(D.C. Criminal No. 72-81). APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA.
Rosenn, Hunter, Circuit Judges, and Bechtle, District Judge.
Appellant stands convicted of possession of a controlled substance, cocaine residue, in violation of 21 U.S.C. § 844. A verdict of guilty was returned by a jury on September 29, 1972. After a motion for a new trial was denied, appellant was sentenced to term of one year and fined $4,000. This appeal followed. For purposes of this appeal, the operative facts are as follows:
Upon information provided by informants, whose information had proved reliable in the past, and also surveillance by agents of the New York and Pittsburgh Offices of the Bureau of Narcotics and Dangerous Drugs ("BNDD"), appellant Harris was known to be a large-scale narcotics trafficker with a prime source of supply in New York City.*fn1
As a result of information accumulated by agents of the BNDD, a pattern of travel on the part of Harris was established. Approximately every two weeks, appellant would travel to New York City; and within several days following his return to Pittsburgh, his home base, a courier would arrive at Pittsburgh with a supply of narcotics. On December 3, 1971, while under surveillance by the BNDD, Harris boarded a flight from the Pittsburgh Airport, leaving his car at the place of departure. On December 6, 1971, upon receipt of information that appellant had returned at the Pittsburgh Airport, surveillance by BNDD agents was continued.
At approximately 8:00 p.m., on Saturday night, December 11, 1971, appellant was observed sitting in his car at a Boron service station with one Bruce Wander. At that time, the BNDD agents were aware of Wander's involvement with Harris in narcotics activities. When Harris observed the agents, he executed an illegal turn from the service station and eluded the surveillance team.
The following morning, Sunday, December 12, 1971, at approximately 6:00 a.m., appellant was seen again, this time leaving his car and entering his residence with two females. While a surveillance plan was being prepared, the Harris vehicle left the residence unnoticed by the agents. Shortly after 6:30 a.m., Harris' position was again located. He was driving his car with three unidentified persons on Penn Avenue in Wilkinsburg. Realizing he had been recognized by a narcotics agent that knew him, appellant accelerated his vehicle and made a quick right-hand turn onto a cross street. He was recognized a second time and accelerated and turned off to a cross street. Several minutes later, Bruce Wander was observed walking in an alleyway located behind the service station in which the two men had been observed the previous night. Wander entered his car, drove into the intersection of Swissvale and Penn Avenues in what appeared to be a confused state, made a hurried turnabout, and proceeded illegally through two traffic lights. As the Wander vehicle drove north on Swissvale Avenue, appellant drove south on Swissvale flashing his headlights on and off and blowing his horn. Wander was traveling approximately 45 miles an hour and made a hard turn onto a side street. Harris then turned his vehicle around and attempted to follow the Wander car. Special Agent Edward H. Sheid of the BNDD, who was in charge of the surveillance team, gave instructions to stop the vehicles, and Harris and the other occupants of the car were arrested. Richard C. Weatherbee, another of the arresting officers, testified that when Harris got out of his car and when he was within one foot of Harris he saw white powder around a nostril of Harris' nose. Government witness Robert Lumsden, a BNDD agent, schooled and trained in pharmacy and the identification and properties of drugs, testified that cocaine is commonly used by "snorting it" by sniffing it from a small spoon. A Government chemist testified that the spoon seized in the car Harris was driving contained a residue of cocaine. A Pittsburgh jewelry retailer was called by the Government, and he testified that the spoon had been sold by him and, while he could not identify Harris as the person who bought that very spoon, he did identify Harris as a person who had visited his store and purchased spoons just like the one that was seized.
Appellant's initial contention on appeal is that the facts of this particular case preclude a finding of sufficient probable cause to make a warrantless arrest. Title 26, U.S.C. § 7607, in effect at the time of appellant's arrest, specifically authorized a warrantless arrest by narcotics agents when an offense is being committed in their presence or when the agents have reasonable grounds to believe that the person to be arrested has or is committing a violation relating to narcotic laws.*fn2
Although 26 U.S.C. § 7607(2) spoke in terms of "reasonable grounds" rather than the traditional formulation of probable cause, the two standards have been held substantially equivalent. Draper v. United States, 358 U.S. 307, 310 n.3, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959); United States v. Davis, 461 F.2d 1026 (3rd Cir. 1972). Therefore, the traditional Fourth Amendment test applies even to arrests conducted under the authority of the foregoing section.
Probable cause to make an arrest varies with the circumstances and must be founded on facts sufficient in themselves. United States v. Lampkin, 464 F.2d 1093 (3rd Cir. 1972). The court in Lampkin, at 1095, reaffirmed the well-established constitutional precept initially enunciated in Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 225, 13 L. Ed. 2d 142 (1964), that in passing on a warrantless search a court must determine whether "at the moment the arrest was made, the officers had probable cause to make it -- whether at that moment, the facts and circumstances within their knowledge and of which they had reasonably trustworthy information, were sufficient to warrant a prudent man in believing that the petitioner had been or was committing an offense."
It is, therefore, the function of this Court to examine the totality of circumstances -- the knowledge and information which the officers possessed at the time of arrest, coupled with the factual occurrences immediately precipitating the arrest of the appellant -- to determine if the constitutional standard of probable cause was met.
Prior to the appellant's arrest, he was under surveillance by agents of the BNDD. Through information received from reliable informants and surveillance conducted by the Federal agents, appellant Harris was known to be a relatively large dealer of narcotics in the Pittsburgh area. The agents of the BNDD were aware of appellant's pattern of travel to and from the Pittsburgh Airport and were even cognizant of the details relating to the ...