Appeal from a judgment of conviction of narcotics offense entered upon a plea of guilty in the United States District Court for the Eastern District of New York, Jacob Mishler, J ., reversed and remanded for further proceedings.
Before Oakes and Meskill, Circuit Judges, and Sand,*fn* District judge.
Law enforcement officers observing what they believe to be a crime in progress often face the difficult task of determining whether the circumstances known to them justify making an investigative stop or an arrest. If they act too soon, with what is later deemed to be an insufficient basis, they risk jeopardizing the validity of subsequent legal proceedings. If they wait too long, they risk losing trace of the suspect or must engage in difficult, time consuming and often fruitless surveillance. Equally difficult is the task of determining, if a suspect is stopped, how much by way of a show of force and other precautionary measures is appropriate for the personal protection of the officers without transforming what would otherwise be deemed to be a mere investigative stop into an arrest for which probable cause is required. In holding, as we do here, that the procedures followed by the arresting officers violated appellant's rights under the Fourth Amendment, we are neither unmindful of the closeness of the question, nor of the fact that we have engaged in a studied analysis of decisions made by officers who believed they had to act with dispatch.
Our review of the record satisfies us, however, that the actions taken by the arresting officers cannot fairly be characterized as the minimally intrusive investigative stop sanctioned by Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), but rather constituted an arrest for which the officers lacked probable cause. We have been reminded by the Supreme Court in Dunaway v. New York, 442 U.S. 200, 210, 99 S. Ct. 2248, 2255, 60 L. Ed. 2d 824 (1979), that "because Terry involved an exception to the general rule requiring probable cause, this Court has been careful to maintain its narrow scope." See also United States v. Brignoni-Ponce, 422 U.S. 873, 880, 95 S. Ct. 2574, 2579, 45 L. Ed. 2d 607 (1975) (border investigative stop "justified on facts that do not amount to the probable cause required for an arrest" in view "of the limited nature of the intrusion....").
This is an appeal from a judgment of the United States District Court for the Eastern District of New York upon a plea of guilty to an indictment charging appellant with possession of 125 grams (approximately 41/2 oz.) of cocaine with intent to distribute. The district court, Mishler, J., after holding a hearing, denied appellant's motion to suppress the cocaine seized at the time of his arrest and to suppress inculpating statements made by appellant to the arresting officers. Appellant preserved the right to appeal this ruling.*fn1
A member of the New York City Police Department on assignment to the New York drug task force, William J. Frawley, and a special agent of the Drug Enforcement Administration, Robert Polumbo, testified at the hearing on the motion to suppress. Officer Frawley testified that information received from a confidential informant of known reliability led him to establish surveillance of apartment 5-A at 42-22 Ketcham Street in Queens. The apartment was under surveillance during April and May of 1980. The apartment in question was on the ground floor and the officers were able to observe persons come and go in the apartment and engage in transactions involving the exchange of currency. The events relating to 42-22 Ketcham Street were pertinent most immediately to the arrest of co-defendant Victor Abrue. Abrue, who was arrested on May 13, 1980, moved to suppress other evidence, and the hearing on his motion and on that of the appellant were combined. The district court granted Abrue's motion to suppress and the relevance of 42-22 Ketcham Street and the events which there occurred are pertinent to this appeal only insofar as they furnish the basis for the officers' belief that another co-defendant, Daisy Zea, was trafficking in drugs from that location and that her customers were hispanic males. At no time was the appellant Ceballos ever observed at the Ketcham Street premises.
Officer Polumbo testified that after Abrue's arrest, surveillance was re-located to 223rd Street in Bayside in the belief that Daisy Zea had moved her drug operations to that location. 43-35 223rd Street, the premises in question, is a three story dwelling, in which one family occupies each floor. The surveilling officers could not see inside the building and did not know to which floor someone entering the building would go. Checks performed by the officers with utility companies servicing the building enabled them to establish that Daisy Zea was in the second floor apartment and she was actually seen in that apartment when the shades were up. The landlord of the building was believed by the officers to be a man of Indian extraction who had originally lived on the ground floor but apparently had moved within the building. During the period from May 20th when the surveillance began until the day of appellant's arrest, June 18, 1980, Daisy Zea and her brother were observed by the surveilling officers parking their vehicle two or two and one-half blocks away from the house, although closer legal parking was available. They were also observed driving erratically, as if to avoid surveillance.
On June 18, 1980 at 5:00 P.M., Daisy Zea was seen driving away with another female. The officers maintained surveillance of this vehicle, but discontinued the surveillance after Zea began driving erratically. The officers then returned to surveillance at 223rd Street. Here, sometime later, Mrs. Zea and the other female were seen to return to the house, Mrs. Zea carrying a hat box and a plastic bag. Later that evening, a van pulled up in front of the house and a hispanic male alighted from the vehicle, entered the house, exited "a while later", and drove off. No surveillance was attempted of this individual.*fn2 At approximately ten minutes to eleven, the appellant was seen to drive up and park in front of the residence. Officer Polumbo was on surveillance, from a vantage point some 35 to 45 yards diagonally across the street from the building, in a parking lot. However, from his vantage point he could not observe persons entering or leaving the building. This observation was conducted by Officer Ramos, who was in radio communication with Polumbo. Although Officer Ramos was in court on the day of the hearing and was apparently to have been a witness, he was "called away" and did not testify. As a consequence, the sole testimony concerning the officers' observations of the appellant prior to his being stopped consists of Polumbo's repetition of what he had been told over the radio by Ramos.
Polumbo testified, based on what the officers were told by Ramos, that:
"A hispanic male alighted the vehicle and he got onto the curb in front of the residence. He looked in both directions in a curious manner, if you will. He then went into the residence. He was carrying nothing in his hands that we observed.
Approximately five minutes or so later, maybe ten minutes, he was again observed to exit the house. This time, he was carrying a small brown paper bag in his hand. Again, he looked in all directions." (Tr. at 86).
No attempt was made by the officers to make a Terry stop of Ceballos while he was on the street, bag in hand, and before he got into his automobile, for reasons which do not appear.*fn2a Ceballos got into his car and was followed to the vicinity of Northern Boulevard and 218th Street where he stopped for a traffic light. At this time, the further progress of his car was blocked by at least three vehicles driven by law enforcement officers. Officer Polumbo, whose vehicle was to the rear of Ceballos', exited and approached the vehicle. Polumbo testified that Ceballos was
"looking up at myself and other officers and I noted between his legs was a brown paper bag. He was asked to get out of the vehicle, motioned to get out of the door end up (sic). He got out, he swung out, when he did the brown paper bag fell from between his legs and onto the pavement. At that particular time, Sergeant Colivato bent down and retrieved the brown paper bag. The contents therein contained a white powder ...