ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before: Adams, Gibbons and Garth, Circuit Judges
Donald E. Belle appeals from a judgment of sentence following a jury verdict finding him guilty of violating 21 U.S.C. §§ 841 (a)(1) and 846. He asserts six grounds for reversing the judgment or for granting him a new trial, including: (1) that the district court erred in admitting evidence which was the fruit of an illegal arrest, and(2) that the admission of a statement of a co-defendant who did not take the stand violated the rule of Bruton v. United States, 391 U.S. 123 (1968). Although we rejec the appellant's other contentions, we find merit in these two. Thus, we vacate the judgment and remand for a new trial.
The circumstances of Belle's apprehension by the government agents are set out in great detail in the government's brief. With the exception of footnotes and transcript references, we quote directly from that brief.
On April 30, 1976, at approximately 3:00 p.m., Agent Walter Wasyluk, Bureau of Alcohol, Tobacco and Firearms, was at the Hilton Inn Hotel in Trevose, Pennsylvania, on government business unrelated to this case. While in the parking lot, Agent Wasyluk observed the appellant Donald Belle and Joe C. Munford, appellant in No. 77-1902, seated in a late model white Lincoln Continental Mark IV, California license no. 727MPH. Agent Wasyluk then observed Munford approach the front desk and overheard him request a suite.When Munford was told that no suites were available, Agent Wasyluk overheard him rent a room with two beds in it. A short while later, Agent Wasyluk observed Belle come in with some luggage and join Munford. Then both individuals went to the elevator and went upstairs.
Based on the location of the Hilton Inn, the time of day, the way the defendants were dressed, and the fact of California plates, Agent Wasyluk became suspicious of the defendants and decided to run a registration check to ascertain to whom the vehicle belonged. Upon learning that the vehicle was registered to a Mr. Edward Keefe O'Neil, 1811 South Carmona Ave., Los Angeles, California, Agent Wasyluk called the Federal Narcotic Drug Enforcement Administration and relayed this information and his previous observations to Agent William Kean. Agent Wasyluk then went out into the parking lot and began a surveillance of the vehicle.
As a result of speaking with Agent Wasyluk, Agent Kean checked through his records for the name "Edward O'Neil", and discovered some information that he had received from a confidential informant in July and October, 1974. In a report dated July 26, 1974, the confidential informant had stated that an Edward O'Neil, living in Los Angeles, California, was capable of supplying pound quantities of heroin and that O'Neil frequently came to the east coast with large quantities of heroin concealed in a compartment under his late model Cadillac near the frame. The informant had said that when O'Neil came to the east coast, he usually drove and stopped in Chicago, Illinois, Cleveland, Ohio, Pittsburgh, Pennsylvania and then Bristol, Pennsylvania, where he used to live. The informant had been told that if he wanted more than four ounces, he could call O'Neil at (213) 934-3236 or (213) 935-6267, and O'Neil would probably fly in. The informant had stated that he could effect an undercover introduction to O'Neil, but it would require ordering a large amount of heroin. In another report, dated October 16, 1974, an individual identified as Eddie O'Neil arrived in the Bristol Township, Pennsylvania area, purportedly with 18 ounces of brown heroin which he had bought from Los Angeles, California, in a 1973 Cadillac, California license no. 862HXR. The informant had stated that his vehicle purportedly had a false bottom welded to the undercarriage in which the heroin was purportedly transported. The informant said that although the confidential informant was not approached by O'Neil, other individuals had approached the informant and asked the informant if he wanted to purchase some heroin from O'Neil, who was in the area. He said that this heroin purportedly was capable of taking a five cut and sold for $1,500 an ounce, and that O'Neil purportedly stopped in several areas across the country enroute to Bristol, Pennsylvania, including Cincinnati, Ohio and Detroit, Michigan. O'Neil was described as a male Negro, 6 feet 2 inches tall, 40 to 42 years of age, approximately 210 pounds purportedly living in the Los Angeles, California area. The information contained in the October 16th report was obtained by the confidential informant through two individuals, one who was another informant and one who was not.
