Appeal from judgment, entered in the United States District Court for the Eastern District of New York, Hon. Henry Bramwell, J., convicting appellant, following a six-day jury trial, of possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and of conspiracy, in violation of 21 U.S.C. § 846. Reversed and remanded for a new trial.
Waterman and Meskill, Circuit Judges, and Bartels, District Judge.*fn*
This is an appeal from a judgment of the United States District Court for the Eastern District of New York convicting appellant, following a six-day jury trial, of possession of heroin with intent to distribute, and of conspiracy to commit that substantive offense.*fn1 In seeking reversals of his convictions, appellant urges upon us three unrelated claims of error.
He first contends that the trial court erroneously denied his pretrial motion to suppress. This motion was predicated on a purported lack of probable cause to institute the warrantless search which resulted in the discovery of a white powdery substance, believed to be heroin, on the person of one Isaac Daniels. This discovery produced the immediate arrest not only of Daniels but also of appellant, who appeared to be accompanying Daniels at the time of the warrantless search and seizure. Not unexpectedly, it was the white powdery substance at which the suppression motion was primarily directed.
Appellant's second claim of error is that the trial court incorrectly admitted into evidence at trial the official report and worksheet of the chemist who analyzed the substance seized from Daniels. Appellant contends that the introduction of this evidence was impermissible for the evidence was inadmissible hearsay under the new Federal Rules of Evidence, and, also, that under the circumstances of this case, the introduction of the report and the worksheet violated appellant's right under the Sixth Amendment to the United States Constitution to confront the witnesses against him. The final claim of error relates to an alleged infirmity in the trial court's charge on the presumption of innocence.
We conclude that the motion to suppress was properly denied and that appellant's assignment of error in the court's charge, a claim which we do not discuss, is without merit. As to the claim that the chemist's report and worksheet were improperly admitted into evidence, although we discuss the constitutional grounds for this claim, we find it unnecessary to decide the claim on that ground, for we agree with appellant that those documents were inadmissible under the Federal Rules of Evidence. Accordingly, we reverse and remand to the district court for a new trial.
We initially consider appellant's claim that the trial court erroneously denied his motion to suppress certain evidence, the principal piece of evidence being the white powdery substance discovered on Daniels' right thigh moments before Daniels and Oates were arrested. The evidence adduced at the suppression hearing and the trial, see United States v. Fields, 458 F.2d 1194, 1196 (3d Cir. 1972), cert. denied, 412 U.S. 927, 37 L. Ed. 2d 154, 93 S. Ct. 2755 (1973), when viewed in the light most favorable to the government, as it must be evaluated on this review of the denial of the motion to suppress, see United States v. Vital-Padilla, 500 F.2d 641, 642-43 (9th Cir. 1974); United States v. Walling, 486 F.2d 229, 236 (9th Cir. 1973), cert. denied, 415 U.S. 923, 39 L. Ed. 2d 479, 94 S. Ct. 1427 (1974), reveals the following relevant facts.
The drama logically begins with the introduction of the protagonist, Garfield Hammonds, Jr. As of April 26, 1972, the date the plot begins to unfold, Hammonds was an experienced special agent of the Federal Bureau of Narcotics and Dangerous Drugs ("BNDD"), having served with that organization for nearly three years. For approximately the first two years of his service with BNDD, Agent Hammonds had been assigned to the Detroit office but since July of 1971 he had been stationed in New York City. Agent Hammonds' responsibilities as a special agent included the obtaining, through operations in an undercover capacity, of intelligence concerning persons or organizations engaged in the business of illicit drug trafficking. Initially, this information was gathered in order to identify the unsavory characters engaged in these sordid activities and was then used to select from among them so-called "targets," presumably for investigation and eventual prosecution. By April of 1972 Agent Hammonds had already participated in approximately twenty arrests for violations of federal narcotics laws. According to Agent Hammonds, often these arrestees were armed with dangerous weapons at the time of their apprehension. Agent Hammonds had also spent six months working undercover in a methadone treatment program for drug addicts. Inasmuch as his activities there involved working eight- and twelve-hour shifts with the participants in the program, Agent Hammonds had become intimately familiar with the physical manifestations of drug addiction and was well qualified to identify addicts by observation.
