against any person connected with this case. Finally, I am of the opinion the Agent had probable cause to make the arrest of Riccobene at the time and place in which it was made.
It was not until Saturday night, July 9, 1949, that with the information received from Astrin, the informer, and Pennisi, and the final piecing together of a lot of earlier incidents, none of which standing alone would have been sufficient, was the Agent armed with the probable cause to make the arrest. In my opinion, on the showing then available a warrant should and would have been issued. A Commissioner was not available Saturday night or all day Sunday. Rule 5(a) of the Federal Rules of Criminal Procedure, 18 U.S.C., requires any person making an arrest without a warrant to take the arrested person without unnecessary delay before the nearest available Commissioner. The words 'without unnecessary delay' should not be construed to require that the arrested person be taken before a Commissioner except during his regular officer hours.
It certainly is well settled that an arrest may be made upon hearsay evidence and that the reasonable cause necessary to support an arrest cannot demand the same strictness of proof as the accused's guilt upon a trial.
I am not unmindful of the word of caution of the Supreme Court in Johnson v. United States, 333 U.S. 10, 15, 68 S. Ct. 367, 92 L. Ed. 436, against by-passing the constitutional requirement of a magistrate's warrant. In that case, however, the arrest involved one person on the suspicious evidence of opium fumes emanating from a hotel room. Here, I feel in view of the fact that at the time of the arrest on Saturday night two of the accomplices had been arrested and the car furnished by the defendant and used in the enterprise had been seized and that all had taken place in a large urban community, the agent would have been justified in fearing the possibility of escape.
However, we are not here circumscribed by the limitations of the Act of 1934, 18 U.S.C. § 3052, which authorizes Agents of the Federal Bureau of Investigation to make arrests without warrant for felonies cognizable under the laws of the United States in such cases where the person making the arrest has reasonable grounds to believe the person so arrested is guilty of such felony, and where there is a likelihood of the person escaping before a warrant can be obtained for his arrest.
In United States v. Coplon, supra, Judge Hand points out that at common law a private person, as distinct from a peace officer, had the power to arrest without warrant for a felony, committed in his presence; and for one, actually committed in the past, if he had reasonable ground to suppose that it had been committed by the person whom he arrested; that since the Agents of the Bureau are private persons it would seem under United States v. Di Re, supra, that in 1934 they already had the same power of arrest as private persons in any state where they acted; that it might be argued that the Act of 1934 was cumulative, i.e., as giving the agents added powers of arrest. Judge Hand concludes, however, that the Act was intended to be a constitutive, not a cumulative, grant of any powers of arrest without warrant which the agents were to have. This additional requirement of the likelihood of escape is peculiar to the grant of power by Congress to the Bureau, which, as Judge Hand indicates, has always been grudgingly given. As above indicated, this is not a Bureau arrest, consequently, the element of escape, which if present is always most convincing, is certainly here not an absolute prerequisite.
From all of the facts and circumstances of this case I am firmly of the opinion that there was here ample probable cause for the action taken by this Agent. Accordingly, defendant's motions to dismiss the indictment as to Harry Riccobene and for the return of seized property and suppression of evidence will be denied.