Mario Di Bella v. United States , 284 F.2d 897 ( 1960 )

HAMLIN, Circuit Judge.

Mario DiBella, appellant, appeals from an order of the District Court denying his motion to suppress certain evidenti-ary items seized in his apartment by agents of the Federal Bureau of Narcotics on March 9, 1959, at the time of his arrest. The motion was made after arrest and arraignment of appellant but before his indictment.

On November 30, 1959, subsequent to his indictment, the motion was denied by the District Court, with leave to renew it at the time of trial. On December 3, 1959, appellant gave notice of appeal to this Court from the order of the District Court. There has as yet been no trial of appellant.

Initially, the United States, appellee, raises the question as to whether such an order is appealable.

Over a period of many years this Court has consistently held that where the application is made prior to indictment, as it was in this case, that a defendant may appeal to this Court from an order denying his motion to suppress. United States v. Poller, 2 Cir., 1930, 43 F.2d 911, 74 A.L.R. 1382; Cheng Wai v. United States, 2 Cir., 1942, 125 F.2d 915; cf. United States v. Klapholz, 2 Cir., 1956, 230 F.2d 494; United States v. Russo, 2 Cir., 1957, 241 F.2d 285.

We hold the order made by the District Court in this case to be appealable.

The motion was argued before the District Court by counsel on either side and affidavits and counteraffidavits were presented for his consideration. From the showing there made, the following factual situation appeared. On October 15, 1958, one David W. Costa, a special agent of the Federal Bureau of Narcotics, presented to United States Commissioner Epstein in the Eastern District of New York a complaint praying for the arrest of appellant. This complaint stated:

“That upon information and belief, the defendants, Mario DiBella and Samuel Panzarella, did on September 10, 1958, at Jackson Heights, Long Island, New York * * * unlawfully sell, dispense and distribute a narcotic drug, to-wit: approximately one ounce of heroin hydrochloride, a derivative of opium, which said heroin hydrochloride was not in or from an original package bearing tax stamps required by law * * *

“That the source of your deponent’s information and the grounds for his belief are your deponent’s personal observations in this case, the statements of Samuel Panzarel-la, and other witnesses in this case, and the reports and records of the Bureau of Narcotics.”

Upon the basis of this complaint Commissioner Epstein issued a warrant of arrest.

On March 9, 1959, the narcotic agents saw appellant sitting in his living room in his apartment. At 8:15 p. m. Agent Costa, with the warrant of arrest in his possession, went with other agents to appellant’s apartment. It was nighttime. The agents rang the bell and the door was opened by appellant’s stepdaughter. The agents identified themselves, showed her their credentials, and walked into the living room, where they identified themselves to appellant, showed him a copy of the arrest warrant, and placed him under arrest. A quantity of narcotics was found, which, together with other items, the agents seized.¹

In Application of Fried, D.C., 68 F.Supp. 961, 964, consideration was given to the sufficiency of a complaint upon which a warrant of arrest was issued.There, the complaint, after alleging that the defendants had in their possession certain goods and chattels knowing the same to have been stolen, contained the following statement:

“The sources of deponent’s information and the grounds of his belief are an investigation conducted by him in the course of his official duties.”

The Court there held “Such a complaint will not support a warrant of arrest. United States v. McCunn, D.C.S.D.N.Y., 1930, 40 F.2d 295; United States ex rel. King v. Gokey, D.C.N.D.N.Y., 1929, 32 F.2d 793; * * * United States v. Pollack, D.C.N.J., 1946, 64 F.Supp. 554; United States v. Ruroede, D.C.S.D.N.Y., 220 F. 210.”

Recently the question of the sufficiency of a complaint to justify a warrant of arrest was considered in Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 1247, 2 L.Ed.2d 1503.

The complaint in that case read as follows:

“The undersigned complainant being duly sworn states: That on or about January 26, 1956, at Houston, Texas * * *, Veto Giordenello did receive, conceal, etc., narcotic drugs, to-wit: heroin hydrochloride with knowledge of unlawful importation ; * * *

“And the complainant further states that he believes that........ are material witnesses in relation to this charge.”

In striking down the complaint as insufficient in that case, the Court said:

“The complaint contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein; it does not indicate any sources for the complainant’s belief; and it does not set forth any other sufficient basis upon which a finding of probable cause could be made.”

