United States v. Donald E. Belle. Appeal of Donald Belle , 593 F.2d 487 ( 1979 )

OPINION OP THE COURT

GARTH, Circuit Judge.

This is an appeal from a jury verdict finding appellant Donald E. Belle guilty of conspiracy to possess, and possession with intent to distribute, 60 ounces of uncut heroin, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846. Primarily, Belle contends that the district court in violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), at trial admitted into evidence a statement made by Munford, Belle’s codefendant. Belle also charges that the district court, among other errors, improperly denied his motion to suppress certain physical evidence and his post-arrest statements. We hold that the statement of Belle’s codefendant, which did not mention or refer to Belle, was properly admitted into evidence and did not transgress the Bruton rule. We also conclude that there is no merit in Belle’s remaining contentions. We therefore affirm.

I.

On Friday, April 30, 1976, at approximately 3:00 p. m. two agents (Wasyluk and Albright) of the Bureau of Alcohol, Tobacco and Firearms (ATF) were at the Hilton Inn Hotel, Old Lincoln Highway, Trevose, Pennsylvania, to meet with their supervisor on a matter unrelated to the instant case. Trevose is virtually a suburb of Philadelphia and is also within a short distance from Bristol, Pennsylvania.

While awaiting the arrival of their supervisor, Agent Wasyluk observed two individuals, later identified as Belle and Munford, sitting in a late model, white Lincoln Continental Mark IV with California license plate 727 — MPH, which was in the parking lot of the hotel. Shortly thereafter, while in the hotel lobby Munford was overheard inquiring about a suite and then was observed registering for a double room. Wasyluk became suspicious of the two men because of the colorful manner in which Munford and Belle were dressed, the California plates on the Lincoln Continental, and the fact that Munford and Belle were registering on a Friday evening at a hotel located in an area with little activity as opposed to the city attractions of downtown Philadelphia.

Their suspicions aroused, the agents checked on the Lincoln’s registration and learned that it was registered to Edward Keefe O’Neil, 1811 South Carmona Avenue, Los Angeles, California. With this information, they then called the Drug Enforcement Agency (DEA) in Philadelphia to inquire whether the DEA had any information concerning O’Neil.

DEA Agent Kean with whom the ATF agents spoke was familiar with the name of Edward O’Neil. Kean learned from the DEA files that two reports had been given eighteen and twenty-one months before by an informant familiar with heroin traffic whom Kean considered very reliable. The reports indicated that an Edward O’Neil, of 1811 South Carolina Avenue, Los Angeles, was a major drug trafficker who dealt in brown Mexican heroin which he transported cross-country by car, stopping in various cities before reaching Bristol, Pennsylvania, his final stop and home town. According to the report, O’Neil owned a late model Cadillac, bearing California plates with a false undercarriage in which he stored the heroin. The report also contained a description of O’Neil which fit either of the occupants of the Lincoln.¹ Because the Lincoln was registered to Edward Keefe O’Neil at an address substantially similar to that in the report and the Lincoln had stopped in Trevose, Agent Kean assigned a team of DEA agents to conduct a surveillance of the Lincoln and its occupants. The ATF agents maintained surveillance until the arrival of the DEA team.

At 7:30 p. m. as Munford and Belle left their room, DEA Agents Kean and Hobson drove their vehicle to the intersection of Old Lincoln Highway and Route 1, parking in the lot of the Krispy Kreme Donut Shop, from which vantage point they could observe the Hilton Inn Hotel and the movement of vehicles in all directions.

With Munford driving and Belle as a passenger, the Lincoln exited onto Old Lincoln Highway heading east toward Route 1, drove into the parking lot of the donut shop and parked in close proximity to the DEA agents. Hobson observed Belle get out of the Lincoln and make a hand signal in the direction of a 1973 silver colored Cadillac which was parked across the street, point back in the direction of the Lincoln, and then reenter the Lincoln. The Lincoln then left the parking lot of the donut shop, and proceeded west on Old Lincoln Highway followed by the Cadillac which had license plates indicating that the vehicle was owned or driven by a handicapped person.

Kean, having previously conducted a surveillance which involved the Cadillac, recognized the license plate and car, connecting them to O’Neill Roberts. Kean was familiar with informants’ reports which indicated that Roberts was involved in the drug traffic in the Philadelphia area, that he bought narcotics from persons who came from Los Angeles, and that he had been shot in the back and crippled during one narcotics transaction. Reports from other government agencies also indicated Roberts’ involvement with narcotics.

Kean and Hobson followed the Lincoln and the Cadillac as they headed west on Old Lincoln Highway. The three cars turned onto Somerton Avenue, and the Lincoln followed by the Cadillac then turned onto Buffalo Avenue, a small residential street not far from the Hilton Inn. As Kean and Hobson continued past Buffalo Avenue, they observed the Lincoln stopped in the driveway of 2606 Buffalo Avenue and the Cadillac stopped at the mouth of the driveway. Hobson left the DEA vehicle and walked back toward Buffalo Avenue to a point where he could observe the Lincoln and the Cadillac. It was there he saw Belle talking to the occupant of the Cadillac. Belle then entered the Cadillac which turned around and retraced its path back to Old Lincoln Highway, followed by two DEA agents.

