delay in arrest one factor to be considered
How later courts described this case
- delay in arrest one factor to be considered
- quantum of proof to be adduced on a summary proceeding to suppress evidence is not that required on trial of the issue of guilt or innocence
Written by the judges who cited it.
The opinion
SMITH, Circuit Judge
(concurring).
I concur in the result.
While reliance solely on the February 17 transaction may be open to question, at the time of DiCarlo’s arrest on May 24 sufficient grounds existed for a reasonable belief on the part of the agents that he was then engaged in a violation of the narcotics law.
In view of the earlier delivery of narcotics in a brown paper bag by DiCarlo to Davenport on February 17, the movements of DiCarlo to the apartment on February 17 and May 24 and Matilda Carlo on May 24, Matilda’s then delivery of narcotics to Davenport, and the presence of the brown paper bag with Di-Carlo in the kitchen, the agents had reasonable cause to believe that DiCarlo was engaged on May 24 in narcotics transactions and his arrest without warrant at that time may be justified and the searches and seizures upheld. There is of course, no issue here as to the legality of entry in the apartment.
It is not necessary to determine here, however, that the arrest may be justified as of one “who has committed such violation” solely by the knowledge of the February 17th transaction. Such a justification may be questionable in view of the failure, so far as the record discloses, to make any effort to obtain and serve a warrant in the period between February 17 and May 24. There was plenty of time to obtain a warrant of arrest in the more than three months intervening. While the language of the statute and the legislative history are not specific as to the time within which the stated officers are to act, arrest without warrant may well have been authorized by the Congress primarily in order to permit prompt action in a situation where abandonment of surveillance and delay while obtaining a warrant might cause escape or destruction of evidence. Even a warrant, obtained in obedience to the Constitutional requirements for warrants of arrest should be executed with reasonable promptness or it may become stale. United States v. Joines, 3 Cir., 1958, 258 F.2d 471 , Seymour v. United States, 85 U.S.App.D.C. 366 , 177 F.2d 732 . An exception by necessity carved out of the Constitutional requirement should not be allowed greater breadth. However, if the agents were reasonably justified in a belief that at the time of the arrest on May 24 or within a reasonable time prior thereto DiCarlo was engaged in a narcotics transaction, the arrest and the subsequent search of the bag must be held valid under the statute. .Here the agents were reasonably justified in such a belief that DiCarlo was on May 24 so engaged. The search of the brown paper bag was therefore reasonable, as was the following arrest of Carlo on his admission of ownership, and the further search thereafter authorized by Carlo.