Petition for Writ of Certiorari — North Carolina Natural Gas Corp. v. McJunkin Corp.

——

In the Supreme Court of the Huited States ©

i Ocropen Term, 1962)

James: Campy IrBy, PETITIONER

\ ; versus

UniTep STATES OF AMERICA, RESPONDENT

-

PETITION FOR A WRIT OF CERTIORARI. TO THE

UNITED STATES CIRCUIT COURT OF EALS

FOR THE FOURTH CIRCUIT

; (

A. ANDREW GIANGRECO-

120 South Royal Street

Alexandria, Virginia

Counsel for Petitioner

2

°

ae

; Opinion’ Below - «

\ Jurisdiction io

“One stions Presented, for Revie Ww =

Statute EE

7 Statement % Facts - =

‘Reasons for Granting the Writ ..

Conclusion Biel cong, Settvorse tod nme

Append’... Deke t eo ae

_ CITATIONS S

Cases: , oe

Chapman y.-U. &., 365, U. S. 610... ;

wnat v. U. s. 338 U. S. soa 69 S. Ct. 1302...

ile, U. s. (198) 333, U.S. 10.

McDonald v. U. S., 335 U.S. 451...

Trupiano v. U. S., 334 U. S. 699...

Wilson v; Schniettle, 365 _U. S. 382 * eo. ee

Wong Sun & James Wah Toy v. U. S., decided

March 10, 1961, 288 F. 2d 366...

___*__ Statutes:,—

‘

2

“INDEX.

Page .

5, 17,19

; Sections 104(a) of the Narcotic Control Act of 1956

70 ~~. 570, 26 U.S

"Miscellaneous:

~— FER. 2385, U. S. Code, iin & Adm. News 1956,

x. ¢. A. ‘Section 7607...

P. 3274 at P. 3283 ..

“ ei

>

in the Supreme Court of the Auited States

October TERM, 1962

No.

“)-

James ‘Campy Ins¥, PETITIONER

° | a ee ot

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS -

. FOR THE FOURTH CIRCUIT ©

bet .' P \ ; i: yy

x . / VA

Y

To the Honorable, the Chief Justices snd the

Associate Justices of the United States:

Petitioner prays that a Writ of Certiorari issue to review .

the judgment of the United States Circuit Court of Appeals

for the Fourth Circuit, entered in the. above entitled case

on May 22,1962. - ~ «-.

OPINION BEL( %

‘ The opinion. of the court below (Appendix, infra, pp.

s

2 ge

' JURISDICTION

- The. judgment of the Cireui Pourt of Appeals for the

Fourth Circuit was enteféd on May 22, 1962. The juris-

diction of this Court is invoked wider prov ision of Title 28

‘ _USE: Section 1254 (1). ‘

5 ee

ee

—_

QUEST IONS’ PRESENTED FOR REVIEW

1. Whether or notethe information of the Informer: was

reliable enough, to establish reasonable grounds or i.

=

. ° able cause’ .2

2. Whether under the provision a Title 28 U.S.C. Sec-

“tion 7607, narcotic agents are required to procure a‘ war-

rant when it is practicable for them to’do so. (Underline

ours )

- STATUTE INVOLVED

‘he relevant statute involved in this cause is the act of.

y 18,1956, Chapter 629, Title 104 (a), 70 Stat. 579,

‘ Colic) as Section 7607 of the Internal Revenue Code.

“ Sec.. 7607. “The Commissioner, Deputy Commis-

aS sioner, Assistant to the Commissioner, and agents, of

the Bureau of Narcotics of the Department. of ‘the.

Treasury, and officers of the customs, may—

‘ (2) make arrests without warrant for Giolation of

any law of the United States relating to narcotic drugs -

(as defined in Section 4731) or marihuana (as defined

ih Section 4761) where the violation is committed in

the-presence of the. person making the arrest or where

such person has reasonable grounds ta believe that

the person to be arrested has committed or is com-

* mitting such violation.