Kean and Hobson then drove slowly past the Lincoln. Kean observed Munford at the right front wheel of the Lincoln doing something under the Lincoln’s hood. In total, Kean and Hobson drove past the Lincoln three times. The second and third times Kean observed Munford retrieving from somewhere under the hood of the Lincoln a number of small packets, each of which approximated in size a shotgun shell. The packets were tied together by strings. Based on his experience with narcotics, including his familiarity with the practice of packaging uncut heroin in either one-ounce packages or one-kilogram blocks, Kean believed the packages, which were roughly the size to contain one ounce of narcotics, contained heroin.

It was at that time that Kean directed the DEA agents who were following the Cadillac to stop it and identify the occupants. When the Cadillac was stopped on Old Lincoln Highway near Route 1, DEA Agent Malloy ordered the passenger to get out and identify himself. The passenger complied, giving his name as Donald Belle. Malloy after frisking Belle for weapons asked the driver, a handicapped individual, to identify himself. On learning that the driver was O’Neill Roberts, Malloy handcuffed Belle. After a report by Malloy’s partner, Kean ordered the return of the Cadillac and its occupants to the Buffalo Avenue address.

Having learned that the driver of the Cadillac was indeed O’Neill Roberts, all of the individuals who were by now at the Buffalo Avenue address were detained. Agent Wasyluk, one of the agents who had brought Belle back to Buffalo Avenue, in walking up the driveway and past the Lincoln noticed that the front door was open. Looking through the open door and into the car he saw, and thereupon directed Kean’s attention to, an open brown paper “Acme” grocery bag on the floor of the Lincoln at the right front side. The top of the bag had been folded down so that it would remain open, exposing to view a number of little “silver” packets tied together with string, similar to the objects Kean had observed Munford pulling from under the hood of the Lincoln. An immediate field test was conducted on the contents of one package which indicated the presence of heroin. It was discovered that the Lincoln’s air conditioning system, access to which was obtained from under the hood of the vehicle, contained a secret compartment in which packets of heroin were concealed. A further search of the vehicle produced a slip of paper dated April 27, 1976, signed by the owner, one Edward O’Neil, giving Munford and Belle permission to use his vehicle.

Belle who had remained in the ATP vehicle was advised of his constitutional rights as that vehicle proceeded to a local police station. Before arriving at the station-house Belle explained to Agent Wasyluk his involvement with Roberts. Wasyluk testified “[Belle] stated that he didn’t know [Roberts], that this man was a stranger to him and that he had been riding along with Mr. Munford when the stranger stopped him and asked him whether or not he would be good enough to get in his vehicle because he was a cripple and whether or not he could go to the store for him; that he wanted to drive to the store and Mr. Belle could run in and bring something out to him.” N.T. 85, Second Day. After Agent Wasyluk questioned Belle’s recital, Belle then stated “Well, that’s my story.” ² N.T. 90, Second Day.

After arriving at police headquarters, Agent Hobson interviewed Munford who volunteered the statement which is the subject of Belle’s Bruton argument. See II, infra.

Both Munford and Belle were indicted in a two-count indictment which charged them with conspiracy to possess, and possession with intent to distribute, heroin.³ The district court denied Belle’s pretrial motions to suppress the heroin which the DEA agents seized, as well as his motion to suppress his post-arrest statement which he made to Agent Wasyluk. Belle and Munford were jointly tried and the jury found them each guilty on both counts of the indictment on June 11, 1976. This appeal followed.⁴

II.

On this appeal, Belle’s principal contention is that certain statements made by his codefendant Munford which were admitted into evidence at their joint trial violated his Sixth Amendment right of confrontation contrary to the rule announced in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).⁵ Specifically, Agent Hobson testified that:

Mr. Munford stated that he had come from California and that he was going to deliver the heroin between 8:00 and 8:30 p. m. that evening of April 30th to a trash can located near the Krispy Kreme Donut Shop at Route 1 on Old Lincoln Highway. He further stated that approximately two or three times in the past he had transported heroin into the same area and on two occasions had met with O’Neil Roberts.

N.T. 46, Second Day.⁶

After objecting to the admission of this statement and moving for a mistrial which the court denied, Belle’s counsel sought an instruction that the Munford admission be considered solely against Munford,⁷ and not against Belle. The district court agreed to give such an instruction at the end of Hob-son’s cross-examination. The instruction was not given at the end of Hobson’s cross-examination,⁸ but it was given shortly thereafter, at the end of the redirect examination of the next Government witness. The district court at that time charged the jury that it should consider any statements made by Munford as evidence only against Munford, and not against Belle.

Belle’s contention is that Munford’s reference to prior meetings with Roberts, made in the context of a statement that he, Mun-ford, had two or three times transported heroin into the Bristol area and that the heroin on this occasion was to be delivered to the Krispy Kreme Donut Shop were highly incriminating as to Belle as a result of other evidence introduced at trial and inferences which could be drawn therefrom. He argues that the jury would infer that the prior heroin transactions were with Roberts. He also argues that the jury would infer that he was involved in the present drug transaction because he was arrested in the company of Roberts and had been at the donut shop one hour before the scheduled time for delivery. Belle argues these inferences were inevitable and highly prejudicial to him.⁹

In essence, Belle is asserting that whenever a eodefendant (here Munford) incriminates himself in a statement which by its express terms does not mention or refer to a joint defendant (here Belle) the Bruton rule will preclude its admission into evidence in a joint trial if there is any other evidence which links the complaining defendant (Belle) to the substance of the statement. We cannot agree as we do not believe that the Supreme Court in Bruton ever intended such a far-reaching result.

