United States v. George Robinson , 354 F.2d 109 ( 1965 )

LUMBARD, Chief Judge.

On this second appeal from his conviction in the United States District Court for the Western District of New York for possession of narcotics and conspiracy in violation of 21 U.S.C. § 174, George Robinson urges for the first time that it was error to receive in evidence at his trial an oral statement made to a federal narcotics agent that some of his money had been used to purchase heroin found on his companion by the Buffalo, New York, police. The statement was elicited at a Buffalo police station to which Robinson and his companion had been taken so that their persons and their baggage could be searched for narcotics. Prior to making the admission, Robinson had not been advised that he was entitled to remain silent, that anything he said might be used in evidence, and that he had a right to counsel.

Robinson’s only objection to this evidence at trial and on the first appeal was that it stemmed from an illegal arrest and search, but he now claims that, in view of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), the statement was received in violation of his Sixth Amendment rights. Robinson also urges, as he has at trial and throughout, that there was insufficient probable cause for the arrests and subsequent search by the Buffalo police. After a panel of this court had heard argument, the active circuit judges, sua sponte on May 26, 1965, ordered in banc consideration of this case and six other cases which involve related questions of importance to the administration of criminal justice. We hold that there was probable cause for the arrests and that Robinson’s statement was properly received into evidence, and we affirm the conviction.

Robinson was tried together with his companion, Annita Daniels, and both were convicted of possession of heroin and conspiracy. Although we have granted the government’s motion to dismiss Daniels’ appeal for failure to prosecute,¹ we set forth the facts relating to both Robinson and Daniels as they are relevant to Robinson’s claims.

At about 10:40 A.M. on September 17, 1962, Edward J. Clohessy and Pat Quale of the Buffalo Police Department spotted Robinson and Daniels on Michigan Avenue carrying luggage toward their home three-and-one-half blocks away. The police had been alerted about an hour earlier by Federal Narcotics Agent Salvatore J. Giovino that Robinson and Daniels were expected back that day from New York City with narcotics. When Daniels stated that she and Robinson had just returned from New York, the officers asked Robinson and Daniels to accompany them to headquarters. In our first decision in this case, we agreed with the trial judge that this was an arrest. We remanded for a further hearing as to probable cause for the arrest because the trial court had not permitted defense counsel to inquire into the identity and reliability of Agent Giovino’s informant and because there was insufficient corroborating evidence to justify the arrest unless the informant was disclosed and the reliability of his information was established. United States v. Robinson, 2 Cir., 325 F.2d 391 (1963). At the subsequent hearing, Agent Giovino and the informant, Javan Corley, were extensively examined. Judge Henderson made detailed findings of fact, fully supported by the record. He held that there was probable cause for the arrest because Agent Giovino had ample reason to consider Corley a reliable informant. Accordingly, the court entered a new final judgment of conviction from which Robinson takes this appeal.

At the hearing, Javan Corley testified that he had known Annita Daniels as a narcotics addict and sometime peddler for a number of years. For many weeks prior to September 17, 1962, Corley and his “girlfriend,” Toni Freeman, who was an addict, had purchased narcotics daily from both Robinson and Daniels at their residence. Two or three days before September 17, Corley and Freeman had gone to the Robinson-Daniels apartment to purchase a “spoon” (*4 ounce) of heroin; when they asked for credit Robinson said he needed all the cash he could get as he was going to “the city,” meaning New York City, where many Buffalo peddlers went to get their narcotics. To Corley, who knew that Robinson had made previous trips to New York to purchase heroin and that Robinson had been in short supply earlier in September, “it was clear that Robinson intended to travel to New York City to buy narcotics.” During the next two or three days, Corley went to the Robinson-Daniels residence three times but found no one home. On the last visit an upstairs neighbor, whom Corley had seen in the Robinson-Daniels apartment on earlier occasions, told Corley that their return was imminent. Corley then called Agent Giovino and told him that Robinson and Daniels would soon be returning from New York City with narcotics. Giovino immediately telephoned the Buffalo police who picked up Robinson and Daniels on Michigan Avenue.