The Court further said:

“Criminal Rules 3 and 4 provide that an arrest warrant shall be issued only upon a written and sworn complaint (1) setting forth ‘the essential facts constituting the offense charged,’ and (2) showing ‘that there is probable cause to believe that [such] an offense has been committed and that the defendant has committed it * * *.’ The provisions of these Rules must be read in light of the constitutional requirements they implement. The language of the Fourth Amendment, that ‘ * * * no Warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing * * *. the persons or things to be seized * *,’ of course applies to arrest as well as search warrants.”

We hold that the complaint upon which the warrant of arrest was based was deficient in this case, and would not support the warrant of arrest which was issued under it. It is particularly deficient in setting forth the sources of his information or grounds for his belief. True, it recites that his belief an offense had been committed was grounded on his “personal observations in this ease, the statements of Samuel Panzarella, and other witnesses in this case, and the reports and records of the Bureau of Narcotics,” but what other sources could there possibly be? Such a shotgun, all-encompassing enumeration is no better than none at all. There is no indication of what he had personally observed, what he had heard from others or what he learned from the reports and records of the Bureau of Narcotics. Neither is there presented the basis for crediting the hearsay of the nameless “other witnesses” or the unidentified “reports and records.” The complaint is no better than that in Giordenello v. United States, and the warrant is invalid for the same reasons.

Appellee, however, contended in the court below (as it contends here) that regardless of any objection of appellant that the warrant of arrest was improperly issued, that Agent Costa had probable cause to effect a valid arrest of appellant under the authority of 26 U.S.C. § 7607, which states that, among others, agents of the Bureau of Narcotics may:

“(2) Make arrests without warrant for violations of any law of the United States relating to narcotic drugs (as defined in section 4731) or marihuana (as defined in section 4761) 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.”

The District Court, in its opinion agreeing with the position of appellee, stated [178 F.Supp. 7]: “However, quite apart from the question of the propriety of the issuance of the warrant, Agent Costa had grounds for believing that DiBella had committed a violation of the Narcotics Acts sufficiently reasonable to justify his arrest without a warrant.” To properly evaluate this contention, we shall examine some of the further facts that were presented upon the hearing to the District Judge.

It appears that on October 6, 1958, Agent Costa and another agent, one Daniel D. Moynihan, in an endeavor to obtain a search warrant each signed and presented to United States Commissioner Abruzzo an affidavit which set forth the knowledge each agent had from personal observation and from information received, concerning the activities of appellant in connection with possession and sale of narcotics.

These affidavits set forth in detail certain events occurring on August 26, 1958, and on September 10, 1958, from which it could be inferred that there was a sale of narcotics on each of those two occasions by appellant to the narcotics agents through one Panzarella. These affidavits are set out in full in a footnote.²

A search warrant was not issued by united States Commissioner Abruzzo, to whom the affidavits were presented, but the affidavits were presented to the District Judge for his consideration on the instant motion to suppress.

In Draper v. United States, 358 U.S. 307, at page 310, 79 S.Ct. 329, at pages 331, 332, 3 L.Ed.2d 327, it was held that where a narcotic agent had “probable cause” within the meaning of the Fourth Amendment and “reasonable grounds” within the meaning of the Narcotic Control Act to believe that a person had committed or was committing a violation of the narcotics laws, he could make a lawful arrest. The Court there said, quoting Brinegar v. United States, 338 U.S. 160, 172-173, 69 S.Ct. 1302, 1309, 93 L.Ed. 1879:

“ ‘There is a large difference between the two things to be proved [guilt and probable cause], as well as between the tribunals which determine them, and therefore a like difference in the quanta and modes of proof required to establish them.’ ”

At page 313 of 358 U.S., at page 333 of 79 S.Ct., the Court said:

“ ‘In dealing with probable cause, * * * as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ Brinegar v. United States, supra [338 U.S. at [page] 175 [69 S.Ct. at page 1310]. Probable cause exists where ‘the • facts and circumstances within [the arresting officers’], knowledge and of which they had 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. Carroll v. United States, 267 U.S. 132, 162 [45 S.Ct. 280, 288, 69 L.Ed. 543].”

In the present ease, Costa had not only the benefit of his own observations of the contacts and activities of appellant and Panzarella, but he also had the benefit of the information given him by Agent Moynihan as to the sales of heroin by Panzarella to Moynihan.