Next in our cast of characters is the antagonist, appellant Paul Oates. Although Agent Hammonds had never met or seen Paul Oates in person, his name and face were familiar to Hammonds for, while stationed at the BNDD office in Detroit, Hammonds had seen photographs of Oates, and he knew through information he had received from BNDD intelligence sources, the Detroit local police, and the Wayne County Sheriff's Office, that Oates was reputed to be a major narcotics dealer in the Detroit area. In fact, Hammonds had participated in an investigation in which Oates had been a so-called "target." It is thus not surprising that Hammonds' curiosity was aroused when, after giving testimony at a drug trial in Detroit and while waiting for the announcement that American Airlines Flight 440, his return flight to New York City, could be boarded, Hammonds recognized Oates at the Detroit Metropolitan Airport at about 7:00 p.m. on April 26, 1972.
At the time he was initially observed by Agent Hammonds, Oates was seated and engaged in conversation with another man, one Isaac Daniels, whom Agent Hammonds did not recognize. It can be inferred from the testimony that Oates and Daniels were a study in sartorial contrast. While Daniels was described as being shabbily dressed, Oates, on the other hand, was apparently more nattily attired, the most distinctive feature of his clothing being "a yellow hat, a Robin Hood style hat with a green feather." When American Airlines Flight No. 440 to New York was announced Oates and Daniels separated and boarded the aircraft, Oates taking a seat in the first-class section and Daniels occupying a seat in the coach compartment. Agent Hammonds also boarded the plane and moved to the coach section, sitting across the aisle from Daniels at a distance of perhaps five or six feet. During the flight Oates and Daniels did not associate with each other, but Hammonds carefully observed that Daniels exhibited some of the telltale signs of drug addiction, characteristics with which Hammonds had become acquainted through his intimate contact with drug addicts while working in the methadone treatment program. Both of Daniels' hands were swollen and there were discernible needle "track" marks on the back of his right hand. Moreover, Daniels suffered from a constantly running nose. Although Agent Hammonds scrutinized Daniels, he did not notice any unusual bulges in Daniels' clothing. In particular, although he specifically looked at Daniels' legs, Agent Hammonds did not observe anything suspicious about Daniels except the aforementioned manifestations of drug addiction.
After Oates and Daniels deplaned at LaGuardia Airport in New York City, they rejoined, conversed, and then proceeded without luggage, to the exit area where they met a third man. Agent Hammonds' suspicions were further, and understandably, aroused by this latest development because Hammonds knew the third man to be one Willie McMillan, a former government informant whom Agent Hammonds knew "to be associated with the drug culture in New York City." Oates and McMillan exchanged greetings, although there was no similar exchange between McMillan and Daniels. The three men then walked to a nearby telephone booth in the airline terminal. McMillan entered the booth, dialed a number, and handed the receiver to Oates who then entered the booth with McMillan and closed the door behind both of them. Meanwhile, Daniels waited outside the booth. Agent Hammonds decided to truncate the surveillance because he was apprehensive that McMillan, the recently deactivated government informant, might recognize him. He also abandoned any thought of trailing the suspects outside of the airline terminal for he did not have a government vehicle at his disposal. Hammonds inquired as to whether there was a return flight to Detroit that evening and, upon learning that the next flight for Detroit was scheduled for about 8:00 a.m. the next morning, he notified his superiors at BNDD of his observations and received from them authorization to conduct a surveillance of the American Airlines terminal the next morning.