In Bruton two defendants — Evans and Bruton — were jointly tried. At trial, the district court admitted into evidence testimony by a postal inspector of Evans’ oral confession. That confession named Bruton as an accomplice. An instruction limiting the jury’s use of the confession as against Evans only was given by the district court, relying on Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957). In overruling Delli Paol, the Supreme Court, reversing Bruton’s conviction, held that Evans’ extrajudicial statement — which made reference to codefendant Bruton— was inadmissible as evidence at the joint trial and could not be cured by a limiting instruction.

The key to Bruton was that the extrajudicial statement by the nontestifying codefendant Evans was “powerfully incriminating” of Bruton in that it named Bruton as an accomplice. It was in such a circumstance — where the challenged statement (and we emphasize, the statement only) directly implicated the complaining defendant Bruton — that the Supreme Court held that the codefendant’s statement could not be admitted into evidence at a joint trial. See United States v. DiGilio, 538 F.2d 972 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749 (1977).

When a codefendant’s extrajudicial statement does not directly implicate the defendant, however, the Bruton rule does not come into play. See United States v. Gerry, 515 F.2d 130 (2d Cir.), cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975); Nelson v. Follette, 430 F.2d 1055, 1057 (2d Cir. 1970), cert. denied, 401 U.S. 917, 91 S.Ct. 899, 27 L.Ed.2d 818 (1971). For example, courts — ours included — -have consistently approved the use at joint trials of codefendants’ confessions where all references to the complaining defendant have been redacted, at least if the redacted versions do not explicitly suggest the participation¹⁰ of the complaining defendant. E. g., United States v. Stewart, 579 F.2d 356 (5th Cir. 1978); United States v. Holleman, 575 F.2d 139 (7th Cir. 1978); United States v. Dady, 536 F.2d 675 (6th Cir. 1976) (per curiam); United States v. Wingate, 520 F.2d 309 (2d Cir. 1975), cert. denied, 423 U.S. 1074, 96 S.Ct. 858, 47 L.Ed.2d 84 (1976); United States v. Alvarez, 519 F.2d 1052 (3d Cir.), cert. denied, 423 U.S. 914, 96 S.Ct. 221, 46 L.Ed.2d 143 (1975); United States v. Panepinto, 430 F.2d 613 (3d Cir.), cert. denied, 400 U.S. 949, 91 S.Ct. 258, 27 L.Ed.2d 256 (1970); United States v Lipowitz, 407 F.2d 597 (3d Cir.), cert. denied, 395 U.S. 946, 89 S.Ct. 2026, 23 L.Ed.2d 466 (1969). See United States v. DiGilio, supra, at 982.

If a codefendant’s confession or admission is admissible at a joint trial when the names of other joint defendants have simply been redacted,¹¹ it would seem that a fortiori an admission such as the one here which makes no reference whatsoever to any other defendant should be admissible as well. In United States v. Wingate, supra, a codefendant’s redacted statement had been admitted into evidence with cautionary instructions. The complaining defendant (Wingate) argued that the statement, read in light of other evidence connecting him (Wingate) to the codefendant who made the statement, tended to identify him as a co-conspirator, and therefore its admission into evidence violated Bruton. The Second Circuit disagreed, reasoning that the codefendant’s statement did not sufficiently incriminate Wingate inasmuch as “[o]nly when combined with considerable other evidence, which amply established Wingate’s guilt, [did] the statements tend to implicate him”, 520 F.2d at 314. Thus the court held that the codefendant’s statement was not “powerfully incriminating” as to Wingate. In short, evidentiary linkage or contextual implication may not be utilized to convert a non-Bruton admissible statement into a Bruton inadmissible statement.

The situation here is quite similar to that in Wingate. Belle argues that Mun-ford’s statement inculpates him. But if it does, it does so only insofar as other evidence may connect Belle to Munford and to O’Neill Roberts. In such a case, we do not believe that the statement qua statement can be said to be “powerfully incriminating” as to Belle, and thus inadmissible under Bruton. Other courts faced with similar claims have held that the admission of a codefendant’s extrajudicial statement did not violate Bruton. See United States v. Mulligan, 488 F.2d 732 (9th Cir. 1973), cert. denied, 417 U.S. 930, 94 S.Ct. 2640, 41 L.Ed.2d 233 (1974); Nelson v. Follette, 430 F.2d 1055 (2d Cir. 1970), cert. denied, 401 U.S. 917, 91 S.Ct. 899, 27 L.Ed.2d 818 (1971).

In Nelson, a case with a fact pattern analogous to the one in this case, the complaining defendant Nelson and a codefendant Biggins were jointly tried and convicted of felony murder in the course of a bar hold-up. Two confessions by Biggins were introduced into evidence, with an instruction that they be considered only with respect to Biggins. Biggins did not take the stand. Biggins’ statements did not directly identify Nelson, but rather referred to an “Oliver” who had a physical description more or less fitting Nelson. Biggins had also stated that he ran into “Oliver” at another bar earlier in the evening of the murder, and that they had proceeded together to the bar at which the murder took place. Nelson contended that these statements, when considered in light of testimony by the manager of the first bar to the effect that he had seen Nelson and Biggins together at his bar on the evening in question, “necessarily implicated” him (Nelson).

