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United States v. Fox

April 18, 1986

UNITED STATES OF AMERICA, APPELLEE,
v.
JAMES FOX, DEFENDANT-APPELLANT



Appeal from a judgment of the United States District Court for the Western District of New York, Elfvin, J., convicting Fox of conspiracy to possess, possession with intent to distribute and distribution of cocaine in violation of 18 U.S.C. §§ 841(a)(1) and 846 (1982). Appellant's principal claim is that the five and one-half month adjournment between the voir dire and impaneling of the jury violated section 3161(c)(1) of the Speedy Trial Act, 18 U.S.C. § 3161 et seq. (1982). Reversed and remanded.

Author: Meskill

Before: MANSFIELD, MESKILL and PIERCE, Circuit Judges.

MESKILL, Circuit Judge:

This is an appeal from a judgment of the United States District Court for the Western District of New York, Elfvin, J., convicting James Fox of conspiracy to possess, possession with intent to distribution and distribution of cocaine in violation of 18 U.S.C. §§ 841(a)(1) and 846 (1982). Fox's principal claim is that the five and one-half month adjournment between the voir dire and impaneling of the jury violated section 3161(c)(1) of the Speedy Trial Act, 18 U.S.C. § 3161 et seq. (1982). Fox also claims that there was no probable cause to support his warrantless arrest and that, therefore, all incriminating evidence seized subsequent to the arrest should have been suppressed as "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963).

For the reasons that follow, we reverse the judgment and remand the matter with respect to the speedy trial claim.

BACKGROUND

On December 15, 1983, members of a Drug Enforcement Agency (DEA) task force were surveilling a house in Buffalo, New York, in connection with their investigation of sales of cocaine to an undercover officer by a drug dealer living at that house. They observed a red and white pickup truck parked on the street near the house. The driver, later identified as Fox, entered an alley leading to the house, disappeared from view, then reappeared some fifteen minutes later and drove off in the truck.

Meanwhile, other members of the task force were watching a house at 119 Longmeadow Street, Amherst, New York. They had taken up positions near that house because of two earlier incidents. When an undercover agent made a prior controlled buy, a car registered to a woman living at 119 Longmeadow Street was parked near the drug dealer's house in Buffalo. On another occasion backup units had observed the drug dealer's car at 119 Longmeadow Street just before the dealer made a sale to an undercover officer. These observations indicated that 119 Longmeadow Street was the drug dealer's source of supply.

On December 15, 1983, members of the task force observed the same red and white pickup truck that had been seen earlier that evening in Buffalo drive up to the house at 119 Longmeadow Street. The driver entered the house, remained for approximately ten minutes, returned to the truck and drove off. Members of the task force followed the truck.

Undercover agents arrested the drug dealer when he attempted to make the sale of cocaine to the undercover officer. They radioed the team following the red and white pickup truck to stop the vehicle. The truck was stopped and the driver, appellant Fox, was arrested. A subsequent search of the truck turned up plastic bags with residues of cocaine, a mold for compressing cocaine and a weapon. Later a warrant was issued to search 119 Longmeadow Street and various items of contraband and cash were found and seized.

An indictment against Fox was filed January 11, 1984. On February 8, 1984, Fox orally moved to suppress the evidence seized during the searches of the pickup truck and 119 Longmeadow Street. The motion was argued and submitted to the court August 20, 1984. A jury was selected on October 23, 1984, but was not sworn in until April 9, 1985 when the trial began. On that date the court denied Fox's motion to suppress. Fox then moved to dismiss the indictment on the ground that the delay in trying the case violated the Speedy Trial Act. The district court postponed ruling on that motion, stating that "if there be a conviction in the case I will write something on the matter [but I] won't even deal with it at this time." Tr. 1-6. The jury found Fox guilty on all counts but the judge neither ruled on the motion to dismiss the indictment nor explained his delay in conducting the trial. Fox appealed.

Discussion

A. Warrantless Arrest

The denial of Fox's motion to suppress was not error if the warrantless arrest was proper. A warrantless arrest is justified where the officers have probable cause to believe that an offense has been or is being committed. United States v. Ginsberg, 758 F.2d 823, 828 (2d Cir. 1985). Probable cause exists where the facts and circumstances within the officers' knowledge and of which they have reasonably trustworthy information are "'sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." Brinegar v. United States, 33 ...


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