Agent Hammonds and four other BNDD special agents arrived at the terminal shortly after 7:00 a.m. on the morning of April 27. Oates and Daniels were already in the departure lounge, sitting approximately fifteen feet apart despite the fact that there were empty seats in close proximity to the place where Daniels was sitting; indeed, there was an empty seat right next to Daniels. Although they were more or less facing each other, Oates and Daniels neither conversed nor gave any indication that they recognized each other. It appeared, however, that Oates, whose view of Daniels was unobstructed, was looking at Daniels or, at least, was looking in his direction. At first, Agent Hammonds stood immediately behind Oates and, upon looking at Daniels, noticed a prominent bulge around the area of Daniels' right coat pocket. Hammonds then sat down next to Daniels and noticed another bulge in Daniels' clothing, this one being in the area of the inside of Daniels' right thigh. As stated earlier, Agent Hammonds had not observed either bulge during the flight to New York on the previous evening. Now apprehensive that Daniels might be armed, Hammonds sent a member of his BNDD surveillance team to obtain from airport security personnel the assistance necessary to conduct a weapons search.
In response to Hammonds' request for assistance, two uniformed Customs officers, Customs Security Officers Fromkin and DeAlfi, were dispatched to the departure lounge. After being informed of the BNDD observations of the preceding twelve hours, the Customs officers were warned by Agent Hammonds that he had reason to believe that the suspects Oates and Daniels were armed and were carrying narcotics. Although the Customs officers were not informed of Agent Hammonds' intentions, Hammonds had already decided to arrest Oates and Daniels. The uniformed Customs officers independently observed the large bulge in Daniels' right coat pocket and, while watching the suspects for several minutes, noticed that both Oates and Daniels appeared nervous and jittery. Inasmuch as the lounge was fairly crowded, it was decided that the most advisable course of action was to interrogate the suspects in an American Airlines office located approximately 50 feet from the boarding area. Officers Fromkin and DeAlfi then approached Oates and Daniels, who at this point were standing on the boarding line, and asked them to accompany the officers to a nearby American Airlines office. Oates and Daniels acquiesced in this request. Waiting in the office were the five BNDD special agents, the four agents other than Hammonds having been instructed by Hammonds not to participate in any search of the suspects. Once in the office, both suspects, when asked, denied being armed. The suspects were requested to produce identification. Oates showed a driver's license which appeared proper in all respects. Daniels was unable to produce any type of identification. Fromkin then asked Oates, and DeAlfi asked Daniels, whether they objected to being frisked. They stated that they did not object. The pat down of Oates and a look into a brown paper bag being carried by him produced no weapons or narcotics. Daniels was not so fortunate. While doing the pat-down of him, Officer DeAlfi first discovered a bulge in the suspect's right coat pocket and then a bulge on the inside of his right thigh. Because DeAlfi was unsure of what the bulge in the coat pocket was, DeAlfi removed it and found it to be nothing but an overstuffed wallet. DeAlfi did not immediately seek to remove the bulge in the area of Daniels' right thigh but instead asked Daniels what the bulge was. Daniels answered that it was "powder." The Customs officer then requested that Daniels produce the material, at which point Daniels unzipped his pants and released from his leg a brown manila envelope containing two plastic packages, one rather large, and one somewhat smaller, each containing a white powdery substance. Two of the four BNDD special agents, Lentini and Degnin, immediately placed Oates and Daniels under arrest for violation of the federal narcotics law. Although the arrest was so effected by the BNDD agents, the suspected contraband was retained by the Customs officers and the suspects were taken into custody by the Customs Service after a brief jurisdictional dispute between Customs and BNDD.
At the suppression hearing, which was held immediately prior to trial, the government took the position that Oates had no standing under Rule 41(e) of the Federal Rules of Criminal Procedure to move to suppress the evidence seized from Daniels' person. This position was based principally on two grounds. It was argued that appellant certainly did not have "actual standing" to contest the legality of the search and seizure because the search and seizure which produced the incriminating evidence was the search of and the seizure from Daniels, not any search of and seizure from Oates himself. The government further contended that appellant did not have "automatic standing" under the doctrine of Jones v. United States, 362 U.S. 257, 4 L. Ed. 2d 697, 80 S. Ct. 725 (1960), because he was not charged with a possessory crime as such, but only with aiding and abetting the commission of a possessory crime and with conspiring to commit that possessory crime. We hold that appellant does have "automatic standing" to challenge the legality of the search of Daniels' person and the seizure of the white powder from him.
