June 10, 1957
THE UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
FARRIS WALKER, DEFENDANT-APPELLANT.
Before DUFFY, Chief Judge, and FINNEGAN and SCHNACKENBERG, Circuit Judges.
FINNEGAN, Circuit Judge.
After a pre-trial hearing on defendant Farris Walker's motion to suppress (Fed.R.Crim.P. Rule 41, 18 U.S.C.) physical evidence taken from his person, the motion was overruled because, the trial judge thought Treasury enforcement agent D. Spillane had "reasonable ground" to believe Walker was committing a crime. That ruling is the sole basis put forward for reversal of the judgment entered upon finding Walker guilty by the district judge, sitting without a jury, on both counts of a two-count indictment.*fn1
Walker testified in support of his motion, grounded on U.S. Const. Amendments*fn2 IV and V, and Federal agent Spillane gave testimony on behalf of the government on the issue raised by that motion. Adams, the other agent with Spillane at the time Walker was apprehended, did not testify at the suppression hearing. Confining ourselves, for the moment, to evidence adduced at that hearing the operative facts follow.
Walker, who had never been previously arrested, left his home on August 13, 1956 at about 1:30 in the afternoon in his automobile accompanied by two adults [one of whom was Kemp Wallis] and defendant's three-year-old grandson. While Walker was proceeding along South Parkway, a public street, in Chicago, Illinois, his automobile was curbed by another vehicle, near 43rd Street, in which Federal agents Spillane and Adams were riding. Walker and all occupants of his automobile were ordered out and told to place their hands on the top of the vehicle and submit to search. Walker testified that one of the officers said that they were under arrest, and when defendant asked the agents "if they had a warrant * * * they said sure * * *."
When Walker asked the reason for his arrest he was told to "keep quiet" and he obeyed. After being searched Walker was jailed and later released on bail. Under questioning of his own attorney, Walker stated that at the time of the arrest, search and seizure, he "was not violating any laws whatever"; "just driving down the street."
Turning now to the testimony given by Agent Spillane for the government during the suppression proceedings, he stated that on August 13, 1956 "At approximately 12:45 * * * [he] received a telephone call from an informant who * * * [he] had had previous dealings with, who had proved to be a reliable informant * * *." This testimony about the informant's reliability was stricken on motion by defense counsel so that the substance of Spillane's testimony on this phase of the case results in evidence that he received information concerning the defendant and led him to this point:
"Upon the conclusion of the conversation I made a check of the files in my office for the name Farris Walker, which check was negative. His name was not in our files.
"The second thing I did, I called the Central Police Station, the Narcotic Detail, and made a check over the telephone on Farris Walker. They gave me a positive check.
"Mr. Turner: [Defense Counsel]: I will object to what they gave him.
"The Court: Sustained."
Asked by the Assistant United States Attorney what he did "next," Spillane testified: "The next thing I did, in the company of Agent Adams I proceeded to my automobile and went directly to the vicinity of 43rd and Forrestville Avenue. I parked my car on the north side of 43rd Street, a short ways east of Forrestville, and at that time I was observing a green 1950 or 1951 Pontiac Sedan that has been previously described to me over the telephone:
"I stayed in this position for maybe two, maybe one to three minutes, and then I moved the car, my own car, around the corner, went south on Forrestville, past the Pontiac in question, drove to the intersection of 44th Street and Forrestville, made a U-turn at that intersection, and I was at that time facing north on the east side of Forrestville Avenue, where I parked the car. I stayed in the car for approximately three to five minutes, and I was using binoculars at the time, observing this Pontiac, '51 Pontiac. * * *"
"I maintained surveillance on the Pontiac through binoculars for approximately three minutes, about five minutes - I am a little hazy on exactly the time I was watching it, but eventually I saw the defendant, dressed in a brown suit and a panama hat, in company of another man, whom I knew - who we had arrested maybe three weeks prior to this time - a man by the name of Kemp Wallis, and then a third party whom I didn't know, and a little boy. I saw them come around the corner, evidently came from east on 43rd, made a right turn there, walked south on Forrestville Avenue to the side of the Pontiac in question. They stood out in front of the Pontiac for a minute or two. They they all got in the car. As soon as they got in the car the driver, who was defendant Farris Walker, backed into the alley, made a U-turn, and was facing south. He backed into the alley, made a turn and proceeded north on Forrestville to the corner of 43rd and Forrestville. He made a left turn and went west on 43rd. * * *"
"* * * I was observing the defendant, inasmuch as he answered the description that I had received over the telephone.