STATEMENT OF FACTS —

_ Following the denial of Petitioners motion, to suppress

the evidence, he was brought to trial for violation of

: ae Z

<

Title 26, Section 4704(a) of the Internal‘ Revenue Code,

-and Violation of Title 21, Section .174 U.S.C., found Guilty,

and sentenced to twerity (20) years: and One Thousand.

_ Dollars ($1,000.00) fine.on each count, to run concurrently. :

There is no dispute in the-fact that the defendant was

arrested without the aid of a warrant. .

“That prior to the 5ist day of Diarch 1961, agtif of the’

Federal Bureau of Narcotics had received information from

one, Worthington Albert Alston, (hereinafter referred to

as the informer,), that the petitioner was preparing to make

a purchaseof narcotics, (TR-72). There is little testimony

as to the exact time and date other than it was the middle

of March 1961, when the informer relayed this information

to the agents, however, the record reveals that the informer

had been indicted in the Southern District of .New York

and was a fugitive from justice; that-he had ‘also been

_indicted in the Eastern District of Virginia, in Alexandria,

. for violation of. Title 18 Section 287. of U.S.C. and was

awaiting trial; that on 25 Jan 1961, the informer was

“committed, on Motion by the Government, to custody of

the Attorney General’ of U.S. to be. examined as to his’

mental condition; that the Governments Motion indicates

that the informer was a pathological liar, anti-social, may

be insane, that he shot himself in the stomach, that he was

dismissed from the Army because of his anti-social attitude,

all .of- this information was readily accessable to ‘the

narcotic agents.

Petitioner, Irby, had been under ‘intermittent surveil-

lance since 1958 and has been-séen in the company of

narcotic violators. Irby, had been ‘convicted of violation

of the narcotic laws in 1945, and. had been sentenced to

imprisonment for a period of fifteen (15) months to four.

* $4) years, and fined Ten Dollars ($10. 00).

ae

4:

Upon information supplied by the. informer, Federal

Narcotic Agents Jearned that the petitioner, Irby, was pre-

paring to fly"to New York City, allegedly to make a pur-.

chase of narcotic. On 3).March 1961, at. approximately

‘10:00 A.M., several agents staked themselves out at the

Washington Nettional Airport, which is within the Eastern .

District of Virginia, and at approximately 10:05 A.M., the

agents observed the petitioner, Irby, ‘coming into’ the ter-

minal building and purchasing a rout -trip ticket to New. .

York City. At 10:20 A.M., the aircraft, which was boarded

by Irby, departed from Washington National Airport and .

. flew non-stop to LaGuardia Airport in New York City, At

11:08 A.M., of the same day, at New York City, narcotic

agents, who had also been staked out, observed the peti-

tioner, Irby, Eee from: the aircraft, and ‘surveilled him:

* from a dist |

~ Central Park W est, which was described as a building of

five or six stories. They saw him leave the place about

2:00 O'clock in the afternoon, but lost him and then picked °

ice, to an apartment house.-located at. 461

him up again at about 3:30 P.M. at the airport, and saw

hini beard a non-stop flight for Washington, D. C.

Following the departure | éf@he aircraft, the NewYork

‘Agents ‘telephoned this information to the Washingtori

Agents. The Aircraft left New York City at 4:05 P.M. and

arrived in Washington, sometime after 5 o'clock. As Irby

left the Washington Terminal and was in the motion of

hailing a cab, he was arrested by the agents, who found

the drugs upon his person, i.e. in the inside coat pocket of

the petitioner's jacket. The time of arrest was fixed at

5:58. P.M.

