Waterman, Friendly and Smith, Circuit Judges. Friendly, Circuit Judge (dissenting). J. Joseph Smith, Circuit Judge (dissenting). Waterman, Circuit Judge (dissenting).
J. JOSEPH SMITH, Circuit Judge:
Frank Soyka, convicted after trial to the jury in the United States District Court for the Southern District of New York, Richard H. Levet, Judge, of possession of illegally imported narcotics knowing it to have been illegally imported, in violation of 21 U.S.C. §§ 173 and 174, appeals. We find error in the denial of a motion to suppress evidence obtained in a search of Soyka's apartment, and reverse and remand for dismissal of the indictment.
Following his indictment and plea of not guilty, Soyka moved to suppress evidence against him. After an evidentiary hearing, Judge Bryan in a memorandum opinion denied Soyka's Rule 41(e) motion to suppress as evidence the heroin hydrochloride seized at the time of his arrest. The motion was renewed at the outset of trial and at the close of the evidence, and was denied each time.
Appellant contends that the evidence seized at the time of his arrest should have been suppressed; that there was no evidence that appellant was in possession of the heroin hydrochloride seized in his apartment at the time of his arrest and that the charge to the jury on that question was erroneous; and that his case was prejudiced by a suggestion made to the jury in the government's summation.
On June 17, 1965, Edward T. Guy, an agent of the Federal Bureau of Narcotics, received a telephone call at the Bureau's office. The caller told Agent Guy that Frank Soyka, residing at 264 West 19th Street in apartment 54, was obtaining large quantities of pure heroin and selling heroin in ounce and halfounce quantities out of his apartment. He described Soyka as a white male, approximately thirty years of age, approximately six feet tall, weighing 200 pounds, with a glass eye and usually wearing a black three-quarter length leather jacket. In addition, he described apartment 54 as being situated to the right of the stairway as one approaches the fifth floor of the building, and as having a peephole and crossbar lock on the door and "gates" on all of the windows. The caller also told Agent Guy that Soyka had previously been arrested for possession of a gun and for attempted armed robbery, and that he "had a narcotic charge"; and that Soyka's registered telephone number had been "disconnected," replaced by another number of which the caller was not aware.
Agent Guy recognized the voice of the caller on the basis of previous telephone conversations with him. He did not know the caller's name, however, for the caller had always refused to identify himself. Guy testified that he had called twelve to fifteen times, that on three occasions his information had led to arrests, that on other occasions the caller's information had proved to be accurate, and that of the three arrests, two had resulted in convictions.
After the call, Agent Guy ascertained that Soyka had been arrested on the three charges described by the caller, and that Soyka's phone had been changed to an unlisted number. Guy also obtained a photograph of Soyka, which he showed to his fellow agent, Francis E. Waters, with whom he had been conferring about the case.
On June 18, 1965, Guy received another call from the same informant, who stated that Soyka at that time had a quantity of heroin in the cabinet in his kitchen. Agent Waters, who was on an extension telephone, told Guy to ask the informant whether or not Soyka had a dog in his apartment; Guy asked that question, and the response (as testified to by Waters) was: "yes, he did have a dog, but it was very small and nothing to worry about."
About an hour after this second call Agents Guy and Waters, together with Detective Egan of the New York City Police Narcotics Squad, went to 264 West 19th Street for the avowed purpose of verifying the location and description of Soyka's apartment preparatory to getting a search warrant. As to the purpose of Detective Egan's presence, Guy testified on cross examination: "We just felt that search warrants were easier to obtain in New York State courts than in the federal court, so we called Detective Egan."
Guy, Waters and Egan entered the apartment building and walked up the stairs, Guy and Egan in the lead and Waters about half a flight of stairs behind. They intended to walk past apartment 54 to observe its layout, then to continue to the roof, from which they could determine whether or not the apartment's windows had bars as the informant had said.
As Waters approached the fifth floor, the door to apartment 54 opened and Soyka (who matched the informant's description and the photograph which the agents had obtained) stepped out. Waters testified at the hearing: "Soyka * * * and I stood there facing each other, separated by maybe twenty feet. He looked at me and then jumped back toward the inner recess of the apartment. At that moment I jumped toward him and identified myself. I said, 'I am a federal agent and you are under arrest.'" At the trial, Waters testified that Soyka "caused a startled, alarmed expression to come over his face."
Guy and Egan came back downstairs; the two agents and Egan accompanied Soyka to the interior of the apartment, where they found Mrs. Soyka, another woman, one or two children, and a dog. Waters began to search the kitchen, and found a tinfoil package containing 86% pure heroin inside a cabinet. At trial Waters testified that upon discovering the package, he said: "I've got it. Here it is. Let's give this place a real search now." Waters testified that Soyka then said: "That's it. You've got it. There's nothing else here. There's no sense in tearing the apartment apart." A further search was conducted, in which none of the usual items used in diluting heroin were found.
Appellant offered the testimony of his wife, a friend of theirs who was in the apartment at the time of the arrest, and his mother-in-law. Mrs. Soyka and her friend testified that the agents had pushed their way into the apartment with drawn guns. Mrs. Soyka testified that when Waters discovered the heroin and exclaimed that he had found it, her husband said nothing. Mrs. Soyka and her mother testified that Mrs. Soyka's brother had been staying in the Soyka apartment, and was an addict.
The only substantial issue on this appeal is whether or not the agents had reasonable grounds to believe that Soyka had violated or was violating the federal narcotics laws. If they had such reasonable grounds, they had authority under 26 U.S.C.A. § 7607 to arrest Soyka, and the accompanying search was lawful. This court has said that "In cases involving suspected narcotics violations, where evidence may easily and quickly be secreted or disposed of, the clear intendment of [this section] was to grant agents broad discretion in determining the appropriate time for arrest." United States v. Santiago, 327 F.2d 573, at 574 (2 Cir. 1964). Thus Agent Waters, faced with the choice of arresting Soyka or running the risk that he would destroy the evidence, was justified in arresting him immediately if he had reasonable grounds for arresting him at all.
The Supreme Court has said that "reasonable grounds" as used in 26 U.S.C.A. § 7607 and "probable cause" as used in the Fourth Amendment are "substantial equivalents of the same meaning." Draper v. United States, 358 U.S. 307, 310 n. 3, 79 S. Ct. 329, 331, 3 L. Ed. 2d 327 (1959). If there was no probable cause for the arrest, the search of the apartment was of course illegal and the evidence should have been suppressed.
The fundamental basis for any finding of probable cause in this case must be the information supplied by the agents' anonymous informer. In Aguilar v. State of Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), the Supreme Court held that for a search warrant to issue upon information supplied by an informer, the magistrate issuing the warrant must be informed (1) of some of the underlying circumstances from which the informant concluded that the evidence [in that case, as in this, narcotics] was where he claimed it was, and (2) of some of the underlying circumstances from which the police concluded that the informer was credible. For all that appears on this record, the agents and Detective Egan could not have constitutionally obtained a warrant for the search of Soyka's apartment, because they were not aware of the underlying circumstances from which their ...