The court rejected Nelson’s contention. It noted that “for the Bruton rule to apply, the challenged statements must be clearly inculpatory.” 430 F.2d at 1057. The court held that since the jury would have to make substantial inferences to implicate Nelson in the crime by virtue of the testimony as to his mere presence at the first bar, Big-gins’ statements were “not clearly inculpatory because they alone did not serve to connect Nelson with the crime.” Id. at 1058 (emphasis added). See United States v. Lipowitz, supra, 407 F.2d at 602-03. The court also noted that the “connecting testimony” (i. e. the bar manager’s testimony) was subject to cross-examination. Here, we observe that whatever connecting evidence there was, could have been tested by calling Roberts as a witness.

In United States v. Mulligan, supra, a defendant objected on Bruton grounds to the introduction of admissions by his two codefendants (who did not take the stand). There had been a limiting instruction. The admissions did not directly implicate the complaining defendant. The court rejected this contention, stating:

Appellants argue that the admission of these statements violated Bruton v. United States, 1968, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476. In that case, the Court held that the introduction of an extrajudicial admission of one defendant that implicates or inculpates a co-defendant violates that co-defendant’s sixth amendment right to confrontation. Appellants’ reliance on Bruton is misplaced. Mulligan’s statements inculpated only Mulligan. Dinsio’s statements inculpated only Dinsio. Appellants ask us to extend the Bruton rule to exclude the admission of one defendant even though the admission does not directly implicate a co-defendant. We decline to do so.

There is little danger that a jury in a joint trial, in weighing the evidence against A, will consider against A an admission by B concerning only B’s activities. Following the appellants’ argument to its logical conclusion would require separate trials in every case where any defendant has made an admission. Such a holding is wholly unwarranted.

488 F.2d at 737.

We agree with the reasoning of Nelson and Mulligan and are satisfied that the rationale of those cases applies equally in this case. Munford’s admissions directly implicate only Munford. Unlike Bruton, they do not shift responsibility to Belle. The challenged statements implicate Belle only to the extent that the jury may make inferences based on other clearly admissible evidence which may tend to connect Belle to Munford and Roberts. Accordingly, we are not persuaded that Munford’s statements can be said to be “clearly inculpatory” or “powerfully incriminating” as to Belle.¹² Moreover, all the “connecting testimony” was subject to cross-examination. Consequently, we are convinced that the introduction into evidence of Munford’s statement did not contravene Bruton or violate Belle’s right to confront witnesses against him.¹³

Indeed, in Bruton the Supreme Court was fully aware of the problems presented by the joint trial of more than one defendant, and took pains to discuss in some detail the provisions of Fed.R.Crim.P. 14, which authorizes a severance, as that rule was implicated by the Bruton doctrine. 391 U.S. at 131-32, 88 S.Ct. [1620] at 1625. In discussing the 1966 amendment to Rule 14, the Court pointed out that the amendment “provide[d] expressly that ‘[i]n ruling on a motion by a defendant for severance the court may order the attorney for the government to deliver to the court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial.’ ” Id. quoting Fed.R. Crim.P. 14.

It is highly significant that neither the federal rule examined by the Court, nor Mr. Justice Brennan’s majority opinion, made any reference to any judicial inspection of evidence other than the statements or confessions of the defendants. If linkage evidence was subsumed by the Court in its Bruton ruling, it is apparent that such linkage evidence would be required to be subjected to judicial scrutiny together with the defendants’ statements or confessions. No such suggestion is even intimated by Bruton, and it is understandable why it was not. To require what Belle seeks here would lead to the necessity for the Government to expose its entire case on a motion for severance. Indeed, whether or not a motion for severance is ever made, such a result would require the trial judge to examine under a microscope all the prosecution’s evidence in order to determine whether any extrajudicial statement made by a nontestifying codefendant could be admitted as to that defendant, or whether it would have to be excluded because of the existence of independent “linkage” evidence which might connect another defendant to the statement. This result would necessarily lead to either a complete “mini-trial” before the judge, or to the practical prohibition of joint trials. See pages 493 494 supra; United States v. Mulligan, supra. The federal rules do not contemplate such a practice, see Fed.R.Crim.P. 14; Bruton itself never suggested such an astonishing result; and no other court, to our knowledge, has construed Bruton in the unprecedented fashion urged upon us by Belle.

We hold therefore that the district court properly admitted Munford’s statement into evidence. *

III.

A

Belle argues that there were no reasonable grounds for his detentiov -on Old Lincoln Highway, that his detention constituted an arrest not based on probable cause, and that as a result the heroin, as well as his statement made to Agent Wasyluk, should have been suppressed as fruits of an illegal arrest. The district court concluded that there were reasonable grounds for Belle’s detention under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1969) and that the agents in handcuffing and transporting Belle to Buffalo Avenue were merely maintaining the status quo of the Terry stop. The district court also held that (1) it was unnecessary to determine when the moment of arrest occurred as Belle’s statement was not made until after the heroin was field tested; (2) that the seizure of the heroin was not the product of Belle’s detention or arrest; and (3) that probable cause for Belle’s arrest clearly existed once the heroin had been discovered. As a result, the district court determined that Belle’s statement was not the fruit of any illegal arrest. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The district court also ruled that the heroin seized was in plain view and that any search of the Lincoln was based on probable cause under exigent circumstances.