Based on this information and that received from Agent Wasyluk, Agent Kean suspected that the individuals observed at the Hilton Inn might be bringing heroin into the Philadelphia area and that surveillance of their movements should be continued. Agent Kean thereafter put a surveillance team together and proceeded to the Hilton Inn. At approximately 7:30 p.m., both Belle and Munford entered the Lincoln Continental, circled the parking lot approximately one and a half times, and then exited the parking lot and began heading in an easterly direction on Old Lincoln Highway.
The Lincoln proceeded across the intersection of Route 1, pulled into the parking lot of the "Krispy Kreme Donut Shop", and parked almost adjacent to a vehicle occupied by Agent Kean and Agent Stephen Hopson. Agent Hopson then observed Belle exist the Lincoln, walk toward Route 1, and make a hand signal to another vehicle on the other side of the highway. Belle then re-entered the Lincoln, which immediately left the parking lot and proceeded westbound on Old Lincoln Highway, followed by a 1973 silver Cadillac, the vehicle that Belle had gestured to.
From the license plate of the Cadillac, Agent Kean recognized the vehicle as one on which he had previously conducted a motor vehicle check in connection with another investigation involving heroin. The check indicated that the vehicle was registered to a Mr. O'Neil Roberts or his steak shop. During this previous investigation of Roberts, Agent Kean had read some reports relating to Roberts' alleged illegal activities from the U.S. Attorney's Office. Agent Kean had also received information from informants that O'Neil Roberts was connected with drug offenses and that Roberts had become handicapped when he was shot in the back while involved in narcotics transactions. Agent Kean had also asked a Willingboro, New Jersey police officer to conduct a surveillance at Roberts' house in Willingboro, New Jersey, during November 1975. One of the vehicles that was observed at Roberts' residence was registered to a Patricia Carson, who was known to the New Jersey State Police to be involved in narcotics.
The agents followed both vehicles to the 2600 block of Buffalo Avenue, where the Lincoln pulled into a driveway adjacent to the residence at 2606 Buffalo Avenue. Agent Hopson existed the vehicle and set up a stationary surveillance at the corner of Buffalo Avenue and Somerton, where he observed the Lincoln Continental parked in the driveway and the Cadillac parked perpendicular to the Lincoln at the top of the driveway. He then observed Belle having a conversation with the driver of the Cadillac, after which Belle entered the passenger side of the Cadillac. The Cadillac then drove off and headed back toward Old Lincoln Highway, at which time Agent Kean advised the other surveillance unit to follow the Cadillac.
After the Cadillac departed the area, Agents Kean and Hopson proceeded down Buffalo Avenue where they observed the Lincoln with its hood up and Munford standing on the right side of the vehicle, apparently working under the hood. The agents then made a U-turn and drove by the location, and the second time around they observed Munford pulling something from the hood. It appeared to be silver or grayish packets tied together with some string or nylon cord. The agents then made another U-turn and came by a third time, where they continued to observe Munford pulling packets from under the hood of the Lincoln. Believing that the packets might contain heroin, Agent Kean instructed the surveillance unit that was following the Cadillac to stop it and identify the occupants.
Meanwhile, Agent Dennis Malloy stopped the Cadillac, ordered Belle out of the car [at gun point], frisked him, handcuffed him, and transported him back to Buffalo Avenue.
