Appeal by government from order of United States District Court for the Western District of New York, Elfvin, J., suppressing certain evidence and dismissing narcotics indictment. Reversed.
Before Lumbard, Feinberg and Meskill, Circuit Judges.
This is an appeal by the United States, pursuant to 18 U.S.C. § 3731, from an order of Judge John T. Elfvin of the United States District Court for the Western District of New York suppressing certain evidence and dismissing a five-count narcotics indictment. Appellees Broward and Forbes were charged with conspiring to distribute heroin, 21 U.S.C. §§ 841, 846; Forbes alone was charged with distributing and possessing both heroin and marihuana, 21 U.S.C. §§ 841, 844; and Broward was charged with aiding and abetting Forbes's distribution of heroin, 18 U.S.C. § 2. For the reasons stated below, we reverse the order of the district court and reinstate the indictment.
We begin by summarizing the facts, which, except where indicated, are those found by Judge Elfvin in his memorandum opinion that dismissed the indictment. Margaret Carriger, who had been acting as an FBI informant in Detroit for Special Agent Prillman, knew appellee Broward. Broward convinced Carriger to assist him in a narcotics deal. To that end, or so Broward thought, she met Broward at a hotel in Toronto. Prior to leaving Detroit, however, Carriger spoke with an officer of the Ontario Provincial Police (OPP), who had been contacted by Prillman. The OPP in turn informed the Royal Canadian Mounted Police (RCMP), who have primary responsibility for drug investigations in Canada. The Canadian authorities secured an "observation room" at the Toronto hotel as well as wiretap authorization. Based on this surveillance, the OPP told Prillman that Carriger had met with Broward and discussed a narcotics transaction. Agent Gill of the United States Drug Enforcement Agency (DEA), residing in Toronto, was contacted. He supplied the Canadian authorities with photographs of Broward obtained from DEA agents in Buffalo, New York, and was also present at various times in the "observation room."
Appellee Broward wanted Carriger's help in transporting heroin from Buffalo to Detroit and Los Angeles. He also threatened Carriger that he would find her wherever she went if anything went wrong, and Carriger feared for her life. There was testimony in the suppression hearing before Judge Elfvin that Broward said he would "(cut) her into little pieces and (flush) her down the toilet." Because of the risk to Carriger, both Prillman and the Canadian authorities agreed that she should be extricated from the situation.
The Canadian police learned from surreptitious conferences with Carriger that she was to purchase heroin from appellee Forbes in Buffalo. No criminal charges were laid in Canada, since no transactions were to occur there, and arrangements were made for Carriger to work with the DEA, who promised Prillman they would assure her safety. Carriger went to Buffalo where she was met by Forbes, who drove her to a Buffalo hotel. An attempt was made to tail Forbes after he left the hotel, but he successfully used evasive driving tactics. DEA agent Peterson registered in the room next to Carriger's and made voice contact with her. Carriger told him Forbes would return soon. Forbes returned to Carriger's room and remained for forty-five minutes. After Forbes left, Peterson went to Carriger's room. She told Peterson that she had received $5,000 worth of heroin from Forbes, and that it was strapped to her body in plastic bags. She was then relieved of the heroin, whereupon she immediately left for Detroit and the protection of agent Prillman.
Buffalo DEA agents and an attorney from the United States Attorney's office determined that in seeking an arrest warrant for appellees Broward and Forbes, it was necessary to "cover up" Margaret Carriger's informant status in order to assure her safety. Thus, in the affidavit presented to the United States Magistrate, Margaret Carriger was characterized as a co-defendant and was referred to throughout as "Margaret Carcer," and a fictitious "reliable informant" was introduced into the narrative as the source of information that in fact came from Carriger.*fn1 The pertinent parts of the affidavit read as follows:
On February 12, 1976, your deponent received information from Special Agent Frank Gill, Toronto DO, that Odell BROWARD would be traveling to Toronto, Ontario, Canada to meet with Margaret CARCER, and other unknown individuals to negotiate for the sale of a large quantity of heroin. On that date your deponent did verify that BROWARD travelled to Toronto via Allegheny Airlines.
On February 13, 1976, Margaret CARCER arrived in Toronto, Ontario, from Detroit, Michigan.
On February 13, 14, and 15, 1976, CARCER, BROWARD, and two other unidentified individuals met in CARCER'S room in the Four Seasons Sheraton, in downtown Toronto. The RCMP told your deponent that during the course of these meetings, BROWARD told CARCER that she was to travel to Buffalo, New York and pick up a sample package. CARCER told BROWARD that she had customers in Detroit and California.
The RCMP told your deponent that on February 14, 1976, BROWARD contacted Gary FORBES in Buffalo, New York, and directed him to prepare a special sample for one. BROWARD further told FORBES that CARCER was negotiating for at least a hundred thousand dollars worth, and a special package of "pure" and a five thousand dollar package was needed for the customers in Detroit. Broward told FORBES that CARCER would be arriving in Buffalo, New York, on February 15, 1976 via Allegheny Flight # 804, which would arrive in Buffalo at about 1:59 PM and that he (FORBES) should pick up CARCER at the airport. BROWARD directed FORBES to rent a room at the Holiday Inn, Delaware Avenue, Buffalo, New York, and that the transaction would take place there.
Special Agent Kenneth B. Peterson told your deponent that on February 15, 1976, at about 1:55 PM, CARCER arrived at the Buffalo International Airport and was met by FORBES. FORBES AND CARCER were followed by agents of the Buffalo District Office, ...