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Government of Virgin Islands v. Hernandez

decided: January 31, 1975.



Seitz, Chief Judge, Van Dusen and Rosenn, Circuit Judges.

Author: Rosenn


ROSENN, Circuit Judge

After a jury trial in the United States District Court of the Virgin Islands, the defendant was convicted of distributing a controlled substance*fn1 and was sentenced to fifteen years' imprisonment to be followed by a special parole term of three years. The principal issue raised by the defendant on appeal is whether the district court erred in failing to suppress evidence seized from him at the time of his arrest. We affirm.


At the trial, the Government of the Virgin Islands introduced the testimony of an informant who allegedly purchased heroin from the defendant, as well as the testimony of a policeman who observed part of the alleged transaction. In corroboration of this testimony, the Government introduced in evidence a ten dollar bill found on the defendant at the time of his arrest. This ten dollar bill, whose serial number had been recorded by the police before the alleged transaction, had been given to the informant for the purpose of purchasing heroin.

In advance of trial, the defendant moved to suppress the ten dollar bill. Although a search warrant for the defendant's person had been issued prior to his arrest,*fn2 the Government's principal argument at the pretrial suppression hearing was that the search, which netted the ten dollar bill, was valid as incident to a lawful arrest. The district court denied the defendant's motion to suppress, ruling that probable cause existed for defendant's arrest and that an arrest warrant was not required.

The record of the suppression hearing reveals the following facts. On the morning of April 23, 1974, Officers Marcano and Wells of the Joint Narcotics Strike Force arrived at the home of Stephen Henthorn, whom they had arrested for possession of heroin the day before. After searching Henthorn and removing all objects found in his pockets, the officers returned Henthorn's wallet containing only a ten and a twenty dollar bill, having first recorded the serial numbers on the bills. The trio then proceeded by car to a point on Mafolie mountain overlooking a house known as No. 10 Hospital Line (No. 10) where Henthorn was to attempt to make a purchase of heroin. Officer Marcano there alighted and set up a telescopic device with which he could observe what was to occur below. Henthorn and Officer Wells then drove back down the mountain. Henthorn got out of the car and walked the rest of the way to No. 10.

Officer Marcano testified at the suppression hearing that, using the 40 power telescopic device, he observed No. 10 from a distance of approximately two hectometers (118.72 yards). Through the open door, Officer Marcano stated that he could "not completely" see what was happening inside No. 10. He did testify, however, that he observed Henthorn hand "something" to the defendant.

After Henthorn emerged from the house, he met Officer Wells back at the car. They then picked up Officer Marcano, who testified that, five minutes after the alleged transaction in No. 10, Henthorn produced "three decks of heroin"*fn3 and gave them to Officer Wells. Some eight members of the Joint Narcotics Strike Force arrested defendant in the yard behind No. 10 at approximately six o'clock that evening. A search of the defendant's person yielded the recorded ten dollar bill.

The question here involved is 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 [defendant] had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91, 13 L. Ed. 2d 142, 85 S. Ct. 223 (1964); see United States v. Lampkin, 464 F.2d 1093, 1095 (3d Cir. 1972). If the arrest was lawful, the search incident thereto was valid as well.

We believe that the record of the suppression hearing demonstrates that the officers had probable cause when they arrested the defendant. They knew that Henthorn entered No. 10 without any heroin in his possession and that he emerged with three packages which appeared to contain heroin. Moreover, when he rejoined Officers Marcano and Wells, Henthorn no longer had the thirty dollars which they had given him. Officer Marcano, it must be admitted, was unable to observe the whole transaction inside No. 10 and did not see the defendant hand the three packages to Henthorn. However, he did observe Henthorn deliver something to the defendant. We consider the inference reasonable that Henthorn gave the recorded bills to the defendant in exchange for the three packets which Officer Marcano concluded contained heroin.

The defendant relies heavily upon Wong Sun v. United States to support his contention that probable cause did not exist. 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). In that case, Hom Way, who had just been arrested and who had not previously acted as an informant, told a narcotics agent that one "Blackie Toy," proprietor of a laundry on Leavenworth Street in San Francisco, had sold him an ounce of heroin the night before. Federal agents then closed in on one of the many laundries on Leavenworth Street and arrested James Wah Toy as he fled to the rear of the building.*fn4 The name "Toy," however, was nowhere displayed on the laundry's exterior. Moreover, no evidence in ...

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