An examination of the affidavits of Agents Moynihan and Costa shows that both on August 26, 1958, and on September 10, 1958, appellant and Panzarella were under the surveillance of each agent. On August 26, for instance, Panzarella agreed to sell Moynihan heroin, and stated that he had to contact his connection. He made a telephone call and then went with Agent Moynihan to 79th Street near Roosevelt Avenue in Jackson Heights. Moynihan saw Pan-zarella leave his vehicle, walk to 79th Street and 37th Avenue, and enter a green Chrysler automobile with New York license No. 6971NE. Moynihan saw Panzarella leave the Chrysler a few minutes later at 79th Street and Roosevelt Avenue, and saw Panzarella return to his vehicle, upon which Panzarella handed to Moynihan the envelope which proved to contain heroin. At the same time, Costa saw appellant enter the same Chrysler automobile and saw him drive to 37th Avenue and 79th Street, saw him meet Panzarella who then entered the Chrysler automobile. He saw the two men drive to 79th Street and Roosevelt Avenue and saw Panzarella leave the automobile. Costa then saw Panzarella walk to 78th Street and meet Agent Moynihan and hand a small envelope to him. The later tests showed that this envelope contained heroin.

Likewise, on September 10, 1958, each agent saw approximately the same procedure followed between Panzarella and appellant. On the latter occasion, Pan-zarella, after being in contact with appellant, came back to Moynihan and sold him an ounce of heroin which he told Moynihan he obtained from DiBella. Appellant was seen meeting Panzarella, be with him briefly, and Panzarella was seen to immediately return to Moynihan with the heroin.

Taking all of the circumstances together, we believe that there was ample evidence to hold that Costa had “reasonable grounds to believe” that appellant had committed a violation of the narcotics laws. With all the information Costa had, both from his own observation and from information received from Moynihan, Costa would have indeed been naive if he did not believe that appellant had just provided the narcotics which Panzarella delivered to Moynihan. Although Costa’s affidavit was based in part on hearsay, there was “a substantial basis for crediting” the information given him by a fellow-agent, information which was wholly consistent with what Costa himself had observed. Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 735, 4 L.Ed.2d 697. We hold that at any time after September 10, 1958, Costa had reasonable grounds to believe that DiBella had committed a violation of the narcotics laws.

Appellant contends, however, that the delay from September, 1958, until March, 1959, when the arrest was made, was sufficient to say that in March, 1959, Costa did not have reasonable grounds to believe that DiBella had committed a narcotics violation. We cannot so hold.

An explanation was given by appellee that the delay was occasioned by a desire on the part of the agents to uncover further violations. Be that as it may, we do not believe that the delay eradicated from Costa’s mind the knowledge that he had received by September, 1958, of appellant’s apparent violations of the narcotics laws.

When appellant was arrested on March 9, 1959, Costa had in his possession the warrant of arrest which had been issued October 15, 1958, and after arresting appellant under color of this warrant, which we have held to have been invalidly issued, made a return on it showing that he had executed the warrant by arresting DiBella on the 9th day of March, 1959.

We do not believe that this helps appellant. Although Costa apparently believed that this warrant was a valid ■one, yet, even though it was not, the arrest may be justified on the ground that Costa had reasonable grounds to believe that DiBella had committed a narcotics violation.

In Williams v. United States, 9 Cir., 273 F.2d 781, the arrest was made upon a warrant of arrest which the Court held to be invalid. However, the arrest was justified on the basis of the arresting officer having reasonable grounds to believe a violation had been committed.

In Giordenello v. United States, supra, the Supreme Court held that the warrant of arrest was invalid. The case points out, however, that in the Supreme Court, for the first time, the Government contended that the arrest could be justified without a warrant on the basis that there was probable cause to believe that the person arrested had committed a felony. The Supreme Court held that these contentions by the Government, having been made for the first time before that Court, were belated, and refused to consider them. The case was reversed, but the Supreme Court stated:

“This is not to say, however, that in the event of a new trial the Government may not seek to justify petitioner’s arrest without relying upon the warrant.” [357 U.S. at page 488, 78 S.Ct. at page 1251.]

The arrest of DiBella by Costa, who, on March 9,1959, had reasonable grounds to believe DiBella had committed a violation of the narcotics law, was a lawful arrest. The arrest being lawful, a reasonable search of appellant’s premises, such as shown in this case, was proper. United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653.

Judgment affirmed.