The evidence at the hearing amply supports Judge Henderson’s finding that Agent Giovino was fully warranted in considering Javan Corley a reliable informant. Giovino knew that Corley was a former user and peddler of narcotics who at that time was generally accepted in the Buffalo narcotics community. Prior to September 17, 1962, Corley had given Agent Giovino information relating to local drug activity which in one instance led to arrest and conviction of a narcotics peddler. In another instance prior to the Robinson-Daniels arrest and known to Agent Giovino, Corley had introduced a peddler to an undercover agent, and purchases by the agent led to an arrest and conviction. In addition, other information previously supplied by Corley had been independently verified, and in no case had Agent Giovino found that Corley’s information was not accurate. Indeed, prior to September 17,

Agent Giovino had applied to have Corley hired by the Bureau of Narcotics as a “special employee” (paid informant); authorization for Corley's appointment was received by Agent Giovino the very day Robinson and Daniels were arrested.

Under these circumstances, the Buffalo police officers had probable cause for the arrest of Robinson and Daniels. This case is strikingly similar to Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), in which the Supreme Court held that federal narcotics agents had probable cause to arrest for a violation of 21 U.S.C. § 174 when a reliable “special employee” carefully described a suspect to the agents and related that the suspect would be returning to Denver by train within a day or two carrying three ounces of heroin. In Draper, the informant died four days after the arrest and therefore did not testify, but the Court still found the arresting officers’ actions justified. Here, we have ample evidence that Corley had proven himself reliable in the past. In addition, Corley’s own testimony at the hearing indicates that his belief that Robinson and Daniels would be returning to Buffalo with narcotics was entirely rational. Agent Giovino had sufficient knowledge both of Corley’s reliability on other occasions and of Corley’s basis for inferring that Robinson and Daniels would be returning with narcotics to justify Giovino’s call to the Buffalo Police Department requesting an immediate arrest. Probable cause demands no more. See United States v. Jones, 362 U.S. 257, 267-271 (1960).

The major difference between this case and Draper is that here the arrest by Buffalo police officers must be justified under state law.² United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L. Ed. 210 (1948). But, as we pointed out in our first opinion, 325 F.2d at 394-395, there was probable cause for arrest under the New York Code of Criminal Procedure, § 177(4) ³ so long as Agent Giovino’s informant was reliable. Officers Clohessy and Quale knew the defendants by sight (unlike the situation in Draper where the informant had to describe the suspect) and knew that Daniels was an addict and that Robinson had a prior narcotics conviction. When the officers confirmed that Robinson and Daniels were returning from New York as Agent Giovino had informed them, arrest without a warrant was justified.⁴ People v. Coffey, 12 N.Y.2d 443, 240 N.Y.S.2d 721, 191 N.E.2d 263 (1963), cert. denied, 376 U.S. 916, 84 S.Ct. 671, 11 L.Ed.2d 612 (1964), upheld on collateral attack, United States ex rel. Coffey v. Fay, 344 F.2d 625 (2 Cir. 1965).

We now turn to the question whether Robinson’s incriminating statement made after his arrest should have been admitted at trial and to the events leading up to that statement. When Officers Clohessy and Quale first spotted Robinson and Daniels at 10:40 A.M. on Michigan Avenue walking toward their nearby home, Robinson was carrying two large suitcases and Daniels a small suitcase and a shopping bag. When Quale asked them what they were doing with the suitcases, they said that they had come from New York and had just gotten off the bus from Rochester at Michigan Avenue and Main Street. Clohessy then told them he had information that they were “dirty” (i. e., carrying narcotics) ; Robinson and Daniels protested that they were “clean” and had not brought back anything from New York. The officers instructed Robinson and Daniels to accompany them to police headquarters where a search could be made. On the way to the police headquarters, both defendants repeatedly suggested that they be searched then and there but the officers declined, reminding Daniels that she must be searched by a matron at the station.

The group arrived at police headquarters about 11:00 A.M. and Robinson and Daniels were taken to separate rooms to be searched. Daniels now resisted the attempt of a policewoman to search her and it was necessary to summon two police officers to hold her while her person was searched. During the ensuing struggle in which Daniels bit the policewoman and one of the officers, the policewoman found secreted in her bosom a package containing 91 glassine envelopes of heroin. In the other room in the presence of Robinson, Officer Quale found measuring spoons, a roll of scotch tape, and empty glassine envelopes identical to those found on Annita Daniels in one of the suitcases which Robinson had been carrying when he was arrested.