"* * * As I said, I was observing the defendant; he had a white panama hat and chocolate brown suit, and his description tallied with the description I had previously received."
"By the Witness: A. Yes, I did have information. The information I had was that defendant would be with Kemp Wallis.
"Mr. Turner: I will object to that.
"The Court: He has answered the question.
"By the witness: A. Who I knew from a previous arrest.
"By Mr. Makar: Q. And did you know anything concerning Kemp Wallis? A. Yes, I knew that I had arrested him.
"Mr. Turner: Your Honor, I am objecting. They are not pertinent to the motion to suppress.
"By the Witness: A. I knew Kemp Wallis due to the fact that I had executed a search warrant at 223 Forrestville a few weeks prior to this time and he was in the apartment when we raided this place.
"By Mr. Makar: Q. Did you know as to the relationship that Kemp Wallis had with this particular defendant? A. Yes, I did. Defendant, I believe, was the ex-husband of a certain Marie Walker. Marie Walker is the sister of Kemp Wallis. Marie Walker is known to our office. We have files on her; the police have files on her. Kemp Wallis we did not have a file on. But as I said he was arrested in Marie Walker's apartment a few weeks prior to the arrest of the defendant."
Continuing his direct testimony, Agent Spillane described how he and Agent Adams followed defendant's car and that at 43rd and South Parkway Spillane pulled abreast of Walker's car; Agent Adams informed Walker that he (Adams) and Spillane were federal narcotic agents. Agent Spillane then stated: "I came out of my car, went over to his car, and asked him if his name was Farris Walker. He said it was. I told him he was under arrest * * *." After that, according to Spillane, he put Walker up against the car with his hands on top of the roof, and
"I made a search for weapons, which is part of our routine, and in searching the defendant, in his right suit coat pocket I found a Phillip Morris cigarette package containing a glassine envelope with a white powder inside it. In his left suit coat pocket I found a cellophane cigarette wrapper containing nine small pieces of notebook paper, which paper contained a white powder. I asked defendant what the stuff was. He said in substance - he said to me, 'You know what it is. It is stuff. You got me good.'"
Cross-examination of Spillane by defense counsel contains this exchange:
"Q. You didn't hear this man's voice on the telephone, or any other man's voice on the telephone, did you? A. Only the informer's voice.
"Q. Only the informer's voice. Now then, you had no record, there is no record in your department of Farris Walker being a violator of narcotic laws. There was not at the time you received this call from the informer?A. Not in our department.
"Q. Not in your department. That is what I [am] asking you, in your department. So that at the time you went out on the South Side of Chicago you had no knowledge, you knew nothing about Farris Walker, did you? A. I knew his description.
"Q. Of your own knowledge? Wait a minute. You see I am just asking you a plain question. Maybe I will come back and let you say what you want to say. You had no knowledge of your own about Farris Walker, did you? A. I don't know him.
"Q. You didn't know him, did you? A. No."