1 . The foregoing facts are undisputed. The only substantial conflict in the affidavits concerns the circumstances of the search. According to the affidavit of the Assistant United States Attorney the agents asked DiBella if he would permit them to make a search of the apartment. Appellant then told one of the agents “I know what you came for. I have all the stuff in a suitcase in the closet. There’s no use tearing the place apart.” Appellant then took the agents to his bedroom where a suitcase was found in the closet, and opened. It contained approximately a pound of heroin, a quantity of cocaine, and certain paraphernalia used to “cut” the narcotics. Appellant then stated that this was all the heroin he had in his possession. Approximately $8,675 was found in the apartment, and appellant later admitted that this money represented profits which he had made in the sale of narcotics. Appellant also later admitted that he had voluntarily turned over the seized heroin to the agents at the time that they visited liis apartment to arrest him.

An affidavit filed by DiBella’s counsel presents a different version of the events following DiBella’s arrest. According to this affidavit “About six agents remained in the living room with him and four others searched his apartment. He never consented to the search. He never left the living room. He never gave heroin nor money to the agents.”

DiBella’s affidavit is not contrary to either of the above affidavits but merely states that the agents, after exhibiting to him the warrant for his arrest, “proceeded to make a general exploratory examination of my apartment, They discovered a quantity of narcotics in my apartment and seized said nar-cotíes and in addition thereto a suitcase, miscellaneous papers, my passport and divers other items.”

Under either version it does not appear that the search of appellant’s apartment was an unreasonable one.

2 . [Affidavit of David W. Costa] Eastern District of New York, ss.:

David W. Costa being duly sworn deposes and says that your deponent is an agent of the Bureau of Narcotics, District No. 2, and that he has been assigned since the latter part of July, 1958, together with Daniel D. Moynihan, an agent of the Bureau of Narcotics, to investigate the possible sale and possession of narcotics in the area of Jackson Heights, Queens, within the Eastern District of New York.

That he has reason to believe that on the premises known as Apt. 42, 35-15 80th Street, Jackson Heights, Queens, New York, within the Eastern District of New York, being a 5 room apartment leased to one Mario DiBella, that there is now being concealed a quantity of narcotic drugs, namely heroin hydrochloride, a derivative of opium, which are contraband held in violation of law for the purpose of sale not from the original stamped packages and not pursuant to any written order form in violation of the provisions of the Internal Revenue Tax Laws.

That the facts tending to establish the grounds for the issuance of a search warrant are as follows:

Upon information and belief, Mario DiBella rents apartment #42 at 35 — 15 80th Street, Jackson Heights, Queens, New York.

At 7:30 A.M. on August 26, 1958, I observed Mario DiBella leave the premises at 35-15 80th Street, Jackson Heights, Long Island, New York. Di-Bella walked to the street and entered his Chrysler automobile New York License No. 6971NE. DiBella drove to 37th Avenue and 79th Street, Jackson Heights, where he met one Sammy Pan-zarella, who entered the Chrysler automobile driven by DiBella. The two men drove to Boosevelt Avenue and 79th Street where Panzarella left the car. I observed Panzarella walk to 78th Street, where, upon meeting Agent Moynihan, Panzarella handed a small envelope to him. Later tests showed that this envelope contained heroin hydrochloride.

A second purchase of heroin from Pan-zarella was arranged by Agent Moynihan to be effected September 10, 1958.

At 11:00 P.M. September 10, 1958, I observed Mario DiBella leave Apartment #42 at 35-15 80th Street, Jackson Heights, New York and walk to Boosevelt Avenue and 74th Street where he met Panzarella. DiBella and Pan-zarella then walked to 76th Street near Boosevelt Avenue, where they parted company. Panzarella then met Agent Moynihan and sold him an ounce of heroin hydrochloride, which he claimed he had obtained from DiBella.

Upon information and belief, Mario DiBella has been a source of supply of heroin hydrochloride to Samuel Panzarel-la over a period of years; that on each of the two occasions described above, Mario DiBella left his apartment #42 35-15 80tli Street, Jackson Heights, New York and proceeded directly to meet Samuel Panzarella; that Samuel Pan-zarella then proceeded directly to Agent Moynihan and sold him a quantity of heroin hydrochloride.

That the source of your deponent’s information and the grounds for his belief are the investigation and reports of Agents of the Bureau of Narcotics; the statements of Samuel Panzarella and other witnesses and your deponent’s personal investigation in this case.

Wherefore, your deponent respectfully requests that a night time search warrant issue for the premises described' above.