REASONS FOR GRANTING THE WRIT

. The opinion below is grounded upon the basis that since _

the information supplied by the informer tamed ¢ out to be

4

j

e*

ay . f . +" oe ‘( ee <- .

accurate, the information was reliable: This, it is respect:

fully submitted, is: contrary to the inferpretation iv Henry

vs. U.S, 361, U.S. 98, (Nov. 23, . 1908) P. 104, 5 Douglas

announced that:

“To repeat; an arrest isnot justified by what

dis subsequent search ‘discloses. Under our sys-

tem suspicion is not enough for an officer to lay.

hands on‘citizens. It is better, so the Fourth

_ Amendment teaches, that the guilty sometimes gb

free than that citizens be subject to easy arrest.’

“And with the finding in Wong Sun and James W ah Toy,

vs.. United States, decided March 10,1961, 288 F 2d, 366,

where narcotic agents arrested Toy solely upon the infor-

mation of a Chinese arrested several hours eatlier, that he

had purchased-narcotics from Toy. | -

The Court below seemingly idetinl the ergument of ©

the Petitioner that the reasonaklg grounds and probable

cause, if any existed, was based solely upon the informa-

_tion supplied by the informer, and no one would have sus-

pected. that Petitioner had committed a crime or was in

- ‘the process of committing a crime by merely looking. at

him. Upon Cross examination of Narcotic Agent,- John

E. Thompson - _(TR-64-65) the following testimony was

solicited: ° .

@ “Q. Ip other il there was nothing by bids

ing’ at the defendant that was indicative of the

fact that he had .committed a crime or was in the

process of committing a crime, was there?

Al Noss.” ~ ; os a

This testimony related to the petitioner's physical con-

dition just prior to his prrest, and upon his return to

Washington.

And upon cross examination of narcotic agent, Samuel —

J. Reed, similar {nfotmation was deveag (TR-28).

¢

(

\

Ss

“Q. Did you, Officer Reed; pitoae: anything s sus-

hicious about his demeanor at. the time that he made

his’ departure from Washington to New. York?

A. When he left?

_ Q. When* he left wat, any thing sus-

picious. looking about him |

a le eer a

Q. Nothing appeared to you to indicate that’

“he was, had committed a crime, or was in the

process of committing a crime? .

A. No Sir, he just looked like a normal average

person. |

"a Q.- Did he have the same appearance at the

7 _ time he arived ‘at-New York, coming back to

W ashington? caper ee

A. T would say so, yes sir.

- Q. Your arrest was made solely upon infotan-

tion that you had. beer given?

A: Yes sir. ‘

This testimony clearly shows that the ide information

for petitioner’s arrest was the information supplied by the

_ informer, who the record shows was a pathological liar, |

anti-social, maladjusted person, who was unable to adjust

himself to prevailing social standards and had been dis-

charged from the U.S. Army for unfitness and had inflicted :

‘gun shot wound upon himself with suicidal intent. The |

‘record also showed that: when the informer was called for

trial on September 11, 1961, upon‘an indictment, he did

not respond, and on October 19, 1961, his bail was for-

feited. All of these factors must give impetus to the fact ~~

that his information could not be -sufficient’ to support -

‘ reasonable grounds or probable cause as announced in

Draper vs. U.S. 338 U.S. 160, 69 S.Ct. 1302.

¢

s*

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s

Which they fad reasonable’ trustworthy information

are sufficient in themselves to warrant a man of rea-.

‘sonable cation in the belief that an offense has been

or is being committed.” .

To hold as the vat below did, that the information.

supplied by the informer was reliable merely. because. all

the events turned out to be accurate is contrary to Johnson

vs. U.S. (1948) 333 U.S. 10. :

“Information obtained by’ an informer though perti-

- nent, does not necessarily establish ‘probable cause or

: reasonable. ground.”

}

\The case at bar is indeed distinguishable from Draper

supra: It will be recalled that in Draper the arresting”

officer has no knowledge -of- what the defendant looked

like, other than a mere physical description given by an

informer. In the case at bar, the petitioner was well known,

to the narcotic agents, by name as well .as by sight, his

every move on the day in question from 10:00 A.M. in the,

morning until his apprehension at 6:00 P.M. was also

known by the agents. Yet, the governments contention is:

that 7607 gives these agents carte blanc authority to arrest

without warrant even when it is pracgicable: for them to

procure one, even though upon argument at the Court

below: the Government agreed with the Coart and Peti-

tioner that a committing magistrate was precisely ten ( sd

minutes from the W ashington airport.