We agree with the district court that there were ample grounds for a Terry stop of the Cadillac in which Belle was riding. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) permits an investigatory stop where the facts available to the officer at that moment “ ‘warrant a man of reasonable caution in the belief’ that the action was appropriate.” 392 U.S. at 22, 88 S.Ct. at 1880. Here, Kean, who had ordered the DEA agents to stop the Cadillac, had reason to believe the Cadillac was registered to a known drug dealer; that Munford and Belle were together; that Belle had some relationship to the Lincoln; that Belle was in the Cadillac with a then unidentified driver; and that the Lincoln which appeared in some way to have some connection with the Cadillac had just disgorged a number of- packets which Kean reasonably believed to contain drugs. Under these circumstances the district court was clearly correct in holding that the agents’ action in stopping the Cadillac was appropriate. See also Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

Belle, however, complains not so much that the Terry stop was impermissible but that probable cause was lacking for his arrest and that when he was handcuffed and transported back to Buffalo Avenue in the ATF vehicle he was clearly under arrest. United States v. Lampkin, 464 F.2d 1093, 1095 (3d Cir. 1972).

The district court did not determine whether probable cause existed for Belle’s arrest at the Cadillac, holding instead that probable cause existed once the heroin had been field tested. Whereas in normal course we might be persuaded to remand to the district court for its initial determination of probable cause, here the record is sufficient for that determination to be made by this court. The Supreme Court in Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), in addressing the very same question but in a state court context, stated

While this Court does not sit as in nisi prius to appraise contradictory factual questions, it will where necessary to the determination of constitutional rights, make an independent examination of the facts, the findings, and the record so that it can determine for itself whether in the decision as to reasonableness the fundamental — i. e., constitutional — criteria established by this Court have been respected.

374 U.S. at 34, 83 S.Ct. at 1630.¹⁴

The record here reveals that at the moment that Belle was handcuffed the DEA and ATF agents ¹⁵ were aware of the following information: (1) that the Lincoln was owned by Edward O’Neil, reputed to be a major trafficker in heroin; (2) that the Lincoln reputedly had a secret compartment in which heroin could be hidden; (3) that the Lincoln was in the Bristol area, an area where O’Neil normally made his last stop after cross-country travels; (4) that Belle and Munford fit O’Neil’s description; (5) that Belle and Munford met Roberts at a prearranged rendezvous at a donut shop at which time Belle was observed signalling in the direction of Roberts’ car; (6) that Roberts in his Cadillac (which was known to Kean) followed the Lincoln to a Buffalo Avenue address; (7) that Kean, on the basis of various reports, believed Roberts to be involved in heroin traffic and to consort with known narcotics dealers; (8) that Kean was aware of informants’ reports which attributed Roberts’ source of supply to someone from Los Angeles, where O’Neil resided; (9) that Belle had been observed conversing with Roberts and then entering Roberts’ car which headed back to the locale of the ostensible rendezvous; (10) that Munford was observed removing a large number of small packets thought to be heroin from under the hood of the Lincoln; and (11) that Roberts had been positively identified as the driver of the Cadillac.

Belle, however, argues that this collective knowledge was insufficient to establish probable cause for his arrest. He claims that the reports pertaining to Edward O’Neil were too old to be relied upon and that none of the reports or informants had the indicia of reliability required by Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1969). We need not decide here whether Belle is correct in this contention, for the Spinelli and Aguilar standards of reliability are applicable only when the reports are the sole basis for a finding of probable cause. Here, as we have noted, the agents by surveillance made personal observations of Belle, Roberts and Munford, which substantiated the background information gleaned from the reports,¹⁶ information therefore which, under these circumstances, could permissibly be considered by the agents. See United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). In sum, given the information contained in the reports, Belle’s actions on the day of arrest, as well as the actions of his associates, the various government agents might well have reasonably believed that Belle was involved in a drug-related transaction. See Whitely v. Warden, 401 U.S. 560, 567, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).

Belle also argues that each occurrence which we have detailed was consonant with innocent activity and thus could not give rise to the probable cause for his arrest. In so arguing, however, Belle loses sight of or downplays what we regard as the most critical fact of all, viz., the probable possession of heroin by Munford, Belle’s associate. Belle’s actions became more consistent with criminal rather than with innocent behavior when viewed in the context of: (1) the information which the agents had previously received and (2) their observations of Munford who had been seen extracting suspicious packets from a hiding place in the Lincoln. We think it was quite reasonable for the agents to infer, based on prior information and the actions of Mun-ford, Belle, and Roberts, that all three were involved in a drug transaction. Even if we were to assume arguendo that each of Belle’s actions was susceptible of an innocent explanation, Belle’s argument would nevertheless fail in light of the totality of the circumstances present here, just as a similar argument in an analogous situation was rejected by the Ninth Circuit in United States v. Patterson, 492 F.2d 995, 997 (9th Cir.), cert. denied, 419 U.S. 846, 95 S.Ct. 82, 42 L.Ed.2d 75 (1974). The defendants there had asked border patrol agents for directions to San Diego but after receiving them, proceeded in the opposite direction; used the telephone before going to an area where smuggling was known to take place; were observed at a ranch house loading burlap bags into their car; and departed the ranch house early in the morning, many hours after they had arrived. After acknowledging that each of these events could be innocently explained, the court concluded that:

The succession of superficially innocent events had proceeded to the point where a prudent man could say to himself that an innocent course of conduct was substantially less likely than a criminal one.