(Sworn to by David W. Costa on October 6, 1958.)

[Affidavit of Daniel D. Moynihan] Eastern District of New York, ss.:

Daniel D. Moynihan being duly sworn deposes and says that your deponent is an agent of the Bureau of Narcotics, District No. 2, and that he has been assigned since the latter part of July, 1958, together with David W. Costa, an agent of the Bureau of Narcotics, to investigate the possible sale and possession of narcotics in the area of Jackson Heights, Queens, within the Eastern District of Now York.

That he has reason to believe that on the premises known as Apt. 42, 35-15 80th Street, Jackson Heights, Queens, New York, within the Eastern District of New York, being a 5 room apartment leased to one Mario DiBella, that there is now being concealed a quantity of narcotic drugs, namely: heroin hydrochloride, a derivative of opium, which are contraband held in violation of law for the purpose of sale and that these drugs are not from the original stamped packages and not pursuant to any written order form, in violation of the provisions of the Internal Bevenue Tax Laws.

The facts tending to establish the grounds for the issuance of a search warrant are as follows:

Your deponent met one Samuel Pan-zarella who offered to sell heroin to your deponent. At the time of the meeting, Samuel Panzarella and your deponent agreed to effect the sale of heroin to your deponent, this sale to be made on August 26, 1958 at 8 o’clock in the morning. At six o’clock in the morning on August 26, 1958, your deponent met Samuel Panzarella in Manhattan. Samuel Panzarella stated that he wished to telephone his source of supply of heroin, and he thereupon made a telephone call. After the telephone call was completed, Samuel Panzarella stated to your deponent that delivery of the heroin would be made to your deponent at 8:30 A.M. that morning.

Your deponent then drove with Samuel Panzarella to Jackson Heights, Long Island and parked on 79th Street, north of Boosevelt Avenue. Samuel Panzarella left the vehicle at about 7:30 A.M. that morning and your deponent observed him walk to 79th Street and 37th Avenue and enter a green Chrysler, New York license #6971NE. Your deponent observed Samuel Panzarella leave that Chrysler several minutes later at 79th Street and Boosevelt Avenue. Samuel Panzarella then returned to the vehicle used by your deponent, and at 8:05 A.M. that morning Samuel Panzarella handed your deponent a glassine envelope containing a -white powder which subsequent tests proved to be an ounce of heroin hydrochloride.

A similar pattern of events followed on September 10, 1958. At 9:30 in the evening of September 10, 1958, Samuel Panzarella and your deponent met in Manhattan, where Samuel Panzarella offered to sell your deponent another ounce of heroin. Samuel Panzarella stated that it would again be necessary to go to Jackson Heights to meet his “connection,” and then he would telephone his “connection.” Panzarella then made a telephone call at 9:40 P.M. on September 10, 1958. Your deponent and Samuel Panzarella went to 74tli Street and Roosevelt Avenue, Jackson Heights, Long Island, New York. At 11:05 P.M. Samuel Panzarella left your deponent. Your deponent observed him meet Mario DiBella a few minutes later, and saw Mario DiBella walk with Samuel Pan-zarella from 74th Street to 37th Road. Samuel Panzarella returned to your deponent at 11:20 P.M. and your deponent and Samuel Panzarella then drove to New York City. Enroute, Samuel Pan-zarella handed a glassine envelope containing a white powder to your deponent, which powder was tested and found to be heroin hydrochloride.

Samuel Panzarella stated that DiBella was his source of supply of heroin and that DiBella had supplied the heroin sold to your deponent on September 10, 195S and August 26, 1958.

No tax stamps were seen by your deponent on either of the glassine envelopes received from Samuel Panzarella on September 10, or August 26, 1958, nor was the sale of these two packages pursuant to a written order form.

Upon information and belief, Mario Di-Bella left his apartment #42 35-15 80th Street, Jackson Heights, New York on each of the two occasions described above and met Samuel Panzarella directly thereafter; that Samuel Panzarella then directly proceeded to meet your deponent and the sale of heroin was effected; that Mario DiBella has been a source of supply of illegal heroin hydrochloride for an extended period.

That the source of your deponent’s information and the grounds for his belief are the statements made by Samuel Panzarella, the observations and investigation of other narcotic agents and your deponent’s personal investigation in this case.

Wherefore, your deponent respectfully requests that a night time search warrant issue for the premises described above.

(Sworn to by Daniel D. Moynihan on October 6, 1958.)