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UNITED STATES v. BURRUSS

November 19, 1969

UNITED STATES of America
v.
Gary BURRUSS



The opinion of the court was delivered by: TROUTMAN

 This matter appears before the Court upon defendant's timely motion for the return of seized property and the suppression of evidence pursuant to Rule 41(e), F.R.Cr.P., 18 U.S.C.A.

 On October 30, 1968, the defendant was arrested at his apartment in Philadelphia by special agents of the Bureau of Narcotics and Dangerous Drugs and was charged with the unlawful sale and possession of drugs in violation of 21 U.S.C. ┬ž 331(q). By his motion to suppress, defendant contends that he was the victim of an unlawful arrest and an unlawful entry of his apartment and that as a result the special agents conducted an illegal search and seizure in violation of the guarantees of the Fourth Amendment. Defendant seeks suppression of the following items:

 
1. One tablet allegedly analyzed as S.T.P.
 
2. A small quantity of marijuana
 
3. One marijuana cigarette
 
4. A large quantity of identified Government funds used to make the alleged sale, including twenty dollars from an alleged prior sale involving other persons.

 An evidentiary hearing upon the motion disclosed the following facts:

 Theodore S. Handoga, a special Federal Narcotics Agent, and various other narcotics agents had made numerous purchases of dangerous drugs from one Philip Coran during a five-month period prior to October 30, 1968. Coran was not arrested during this period since it appears that the agents' primary concern was to locate and apprehend Coran's supplier.

 On October 30, 1968, at about 4 P.M., Agent Handoga arranged with Philip Coran to purchase a quantity of S.T.P. tablets in the vicinity of the Grange Manor Apartments at Grange Street and Old York Road in Philadelphia. Prior notice of this pre-arranged "buy" was given to other agents who, while acting in an undercover capacity, kept Coran and Agent Handoga under surveillance. Some conversation took place between Coran and Agent Handoga in the agent's car parked outside the apartments to the effect that Agent Handoga should accompany Coran into the apartments to meet Coran's source of supply. When Coran rejected this suggestion, Agent Handoga refused to pay Coran for the drugs until Coran delivered them to him personally. Coran then went into the apartments and returned shortly thereafter with seventy tablets subsequently analyzed to be S.T.P. Agent Handoga then paid Coran with $400.00 in identified Government bills; Coran took the money and walked back to the apartments. Agent Handoga signalled the other agents that the buy had been completed. He related this in a conversation in his car to Agents Cassidy and Wilder who then followed after Coran into the apartments. Agent Becker was also in the apartment building attempting to locate Coran.

 At first, Coran could not be located. However, Agent Cassidy heard a door open on the first floor and observed Philip Coran outside of Apartment A-1 "standing in the doorway talking to someone inside." After the conversation ended and the door closed, Agent Cassidy approached Coran, identified himself as a Federal Narcotics Agent and placed Coran under arrest. Agent Cassidy and Agent Becker, who had come from another part of the building, then brought Coran back to the door of the Apartment A-1. The entrance into defendant's apartment and his arrest is set forth in the following excerpt from Agent Cassidy's testimony at defendant's arraignment before the Commissioner:

 
"I asked him (Coran) to knock on the door of the apartment that he came out of, which he did. The door opened and inside was Gary Burruss * * *. Myself and another agent (Agent Becker) and Philip Coran were at the doorway. Burruss backed up very quickly and went for his right rear pocket with his hand. Agent Becker * * * went after him and subdued him, as it appeared he was going to take something out of his pocket. He was placed under arrest. *fn1"

 After the defendant was "subdued", the agents made a thorough search of his person and found a tear gas gun in his right rear pocket. A small quantity of marijuana about the size of a postage stamp and the identified Government bills were also found in the defendant's pockets. A complete search of the defendant's apartment was then conducted and one marijuana cigarette was found underneath a picture and one S.T.P. tablet was found elsewhere in the apartment.

 Neither Agent Cassidy nor Agent Becker identified himself or his purpose prior to the time when the defendant opened his door in response to Coran's knock. However, as the agents came through the doorway to subdue the defendant they shouted "police". When the defendant was ...


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