Before Lumbard, Chief Judge, Smith, Circuit Judge, and Bryan, District Judge.
FREDERICK van PELT BRYAN, District Judge.
On June 11, 1963 appellant Rivera was convicted on a two count indictment after trial to the court without a jury in the United States District Court for the Southern District of New York. The first count charged possession of cocaine in violation of 21 U.S.C. § 173, and the second, possession of marijuana in violation of 21 U.S.C. § 176a. Rivera was sentenced to five years on each count, the sentences to run concurrently. He now appeals from the judgment of conviction.
The questions raised on the appeal relate solely to the denial of a motion by Rivera to suppress, and the admission at the trial, over objection, of evidence consisting of cocaine in a glassine envelope taken from Rivera's person at the time of his arrest and marijuana in a paper bag taken from his apartment shortly thereafter. The arrest was made by federal narcotics agents acting without a warrant. Rivera contends that the arrest was without probable cause and that the evidence which he moved to suppress was therefore seized in violation of his rights under the Fourth Amendment.
When the case was assigned to Judge Tyler for trial he first heard Rivera's motion to suppress. At the hearing on the motion Kreppein, one of the arresting agents, was the only witness. He testified in substance as follows:
Rivera was arrested by Kreppein and his partner, Agent Bailey, without a warrant at 3 a.m. on March 1, 1963 as he drove his Buick out of the Sinclair Garage on 173rd Street near Longfellow Avenue in the Bronx.
Rivera had been under observation by the agents for at least a month. On January 29, 1963 Kreppein, Bailey and other agents, had observed him in the company of a known interstate trafficker in narcotics. The next morning Bailey showed Kreppein a memorandum from Agents Wurms and Thompson of the Washington office of the Bureau of Narcotics dated January 20, 1963 relating to their investigation concerning one Warren Dora Miller. The memorandum stated that the Washington agents had received information from a confidential source that on January 13, 1963 Miller and a man named Mario had brought a large quantity of narcotics from New York to Washington in Mario's new Buick, which had been delivered to one Black Sammy; that Mario had returned to New York on January 15 in the Buick; and that Miller was a bartender at the Black Orchid Bar in New York where Mario "hangs out." There followed a full physical description of Mario. Bailey advised Kreppein that, as a result of investigation, he had determined that Mario was Mario Rivera, the appellant.
On that day Kreppein and Bailey began to work together as partners. Kreppein had Rivera under surveillance on six separate occasions thereafter before the night of the arrest. On the first occasion, on February 4, 1963, Kreppein observed Rivera leave the Black Orchid Bar and drive off in a black and white 1962 Buick Wildcat bearing New Jersey plates. The car was registered in Rivera's name at his wife's address in Bridgeton, New Jersey. On another occasion both agents observed Rivera meet one Huff, another known narcotics violator.
During the course of their surveillance the agents observed that Rivera's activities were restricted to the hours of the late night and early morning and that he drove his Buick with great circumspection and in a way which indicated plainly concern about being tailed.
The agents ascertained that Rivera lived in an apartment house at 1554 Longfellow Avenue in the Bronx. They learned that he had an unlisted telephone number and that he did not respond to telephone calls. Rivera did answer his telephone, however, when Bailey used a code of telephone rings to which he had been advised Rivera responded.
About 8 p.m. on February 28, 1963, the night of the arrest, Bailey called Kreppein and asked Kreppein to join him. When Kreppein did so Bailey told him that he had received word from a reliable informant that Rivera was going to make delivery of narcotics that night. The agents went directly to Rivera's apartment house where they arrived about 9 p.m. They found that the lights in his apartment were on. After locating Rivera's Buick in the Sinclair garage nearby, they kept the entrance to the apartment house under surveillance until 3 a.m. the following morning. Rivera then emerged from the apartment house and walked to the garage. As he drove his Buick out of the garage he was arrested by the agents.
Agent Bailey asked Rivera where he had the cocaine and Rivera replied that he had cocaine in his short pocket and marijuana cigarettes in his coat pocket. The agents removed the cocaine and two marijuana cigarettes from Rivera's person. They then asked him whether he had more narcotics and Rivera answered that he had marijuana in his apartment. The agents told him that, in that event, they would have to get a search warrant in order to search the apartment. However, Rivera stated that this was not necessary and that he would take them to his apartment to get the marijuana. He did so and opened the door to the apartment with his own keys. Agent Kreppein found and seized a brown paper bag on a table in the living room with loose marijuana in it.
At the conclusion of Kreppein's testimony both sides rested. There was no denial of his account of what had occurred. Though Agent Bailey was also available to testify, neither side called him. Judge Tyler found that there was probable cause for the arrest and that Rivera had voluntarily admitted the agents to his apartment. He denied the motion to suppress in all respects.*fn1
At the trial before Judge Tyler which immediately followed, appellant renewed his motions to suppress the seized narcotics. They were again denied and the cocaine and marijuana which had been seized were admitted in evidence over objection. Both sides rested on the conclusion of the ...