Obviously we must first decide*fn3 if this arrest of Walker without a warrant was valid in order to determine the legality of the search clearly incidental to that apprehension. No array of authorities is necessary for supporting the familiar rule that lawful arrest is an indispensable condition precedent to a closely allied search and seizure.*fn4
Several important aspects of the problem now under review were subjected to judicial scrutiny in United States v. Jeffers, 1951, 342 U.S. 48, 51, 72 S. Ct. 93, 95, 96 L. Ed. 59, where Mr. Justice Clark, writing for the majority, stated:
"The Fourth Amendment prohibits both unreasonable searches and unreasonable seizures * * *.Over and again this Court has emphasized that the mandate of the Amendment requires adherence to judicial processes. See Weeks v. United States, 1914, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652; Agnello v. United States, 1925, 269 U.S. 20, 46 S. Ct. 4, 70 L. Ed. 145. Only where incident to a valid arrest, United States v. Rabinowitz, 1950, 339 U.S. 56, 70 S. Ct. 430, 94 L. Ed. 653, or in 'exceptional circumstances,' Johnson v. United States, 1948, 333 U.S. 10, 68 S. Ct. 367, 92 L. Ed. 436, may an exemption lie, and then the burden is on those seeking the exemption to show the need for it, McDonald v. United States, 1948, 335 U.S. 451, 456, 69 S. Ct. 191, 93 L. Ed. 153. In so doing the Amendment does not place an unduly oppressive weight on law enforcement officers but merely interposes an orderly procedure under the aegis of judicial impartiality that is necessary to attain the beneficent purposes intended. * * * Officers instead of obeying this mandate have too often, as shown by the numerous cases in this Court, taken matters into their own hands and invaded the security of the people against unreasonable search and seizure."
Congress has supplied a new factor, in narcotic cases through the vehicle of the Narcotic Control Act of 1956 under § 104(a), of which, power is conferred upon agents of the Bureau of Narcotics to: "* * * make arrests without warrant for violations of any law of the United States relating to narcotic drugs * * * or marihuana * * * where the violation is committed in the presence of the person making the arrest or where such person has reasonable grounds to believe that the person to be arrested has committed or is committing such violation." 70 Stat. 570, 26 U.S.C. § 7607.(Supp. IV, 1957.)
Of course even under a legislative enactment typified by § 104(a) we would refrain from permitting such authority to override constitutional rights and privileges. Use of legislative history requires caution and critical analysis. With that awareness we think § 104(a) reflects Congressional response to the narcotics situation in our country and that, indeed, it is a problem. See e.g. Narcotics, 22 Law & Contemp. Problems (1957). Difficulties confronting the law enforcement branches of government charged with enforcing the relevant laws were described in the House Subcommittee Report on Narcotics, 2 U.S.Code Cong. & Adm.News p. 3302 (1956).
"Your subcommittee's inquiry into the enforcement program revealed serious obstacles which have been placed in the path of enforcement officers as the result of recent court decisions. These decisions have tended, under certain circumstances, to furnish the criminal with a cloak of immunity to the detriment of society as a whole. They have forced changes in recognized investigative procedures which had been sanctioned by the courts for many years. The narcotic traffickers, who are in most cases well-organized professional racketeers, take full advantage of any limitations placed on enforcement officers.
"In some instances enforcement officers have been restricted in their right to arrest without a warrant, and to search and seize contraband before and after a valid arrest. The use of evidence of admissions and confessions following an arrest has been curtailed. Narcotic enforcement officers are restrained from intercepting telephone conversations, even though the telephone is a major instrument of communication between the top narcotic traffickers, and could often provide the necessary evidence to convict these violators. The enforcement officers are required to secure an arrest warrant or a search warrant from a magistrate even though circumstances indicate the impracticability of such a procedure. Narcotic drugs are small in volume and high in price. A fortune in drugs can be concealed under clothing and can be destroyed, or moved to a place of safety on a moment's notice. The delay involved in obtaining a warrant from a magistrate permits the destruction or removal of the narcotic evidence and allows the narcotic traffickers to escape prosecution for their crime. These and other restrictions on enforcement officers leave the public unprotected and give narcotic violators, especially the more reprehensible larger racketeers and wholesalers, an advantage over law-enforcement officers in efforts to combat the illicit narcotic traffic. The subcommittee urges that corrective measures in these areas be taken immediately to permit enforcement officers to operate more effectively."
Our decision takes shape against that background but with constitutional rights outweighing any practical considerations which would ultimately generate corrosion of those privileges.