492 F.2d at 997.

Indeed, the facts of the instant case seem strikingly akin to those which appear in United States v. Lampkin, 464 F.2d 1093 (3d Cir. 1972), where this court upheld the arrest of a person not yet identified, based upon his associations coupled with a behavior pattern which, as here, bespoke criminal complicity.¹⁷

We are satisfied that the DEA agents had probable cause, based on the available background reports as to O’Neil and Roberts, and based on Belle’s actions as well as those of Munford and Roberts, to arrest Belle. Cf. Government of the Virgin Islands v. Hernandez, 508 F.2d 712 (3d Cir.), cert. denied, 422 U.S. 1043, 95 S.Ct. 2659, 45 L.Ed.2d 695 (1975).¹⁸ That being so, the district court did not err in refusing to suppress Belle’s post-arrest statement, albeit the ground on which the district court relied was different than the basis on which we affirm its ruling. Cf. PAAC v. Rizzo, 502 F.2d 306 (3d Cir.), cert. denied, 418 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804 (1975).

B

Belle also complains that the heroin was improperly seized from the Lincoln in that the seizure did not fall within any of the exceptions to the Fourth Amendment warrant requirement, and that as a consequence the district court erred in refusing to suppress the introduction of the heroin into evidence.¹⁹ We cannot agree.

Although the district court confined its analysis primarily to the plain view doctrine as espoused in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), we cannot help but observe that under Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968), as well as Coolidge v. New Hampshire, supra, the heroin was properly seized without a warrant.

Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968), states the long-settled rule that “objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” In Harris, a police officer had discovered the registration card which was sought to be suppressed not as the result of a search of the vehicle, but rather because he was complying with a valid regulation of the police department designed to protect automobiles and their contents when automobiles are taken into police custody. In implementing these protective measures, “[the police officer] . . saw the registration card, which lay face up on the metal stripping over which the door closes.” 390 U.S. at 235-36, 88 S.Ct. at 993. The Supreme Court held that the discovery of the card under these circumstances did not constitute an illegal search. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), decided by the Supreme Court subsequent to Harris, made explicit the requirement that the objects seen in plain view must be discovered through inadvertence. Coolidge v. New Hampshire, 403 U.S. at 469, 91 S.Ct. 2022.

Relying on the authority conferred upon police officers by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968),²⁰ the district court concluded that the officers were rightfully on the Buffalo Avenue premises, and further found that the discovery of the heroin was inadvertent²¹ Our review of the record reveals ample support for the district court’s conclusion and finding.

Moreover, although not necessary to its determination, the district court made additional findings substantiating its conclusion that exigent circumstances appeared which would authorize the warrantless seizure under Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). These findings were as follows:

Given the speed with which the events had unfolded to that point, it would have been highly impracticable to secure a warrant. Despite the fact that Munford and Belle had been detained, the agents were faced with the possibility that the suspected contraband, which was not only incriminating but which had a high dollar value, might be retrieved by someone else. The risk of interference was greater than if the Lincoln had been stopped on a highway. As the officers knew, Munford had driven to this residence and obviously felt it to be a safe place because he immediately began to take the heroin from beneath the Lincoln’s hood. The agents knew of the woman who had been observed with Belle at the motel. She had a car and had given some direction to Belle. For all the officers knew, there may have been a variety of confederates watching from the house or on call nearby, some or all of whom may have been armed.

Dist.Ct.Op. at 12-13. We cannot say these findings are clearly erroneous. Under either the plain view doctrine or the exigent circumstances analysis, the warrantless seizure of the heroin was justified. Belle’s motion to suppress was therefore properly denied.

IV.

We have determined that the district court did not transgress the Bruton rule and thus did not err in admitting Munford’s statements into evidence. We have also determined that the district court properly denied Belle’s motion to suppress his post-arrest statements and Belle’s motion to suppress the heroin.

Belle has contended on appeal before us that the district court should have granted his Rule 29 motion (for judgment of acquittal because of insufficient evidence); that it impermissibly summarized the evidence in a manner prejudicial to him (Belle); that the remarks of the United States Attorney in his closing argument denied Belle the constitutionally protected right to a fair trial; and that the district court erred in admitting into evidence the money found in the possession of O’Neill Roberts.²²

We have examined the record with respect to each of these contentions and find they are without merit.

V.

The judgment of the district court will be affirmed.

1 . We recognize the differences between the material revealed in the DEA reports and the observations of the agents at the hotel and the information they had garnered, i. e., O’Neil’s address, South Carolina Avenue rather than South Carmona Avenue; a difference in license plate number; a difference in car make, a Cadiliac rather than a Lincoln; and a difference in the location of the secret compartment built into the automobile. We do not regard these differences as significant in light of the overall circumstances which gave rise to the agents’ suspicions.

2 . The government sought to dispute Belle’s “story” and show its inherent improbability by introducing into evidence business records of the Hilton Inn and the Bell Telephone Company which revealed that a telephone call had been made from the hotel room of Munford and Belle to Roberts’ home telephone a short time after Munford and Belle checked into the Hilton. (N.T. 36, 41). Thus the government sought to show that Roberts was no stranger to Belle. In addition, Hobson’s testimony that Belle signalled from the Lincoln in the direction of Roberts’ vehicle tends to belie Belle’s statement to Wasyluk.