Upon the return of the agents with Belle and Roberts, Agents Kean and Hopson proceeded into the driveway adjacent to 2606 Buffalo Avenue for the purpose of detaining and questioning Munford. Agent Kean instructed Agent Hopson to detain Munford while he, Kean, secured the area. Agent Wasyluk, who had escorted Belle back to the Buffalo Avenue address, also went up the driveway and stopped next to the right-front door of the Lincoln and looked inside to ascertain whether or not anyone was inside. On the right-front passenger side of the floor, Agent Wasyluk observed an open brown paper bag with some packets covered with tape inside.Agent Wasyluk then called Agent Kean over to see what he, Wasyluk, had found. As the packets inside the bag appeared similar to those which Agent Kean had previously observed being pulled from the vehicle by Munford, and as Agent Kean still suspected that these packets contained heroin, Agent Kean, with Agent Wasyluk, opened the packets and examined the contents. After Agent Kean conducted a field test on the brownish rock powdery substance found inside the packets, he advised the other agents to place Munford and Belle under arrest.
Agent Kean personally advised Munford that he was under arrest and of his constitutional rights. A few minutes later, Agent Kean was also advising a Mr. Burton Mayfield, the owner of the residence at 2606 Buffalo Avenue, of his constitutional rights when Munford stated that this individual had nothing to do with it, that the "stuff" was his. After Munford had been transported to the Bensalem Township Police Department and again warned of his constitutional rights, he was interviewed by Agent Hopson. Munford stated that approximately two or three times in the past, he had transported heroin into the same area, and that he had met with O'Neil Roberts on two previous occasions. Munford further stated that on this particular trip, he was going to deliver the heroin between 8:00 and 8:30 p.m. that evening to a trash can located near the "Krispy Kreme" Donut Shop. Munford also stated that while he was delivering the dope, people would be watching him to see that everything went according to plan.
Agent Wasyluk advised Belle of his constitutional rights while en route to the Bensalem Township Police Department. Agent Wasyluk then asked Belle what he was doing with O'Neil Roberts and Belle responded that he did not know this man, that he had been riding with Mr. Munford when this man beckoned him to come over to his car and asked whether or not he, Belle, would be good enough to ride with him to a store so that he could run in and get something for him as he, Roberts, was crippled. To this, Agent Wasyluk stated, "You mean to tell me that here you are a stranger coming from California with another man or a person coming from California with another man and driving down a road, this stranger stops you and asks you to get in his car and go to the store for him because he is crippled and can't go himself and with this you just jumped in the car and you weren't worried about how you were going to get back or where you were or things to that effect?" Bell then replied, "Well, that's my story."
II. THE ARREST CONTENTION
Belle contends that both the evidence of his conversation with Agent Wasyluk and the evidence of the heroin seized in the Lincoln Continental should have been excluded on the authority of Wong Sun v. United States, 371 U.S. 471 (1963). Belle urges that when Agent Malloy stopped the Cadillac, ordered him out at gun point, frisked him, and transported him from the place where he was stopped to the Buffalo Avenue location, Malloy effected an arrest. Moreover, Belle urges that when that arrest was made, the government agents did not have probable cause to believe that Belle was engaged in criminal activity. Absent probable cause, Belle argues, the arrest was unlawful and any evidence obtained as fruit of that arrest was inadmissible at trial against him.
The government's primary argument is not that there was probable cause to arrest Belle at the time that Malloy stopped and handcuffed him. Rather, the government argues that Belle was not arrested until the heroin was found in the Lincoln Continental.According to the government, Belle's apprehension, handcuffing, and transportation by Agents Malloy and Wasyluk constituted not an arrest, but a mere investigatory stop permitted by Terry v. Ohio, 392 U.S. 1 (1968), and Adams v. Williams, 407 U.S. 143 (1972).
The district court accepted the government's characterization of Belle's detention as an investigatory stop. We cannot agree. The uncontradicted testimony at trial was that Agent Malloy, with gun in hand, ordered Belle out of the Cadillac, forcefully moved him to the front of that car, frisked and handcuffed him, and placed him, still handcuffed, in the car of another agent, Wasyluk. Moreover, Wasyluk himself testified that, had Belle tried to leave, Wasyluk would have prevented him from doing so. If the Terry rule were to be enlarged to include handcuffing, prolonged detention under threat of firearms, and transportation to a distant location, nothing would be left to the distinction between an investigatory stop and a full-scale arrest.