There is. one of, two reasons why the agents did not

\ \ procure a warrant ‘ot ‘arrest in the’ instant case:

doubt.

(b) Inconvenience to the officer in procuring. a

warrant.

“Probable cause exists when the facts and circum-.

stances within the arresting officers knowledge and of .

(a) The trustworthiness. of the informer ‘was in

oe es,

Zz, Douglas dissenting in W ilson vs. ‘Sclmiettle, 365 ©S.

382, stated:

“that a search, otherwise legal, may be illegal aaa

for failure.to apply to a magistrate for a warrant.

as Was expressed in-Trupiano vs. U.S. 334 U.S.

‘699, and McDonald vs. U.S. 335 U.S. 451. We

stated that seatch warrants are io be obtained |

and used wherever reasonably practicable.” . , ~

~“( Underscore ours ). See ~

We have seen from the record that the ey oe, S back-

ground is such as to cast doubt on his information. Now.

we learn that the agents. have eliminated the thought of

procuring warrants even when practical to do so, under

the mistaken belief that 7607 cancels out that necessity,

usitig Draper as authority. In other words,.the Govern-

ment, the Chief proponent of 7607, now takes the unalter- —

able position that whether it is practicable to do so, or not,

warrants of arrests are .zinnecessary. Whereas in fact,

. when-argument was advanced before. congressional ‘com-

mittee for the enactment of 7607, this general statement

appears in H.R. 2388, U.S. Code, Cane & Adm. News

1956, p. 3274 at p. 3283. -

> “

. The enforcement officers hie been re-

: quired to sectire an arrest warrant or a search -

warrant, even though circurhstances indicate the.

impracticability of such a procedure. The delay

involved in obtaining a warrant permits the de-

struction or removal of the narcotic evidence and

allows:the narcotic traffickers to escape prosecu- »

tion for. their*crime.

It appears therefore that the Government, who sought

relief té cure situations where it became impracticable to

procure a warrant. would ‘now stretch 7607 to such a degree

as to eliminate the necessity of the compliance wit the

Fourth Amendment.

~

~

9

‘ The constitutional right of citizens ‘to be ‘protected

against search and seizure has deep roots as discussed in

~ detail by J. Douglas.in Henry vs. U.S. supra. Surely the

Congressional intent was not such as to eliminate the

required warrant in every instance. :

True, that in Spraper, a warrant could not have been

procured because of insufficient information, however, in

the instant case, the agents had abundant opportunity. to

obtain a warrant /gnd to proceed in an orderly mamuer.

Johnson vs. U.S. 383 U. 5. 10, Chapman vs. - ‘S. 365 US.

on. =~

Moreover, as succinctly: pointed out by this Court in, the

Chapman supra, (citing Johnson supra), J. Wittaker. in

reversing the judgnient of the Circuit Court, announced:

“The point of the Fourth Amendment which

often is not that it denies law enforcement the

support.of the usual inferences which reasonable

men draw from evidence. Its protection Consists

iit requiring that those inferences be drawn by a

neutral and detached magistrate instcad*of being _

judged by the officer engaged in. the often com-

petitive enterprise of ferreting out crime.’

It is the contention of the petitioner that the congres-

sional intent did Hot anticipate or contemplate abolition of |

warrants by;the enactment of 7607 so as to circumvent the

Fourth Amendment of the Constitutton or that in the inter-

pretation of Draper supra this Court’ sanctioned arrest

without warrants under 7607 in all cases.

so aceasta

For the foregoing reasons, this petition for a writ of |

_cettiorari should be granted.

Respectfully submitted.: :

ie : A. ANDREW GIANGRECO

. Attorney for Petitioner

~~

—

.

