Appeal by United States in narcotics prosecution from suppression order in the United States District Court for the Eastern District of New York, John R. Bartels, Judge.
Smith, Oakes and Meskill, Circuit Judges. Meskill, Circuit Judge, Dissenting.
This is an appeal by the United States, pursuant to 18 U.S.C. § 3731, from an order of the United States District Court for the Eastern District of New York, John R. Bartels, Judge, in a criminal narcotics case granting motion to suppress evidence seized when defendant was searched following his arrest without a warrant. We find no error and affirm the suppression order.
On January 16, 1975 Horace Balmer, an undercover agent of the Federal Drug Enforcement Administration (DEA), purchased 50.7 grams of heroin from Jose Gonzalez in an apartment in Brooklyn. On March 5, 1975 Balmer purchased another 77.86 grams of heroin from Gonzalez at the same apartment. At both transactions another man was present and participated in the negotiation and sale of the heroin. At the first transaction a woman was also present and participated.
As was the DEA practice, both sales were reported by agent Balmer to other DEA officers and to New York police officers, including Officer LeMoine of the New York Drug Enforcement Task Force. LeMoine talked to Balmer and read both his reports. The first report described Gonzalez's confederate as "unknown male -- possibly called Angel -- m/w/28 yrs., 5 feet 8 inch tall, 155 lbs, light complexion, wearing blue trousers, multi colored shirt and sneakers." The second report referred to the first one and described Gonzalez's confederate as "John Doe 'Angel' . . . wearing white T-shirt and light brown slacks." Balmer's first report described Gonzalez's woman confederate as "unknown female -- f/w/20 yrs. of age, wearing a white 'T' shirt, bright blue dungarees and white high heel shoes, 5 feet 2 inch tall, 110 lbs, light complexion, dark brown hair and very soft spoken."
LeMoine knew Gonzalez, and on April 29, 1975 he was looking for Gonzalez in order to arrest him. About 6:30 p.m. he saw Gonzalez sitting in the driver's seat of a van parked at Fourth Avenue and 53rd Street in Brooklyn. LeMoine and his partner ordered Gonzalez and three other persons, two males and a female, who were in the van to leave it and then arrested Gonzalez. The police report says the female was white, 5 feet 5 inch tall, weighed 135 lbs, and was wearing a light green jacket, flowered blouse, blue dungarees, and black shoes. One of the males was described in the police report as negro-hispanic, 5 feet 11 inch tall, 165 lbs, and wearing a brown shirt, brown jacket, brown trousers, and dark shoes. The other male was described in the police report as white, 32 years old, 5 feet 7 inch tall, weighing 155 lbs, and wearing a blue cotton shirt, blue dungaree jacket, blue trousers, and black shoes. LeMoine asked this latter male -- whom he had never seen before -- to identify himself. Upon hearing the response "Angel," LeMoine arrested him. LeMoine then "frisked" Gonzalez, Rosario, and the third male. He did not frisk the woman. In the pocket of Rosario's jacket he found six tinfoil packets containing a white powder which was subsequently identified as heroin.
All four persons were taken to police headquarters. Balmer then indicated that Angel Rosario was not the person who assisted Gonzalez in his drug sales. Rosario was charged with knowingly and intentionally possessing 26.82 grams of heroin in violation of 21 U.S.C. § 844(a). The other male and the female were "processed" and then released. Gonzalez was indicted and found guilty by a jury of two counts of possession with intent to distribute and two counts of distribution of heroin.
The issue before us is whether the court was correct in finding a lack of probable cause for the arrest of Rosario.
The test to be applied by the district judge*fn1 in assessing probable cause for arrest*fn2 is whether, based on the collective knowledge of the police, rather than that of the arresting officer alone, the facts available to the police at the time of the arrest were "sufficient to warrant a prudent man in believing that the petitioner had committed . . . an offense." United States ex rel. LaBelle v. LaVallee, 517 F.2d 750, 753 (2d Cir. 1975), cert. denied, 423 U.S. 1062, 96 S. Ct. 803, 46 L. Ed. 2d 655 (1976), quoting Beck v. Ohio, 379 U.S. 89, 91, 13 L. Ed. 2d 142, 85 S. Ct. 223 (1964). United States v. Watson, 423 U.S. 411, 417, 46 L. Ed. 2d 598, 96 S. Ct. 820 (1976); Gerstein v. Pugh, 420 U.S. 103, 111, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975); Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 28 L. Ed. 2d 306, 91 S. Ct. 1031 (1971).*fn3 In assessing probable cause it would be irrelevant that the person arrested turned out not to be Gonzalez's confederate in the sales to Agent Balmer if the police had had probable cause to arrest the confederate and had made an understandable mistake in arresting Rosario. Hill v. California, 401 U.S. 797, 803-805, 28 L. Ed. 2d 484, 91 S. Ct. 1106 (1971).*fn4
The police, however, did not have enough information to support their obtaining an arrest warrant for Angel Rosario prior to seeing Gonzalez on April 29. The government concedes that if Agent Balmer had been present on April 29, he would not have arrested Rosario. We agree with Judge Bartels that the physical description of Gonzalez's confederate given by Balmer to LeMoine would fit a very large group of ordinary young men.
We agree also that Officer LeMoine did not obtain enough additional information just prior to the arrest to have probable cause to arrest Angel Rosario. Certainly Rosario's truthful response to the inquiry about his name is not corroborative information.*fn5 The government argues that Rosario's being in the company of ...