Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 76 CR 834 - Hubert L. Will, Judge.
Pell and Tone, Circuit Judges, and East, Senior District Judge.*fn*
Defendants-appellants Oscar Mancillas and Charles Lowry were convicted by a jury of conspiring to distribute and to possess with intent to distribute heroin, in violation of 21 U.S.C. § 846, and of possessing slightly less than a kilogram of heroin with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1). Claudio A. Davalos and Saul Aveytia were indicted codefendants on the conspiracy and possession counts, and were charged in a separate count with possessing in excess of four kilograms of heroin with intent to distribute it. Aveytia, who was a fugitive from justice, was not tried. Davalos was tried with Mancillas and Lowry and was acquitted of all charges.
On appeal, Mancillas and Lowry contend that their motion to suppress heroin seized at the time of their arrest should have been granted, that the evidence was insufficient to sustain the charges against them, and that certain hearsay testimony was erroneously admitted at trial to their prejudice.
Appellants argue that their warrantless arrest was illegal, having been made without probable cause, and that the heroin secured as an incident thereof should have been suppressed. See Whiteley v. Warden, 401 U.S. 560, 568-69, 28 L. Ed. 2d 306, 91 S. Ct. 1031 (1971). Alternatively they argue that even if the arrest was legal, seizure and search of the kilogram package of heroin without a warrant was not, and the evidence should have been suppressed for that reason.
The facts leading up to the arrest were these. On July 13, 1976, one Jose Rodriguez and an alleged confederate were arrested and charged with possession of heroin. The heroin was contained in a plastic bag completely wrapped up in beige masking tape, forming an oval shaped package about six inches long. Rodriguez, who had previously been observed by Drug Enforcement Administration (DEA) and Chicago Police operatives as associating with Mancillas, gave agents a statement indicating that the package just described had come from Mancillas, and that he (Rodriguez) had on at least one occasion delivered a shipment of heroin for Mancillas.
Rodriguez then gave the tip which led to the instant arrests. He told the agents that Mancillas was then in Cleveland, Ohio; that Mancillas would either return directly to Chicago or would fly to El Paso, Texas; that the El Paso trip, if made, would be for the purpose of making partial advance payment on a delivery of heroin; that Mancillas would return from El Paso to Chicago and remain in the Chicago area for eight to ten hours and would then proceed with another individual to an unnamed motel in Joliet, Illinois, to receive the heroin; that the heroin would be brought to Chicago by a red and white camper truck or some other vehicle, bearing Texas license plates.
DEA agents immediately began to investigate Rodriguez's tip. An agent in Cleveland located Mancillas at a motel, from which he checked out on July 13 to proceed to the Cleveland airport. His only luggage, a briefcase, was routinely fluoroscoped there, and revealed a mass of paper or wood with outline dimensions of 2 1/2 inch by 6 inch (the size of United States currency). Mancillas flew to El Paso, where he was observed meeting with Aveytia. On July 17, Mancillas returned to Chicago, where he was met at about 7:30 p.m. by Lowry in the latter's Buick automobile.
As the Buick left the airport terminal area, Mancillas was observed leaning out the passenger window to look at the traffic behind the car. Mancillas and Lowry then drove to three motels, at the third of which, in Lyons, Illinois, Mancillas registered under an assumed name, in Lowry's presence. At about 9:00 p.m., Mancillas and Lowry left the motel and drove to Chicago, where Mancillas dropped Lowry, keeping the car. Around midnight, Mancillas returned to the motel with an unidentified woman. The two left the motel at 4:00 a.m., and drove to Chicago, where the woman left the car. Mancillas ate breakfast, had a short meeting on a street corner, with an unidentified man, and returned to Lowry's residence at 5:15 a.m. He honked the horn in the alley behind the residence, and Lowry promptly came out. Lowry drove the two to the Holiday Inn West in Joliet. They arrived slightly after 6:00 a.m.