10

CERTIF ICATE

This is to certify that copies of this Petition have been

served on counsel for respondent, C. V. Spratley, Jr., United

_ States Attorney for the Eastern District of Virginia, at Post

Office Building, Alexandria, Virginia, and Archibald Cox,

~*~. Solicitor General, Department of Justice, Washington,

D: C. by placing ~~ same in the United States Mail, post-

age prepaid on the @..... day rot June, 1962.

APPENDIX

United States Court of Apptals for the Fourth Circuit

No. SASS

Unitep States OF AMERICA, APPELLEE:

versus

James Campy IkBy, apPELLANT

APPEAL FROM-THE UNitep Starrs Districr Counr ror “itt

Eastern District oF. Virginia, At ALEX ANDHIY.

Oren R. Lewis, Disrricr Juvce.

(Argued March 20, 1962. e Decided “May 22, 1963. )°

Before Soren, Haynswontn and J. Spencer Beit, Circnit

Judges. oe: mena Tite. £ oA

“A. Andrew Giangr&o: for Appellant, and’Plato Cacheris.

Assistant ‘United States “Attorney, (C. V. Spratley, Jf,

United States Attorney, on brief)‘ for Appellee.”

Soper, Circuit Judger> ws

James Campy Irby appeals from a judgment of the Dis- :

trist Court rendered on October 6, 1961 whereby he was |

sentencéd to a fine and imprisonment for Violation of the

Federal Narcotic Acts after he had been found guilty as

- charged in two counts of an indictment. The figst. count

charged that on March 31, 1961, at the Washingion Na-.

tional “Airport, in-vidlation of 21 U.S.C. Section 174, Irby’

11

_

-. ment for t

~ - $10.00.

12

received, concealed-and transported 11.7 ounces of Heroin

_ knowing that the drug had been imported into-the United

States contrary to law. The sccond: count charged that on *

March 31, 1961, in violation of Section 4704(a) of the |

> Internal Revenue Code, he had purchased, sold and dis-

tributed*}1.7 ounces’ of herdjn which was lot in the original

‘ stamped package. On each count he was sentenced as a

second offender to imprisonment for a period of 20 years .

_and fined $1000, the sentences to run concurrently. Infor-

"mation furnished to the court| pursuant to Section 7237(¢):

- defendant, '

of the Internal Revenue Code showed that ti

on. May 16, 1946, had pleaded guilty to the violation?

21 U.S.C. Secfton 174, and had been sentenced-to imprison-

» period of 15 months to 4 years and fined

—_

—_—

. Irby was arvested-oai-March 51. 1961 at the. W ashinigton

- National Airport by Federal Narcotic Agents stationed in

Washington, w tho acted without a warrant of arrest upow

_ information’ furnished them by Federal Narcotic Agents

stationed ' in. New York. He was searched and 10 packets

‘of heroin were found upon his person. Fhis evidence was

used against him at the trial. Rev ersal f the judgment is

sought on the ground that the eyflence was<obtained |

through an illegal arrest and searct of the person without

a warrant of arrest and without probable cause. Prior to

the trial the defendant moved the court to suppress the

evidence on this account but the notion was over-ruled.

The correctness of this ruling is the subject: of this appeal.

Authority to make arrests without_a warrant for viola-

tion of ariy law of the United States relating. to. narcotic

drugs was conferred upon the. agents of the Bureau of

Narcotics, of the Department of the Treasury, by the Act

of July 18, 1956, Chapter 629, Title 104(a), 70 Stat.

579, codified. as Section 7607 of the Internal Revenue Code-— _

&

1B

It provides that steh agents may “make arrests without

warrant lorsviol: itions of any law of the United States

relating to “narcotic drugs © where the violation is

comnitted in the presence of the persou iaaking the arrest

-or where such person has reiwondble grounds to belies.

that the person to be arrested has comumtited or js can,

mitting such violation fience. the question for decision

on this appeal is whether the District Jude was justified

in finding that the agents in this case. at the’ time _ the

arrest. had re At mable grounds to believe that he had* COM

mitted or was) committing a’ violation ob the a

‘statutes. The evidence prescuted to the Judge om this

<

point may be summarized as follows. ft

The. \ ashington- agents had knowldee of Irby < prio

conviction for vinlafing t the Narcotic Set ee and

they had had hint under interinitent SUNN Ci !