3 . Roberts was not indicted.

4 . A panel of this court affirmed Munford’s conviction by judgment order on May 30, 1978. Belle’s appeal, initially heard by the same panel of this court which affirmed Munford’s conviction, was ordered to be reheard by the court en banc on July 28, 1978. The original panel opinion was ordered vacated on the same date.

5 . We observe that Belle did not argue before the district court that his trial should be severed from Munford’s because of Munford’s statements despite his knowledge of those statements acquired at the suppression hearing. See n.9. Belle’s motion to sever was predicated on other grounds and he voluntarily withdrew his motion before selection of a jury.

6 . At the suppression hearing Hobson was cross-examined by Belle’s attorney and testified as follows:

QUESTION: Was Mr. Belle’s name mentioned at all in your discussion with Mr. Munford?

ANSWER: Yes, it was.

QUESTION: Did you ask Mr. Munford any questions about Mr. Belle?

ANSWER: No, he just stated that he and Mr. Belle came out from California. I recall that. Now, that may not have been his exact words but that’s what he inferred, the sense of his statement.

QUESTION: Did he tell you why they had come out from California?

ANSWER: Well, he came out to deliver the dope. They came out to deliver the dope.

QUESTION: All right. Now, you see, in your answer now you have given two different things. You said he and_

ANSWER: I will say they came out to deliver the heroin.

QUESTION: I don’t want you to tell me_

ANSWER: I thought you_

QUESTION: Well, you tell me what you remember him saying, not what you think you would like to testify to now, all right?

ANSWER: Certainly.

QUESTION: Good. Now, tell me what Mr. Munford said about them coming out from California or he coming out from California.

ANSWER: I recall Mr. Munford stating that he and Mr. Belle came out from California.

QUESTION: And what else?

ANSWER: And the purpose of the trip was to deliver the heroin at the Krispy Kreme Donut Shop between 8 and 8:30.

N.S.H. 289-90, Third Day.

It is highly significant that when Hobson testified at trial he eliminated all reference to Belle and to the fact that “they (Munford and Belle) came out [from California] to deliver the dope.” While these deletions from Munford’s statement (made to Hobson) would appear to be nothing less than a redaction, it is not necessary to our disposition that we regard Mun-ford’s statement as having been informally “redacted.”

7 . Since Munford made the admission while in custody, it was not made in the course of and in furtherance of the conspiracy. Hence it was not admissible against Belle under the co-conspirator exception to the hearsay rule.

8 . Belle’s attorney did not at this time renew his request for a limiting instruction or remind the court to give it.

9 . Belle also complains that Munford’s testimony concerning prior contact with Roberts was a surprise which prejudiced him. He states that he did not insist on a severance because prior to trial he received DEA Agent Kean’s report which noted that “Munford stated that he had delivered heroin on two occasions in the past to the Philadelphia area but declined to say who he had delivered it to”, but which contained no reference to Munford’s prior meetings with Roberts.

We are not impressed with Belle’s argument or his claimed prejudice. First, the report in question was prepared by Agent Kean, not Agent Hobson, and Hobson in his pretrial testimony stated that not everything he told Kean was placed in the report. N.T. 51, Second Day. Moreover, in his pretrial testimony Agent Hob-son testified that Munford had said that he (Munford) had met with Roberts twice in the past. N.S.H. 282, Third Day; N.T. 57, Second Day (statement by trial court as to its recollection and notes of Hobson’s pretrial testimony). Thus, Belle’s counsel was well aware before trial of the contents of Munford’s admission to Hobson, just as he had to have been alerted to the fact that Kean’s report was incomplete.

10 . See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). In Harrington a white defendant was tried with three black codefendants. The defendant had made statements placing him at the scene of the crime. The confession of a nontestifying codefendant, which did not name the defendant but which referred to the “white guy”, was admitted. The court assumed that this had the same effect as naming the defendant. The court nonetheless found the error to be harmless.

11 . However, compare Hobson’s trial testimony reproduced at pp. 7-8 supra, with his testimony at the suppression hearing at n.6, as effecting an informal redaction with respect to Belle’s identity and activities.

12 . In Bruton, one of the Court’s concerns was the unreliability of statements by a codefendant which tend to shift responsibility to an accomplice, especially when such evidence cannot be tested by cross-examination. 391 U.S. at 136, 88 S.Ct. 1620. In this case Munford’s statements in no way shift blame to Belle or to anyone else, and there is consequently no reason to suspect their reliability. Thus one of the principal concerns of the Court in Bruton is lacking in the situation presented by this case, where the codefendant’s statements do not directly implicate the defendant. See Nelson v. Follette, supra, 430 F.2d at 1059.

13 . It was of course necessary that the jury be instructed to consider Munford’s statement as evidence against Munford only, and not against Belle. We discern no prejudice that Belle suffered by the fact that such an instruction was not given at the end of Hobson’s testimony, but was rather given at the end of the testimony of the next Government witness (22 transcript pages later), especially since Belle’s attorney did not renew his request for a limiting instruction at the end of Hobson’s testimony.

