The opinion of the court was delivered by: DITTER
Defendants were convicted by a jury of conspiracy and the illegal possession of 60 ounces of heroin. They seek judgment of acquittal or a new trial asserting their motions to suppress evidence were improperly denied, a violation of Sixth Amendment rights, prosecutorial misconduct, errors in the jury charge, and that the evidence was insufficient to sustain their convictions. For the reasons which follow, defendants' motions will be denied.
1. The Factual Background
On April 30, 1976, at approximately 3:00 P.M., Agent Walter Wasyluk of the Bureau of Alcohol, Tobacco, and Firearms, while on official business at the Hilton Inn Hotel in Trevose, near Bristol, Pennsylvania, observed the defendants, Joe C. Munford and Donald Belle, both Negro males, arrive in a late model Lincoln Continental Mark IV with a California license plate. Based upon the defendants' appearances, the time and day of the week, and the California plates, Agent Wasyluk decided to run a check on the vehicle's registration. After receiving information that the vehicle was owned by Edward Keefe O'Neil, 1811 Carmona Avenue, Los Angeles, California, Agent Wasyluk contacted Agent William Kean of the Drug Enforcement Agency (DEA) and told him what he had seen and learned. Wasyluk then began surveillance of the car.
Agent Kean checked his files and discovered that in July and October, 1974, a confidential informant had stated that Edward Keefe O'Neil, whose address was said to be 1811 South Carolina Avenue, Los Angeles, California, was a major drug trafficker who periodically came to the East Coast, and specifically with large quantities of Mexican heroin concealed in a compartment near the frame of his late model Cadillac. O'Neil was described as a Negro male, approximately 40 to 42 years of age, who weighed about 210 pounds. This data had come from an individual who had also supplied Agent Kean with information that had led to the arrest and conviction of seven persons for drug violations. Agent Kean thought the informant to be very reliable.
Based upon the information then in his possession, Agent Kean suspected that one of the defendants was Edward Keefe O'Neil
and that he was bringing heroin to the Bristol area. Agent Kean asked Wasyluk to continue surveillance. Kean and other agents then made their way to the Hilton, arriving there at about 5:30 P.M. Approximately one hour later, Belle came out of the hotel with an unidentified female and entered the Lincoln. He drove the woman to the other end of the parking lot where she entered another automobile and in it led Belle back toward the immediate vicinity of the hotel. She pointed to a parking space under the window of Room No. 308, the number of the room that had been registered to Munford, and Belle then parked the Lincoln there and reentered the hotel. The female drove away.
At approximately 7:30 P.M. the defendants came out of the hotel, entered the Lincoln, circled the parking lot one and one-half times, and then headed to a nearby Krispie Kreme Donut shop, located on Route 1, a major traffic artery. Belle got out of the car, walked toward Route 1, and waved to a 1973 silver Cadillac which was parked on the other side of the highway. He then reentered the Lincoln and the defendants drove off, followed by the Cadillac. The two vehicles negotiated a series of turns, leading Kean to believe that the Cadillac was following the Lincoln in which Munford and Belle were riding. Finally, both vehicles entered Buffalo Avenue, a small residential street not far from the Hilton Inn Hotel. The Lincoln turned into the driveway of a residence subsequently identified as 2606 Buffalo Avenue. Belle got out of the Lincoln and into the passenger side of the Cadillac, which was still in the street. The Cadillac then left Buffalo Avenue and headed toward Old Lincoln Highway, another major traffic artery, followed by a surveillance unit under Kean's radio directions.
Having seen the Cadillac's license plate, Kean recognized the vehicle to be one he had previously observed in connection with another drug case. He knew that the car was registered to a man named O'Neil Roberts of Philadelphia. From prior information, Agent Kean also knew that during a narcotic's transaction Roberts had been shot in the back and left partially paralyzed. The license plate on the Cadillac bore the letters "HP," indicating that it was registered to a handicapped person. During his previous investigation of Roberts, Kean had been told that Roberts was involved in the drug traffic in the Philadelphia area and that, periodically, he bought narcotics from persons who came from Los Angeles, California.
After Roberts' silver Cadillac, with Belle as a passenger, left Buffalo Avenue, Kean observed Munford at the right front of the Lincoln which had its hood up. He appeared to be bending over the engine and doing work on it, although he was not in work clothes. Thereafter Kean observed him retrieving from the engine area dangling parcels, silver in color and a little bit larger than a shotgun shell, which were tied together by a string. There were many of these packets and he believed that they contained heroin. Kean instructed the surveillance unit following the Cadillac to stop it and learn the identity of its occupants.