After reversal of the conviction under review in United States v. Coplon, 2 Cir., 1950, 185 F.2d 629, 28 A.L.R.2d 1041. Congress amended § 3052 of Title 18 U.S.Code to read: "The Director, Associate Director, Assistant to the Director, Assistant Directors, inspectors, and agents of the Federal Bureau of Investigation of the Department of Justice may * * * make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony." 64 Stat. 1239, 18 U.S.C. § 3052 (Supp. IV, 1952 ed.). Because the italicized language is now virtually identical with that phraseology used in § 104(a)(2) we thought it significant, especially in light of the legislation following in the wake of Judge Learned Hand's disposition of the Coplon arrest under the earlier version of § 3052. 185 F.2d 629, 634-635. See also: Coplon v. United States, 1951, 89 U.S.App.D.C. 103, 191 F.2d 749, 753-754 decided under the wording of 18 U.S.C. § 3052 as it stood on March 4, 1949. If Judge Hand thought that "the Act of 1934 was intended to be a constitutive, not a cumulative, grant of any powers of arrest without warrant which the agents were to have," [185 F.2d 635] certainly the latest version, paralleled by § 104(a)(2), has eliminated the strictures he found lurking in § 3052. We think United States v. Di Re, 1948, 332 U.S. 581, 68 S. Ct. 222, 92 L. Ed. 210 is distinguishable because since that decision, Congress enacted a federal rule of arrest for agents of the Narcotics Bureau. Section 104(a)(2) is the legislative source of power and authority under which the arrest of Walker must be measured. Resort can be made to closely analogous precedent for ascertaining the meaning of "reasonable grounds" in that section.
Reasonable grounds is the precursor to a valid arrest without a warrant under § 104(a)(2) and a subsequent successful search does not cure an otherwise defective arrest. The arrest of Walker must be validated without any resort to the fruits of the search. At the hearing below the trial judge unduly restricted the government's showing because that proceeding in no way concerned the issue of Walker's guilt or innocence. The key issue at that suppression hearing was whether Spillane had reasonable grounds to believe that Walker had committed or was committing a violation of any law of the United States relating to narcotic drugs. Communication emanating from the informer was relevant to show that Spillane obtained knowledge about Walker forming the foundation on which the agent built his cause for acting. The informer's testimony was not offered at the pre-trial hearing for the purpose of proving Walker guilty of the offenses for which he was about to be tried - the issue at that preliminary stage is related to Spillane's state of mind. See e.g. 6 Wigmore, Evidence § 1789 (3rd ed. 1940). We think under the facts developed here, evidence classed as hearsay from Walker's viewpoint, but not Spillane's, can constitute the basis for reasonable grounds leading to an arrest without a warrant.
That Walker's arrest preceded the challenged search is undisputed on the record before us. The Agents stopped Walker's car only because of what the informer related to them, coupled with their check of police records, and not because they were impelled by their observations. Nothing else shows in this record as the basis for apprehending Walker and, of course, the narcotics in his coat pocket were not open to view until Spillane "frisked" Walker. Statutes aside, an arrest without a warrant on bare suspicion unsupported by reasonable grounds is illegal. "Probable cause" and "reasonable grounds" are concepts having virtually the same meaning.*fn5 Chief Justice Shaw, speaking for a court reviewing an action for malicious prosecution, wrote in Bacon v. Towne, 1849, 58 Mass. 217, 238-239: "Probable cause is such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe, or entertain an honest and strong suspicion, that the person arrested is guilty." Even earlier in our judicial history Chief Justice Marshall had already stated this interpretation: "* * * the term 'probable cause', according to its usual acceptation, means less than evidence which would justify condemnation; and in all cases of seizure, has a fixed and well-known meaning, it imports a seizure made under circumstances which warrant suspicion * * *." Locke v. United States, 1813, 11 U.S. 338, 348, 7 Cranch 339, 3 L. Ed. 364.
United States v. Sebo, 7 Cir., 1939, 101 F.2d 889, 890, evoked our court's view: "Probable cause has been defined as reasonable grounds of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the party is guilty of the offense with which he is charged."