In its brief in this Court the government suggests that we need not reach the "broader, and perhaps more important issues that inhere in the question of the continued viability of the automatic standing rule" but instead should proceed directly to the merits of the search and seizure issue, merits claimed by the government to be "frivolous." While this invitation is appealing, because the law of automatic standing is admittedly in a state of uncertainty after the United States Supreme Court's decision in Brown v. United States, 411 U.S. 223, 36 L. Ed. 2d 208, 93 S. Ct. 1565 (1973), we believe that the more logical approach in these matters, see United States v. Turk, 526 F.2d 654, 659 n.6 (5th Cir.) (concurring opinion), cert. denied, 429 U.S. 823, 97 S. Ct. 74, 50 L. Ed. 2d 84 (1976),*fn2 is to address first the problem of whether the appellant in the case at bar has any right to raise the issue at all. We are especially drawn to this course of action because, although we ourselves had on prior occasions expressed misgivings about the continued survival of the concept of automatic standing, see United States v. Tortorello, 533 F.2d 809, 814 n.4 (2d Cir.), cert. denied, 429 U.S. 894, 97 S. Ct. 254, 50 L. Ed. 2d 177 (1976); United States v. Pui Kan Lam, 483 F.2d 1202, 1205 n.4 (2d Cir. 1973), cert. denied, 415 U.S. 984, 94 S. Ct. 1577, 39 L. Ed. 2d 881 (1974), our recent decision in United States v. Galante, 547 F.2d 733 (2d Cir. 1976), has eliminated, at least until the Supreme Court itself rules definitively on the matter, any question in this circuit about the continuing viability of the "automatic standing" principle of Jones v. United States, supra.
It is hornbook law that, in general, "suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence." United States v. Tortorello, supra at 814, quoting Alderman v. United States, 394 U.S. 165, 171-72, 22 L. Ed. 2d 176, 89 S. Ct. 961 (1969). Therefore, to establish standing to move to suppress evidence on Fourth Amendment grounds, the movant must ordinarily demonstrate that the evidence was seized as a result of an invasion of his own legitimate expectation of privacy in the place searched or in his person, papers or effects. Mancusi v. DeForte, 392 U.S. 364, 367-68, 20 L. Ed. 2d 1154, 88 S. Ct. 2120 (1968). However, the United States Supreme Court in Jones v. United States, supra, carved out an exception to the general rule that Fourth Amendment rights may not be asserted vicariously. As well as expanding the class of persons who have a sufficient interest in the premises searched to challenge such a search, the Supreme Court in Jones also held, as recently explained in United States v. Galante, supra at 737, "that one charged with a 'possessory' crime would be given 'automatic' standing to contest the search and seizure." This holding, which represented a marked departure from then-existing Fourth Amendment law, was impelled by the "Hobson's Choice" to which defendants seeking suppression of evidence in possession cases formerly had been subjected, that the proof offered at the suppression hearing to establish "the interest in the searched premises or the seized property necessary for standing [was] often highly probative of guilt [at trial]," United States v. Galante, supra at 736, because, until 1968, any of the testimony given by the defendant at the suppression hearing could be used by the prosecution as substantive evidence in its case-in-chief at trial. The "automatic standing" doctrine also found its genesis in the so-called "vice of prosecutorial self-contradiction," the perceived evil being the government's denying at the suppression hearing that the defendant had a sufficient possessory interest to confer standing to challenge the search and seizure which produced the evidence while at trial attempting to prove possession. When, however, in 1968 the Supreme Court decided in Simmons v. United States, 390 U.S. 377, 394, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968), that "when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection," doubts arose as to whether, with the self-incrimination problem basically resolved, the "automatic standing" rule of Jones v. United States remained viable. In Brown v. United States, supra, a case in which there was no prosecutorial self-contradiction, see 411 U.S. at 229, the Court acknowledged the existence of these doubts but expressly refrained from deciding whether the "vice of prosecutorial self-contradiction warrants the continued survival of Jones ' 'automatic' standing now that . . . Simmons has removed the danger of coerced self-incrimination." Id. If Brown was intended as an implied invitation to overrule Jones, we have graciously declined that invitation, expressly deciding in United States v. Galante, supra at 737, that such a significant step should be taken only by the Supreme Court, not this circuit.