1958, and had sof lim in contact with oth: + ‘ “iol: tlors of

the narcotic statutes ut various Lines! most rece nth, within

a month of the date of his arrest. In March 1961. prior to

the afrest, narcotic agents stationed in New York recut ed

information about Irby trom one Worthingiou” Alber:

Alston who had prev iously sold warcetic drags 46 an under-

cover Federal agent and had thereatter become a special

employ ee of the Narcotics Burean as finn unpaid infornrer.

The information related to Irhy's activities in dealing with

narcotics and specifically to. trip which Irby was to make

from W Ph to. New York by air on* March 31 in

order to get narcotics and return with them to W ashing:

ton. On March 30 the New York agents. communicated

with the Wasltington agents and told them of.the planned

_journey and that Irby would leave the Washington air-

port on the morning of March 31 by plane of American

Airlines due to arrive at- New York at.11:45 AM. As a

“Yesult of this information ihe Washington ‘agents: were

"

.*

CO see

een.

' States. This r

States and (f- Alston's attorney filed in this casein Janu- .

14

awaiting “Irby at the airport and saw him purchase a-

round- -wip ticket to New ys on the flight predic ted,

‘under the assumed name of “C. Green”. and take’ the

~. plane. .The time of his return aa oy be determined

*as Irby had not made a return reservation. The Wash-

ington agents then telephoned this — to the office

of the narcoties agents in New York tgents from the New

York office met the plane upon its arrival at the LaGuardia

Airport in New York City and followed Irby to 461 Central

Park West in New York City, which was known to them

as a plage where many. violators arid suspected violators

of the Aarcotic laws were acctsstomed to meet. They saw®

himfeave the place about 2 o'clock in the afternoon but

Jost him and then picked him‘up again at about 3:30 P.M.

at the Airport and saw him-board a plane for Washington,

D. C. They telephoned this information to the Washington

agents arma ee as upon its arrival in Washington

and arrested Irby and foind the drugs upon his person as

above set out. -

Evidence ~of these -facts was presented to the District

Judge at the hearing of the motion to suppress the evi-

dence. In‘addition, he was shown the record of his court.

. in a criminal case ip Which Alston -had beer indicted in

December 1960 for making a false claim against the United

rd showed that on motions of the United

ary 1961 Aton was committed to the St. Elizabeth's Hés-

pital-nthe District of Columbia to be examiried in respect

to his mental competency on the ground that he was a

‘pathological liar and an anti-social maladjusted person who

was unable to adjust himself to prevailing social standards

and had been discharged from the United States Army for

unfitness and had inflicted a gun shot wound upon himself

with suicidal intent. A report of the superintendent of the

|

15 | et ae

hospital, under date of March 15. 1961, showed that after

intensive study of the case by the psychiatric staff of the -

hospital, it was concluded that Alston was mentally com-

petent to understand the proceedings against him and to

assist properly in his own case. The record inj the case also

showed that when Alston was called for trial on Septem-

her 11,1961, he did not respoiid: and on October 19, 196]

his bail was forfeited.

It is the contention of the defetidant that upon this

testimony the District Judge should. have granted’ the

motion to suppress the evidence gained by the arrest on

the ground that the information upot which the agents

3 in making the arrest was unreliable and unworthy

of Aelief because it was obtained solely from Alston who

as known to be mentally sick as well as 4 pathological

‘liar. Our examination of the testimony leads us to a differ-

“ent conclusion. It was known to the agents-in Washington

that Irby had a criminal record in the narcotic field and

had been consorting with violators of the Narcotic Acts,

and hence, when they received information of his impend-

ing trip to New York, it’ was proper and natural that they

should inv estigate. it was. known at the same’ time to the.