When, as here, a search and seizure is intimately related to an arrest without a warrant, the legality of the arrest dictates whether the search is unreasonable and running afoul of the Fourth Amendment. See: e.g. J. Hall, Legal and Social Aspects of Arrest Without a Warrant, 49 Har.L.Rev. 566 (1936); Sam B. Warner, The Uniform Arrest Act, 28 Va.L.Rev. 315, 331 (1942). To evaluate Spillane's action without a warrant requires reaching back behind his reason for categorizing Walker as suspect. The cue to such categorization was supplied by the informer to Spillane who, in turn, used that data, along with other information, for deciding if Walker had committed or was (at that time) committing a violation. Obviously what the informer said became the stimulus input for Spillane and a trial judge should evaluate such evidence when deciding if Spillane acted on reasonable grounds.In Costello v. United States, 1956, 350 U.S. 359, 76 S. Ct. 406, 100 L. Ed. 755, all of the evidence before the grand jury was in the nature of "hearsay" yet that condition did not invalidate the indictment. The technical rules of evidence regarding hearsay come into greater importance at a trial on the merits especially when jurors are participating. But in an instance of the type now before us strict application of the hearsay*fn6 rule is a sterile technicality if not an incorrect application of the exclusionary rule. If the government's offer*fn7 of proof is examined along with those pieces of testimony received below there emerges the requisite reasonable grounds for Walker's arrest and approval of the search. That defendant was travelling by automobile explains the need for action without a warrant. Brinegar v. United States, 338 U.S. 160, 175-178, 69 S. Ct. 1302, 93 L. Ed. 1879.
"Reasonable ground," then, is the litmus paper for testing validity of arrests without a warrant. Implicit in such test is the exclusion of arbitrary and capricious interference with individual freedom. Dignity and sanctity of the individual are not to be jeopardized by the whim or zeal of policemen. Consequently organic law, reflected in the relevant statutes and Rules of Criminal Procedure interposes the judiciary between law enforcement officers and citizens by requiring, as normal procedure, application for warrants and the attendant opportunity for the judicial branch to pass on the question of probable cause. This constitutional insulation against infringing basic rights is removed only under classes of exigencies which have been judicially approved on review and now form a discernible pattern of instances, excusing law-enforcement officers for by-passing the requirement of having the judiciary first rule upon the question of probable cause. In those situations the law is adjusted and imposes on the law enforcement agent a standard of discrimination. Rather than blind worship of cause alone, the law probes for the basis of the officer's action measuring it by an external standard. After all when an arrest without a warrant is classed as valid, it simply means such action is judicially tolerated as being within the constitutional bounds of reasonableness as officially or pragmatically defined in case-law. Fresh combinations of facts must necessarily be examined under the terms labelled "probable cause" and "reasonable grounds" for neither one is a static concept. But the criteria embedded in each continues to be one that refuses approval for arrests without a warrant where an officer is stimulated by an inkling only. For he must act as a man of reasonable caution. "Suspicion" is an elusive word with a wide spectrum of intensities and courts must examine the facts underlying it rather than be deflected by the word itself.
Roviaro v. United States, 1957, 353 U.S. 53, 77 S. Ct. 623, 628, 1 L. Ed. 2d 639, appears, on cursory examination, to cast a shadow across this opinion. But nothing said there requires any different decision in Walker's case despite the fact that an unnamed informer stimulated the agent's activities in this situation. Counsel for Walker did not request disclosure of the informer's identity, and he would have to make that request to come within this passage by the Roviaro majority:
"Most of the federal cases involving this limitation on the scope of the informer's privilege have arisen where the legality of a search without a warrant is in issue and the communications of an informer are claimed to establish probable cause. In these cases the Government has been required to disclose the identity of the informant unless there was sufficient evidence apart from his confidential communication." Citing Scher v. United States, 305 U.S. 251, 59 S. Ct. 174, 83 L. Ed. 151; United States v. Li Fat Tong, 2 Cir., 152 F.2d 650; Wilson v. United States, 3 Cir., 59 F.2d 390; and United States v. Keown, D.C., 19 F.Supp. 639.
In any event without a proper demand below for the informer's identity*fn8 this case is outside the scope of the Roviaro holding. See United States v. Conforti, 7 Cir., 1953, 200 F.2d 365. That Contee v. United States, 1954, 94 U.S.App.D.C. 297, 215 F.2d 324, 326, is inapposite is patent from the flimsy testimony given by the arresting officers, in that appeal.
By overruling the motion to suppress, interposed on Walker's behalf, the trial judge reached the correct result, and we affirm the judgment brought here for review.