATF's New York office, the informant's tip that Shkoza was on his way to New York with guns. Brian also passed along the description of the defendant supplied by the informant. Brian advised Kalister that Shkoza had been transporting guns into New York for resale for a number of years and that the information he was giving Kalister had come from a reliable and confidential informant. Kalister assigned special agent Vincent J. Mazzilli to the case.
Mazzilli checked about the Greyhound bus schedule between Cleveland and New York. He was advised that a bus bound for New York was scheduled to leave Cleveland at 10:45 that night (June 17th) and arrive in New York at 8:05 the next morning (June 18th). Kalister, Alexander D'Arti (another ATF special agent) and Mazzilli met together early the next morning and proceeded to the New York Port Authority Bus Terminal. They learned that the bus in question was # 7542. Kalister and Mazzilli stationed themselves in front of the bus when it stopped in the terminal and the passengers began disembarking.
The agents saw a white male of the approximate age and physical stature described, wearing horn-rimmed glasses, a gray jacket with a black vest and beige trousers and carrying a red suitcase get off the bus. Mazzilli followed him into the waiting room, while Kalister remained behind to see whether anyone else fitting the description was among the passengers. No such other person appeared.
Mazzilli went up to Shkoza in the waiting room, called him by name and asked him where the guns were. Shkoza gestured toward the suitcase and made a movement as if to open it. Mazzilli quickly took the suitcase, unzipped it and found the seven guns and 250 rounds of ammunition. He then placed Shkoza under arrest.
Mazzilli later filed the previously described complaint against Shkoza before Magistrate Martin D. Jacobs. Prior to filing the complaint on June 18, 1975, Mazzilli spoke to Brian by telephone, but that conversation focused solely on the reliability of Brian's informant.
Some time in August during a talk between Mazzilli and Jacob Laufer, government counsel in this case, the accuracy of the June 18th statement was questioned. Mazzilli talked to Brian again and in that discussion learned that a third party was in part responsible for the information ...