New York agents’ that Alston had contacts with the illicit -

trade and had been given informal employment as a spe-

cial employee or informer to assist in the enforcement of

the statutes. It.was reasonable and proper, therefore, that

they should pass on- to the Washington agents the infor-

mation acquired with respect to Irby’s trip and that they

should cooperate in the investigation by following Irby

when he arrived in the city.. Moreover, it was ascertained |

before the arrest .was ‘made that the specific information

given by Alstof as to Irby’s trip to New York and return,

was entirely accurate since Irby did go by air to New

York on the very flight Yeported and visit a place with an

16 -

unsavory reputation as a hang-out for narcotic violators,

and did return to Washington the same | day as had been

foretold. In addition, he made the trip ‘under an assumed

name. Obv iously, there-was not only ample ground for

‘the judge- to conclude that the. agents had reasonable

grounds to believe that Irby was committing .a violation

~ of the law but it is i see how any other decision

‘could have been made. At is of little moment that Alston

was shown to be a man of unstable character and credi-

‘bility. It is from persOns of this type rather than from the

law-abiding that information as to the vidlation of the law

is likely to be obtained, and in this instance’the information

was tested and/found to be cortect in’ important details :

before the arrest was made.

The case at bar in general outline is not unlike that con-

sidered in Draper v. United States,.358 Us S. 307, where

a possessor of narcotic drugs was arrested and searched -

sain a warrant by narcotic agents when’ he alighted

from a railroad train, as had been foretold by\a special

employee or infgrmer of the Bureau of Narcotics, whose

previous glace been found to. be accurate and reli-

able. Quoting the provision of 28 U.S.C., Section 7607, —

which authorizes narcotic agents to make arrests. without ~

warrant if they have reasonable grounds to believe that the

person to be arrested has committed or is committing a -

violation of the Nartic Laws, the court pointed out: that

“reasonable g grounds” in the statute has the same meaning

as “probable cause” in the Fourth’ Am@tidment, and sus-.

tained the arrest. It held that the agents had the right to

, Tely upon the hearsay information furnished by th in-

former, who had been previously found’ to be ‘reliable,

especially as in pursuing the information furnished in the -

particular instance they spied a man, who corresponded

in appearance to the informer’s description, alight from a

-

17

train at the place the informer had foretold. “Stating the

rule to be applied in such cases the court said, page 313:

i dealing’ with probable cause,:: . . as the very7-

name implies, we deal with probabilities. ‘These are.

not technical; they. are thé factual and practical con-.

siderations of everyday life on, which reasonable and

° prudent men, uot legal techni¢ians, act.’ Brinegar v.

United States, supra,at 175. ‘Probable cause exists

where ‘the facts and circumstances within (the arrest-

~ ing officers | knowledge and of which they had reason

ably trustworthly information [are] sufficient in them-

-selves to warrant a man of réasonable caution in the

belief that’ an offense has heen or is-being committed.

Carroll v. United States, 267 ©.S. 132, 162.”

In the case at bar there was no explicit testimony that’

the information previously furnished by the ‘special em-

ployee had proved to be accurate, but the-agents hag used»

the man previously and obviously had enough faith in him

to put his lead as to Irby ta the test, and since his informa-

tion proved correct in essential details, its reliability was

established before the arrest was made. . -

The additional contention is made, seemingly based on:

Trupiano y. United States, 334 U.S. 699, that the arrest

and search of Irby were illegal since the agents had ample

time to secure a, warrant ot arrest but failed to do so. This °

contention cannot be: sustained. Narcotie agents, as we

have seen, are clothed by Section 7607 LR.C. with general .

authority to make arrests without warrant upon’ probable

cause. See Miller v. United States, 362 U.S. 301, °305,.

