McLaughlin, Van Dusen and Aldisert, Circuit Judges. Van Dusen, Circuit Judge (dissenting).
GERALD McLAUGHLIN, Circuit Judge.
This appeal is from an order of the district court denying appellant's motion to suppress evidence taken from appellant's person under circumstances which he contends were not based on probable cause sufficient to justify the arrest, search, and subsequent seizure.
Three federal narcotics agents, while driving towards the Pittsburgh airport, observed a Cadillac Eldorado with two occupants, proceeding in the same direction. One agent recognized one of the occupants as someone whom he had seen previously while doing undercover narcotics work in the Pittsburgh area. He also recognized the car itself. He therefore radioed his Pittsburgh headquarters and obtained a vehicle registration check on the Eldorado. The reply stated that the vehicle belonged to Lonnie F. Lampkin (Transcript P. 5) and the surname Lampkin was remembered by the agent as the surname of a person suspected by the Narcotics Bureau of being a drug trafficker. He then requested that the Pittsburgh Police Narcotics Squad be consulted for information concerning Lampkin. The Squad advised that there was a state warrant outstanding for the arrest of Lampkin on the charge of illegal sale of narcotics. Moreover, Lampkin's suspected source of supply was in New York City (Transcript P. 7). Due to this information, the federal agents followed the subject automobile to the Pittsburgh airport where the passenger left the car and purchased a ticket on United Airlines flight 688 to Newark, New Jersey, a New York terminal, under the name of Gene McClary. The car was driven back towards Pittsburgh while the passenger inquired about flights returning that day from the New York area to Pittsburgh. He then boarded the flight to Newark, whereupon the agents telephoned the Newark office of the Narcotics Bureau and requested a surveillance of the subject. The Newark officers observed the subject arrive and followed him to New York City where they lost his trail in Harlem, in the vicinity of 149th Street and 10th Avenue (Transcript P. 10). The agents continued their surveillance of the Pittsburgh airport, concentrating on the times of plane arrivals from New York. At about 5:45 P.M. on the same day, the agents observed the individual who had driven the Eldorado that morning, enter the Pittsburgh airport terminal with another person, go to the T.W.A. counter to inquire about the arrival of T.W.A. flight 755 from New York, and then went to Gate 10 where a flight was expected to arrive. The person who had been the passenger in the Cadillac that morning came through Gate 10, joined the driver and his companion, and all three proceeded outside to an automobile parked along the approach driveway. The agents followed them and approached with guns drawn. They stated that they were federal agents and asked appellant to identify himself, whereupon he stated that his name was Lonnie F. Lampkin. The agents searched Lampkin for concealed weapons and narcotics. An envelope containing 12.89 grams of heroin was found on Lampkin.
The problem involved is whether the arrest, search, and subsequent seizure of narcotics were effected with sufficient probable cause to satisfy the constitutional standard of reasonableness. As to that it is most important to ascertain whether the arrest was proper for if it were, under facts evident at that time, the subsequent search and seizure would plainly be valid. 5 Am.Jur.2d 695, 6 defines arrest as "the taking, seizing, or detaining of the person of another * * * (2) by any act that indicates an intention to take him into custody and that subjects him to the actual control and will of the person making the arrest. * * * To effect an arrest, there must be actual or constructive seizure or detention of the person arrested, or his voluntary submission to custody and the restraint must be under real or pretended legal authority. There can be no arrest where there is no restraint, or where the person sought to be arrested is not conscious of any restraint. * * * If the person arrested understands that he is in the power of the one arresting and submits in consequence, it is not necessary that there be an application of actual force, a manual touching of the body, or a physical restraint that may be visible to the eye." Accordingly, 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, which was before appellant had been asked his name.