We held in Galante that in this circuit automatic standing exists whenever "possession at the time of the contested search and seizure is 'an essential element of the [crime] charged.'" United States v. Galante, supra at 738. Inasmuch as we found such standing in Galante, despite the fact that the vice of prosecutorial self-contradiction did not exist there, see id. at 737 n.4, it appears that the absence of this evil has no bearing on whether the rule of automatic standing should be applied in a particular case.*fn3 Turning to the requirements for automatic standing, we must first determine what is the "crime charged." Ordinarily there would be absolutely no doubt about the answer to this inquiry. There seems to be doubt here, however. The government would have us believe that the "crimes charged" here are aiding and abetting the possession of heroin with intent to distribute, and that of conspiracy to possess heroin with the intent to distribute. While of course the government is correct with regard to the conspiracy charge, see, e.g., United States v. Galante, supra at 737-38; United States v. Hearn, 496 F.2d 236, 241 (6th Cir.), cert. denied, 419 U.S. 1048, 42 L. Ed. 2d 642, 95 S. Ct. 622 (1974), we believe the government's position is unsupportable with respect to the "charge" of aiding and abetting possession with intent to distribute. To be sure, Count Two of the indictment here charged that "the defendant ISAAC DANIELS aided and abetted by the defendant PAUL V. OATES knowingly and intentionally did possess with intent to distribute" heroin. Yet, the simple, although perhaps not immediately apparent, truth of the matter is that the "crime charged" here was possession with intent to distribute, not aiding and abetting possession with intent to distribute. This is so because "aiding and abetting" does not constitute a discrete criminal offense but only serves as a more particularized way of identifying the "person involved," see United States v. Campbell, 426 F.2d 547, 553 (2d Cir. 1970), in the commission of the substantive offense, and serves to describe how those "person[s] involved," committed the substantive offense. The foregoing propositions are made eminently clear by United States v. Campbell, supra. The defendant there was charged "with aiding and abetting a revenue officer in the unlawful receipt of a fee for the performance of his official duties, in violation of 26 U.S.C. § 7214 (1964) and 18 U.S.C. § 2 (1964)." 426 F.2d at 553. In arguing that the statute of limitations made specifically applicable to the substantive offense set forth in § 7214 did not apply in his case, the defendant claimed that his offense was not the substantive offense expressly created by § 7214 but was rather that of "aiding and abetting" the commission of that offense. We reject this argument, explaining, as have other circuits, see, e.g., Powers v. United States, 470 F.2d 991 (5th Cir. 1972) (per curiam), that "18 U.S.C. § 2 does not define a crime; rather it makes punishable as a principal one who aids or abets the commission of a substantive crime." 426 F.2d at 553. What we meant by this remark, and what 18 U.S.C. § 2 definitely means, is made even clearer in Campbell when we also later said that "clearly one can violate Section 7214(a) as an aider and abettor." 426 F.2d at 553. In other words, one who aids and abets the commission of a crime is not only punishable as a principal but is a principal. In fact, this is how 18 U.S.C. § 2 formerly was phrased before 1951 when the then existing language, "is a principal," was replaced by the phrase presently used in § 2, "is punishable as a principal." This revised language was "intended [only] to clarify and make certain the intent to punish aiders and abettors regardless of the fact that they may be incapable of committing the specific violation which they are charged to have aided and abetted. . . . There is [, however,] no evidence of any Congressional intent to change the substantive law that an aider and abettor is a principal." Swanne Soon Young Pang v. United States, 209 F.2d 245, 246 (9th Cir. 1953) (emphasis supplied). We thus conclude that when a person is charged with aiding and abetting the commission of a substantive offense, the "crime charged" is, at least for purposes of determining whether automatic standing to challenge the legality of a search exists, the substantive offense itself. In the instant case, therefore, the "crime charged" was possession with intent to distribute which is, in fact, one of the two specific crimes, along with conspiracy to possess with intent to distribute, which the judgment of conviction here discloses appellant was actually convicted of committing. Finally, in what may have been nothing more than Freudian slips, the government itself on at least three occasions, in its opening statement to the jury,*fn4 during trial*fn5 and in its brief here in this court, has stated that Oates was "charged" with possession of heroin with intent to distribute. We consider these representations to be accurate.