The Cadillac was halted on Old Lincoln Highway by DEA Agent Dennis H. Malloy. Belle, who was a passenger in the Cadillac, was ordered to get out. He was asked his name, frisked, handcuffed, and moved toward the rear of the vehicle. The driver, a handicapped individual, was identified as O'Neil Roberts. At that point there were only two agents present, but they were joined shortly thereafter by Wasyluk and two agents from the Bureau of Alcohol, Tobacco, and Firearms. When Kean was told that Roberts was the driver of the Cadillac, he instructed the agents to bring both men back to Buffalo Avenue. Upon the return of the agents with Belle and Roberts, Agents Kean, Hopson, and Wasyluk went down the driveway and detained Munford who was still near the Lincoln. As Agent Wasyluk approached the car, he noticed its front door was open. He looked inside to ascertain whether or not anyone else was there and, in doing so, saw an open shopping bag on the floor of the front, passenger side. In it he could see packets covered with silver tape and tied together with strings. Subsequently it was shown that these packets contained heroin.
The defendants were arrested and given their Miranda warnings. In addition, another individual, Burton Mayfield, who was at the Buffalo Avenue residence, was arrested. While Agent Kean was advising Mayfield of his constitutional rights, Munford stated that he, Mayfield, did not have anything to do with it, that it was "my stuff" (N.T. 85, First day). Later, Munford told Kean that he believed there were "60 pieces" and that the "stuff" was selling for about $750. an ounce in California but would sell for approximately $1500. an ounce in Philadelphia (N.S. H. 166).
Later at a local police station, Munford was again given his Miranda warnings and in response to questions said that he had come from California to deliver dope in the Bristol area, just as he had done on prior occasions (N.T. 46, Second day). See note 10, infra.
Following his arrest, Belle was also warned of his constitutional rights and in response to a question from Agent Wasyluk stated
. . . that he had come to this area with Mr. Munford and that they were driving down a road when this gentleman, who was later identified as O'Neil Roberts, beckoned to them from his car for Mr. Belle to come over. Mr. Belle stated that Mr. Roberts asked him whether or not he would be willing to ride with him to a store so that Mr. Belle could run in and get something for him. (N.T. 85, Second day).
When Wasyluk indicated his disbelief of Belle's description of what had transpired, particularly because Belle would not know where he was going or how he was going to get back, Belle replied, "Well, that's my story" (N.T. 89-90, Second day).
2. The Court's Denial of Defendants' Motion to Suppress
Defendants' first contention is that I erred in denying their pre-trial motions to suppress certain evidence and statements. Since this assertion is multi-faceted, I shall consider each argument separately.
(a) Reasonable Suspicion to Detain Defendants
Defendants argue that up to the point the heroin was found they had been illegally detained because the agents did not have the requisite reasonable suspicion. For support, they contend that there were no distinct facts which could have led a reasonable man to believe any criminal activity had or was about to take place, and that the agents placed unwarranted, impermissible reliance on unverified information supplied by an informant.
As the Supreme Court stated in Adams v. Williams, 407 U.S. 143, 145-46, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612 (1972), however,
The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry [ Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)] recognizes that it may be the essence of good police work to adopt an intermediate response . . . A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.
To justify a particular intrusion on another's freedom, the officers must be able to point to specific facts, not inarticulate hunches, which, taken together with rational inferences from those facts, reasonably warrant that intrusion. Terry v. Ohio, supra, 392 U.S. at 21, 88 S. Ct. at 1880. Such justification has been expressly limited to those circumstances where the action is supported by a reasonable suspicion. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975).
Defendants discussed at length the reliability and underlying circumstances tests delineated in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), where the knowledge supplied by an informant was the basis for an arrest or search warrant. These cases are not applicable for in no way could it be contended that the data from informants was the sole basis of the detention, search, seizure, or arrest of Munford and Belle.
While the facts furnished by the informants may have been the backdrop which caused the agents to put the defendants under surveillance and which made it obvious to the agents that defendants were engaged in unlawful conduct, the agents acted on the basis of what they had seen as well as what they had been told.
Combining it all, the agents knew that Belle and Munford were in the Bristol area driving a California automobile registered to a man whose name and Los Angeles address linked him to sales of heroin brought to the Bristol area from Los Angeles in the secret compartment of an automobile. Physically, Belle was much like this man. There was an obvious rendezvous and exchange of signals with a car whose handicapped owner was said to be a purchaser of drugs brought to the east coast by someone from Los Angeles. The car of the suspected "buyer" followed the car of the suspected "seller" to a private area at which point one of the Californians entered the car of the "buyer" and drove away with him while the other Californian immediately began to remove packets of what the agents thought was heroin from a concealed compartment of the automobile. These actions would suggest to almost anyone -- and certainly to trained agents -- that preparations for delivery of drugs were being completed. In these ...