In passing on a warrantless arrest and subsequent 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." Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 225, 13 L. Ed. 2d 142 (1964). Reviewing courts may make an independent examination of the facts, the findings, and the record in order to determine whether the criteria of probable cause are met. United States v. Ford Thunderbird, 445 F.2d 1064, 1069 (3 Cir. 1971). It is therefore essential to examine the facts which the agents possessed and relied on in proceeding without a warrant and from those facts to determine whether these were sufficient to establish probable cause. The latter varies with circumstances and must be founded on facts sufficient in themselves, independent from an individual's personal feelings or beliefs. That is, whether at that moment (of arrest) "the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162 [45 S. Ct. 280, 288, 69 L. Ed. 543] (1929)." Brinegar v. United States, 338 U.S. 160, 175-176, 69 S. Ct. 1302, 1311, 93 L. Ed. 1879 (1949). In Beck v. Ohio, supra, it was inferred that an officer's mere knowledge of defendant's physical appearance and previous record alone, would not be enough to constitute probable cause. In this appeal there is much more than a past criminal association. There were far too many interrelated factors to have been the result of pure coincidence. First of all, the former undercover agent recognized one of the occupants of the car and associated the car itself with his previous undercover narcotics work. Other pertinent elements were that the auto was registered to one whose name had previously been linked with wrongful narcotics activities; that those activities seemed to center between Pittsburgh and New York; that this suspect's flight was going to the New York area; and that he was interested in an immediate return. Appellant's outward journey actually ended in Harlem in close proximity to a store run by a man already suspected of drug trafficking between New York and Pittsburgh, and a return flight to Pittsburgh took place early that same day. A further reason for the agent's actions was the police report (which is now thought to have been seemingly erroneous) that there was a state warrant existing for Lampkin to whom the car was registered. Considering all these factors, it is obvious that each incident corroborated the existing belief of the agent. There were too many factors which "fell into place" and thus probable cause in such circumstances seems readily existent.
With regards to the alleged warrant, Whiteley v. Warden, 401 U.S. 560, 568, 91 S. Ct. 1031, 1037, 28 L. Ed. 2d 306 (1971) allows law enforcement officials to rely on radio bulletins in effecting an arrest. It adds, however, that if such bulletins turn out to be false, "an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest." Such rationale might be extended to apply to an instance as is before us. That is, if the arrest, without the added factor of the alleged warrant, would have been considered illegal, then it could not stand, because of the mistaken warrant information. But it is clear in this appeal, that probable cause existed irrespective of the questionable warrant and therefore the arrest could not be termed "otherwise illegal." The agent had stated that the name of the suspect didn't matter to him. Under the existing facts, he would have arrested this individual, no matter what his name, which showed no real dependence on the alleged warrant. The arrest was not based on appellant's identity or the outstanding warrant, but on suspicion of violation of federal narcotics laws which arose due to the totality of circumstances which took place and were observed by the agents on June 3, 1970. This is all that needs to be considered concerning the probable cause to arrest determination. See also the United States Supreme Court decision of June 12, 1972 in Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972).
Appellant cites Henry v. United States, 361 U.S. 98, 80 S. Ct. 168, 4 L. Ed. 2d 134 (1959) as sustaining his allegation of no probable cause. In Henry, the situation arose concerning the theft of an interstate whiskey shipment. Those agents were observing persons because of a statement by one of the suspect's boss containing information of an undisclosed nature, which supposedly implicated the suspect with regards to interstate shipments. This statement never went so far as to allege that its maker had an actual suspicion that these individuals had committed the thefts. Those defendants merely stopped by an alley, picked up some packages and drove away. The agents observed them do this twice and were never close enough to see the size, number, or contents of the packages. Nonetheless, they waived the car to a stop and after overhearing some evasive comments by the persons in question, proceeded to search the vehicle. Under those facts the Court rightly held there was no probable cause for arrest. Far in excess of the Henry particulars was the belief which a reasonable man could have and did form in this appeal, due to the abundance of undeniable major information connected with appellant which was more than sufficient to meet the standard of probable cause.