Having found that the "crimes charged" were possession with intent to distribute*fn6 and conspiracy to commit such possession, we experience no difficulty in concluding that proof of possession is an essential element of the count charging possession with intent to distribute and we therefore hold that, as to that count, appellant has automatic standing to challenge the legality of the search of and seizure from his companion Isaac Daniels.*fn7
Having decided that appellant has automatic standing to litigate the issue, we now consider the merits of appellant's argument that the district court erroneously denied the motion to suppress, inter alia, the white powdery substance seized from Daniels just before Oates and Daniels were formally placed under arrest. Relying on Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), the district court in its oral decision denied the motion on the apparent ground that the law enforcement officers had reasonable grounds to stop Oates and Daniels. Once such a lawful temporary detention was instituted, the court ruled, an agent, having good reason to believe that the suspects might be armed and dangerous, has a right to perform limited searches for weapons, a search which in the case of Daniels produced the incriminating white powdery substance. The district court also found that from the time Agent Hammonds first noticed the bulges in Daniels' clothing, there was probable cause to believe that a crime had been or was being committed and that therefore an arrest at that time was proper. Appellant challenges the district court's decision in several respects. First of all, appellant argues that Oates and Daniels were actually subjected to arrest, rather than some lesser form of detention, from the moment they were asked to accompany Customs Security Officers Fromkin and DeAlfi. Correctly asserting that an arrest can be based only on probable cause and not on mere suspicion, appellant contends that no such probable cause existed at the time Oates and Daniels were accosted by the Customs officers. The arrest was therefore illegal, the argument continues, and any evidence flowing from it should have been suppressed. Appellant's second line of argument is that, even assuming, contrary to what appellant believes the evidence shows, that the initial detention was only a Terry stop rather than an executed arrest, there was no justification for even this more carefully circumscribed action as at that time the agents did not have specific and articulable grounds that would reasonably justify their suspicions that they were witnessing narcotics trafficking in progress. Finally, assuming arguendo that the officers were justified in making a Terry stop, and correctly pointing out that any search incident to such a stop must be based on a reasonable belief that the suspect is armed and dangerous and must be narrowly limited to a search for weapons, appellant contends that the officers in this case did not have any reason to believe that Oates and Daniels were carrying weapons. We find all of these arguments to be unpersuasive.
Appellant initially contends that Oates and Daniels were under arrest from the instant they were asked by Customs Security Officers Fromkin and DeAlfi to accompany them to a nearby office. We disagree. While it is clear that Oates and Daniels were not at that point free to do as they pleased, it can no longer be questioned that, although every arrest is a form of detention, the converse is not true. It is now well-settled that under certain circumstances a citizen may be temporarily detained, or, in police parlance, "stopped," for investigative purposes. Adams v. Williams, 407 U.S. 143, 145-46, 32 L. Ed. 2d 612, 92 S. Ct. 1921 (1972); Terry v. Ohio, supra at 19-22; United States v. Magda, 547 F.2d 756, 758 (2d Cir. 1976); United States v. Salter, 521 F.2d 1326, 1328 (2d Cir. 1975); United States v. Walling, supra at 235; United States v. Santana, 485 F.2d 365, 368 (2d Cir. 1973), cert. denied, 415 U.S. 931, 39 L. Ed. 2d 490, 94 S. Ct. 1444 (1974); United States v. Riggs, 474 F.2d 699, 702-03 (2d Cir.), cert. denied, 414 U.S. 820, 38 L. Ed. 2d 53, 94 S. Ct. 115 (1973); United States v. Fields, supra at 1197. Without commenting for the moment on the propriety of the stop in this case, it is clear from the record that neither Daniels nor Oates was actually arrested until after the white powdery substance was discovered on Daniels' person. First of all, as in United States v. Salter, supra at 1328, we "see nothing wrong in [the agent's] asking [Oates and Daniels] to step into the [nearby office], a place more convenient for interrogation" and more conducive to insuring the safety of other passengers in the crowded departure area. See United States v. Lindsey, 451 F.2d 701, 703-04 (3d Cir. 1971), cert. denied, 405 U.S. 995, 31 L. Ed. 2d 463, 92 S. Ct. 1270 (1972). Moreover, while not dispositive, it is significant that here, unlike the situation in United States v. Lampkin, 464 F.2d 1093, 1094 (3d Cir. 1972), a case upon which appellant relies, Customs Security Officers Fromkin and DeAlfi did not approach Oates and Daniels with their guns already drawn. Instead, Oates and Daniels were politely requested to accompany the officers to a private room and, without objection, they acquiesced in that request. The Customs officers did not, moreover, in the boarding area or upon arrival in the private room, represent in any way that their detainees were being placed under arrest. Furthermore, it was only after the discovery of the white powdery substance and BNDD Agent Lentini's formal announcement that Oates and Daniels were being arrested that Agent Lentini informed the detainees of their constitutional rights. Our review of the record clearly demonstrates that from the time Oates and Daniels were first approached by Fromkin and DeAlfi the actions subsequently taken against them describe a classic stop and frisk. Appellant strenuously argues that what is of crucial importance here is the subjective intention of Agent Hammonds, reached before requesting assistance from the Customs officers but unexpressed to either of them, to arrest Daniels and Oates. Hammonds' belief, however, that he had sufficient probable cause at this point to support an arrest, even assuming arguendo that belief to be wrong, and his intention to act upon that belief are of no consequence here. What controls here is not what Hammonds subjectively intended to do but what he did. Hammonds did not disclose to either Fromkin or DeAlfi that it was his intention to arrest Daniels and Oates. The Customs officers were fully informed, however, as to all the circumstances known to Hammonds and, before approaching the two men, they independently observed the men's behavior and the bulges in Daniels' clothing. The BNDD agents were instructed by Hammonds to refrain from participating in the searches of the suspects and they complied with this order. It is thus obvious that the Customs officers were acting independently of Hammonds, a fact confirmed by the so-called "jurisdictional dispute" that arose between BNDD and Customs after the arrest. There is simply no indication that the Customs officers had any intention of arresting, or took any action that could be construed as an arrest of, the suspects before the powder was discovered on Daniels. To be sure, the actual arrest was made by two BNDD agents, one of whom was Lentini, a person who had previously intended to make an arrest. But prior to the formal announcement of arrest in no way whatsoever had either Hammonds or Lentini acted upon their intention to effect the arrest themselves. Moreover, even if Hammonds and Lentini thought that DeAlfi and Fromkin were in fact arresting Oates and Daniels by removing them from the boarding line, this subjective belief on their part would not affect the validity of the detention instituted independently by DeAlfi and Fromkin if all the circumstances, viewed objectively and apart from what Lentini and Hammonds thought was happening, disclose that the detention was a stop and not in fact an arrest. This is so because the issues involved in determining the propriety of stops, arrests and searches must be resolved by an objective rather than a subjective standard. United States v. Vital-Padilla, supra at 644;
Appellant has anticipated that we might decide, as we in fact just have, that the initial removal of Oates and Daniels to the private room was not an arrest but only a Terry -type stop. While conceding, as he must, that Terry v. Ohio authorized temporary detentions based on less than full probable cause, appellant vigorously argues that the facts known to and relied upon by the government agents in this case do not generate the so-called "reasonable suspicion," see, e.g., United States v. Magda, supra at 758, necessary to justify a temporary stop for purposes of investigation. Our analysis of the prevailing legal standards and our examination of the record in this case indicate otherwise.