Meanwhile Agent Giovino had been advised of these developments. He arrived at police headquarters about 11:45 A.M. just as the search was completed. About 12:00 noon he had a brief conversation with Robinson in which he asked about the heroin found on Daniels and the paraphernalia in Robinson’s suitcase. Robinson then admitted that he had put up some of the money to buy the heroin. The statement was made in answer to routine and casual questioning before which Robinson was not warned of his right to remain silent or that what he said might be used in evidence. He was not advised of his right to counsel and he did not ask to consult counsel even though he had had previous experience with the criminal law.⁵

After Agent Giovino had talked with Robinson, he placed a call to the United States Commissioner. When he was advised that the Commissioner would not be available for an arraignment until after 2:00 P.M., Giovino went to lunch. He returned about 1:30 P.M. and left promptly with the Buffalo officers and the defendants for the Commissioner’s office for arraignment. On the way to the Commissioner’s office, Giovino talked with Daniels. She admitted that she had purchased the narcotics in New York City and that she and Robinson had pooled their money for the purchase. After arrival at the Commissioner’s office, Agent Giovino dictated to a stenographer in Daniels’ presence the statements that she had made. After a statement was typed, she signed it.⁶ Daniels was not advised of her right to remain silent and that what she said might be used in evidence until the statement was typed and ready to be signed; nor was she advised of her right to counsel. The defendants were arraigned at about 2:30 P.M.

There has been no claim at any stage of these proceedings that the statement elicited from Robinson was involuntary ;⁷ nor has there been any claim that Robinson’s statement was elicited during a period of unnecessary delay prior to arraignment in violation of Rule 5(a), Federal Rules of Criminal Procedure, and we need not consider this question. See United States v. Torres, 343 F.2d 750 (2 Cir. 1965).

The brief and casual questioning of Robinson by Narcotics Agent Giovino, although done at Buffalo police headquarters, had none of the aspects of extended interrogation or incommunicado detention present in Escobedo v. State of Illinois, supra, and in those cases in which the Supreme Court has excluded involuntary confessions. E. g., Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963). The Buffalo police had probable cause to arrest Robinson and Daniels for possession of narcotics and to search their persons and luggage for evidence of such a crime. It was incumbent upon them to perform this search at a police station despite the defendants’ request for a search on the street. Narcotics and the implements with which it is sold and used are small items that can be secreted in numerous places on the body; an adequate search quite obviously required greater privacy than the street corner. More important, Annita Daniels was a woman and the arresting officers were men. It would have violated police regulations and all concepts of decency, as the defendants well knew when they requested an immediate search, if the officers had attempted a thorough search at the place of arrest. And the possibility of resistance to a search of this kind, which was in fact made by Daniels in the police station, would by itself be sufficient reason for talcing the two defendants to the station house for purposes of search.

Thus the presence of Robinson at the police station at the time of the questioning was necessary and was not part of a plan to elicit incriminating statements in an atmosphere of oppression and coercion. Moreover, Robinson’s statement was elicited by Agent .Giovino, who was not a member of the Buffalo police force or the arresting team and who enlisted no aid from the police officers present at the station. Under these circumstances, the questioning by Agent Giovino parallels the prompt and on-the-street questioning of Richard Cone and the reasons which we found persuasive in upholding the action of the federal agents in United States v. Cone, 2 Cir., 354 F.2d 119 also decided today, apply with equal force here.

When Agent Giovino learned the results of the arrest of Robinson and Daniels that he had requested, he was under a duty to question the defendants at the Buffalo police station. The information supplied by his informant had at this point led to the discovery and seizure of narcotics on the person of a known Buffalo addict and peddler, Annita Daniels. It thus became of paramount importance for Giovino to find out who had participated in the transportation of the heroin and from whom and where it had been obtained. To seek additional information from Daniels and also from her known companion Robinson immediately upon the discovery of the incriminating evidence, assuming that the circumstances were not coercive or intimidating, was a natural adjunct of Agent Giovino’s office.

More important, as to Robinson, questioning was vital to determine whether he should be charged with a crime. Although there was probable cause for the arrests and search, no charges could have been brought against the defendants had narcotics not actually been found in their possession. When narcotics were found on Daniels, the circumstantial evidence implicating Robinson was strong due to his long association with Daniels, the fact that he had accompanied her to New York City, and the fact that narcotics paraphernalia had been found in a suitcase seized from him. Of course it was possible that Robinson could have been totally ignorant regarding the narcotics in Daniels’ possession. Under the circumstances the only proper procedure was for Agent Giovino to question Robinson immediately. That Robinson voluntarily chose to answer and thereby incriminate himself does not make his answer per se inadmissible.