Finally there is a somewhat similar recent opinion, United States v. Fields, Davis & Butler, 1972, 458 F.2d 1194 (3 Cir. 1972) where on its particular facts it was mentioned, but never so decided, that "it is doubtful whether the information possessed by the federal agents, supplemented by their observation of the suspects, supplied probable cause adequate to justify a search of the flight bag in invitum." We most assuredly agree with Fields to the effect that mere association or consorting with drug traffickers does not give rise to probable cause. In this appeal, the solid evidence developed by the agents is completely beyond the Fields situation. There, agents awaiting other suspects at the airport, saw defendants coming off a plane and recognized two of them as believed traffickers in narcotics and associated this with previous information from an informant who said that these individuals usually returned on Mondays (which this was) with the drugs to be sold. The agents continued to observe the three and after some suspicious activity stopped them to search a flight bag carried by the woman whom they had not recognized. It is the facts leading to that confrontation which distinguishes Fields from this appeal as those were the facts referred to by the Fields court as likely to be insufficient for probable cause to arrest. In Fields the suspicion of the agents began and was predicated upon the movements of the suspects after their arrival at the Pittsburgh airport. Those agents possessed no knowledge of where the suspects had come from. They just happened to recognize their faces and associate them with an informer's tip that these two men and a woman usually returned on Mondays with the woman carrying illegal drugs. There the charge was mostly left to chance and surmise. In this appeal the agents had identified appellant and his car before he left; they also checked the auto registration which was held by a suspected drug trafficker named Lampkin. They had knowledge that one of Lampkin's source of drugs was somewhere in New York. They knew that the car passenger had gone to New York, to the close proximity of the store of a man who had for some time been suspected of illegal drug activity between New York and Pittsburgh. It was following all that and Lampkin's return to Pittsburgh a few short hours after arriving in New York, together with this tight background of the suspect's activities on the day in question, that they proceeded to arrest, with a judgment call that they had justifiable probable cause. Quite obviously this arrest was no haphazard venture. It is validly distinguishable from Fields. The conclusion by the agents of probable cause to arrest was sensibly reached under the entire circumstances. Even if the individual had not been Lampkin, his activities had been of such a nature to call for his arrest as a person plainly connected with illegal drug transportation. He was readily identified by the agent as tied into illegal drug traffic from his course of conduct which he had followed on the day in question.
Admittedly the agents were faced with a major emergency. Granting that, if their information was specious or merely vague guesswork, the necessity for prompt action could not be used as an excuse for a warrantless arrest. We are not bothered with that sort of problem. The agents in this matter by prompt, experienced attention had produced facts indicating that appellant was then engaged in an unlawful narcotics transaction. They had no time to obtain a bench warrant. Narcotics are generally known as a readily disposable commodity and in recognition of this a special section for the narcotics law has been enacted to allow customs agents, a heading under which narcotics agents would be included, some flexibility in their arrest procedure. 26 U.S.C. § 7607 as amended on October 27, 1970 provides that "officers of the customs may make arrests without a warrant for violation of any law of the United States relating to narcotic drugs (as defined in § 102(16) of the Controlled Substances Act) or marihuana (as defined in 102(15) of the Controlled Substances Act) where a violation is committed in the presence of a person making the arrest or where such person has reasonable grounds to believe that the person to be arrested has committed or is committing such violation."
The re-arrival of Lampkin in Pittsburgh was the closing element in the agents' determination of probable cause. They had no choic but to apprehend this individual at that time. As we have seen there was no opportunity to obtain a warrant since appellant could easily have disposed of the drugs. Probable cause did exist. In our judgment the arrest was validly made.
One remaining query is whether or not the search, which produced the heroin in possession of appellant, was reasonable and incident to the lawful arrest. When the arrest is valid, petitioner's person and immediate surroundings can lawfully be searched. The right to search the person incident to arrest always have been recognized in this country and in England. Weeks v. United States, 232 U.S. 383, 392, 34 S. Ct. 341, 58 L. Ed. 652 (1914); United States v. Rabinowitz, 339 U.S. 56, 60, 70 S. Ct. 430, 94 L. Ed. 653 (1950). Since the drug was found in Lampkin's ...