It is now axiomatic that a law enforcement officer has the power, indeed the obligation,*fn9 to detain a person temporarily for the purpose of interrogating him if the officer reasonably suspects that the detainee has committed or is about to commit a crime. Terry v. Ohio, supra at 20-23; id. at 34 (Harlan, J., concurring); United States v. Magda, supra at 758; United States v. Riggs, supra at 702-03; United States v. Fields, supra at 1197. To establish the constitutionality of the stop, however, the "officer [must be able to] point to specific and articulable facts which taken together with rational inferences from those facts, reasonably warrant that intrusion." United States v. Magda, supra at 758, quoting Terry v. Ohio, supra at 21; see, e. g., United States v. Riggs, supra at 703. Inasmuch as "the reasonableness of [the officer's] conduct must be determined by balancing the need for the stop against the gravity of the intrusion which the stop entailed," United States v. Magda, supra at 758; accord, Terry v. Ohio, supra at 21; United States v. Fields, supra at 1197, it is readily apparent that the "specific and articulable facts" and the inferences that can be drawn from these facts relate to the need for the stop. "Need," in turn, depends on factors such as the seriousness of the offense and the likelihood of the detainee's involvement in the known or suspected criminal activity. See United States v. Walling, supra at 235. Obviously, if the offense is minor and there is substantial uncertainty that the detainee is involved, only a minimally intrusive stop would be proper. On the other hand, when the police officer knows or suspects that an offense with serious societal consequences is being committed and there is some reasonable possibility that the person he detains is involved, a more substantial detention is justified. Between these two extremes lie the great majority of cases; those in which the offense is minor but there is strong suspicion that the detainee is involved, or those in which the offense is egregious but the suspicion that the prospective detainee is involved amounts to little more than a visceral feeling on the part of the police officer.
We believe that the agents' stop of Oates and Daniels, while it did not rise to the level of an arrest, was enough of an intrusion upon their liberty to require more than a minimal showing of need. A significant portion of that need is supplied by the inherent odiousness and gravity of the offense, the societal costs of which, in terms of ruined and wasted lives, are staggering. We further believe that the need for the stop was supported by the fact that quick and decisive action may be required when suspected large scale dope peddlers are about to board a jet aircraft*fn10 with narcotics which, as is commonly known, are a "readily disposable commodity." United States v. Lampkin, supra at 1097. Having said all this, we still must be able to find some "specific and articulable facts" which point logically to a reasonable possibility of the involvement of Oates and Daniels in the narcotics trafficking Agent Hammonds believed he was witnessing. We hold, as did the district court below, that the government agents had available to them and justifiably relied upon such facts when they temporarily detained Oates and Daniels.
Agent Hammonds was warranted in basing his suspicions in part on Oates' reputation as a major narcotics dealer.*fn11 While investigative stops certainly cannot be made "merely because [the detainees] have criminal records or bad reputations," United States v. Fields, supra at 1198, a police officer's knowledge of a person's reputation as a prominent narcotics trafficker can properly be considered, along with other factors, as an element justifying the officer's reasonable suspicion or his belief that probable cause exists, United States v. Tramunti, 513 F.2d 1087, 1101 (2d Cir.), cert. denied, 423 U.S. 832, 96 S. Ct. 54, 46 L. Ed. 2d 50 (1975); United States v. Santana, supra at 368; United States v. Riggs, supra at 701, 703; United States v. Lampkin, supra at 1096; United States v. Fields, supra at 1196, 1197. From his work in the Detroit office of BNDD Agent Hammonds was thoroughly familiar with Oates' reputed background in illicit drug peddling in the Detroit area. Significantly, Oates had been considered an important enough figure to be designated as a "target" for the federal enforcement agents located there. Furthermore, Oates' traveling with a person who was obviously a narcotics addict and Oates' eventual rendezvous in New York with a man known personally to Agent Hammonds as there being "involved in the drug culture" certainly lends substantial credence to the belief that Oates' purposes in going to New York City were far from commendable.
The level of suspicion rises when we add to the narcotics connections of the three principal characters the fact that the trip which was made here was made under circumstances which are suggestive of narcotics activity and which have been so recognized, at least implicitly, by previous cases in this and the Third Circuit. When known narcotics dealers, carrying no luggage, see, e. g., United States v. Riggs, supra at 701; United States v. Fields, supra at 1196, make air flights to other cities followed by virtually immediate return flights, a police officer might justifiably become suspicious. See, e. g., United States v. Riggs, supra at 703; United States v. Lampkin, supra at 1096. The suspicion would be ...