The government urges, however, that we should judge whether an arrest took place not by the indisputable fact that Belle was placed under the control of Agents Malloy and Wasyluk, but by the subjective intention of their supervisor, Agent Kean, who instructed them only to stop the vehicle and identify its occupants. The government claims that "[accordingly], there can have been no intention, either in the minds of the officers or perceived by Belle, to take him into custody." Government Brief at 19. But this argument ignores the unequivocal testimony of Agent Wasyluk that Belle was in fact detained. Moreover, we think that any man in handcuffs in a police car who did not perceive that he had been taken into custody would have such faulty powers of perception as to bring his competency into question. The occurrence of an arrest cannot be measured by the subjective intention of a governmental agent who was not even at the scene. Rather, it must be measured objectively by the actions of the officers at the scene and by the perceptions of the person being detained. As Judge McLaughlin's opinion in United States v. Lampkin, 464 F.2d 1093, 1095 (3d Cir. 1972) stated:
[It] seems evident that, under the circumstances before us, the arrest was effectuated at the instant the agents, with guns drawn, halted appellant and informed him of who they were. At that instant he was under the control of the officers who had demonstrated an intention to take him into custody under their authority as government agents. There was absolute restraint of appellant which was abundantly clear to him. At that instant there was an intent by the officers to arrest accompanied by a seizure or detention of the person which was so understood by the person arrested. Thus the arrest which needs be examined for probable cause was made at that time....
The brief investigatory stop permitted by Terry was designed "to determine... identity or to maintain the status quo momentarily while obtaining more information." Adams v. Williams, 407 U.S. 143, 146 (1972). Here both the status quo and the situs quo were changed significantly. Belle was handcuffed despite the absence of any indication that he was armed or in any way dangerous to the two armed officers who stopped him. In addition to being absolutely restrained by the governmental agents, Belle was placed in their car and transported to a distant place. He was, in short, arrested.
That arrest was lawful only if it was supported by probable cause. Lawfulness of the arrest is determined in light of the facts and circumstances within the knowledge of the arresting officers. If a reasonably prudent person would have believed that at the time of his arrest Belle had committed or was committing a criminal offense, then the arrest was lawful.See Beck v. Ohio, 379 U.S. 89, 91 (1964).
At the time that Belle was arrested, the government agents had information from an informant that a Californian named O'Neil might have brought heroin to Pennsylvania from California in a Cadillac (license number 862-HXR). The agents had observed Belle in and around a Lincoln Continental (license number 727-MPH). They had seen Belle signal to a passing Cadillac to stop. The Cadillac was not registered to the Californian O'Neil, but to O'Neil Roberts, a New Jersey resident who might have been involved in prior narcotics transactions.In addition, the agents had seen Belle speak to the occupant of the Cadillac and then drive away from Buffalo Avenue in the Cadillac with the original occupant.
Belle's presence in the Lincoln Continental, his rendezvous with the Cadillac, and his driving off with the occupant of the Cadillac were all consistent with innocent behavior. The critical issue, then, is whether the background information could support a finding of probable cause to arrest Belle. In Spinelli v. United States, 393 U.S. 410 (1969), and Aquilar v. Texas, 378 U.S. 108 (1964), the Supreme Court held that in order for informant's information to establish probable cause sufficient to support a search warrant, there must be disclosed: (1) the underlying circumstances from which the informant drew his conclusions, and (2) the underlying circumstances from which the police officer could conclude that the informant was credible or his information reliable. 378 U.S. at 114. Although the Aquilar/Spinelli standards were articulated in the context of a search warrant, the requirements for probable cause are no less where the governmental agents have proceeded without a warrant. Here there was some evidence that the informant on O'Neil's activities had supplied other reliable information. But there was no showing of how that informant or the informant on Roberts' activities had obtained the information. Most importantly, the ...