Meanwhile DEA and Chicago Police agents had set up surveillance at numerous Joliet area motels. At 4:15 a.m., Aveytia and Davalos, driving a brown Ford automobile with Texas license plates, were observed checking into the Holiday Inn West. They proceeded to room 208 there, Aveytia carrying an oval shaped package wrapped entirely in beige masking tape.
When Mancillas and Lowry reached the motel, Mancillas went to the lobby, asked for Aveytia, and used the house telephone. Both appellants then went to room 208. Shortly thereafter, the law enforcement agents approached the room. As they did so, the door was opened from the inside by Mancillas, who looked out quickly, and attempted to close the door. The agents announced their office and identity, entered the room forcibly,*fn1 seized the tape-wrapped package (which contained slightly less than a kilogram of heroin), and arrested Mancillas, Lowry, Aveytia, and Davalos. A subsequent search of Aveytia's car revealed more than four additional kilograms of heroin, also wrapped in taped packages.
The legality of the arrest here depends on whether probable cause existed therefor. Probable cause exists where the facts and reasonably trustworthy information known to the arresting officers, are "'sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." Draper v. United States, 358 U.S. 307, 313, 3 L. Ed. 2d 327, 79 S. Ct. 329 (1959), quoting Carroll v. United States, 267 U.S. 132, 162, 69 L. Ed. 543, 45 S. Ct. 280 (1925). The standard, however, is "only the probability, and not a prima facie showing, of criminal activity. . . ." Spinelli v. United States, 393 U.S. 410, 419, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969).*fn2 We are quite satisfied that this standard was met here.
Probable cause may be based solely on the tip of an informer, if adequate indications exist that the informer is reliable or credible, and the basis for his conclusion is known. See Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964), and Spinelli, supra, 393 U.S. at 416. Here the informer's tip included an admission that he had performed a criminal act for Mancillas previously. This declaration against penal interest imparted some credibility, even if some sort of cooperation agreement with the authorities was in process. United States v. Harris, 403 U.S. 573, 583-84, 29 L. Ed. 2d 723, 91 S. Ct. 2075 (1971). Moreover, we note that if Rodriguez, who was under arrest at the time of his statement, hoped to curry favor with the authorities thereby, a fabrication that precipitated a major three-state investigation for naught would hardly be a sensible way to go about it. Rodriquez's tip, then, bore at least some indications of reliability notwithstanding his lack of a "track record" as an informer. The latter is "but one way" of buttressing credibility. See United States v. Squella-Avendano, 447 F.2d 575, 582 (5th Cir. 1971), cert. denied, 404 U.S. 985, 92 S. Ct. 450, 30 L. Ed. 2d 369.
Although the precise basis for Rodriguez's tip was not articulated, an ample basis for giving it some credit existed. In Spinelli, supra 393 U.S. at 416, the Court emphasized that the informer used there had never seen the defendant committing criminal acts or engaged in criminal activity with him.*fn3 Here, of course, both independent law enforcement activity and the statement of Rodriguez itself linked him with Mancillas in what the statement indicated was the very type of criminal activity being investigated. See United States v. Stallings, 413 F.2d 200, 204 (7th Cir. 1969), cert. denied, 396 U.S. 972, 24 L. Ed. 2d 440, 90 S. Ct. 460. Furthermore, Rodriguez's tip reflected sufficient detail to indicate more than "a casual rumor circulating in the underworld or an accusation based merely on [Mancillas'] general reputation." Spinelli, supra 393 U.S. at 417. In this sense, it was self-verifying, because the details of criminal plans of such magnitude as were involved here are not generally obtainable "from an offhand remark heard at a neighborhood bar," id., for example.*fn4
Rodriguez's tip, then, created at least solid grounds for suspicion. By the time of the arrest, it surely had ripened into probable cause. Each element of Rodriguez's prediction had been corroborated by independent law enforcement investigation,*fn5 in the manner we have detailed above. See Draper v. United States, supra. In addition, Mancillas' apparent attempt to detect surveillance as he and Lowry left O'Hare Airport, the visits to three motels by the two, and the fact that Mancillas' registration in the third motel ...