Note 4. The authority is similar to-that conferred «upon

awents of the Federal Bureau of. Investigation of the

Department-of Justice, and other government officers, by.

18 US.C., Sections 3052 and’ 3053. The Fourth Amend-

ment does not require arresting officers clothed with such

18

authority to procure. a warrant of arrest, even if it, is

practicable for them to do. so, but they may act without a

warrant if. they have. reasonable grounds to believe that a

felony has been committed or is being ¢ommitted.

Reliance on Trupiano is misplaced. In that casé it was

held that Federal agents who detected a man operating an

illict still were not justified in seizing contrabas{_artieles

on the premises where the arrest was:made without a

search warrant which they had had ample opportunity to

obtain. In, the course of the opinion, however, it was said,

334 U. S. 699; 705, that the’ arrest of the operator of the

still was valid and that the absence of a-wWarrant of airest,-’

even though there was sufficient time: to obtain one, did

not destroy its validity. Subsequently, in United. States v.

Rabinowitz the limitation set forth in Trupiano on the right

of arresting agents to seize contraband property in the

course of a lawful arrest. was withdrawn., It was stated,

339 U.S. 60, that an arrest is valid even without a valid .

warrant if the arresting officers: have reasonable grounds

to believe that a felony is being comrhitted in their pres-

ence, and it was further held that the validity of a search

in connection with an arrest without a warrant, is not ,

‘dependent solely upon the practicability of procurifig a

_ Warrant in advance. The court said, 339 U.S. 65:

“It is appropriate. to note that the Constitution does

not say that the right’ of the-people to: be séture in

their persons should not be violated without a search

warrant if it is practicable for the officers to procure

one: The mandate of the Fourth Amendment is that

the people shall be secure, against - unreasonable

searches. It is not disputed that there may be reason-

able séarches, incident to an arrest, witliott a search

warrant. Upon acceptance’ of this established ‘rule

- that some authority to search follows from lawfully

‘taking the person into-custody; it becomes apparent

“4

19. .

that such searches:turn upon the reasonableness under

all the cireumstances and not upon the practicability

of procuring a search warrant, for the warrant is not °

_ required. To tlie extent that Trupiano v. United States,

334_:U.S. 699, Pauires a search warrant solely upon

the basis of the practicability of procuring it rather

‘than upon the reasonableness of the search after, a

-lawful arrest, that case is overruled. The relevant test-——- =~

‘is not whether -it is reasonable to procure-a-search .

warrant, bit- whether the-search was reasonable, Thiat

- criterion in turn depends upon the facts and circume<~«

- stances—the total atmosphere of the Gise. Tt ts a-suffi- -

_wient precagtion that law officers must ‘justify their

conduct before courts which have always been, and

must be, jealous of the individual's right of privacy”

within the* broad sweep of the Fourth Amendment.”

The jtidgrhent of the District Court is affirmed.

ie y j “ Affirméd.. :

J. Svencen BEL, Circuit Judge, Concurring Specially:

On the authority of Draper v. United States, 358 U.S.

307, whose facts are indistinguishable from, this case, |

concur in. the result.’ . | \¥\

However, (I do not wish to associate myself with the

unqualified statement in. the opinion that officers are not

required to procure a warrant, even when it is practicable

for them to do so, but may arrest and search without a

warrant upon reasonable grounds to helieve that a felony .°.

has been committed, as well as when one is being com-. ~ * eo

mitted in their presence. This broad ‘statement is highly —

debatable and is not required for the decision of the case.

Also, T would omit the discussion of the Trupiano aud

. /

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~~ “f / 90

Rabinowitz aS just -as the Supreme Cc ourt found a dis-

cussidn. of them. unnecessary in ‘its opinion | in “Draper.

Moreover; the effect of Rabinowitz on Trupiano has ,cer-

~ tainly been modified, in some cir umstances, by the more

recent case of Chapman v. Unita States, 365 U.S. 610. 1

' would leave the taal of the ultimate rule to await

a Case re iring i - faa

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