The opinion of the court was delivered by: MARSH
This case was heard upon defendant's motion to suppress and for return of evidence. From the testimony it appears that on March 24, 1950 at approximately 10:30 P.M., Joseph William Bianco was arrested by Special Agent W. M. Drew and two other agents of the Federal Bureau of Investigation at the Allegheny County Airport near Pittsburgh, Pennsylvania.
On that day, in Baltimore, Maryland, Special Agent duBois observed the defendant with two men known to him to be prominent in the lottery traffic in Baltimore. The sources of this knowledge were not given but duBois was currently investigating a lottery case in Baltimore and had specialized in the investigation of interstate transportation of lottery tickets since 1941. These three came out of a grocery store known to the agent to be 'lottery headquarters.' He saw them get into a car belonging to one of the local men and trailed them to the Baltimore Municipal Airport where he saw defendant remove a large suitcase from the car and deposit it in a locker, after which the parties left. Later the agent learned that Defendant was a Joseph Bianco, a resident of Pittsburgh, who had arrived in Baltimore that morning and had a reservation on a plane leaving for Pittsburgh at about 8:30 P.M. He knew that a Joseph Bianco had been involved in lottery difficulties in Pittsburgh about eight years ago.
DuBois was told by two informants whom he believed reliable, but would not name, that Bianco was in Baltimore on lottery business; that his suitcase contained lottery materials; and that he was going to transport said materials to Pittsburgh, Pennsylvania.
This information was communicated to Special Agent Wood of the Baltimore office of the F.B.I., who telephoned it to Special Agent Drew at Pittsburgh at about 8:00 P.M. He also advised that defendant was expected to depart from Baltimore on Flight 31 for Pittsburgh at approximately 8:25 P.M. Drew informed his superior, Mr. DiLillo. Wood assigned Agent McKinnell to travel on the same plane with Bianco and this officer identified him to the waiting F.B.I. agents at Pittsburgh upon arrival.
Drew also knew that a Joseph Bianco had been involved in lottery trouble seven or eight years ago.
The testimony shows that the suitcase confiscated and searched by the Pittsburgh agents was the same suitcase which duBois had observed in defendant's possession in Baltimore.
The important question
which arises out of these facts is whether or not the arrest can be sustained. 'Of course, a search without warrant incident to an arrest is dependent initially on a valid arrest.' United States v. Rabinowitz, 339 U.S. 56, 60, 70 S. Ct. 430, 432.
In my opinion, the arrest was illegal and the evidence should be suppressed and defendant's property returned. McDonald v. United States, 335 U.S. 451, 69 S. Ct. 191, 93 L. Ed. 153.
Although not mentioned by counsel I believe the applicable statute is as follows: ' * * * agents of the Federal Bureau of Investigation * * * may * * * make arrests without warrant for felonies cognizable under the laws of the United States, where the person making the arrest has reasonable grounds to believe that the person arrested is guilty of such felony and there is a likelihood of his escaping before a warrant can be obtained for his arrest.' Title 18 U.S.C.A. § 3052.
The evidence clearly shows that there was likelihood that the defendant might have escaped before a warrant could have been procured for his arrest.
Without doubt the statute is affected by the Fourth Amendment,
the precise limitations of which have not been satisfactorily determined.
The criterion for the application of these principles to all arrests without warrant is repeated in that case, 267 U.S. at page 161, 45 S. Ct. at page 288, and in others as follows: "If the facts and circumstances before the officer are such as to warrant a man of prudence and ...