14 . See also, United States v. Cutting, 552 F.2d 761, 763 (7th Cir.), cert. denied, 432 U.S. 909, 97 S.Ct. 2958, 53 L.Ed.2d 1083 (1977), (appellate court may review factual findings of trial judge and consistent portions of record in order to assess legal conclusion of probable cause), United States v. One Twin Engine Beech Airplane, 533 F.2d 1106, 1109 (9th Cir. 1976) (determination of probable cause is an application of a rule of law subject to independent appellate review while underlying findings of fact by trial judge entitled to deference).

15 . The collective knowledge of the investigating officers is measured in determining probable cause. See, e. g., United States v. Ashley, 569 F.2d 975, 983 (5th Cir. 1978), United States v. Woods, 544 F.2d 242, 260 (6th Cir. 1976), cert. denied, 429 U.S. 1062, 97 S.Ct. 787, 50 L.Ed.2d 778, 430 U.S. 969, 97 S.Ct. 1652, 52 L.Ed.2d 361, 431 U.S. 954, 97 S.Ct. 2675, 53 L.Ed.2d 270, reh. denied, 431 U.S. 960, 97 S.Ct. 2689, 53 L.Ed.2d 279 (1977), United States v. Canieso, 470 F.2d 1224, 1230 n. 7 (2d Cir. 1972), Williams v. United States, 113 U.S.App. D.C. 371, 372, 308 F.2d 326, 327 (1962), United States v. Bianco, 189 F.2d 716, 719 (3d Cir. 1951).

16 . The trial court found in the alternative that, if Spinelli and Aguilar were applicable, the reports and informants satisfied the requisite indicia of reliability. Trial court op. at 7 n. 3.

17 . The court in Lampkin stated:

There were far too many interrelated factors to have been the result of pure coincidence. First of all, the former undercover agent recognized one of the occupants of the car and associated the car itself with his previous undercover narcotics work. Other pertinent elements were that the auto was registered to one whose name had previously been linked with wrongful narcotics activities; that those activities seemed to center between Pittsburgh and New York; that this suspect’s flight was going to the New York area; and that he was interested in an immediate return. Appellant’s outward journey actually ended in Harlem in close proximity to a store run by a man already suspected of drug trafficking between New York and Pittsburgh, and a return flight to Pittsburgh took place early that same day. A further reason for the agent’s actions was the police report (which is now thought to have been seemingly erroneous) that there was a state warrant existing for Lampkin to whom the car was registered. Considering all these factors, it is obvious that each incident corroborated the existing belief of the agent. There were too many factors which “fell into place” and thus probable cause in such circumstances seems readily existent.

464 F.2d at 1096.

18 . Even if there had not been probable cause to arrest Belle at the Cadillac, any illegality in his arrest would be attenuated by the subsequent discovery of heroin and of the note from Edward O’Neil giving Munford and Belle permission to use his car. The district court had found that the seizure of the heroin was not the fruit of Belle’s arrest. Moreover, it will be recalled that Belle’s statement was not made until after the heroin seizure and the search of the Lincoln. Hence even if no probable cause existed prior to that time, independent probable cause existed to arrest Belle at that time and before any statements were made to the agents. United States ex rel. Wright v. Cuyler, 563 F.2d 627, 631 (3d Cir. 1977); Government of the Virgin Islands v. Gereau, 502 F.2d 914, 925 (3d Cir. 1974), cert. denied, 420 U.S. 909, 95 S.Ct. 829, 42 L.Ed.2d 839 (1975), 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976).

19 . Rakas v. Illinois, - U.S. -, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), was not decided until December 5, 1978, considerably after the panel and en banc arguments in this case. It is understandable, therefore, why neither party argued the issue of whether Belle had a constitutionally protectible “legitimate expectation of privacy” in the Lincoln and its contents. Rakas v. Illinois, - U.S. at---, 99 S.Ct. at 433. While we believe that in light of Rakas, Belle would be hard-pressed to sustain his argument, we need not decide the issue of whether a co-borrower of an automobile may have such a constitutional interest in the borrowed vehicle in view of our holding that the seizures did not violate any Fourth Amendment guaranty.

20 . The district court concluded that “Terry v. Ohio gives an officer the right to protect himself from possible attack, and for this reason, . Wasyluk was acting properly and had a legitimate reason for looking into the vehicle and, therefore, that the plain view doctrine justified the seizing of the heroin.” Dist.Ct.Op. at 11.

21 . With respect to the inadvertence of the discovery, the district court made the following findings, none of which are “clearly erroneous:”

Here, defendants argue that the discovery of the heroin in the open shopping bag was not inadvertent but the facts related convinced me to hold otherwise. Agent Wasyluk, who first saw the bag and its silver packets, had not observed Munford removing them from their hiding place. Rather, Wasyluk was one of the officers who had brought Belle back to Buffalo Avenue. On arrival, Wasyluk got out of the car and started down the drive toward Munford who was close to the Lincoln. Its door was open and Wasyluk looked into the vehicle to see if anyone was there. On the floor at the front of the passenger’s seat, he saw the open shopping bag and its contents. This occurred while Agent Kean was pursuing another suspect. When Kean returned, Wasyluk told him about the bag and its parcels and both men looked at them. Having seen these objects being pulled from the car by Munford, Agent Kean arrested him.

Dist.Ct.Op. at 10-11.

22 . The agents found $1300 in Roberts’ possession after transporting Roberts, Belle and the others to the stationhouse.