Even assuming that there was sufficient circumstantial evidence to charge Robinson before his admission, some questioning of Robinson was necessary so that Agent Giovino could better decide what the charge should be. Robinson’s long association with Daniels (who referred to him as her “old man”) might have made a charge of constructive possession of the narcotics found on Daniels appropriate. But constructive possession requires dominance and control over the possessor, United States v. Rosario, 327 F.2d 561 (2 Cir. 1964), and there was the alternative possibility that Robinson had violated 21 U.S.C. § 174 merely by providing money with which Daniels had purchased the narcotics. When an arrest is validly made without a warrant, as in this case, it is particularly necessary that the police be permitted a questioning period of reasonable duration so that an informed decision to charge can be made. As we have today pointed out in United States v. Cone, 354 F.2d 119, to deny to the police or to federal agents such a routine method of screening the innumerable suspects who pass through their hands by prohibiting use of the fruits of questioning when they have reason to believe a crime has been committed, regarding which a suspect is likely to have some knowledge, would be an unrealistic obstruction that would tax the investigative resources of law enforcement agencies immeasurably and reduce the efficiency of crime prevention and detection to a degree which would seriously endanger public safety.

George Robinson was subjected to casual and non-coercive questioning. He was validly arrested, transported to police headquarters, searched, booked and questioned within a period of less than two hours. His voluntary statement was elicited in the course of necessary investigation by the Narcotics Agent. Immediately upon the discovery of sufficient evidence to justify his arraignment on charges of violating the federal narcotics laws, Agent Giovino called a United States Commissioner. We find nothing in the actions of the federal agent or the police or in Escobedo v. Illinois which requires us to reverse his conviction because this admission was received in evidence.

Affirmed.

MOORE, FRIENDLY, KAUFMAN and HAYS, Circuit Judges, concur.

1 . The record reveals that Daniels was committed to the United States Public Health Service Hospital in Lexington, Kentucky, in December 1962. She has been serving her five-year sentence since that time.

2 . The federal agents making the arrest in Draper acted under 26 U.S.C. § 7607, which provides that an agent of the Bureau of Narcotics may make arrest without warrant “for violations of any law of the United States relating to narcotic drugs * * * where such person has reasonable grounds to believe that the person to be arrested has committed or is committing such violation.” The terms “probable cause” as used in the Fourth Amendment and “reasonable grounds” as used in this statute “are substantial equivalents of the same meaning.” Draper v. United States, 358 U.S. at 310 n. 3, 79 S.Ct. at 331.

3 . New York Code of Criminal Procedure, § 177(4), effective September 1, 1958, provides that:

“A peace officer may, without a warrant, arrest a person, * * *

4. When he lias reasonable cause for believing that a felony has been committed, and that the person arrested has committed it, though it should afterward appear that no felony has been committed, or, if committed, that the person arrested did not commit it; * * *»

Unlawful possession of narcotics is a felony under New York law as well as federal law. N.Y.Penal Law, § 1751 (McKinney Supp.1964).

4 . See Cervantes v. United States, 263 E\2d 800, 804 n. 6 (9 Cir. 1959). In Cervantes, an undisclosed informant reported that the defendant would be returning from Mexico with narcotics. No arrest was made, but Cervantes was arrested ten weeks later when he was returning from another trip to Mexico about which the police had no additional information. The court found that there was no probable cause for that arrest; this is clearly distinguishable from the instant case where Robinson and Daniels were arrested while returning from the specific trip that Corley had discussed with Agent Giovino.

5 . Robinson previously had been arrested and convicted for a narcotics violation.

6 . Robinson refused to give Agent Giovino an additional statement during this trip to the Commissioner’s office. The trial judge properly instructed the jury that the statement of Daniels was not to be considered against Robinson. See Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957).

7 . There has been no claim that Robinson’s statement was untrue. Neither Robinson nor Daniels testified in their behalf at trial. Although Daniels did testify during a pre-trial hearing on a motion to suppress evidence taken in the search, there was no testimony contradicting the substance of the statements of the defendants to which Agent Giovino had testified.