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February 3, 1978


The opinion of the court was delivered by: LASKER


On December 13, 1977, this court granted Alonzo Ester's motion to suppress the introduction at trial of eight ounces of heroin seized from his suitcase on the ground that the search violated United States v. Chadwick, 45 U.S.L.W. 4797 (June 21, 1977). The government now moves to reargue, contending our ruling violates the decision in United States v. Reda, Dkt. No. 77-1062 (2d Cir. October 12, 1977), that Chadwick only be applied prospectively.

 By a curious turn of events, the Supreme Court's decision in Chadwick, which narrowed the scope of the search-incident-to-arrest exception to the Fourth Amendment's Warrant Requirement, was announced earlier on the very day that the search in this case took place. Ester argues that, in the circumstances, the literal requirement of Reda is satisfied. We do not believe, however, that the court which decided Reda intended such a wooden interpretation of its opinion.

 The Reda court noted that the reason cases involving the exclusionary rule should be given prospective application only is that the two goals of the rule, to deter illegal police conduct and preserve judicial integrity, cannot be achieved by retrospective application of new rulings. The court cited with approval the following language of the Supreme Court in United States v. Peltier, 422 U.S. 531, 537 (1975):

 "The teaching of the retroactivity cases is that if the law enforcement officers reasonably believed in good faith that evidence they had seized was admissible at trial, the 'imperative of judicial integrity' is not offended by the introduction into evidence of that material even if decisions subsequent to the search or seizure have broadened the exclusionary rule to encompass evidence seized in that manner." Reda, supra, Dkt. No. 77-1062, at 6236.

 Therefore, even though this case satisfies the literal command of Reda, the reason for having a rule requiring prospective application would be defeated if Chadwick were applied here since the federal agents involved in the search could not reasonably be expected to be familiar with a Supreme Court ruling announced only a few hours earlier. Accordingly, we hold that, under Reda, Chadwick cannot be applied to the facts of this case.

 Of course, even under pre-Chadwick law, the search of Ester's suitcase would be permissible only if there was probable cause for his arrest. See United States v. Edwards, 415 U.S. 800 (1974), United States v. Robinson, 414 U.S. 218 (1973). We find that the agents here did not have probable cause for the arrest. Donnie Lewis, rather than Ester, was the primary suspect in the narcotics transaction since he was the only person specifically identified by an informant as coming to New You to buy cocaine. Yet when Lewis left for Los Angeles the day before Ester's attempted departure, the agents did not arrest him because they felt they did not have probable cause. (Transcript of Suppression Hearing at 56) The only evidence against Ester which the agents did not have against Lewis were two inconclusive conversations overheard at the Hilton Hotel and a piece of paper containing a "small quantity" of cocaine found in the waste basket of the hotel room after Ester left. (Id. at 29) However, three people had occupied the room, including Lewis, in whose name the room was reserved, and there is no more reason to believe that Ester was responsible for the cocaine being in the room than there is to conclude that Jones or Lewis brought it there. Indeed, Ester appears to have been in the room only for a short period of time during the morning and afternoon of June 20th.

 The government argues that the standard for probable cause set out in Carroll v. United States, 267 U.S. 132 (1925), has been met in this case. However, we do not believe that the "facts and circumstances within [the arresting officers'] knowledge and of which they had reasonably trustworthy information" (id. at 162) were sufficient to support the conclusion that Ester was committing an offense.

 The motion to reargue is denied.

 It is so ordered.



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