The opinion of the court was delivered by: BRODERICK
Presently before the Court are motions of defendant, Doctor Forrest, for a new trial and/or arrest of judgment. The defendant waived a jury trial and on June 27, 1977 the Court found defendant guilty of all three counts of the indictment, charging the defendant in Count I with possession with intent to distribute 226.5 grams of marijuana, in Count II with possession with intent to distribute 84 tablets of methamphetamine, and in Count III with possession with intent to distribute 275 packets of heroin, all in violation of 21 U.S.C. § 841.
The Court has determined that defendant's motions are without merit and must be denied.
In his motions the defendant contends, inter alia, that (1) the evidence was not sufficient to support a finding of guilty; (2) the Court erred in not suppressing evidence recovered as a result of an allegedly defective search warrant; and (3) the Court erred in not suppressing defendant's statement which he claims was made without giving him the required Miranda warnings.
Sufficiency of the Evidence
The defendant in support of his motion in arrest of judgment alleges that the evidence was insufficient to support the verdict.
Since such a ground is properly advanced in support of a motion for judgment of acquittal,
we have considered defendant's motion as one for judgment of acquittal. The evidence produced at trial, viewed in a light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457 (1942); United States v. Armocida, 515 F.2d 29 (3d Cir.), cert. denied 423 U.S. 858, 96 S. Ct. 111, 46 L. Ed. 2d 84 (1975), is more than sufficient to support the Court's verdict of guilty. We summarize the evidence as follows:
Lieutenant Wilson and Officers Jumper and Bongard testified that at approximately 8:00 p.m. on January 14, 1977 they approached the two-story residence at 4439 Paul Street and knocked at the door. Defendant answered and after Officer Jumper exhibited to him a search warrant, Officers Jumper, Bongard and Wilson and their back-up detail entered the residence. Prior to searching the house, the officers asked the defendant whether there were any weapons or currency in the house. The defendant directed the police to a.22 caliber automatic revolver located behind hatboxes in the closet of the rear bedroom on the second floor, and to $11,000 in the pockets of one of his suits hanging in the front bedroom closet on the second floor, $700 on his person, and $61 in a locked dresser drawer to which Forrest provided the key. In return for the currency, defendant was given a receipt which he signed, which receipt acknowledged that the money was found in "my residence." (Exhibit G-8). Officer Jumper testified that the defendant in giving his personal history acknowledged that his residence was 4439 Paul Street. The search of the residence revealed a sliding panel in the wall of the kitchen. Behind the sliding panel were found 226.5 grams of marijuana, 84 tablets of methamphetamine, and 275 packets of heroin. When shown a bag containing a tan powder the defendant responded, "I'm not dumb enough to tell you what that is." The tan powder was later analyzed to be heroin.
The defendant took the stand in his own defense and testified that he did not know that narcotics were concealed on the premises. He said that the money which was recovered on the premises was not related to narcotics traffic, but was a payoff he received from playing the numbers in November and December of 1976. Defendant claimed that he did not reside at 4439 Paul Street, but was there doing carpentry work for the absentee owner. He said that his occasional overnight stays were necessary to protect the house and his construction materials from vandalism common to that neighborhood. He testified that he had built the hiding place in the kitchen at the direction of the owner who wanted a place in the house to hide valuables. The defendant explained that he had kept the $11,000 in his suit hanging in the back of the bedroom closet for over a month because he thought it a safer hiding place than the concealed panel in the kitchen. At all times in the course of his testimony the defendant insisted that 4439 Paul Street was not his residence.
Possession of large amounts of drugs permits an inference of intent to distribute. United States v. Brischetto, 538 F.2d 208 (8th Cir. 1976); United States v. Ramirez-Valdez, 468 F.2d 235 (9th Cir. 1972). Because of the large quantity of drugs in the instant case, the Court did make the inference and was convinced beyond a reasonable doubt that the defendant did knowingly and intentionally possess the drugs involved in all three counts of the indictment with the specific intent to distribute them.
This Court is convinced beyond a reasonable doubt, on the basis of the evidence summarized above, that the drugs were in the possession of the defendant and that he intended to distribute them. His testimony that he did not know that the drugs were in the house and that they did not belong to him was not credible.
Motion to Suppress Physical Evidence
On January 14, 1977, Philadelphia Municipal Court Judge Samuel Lehrer issued a warrant to search the residence located at 4439 Paul Street for narcotics and other controlled substances. The warrant was based upon an affidavit which states:
During the month of November 1974, I Plcm. JUMPER was working on a major heroin distribution frng from Phila to Fla. and while conducting a surveillance on the main distributor George TUCKER I did observe he and Doctor Forrest going to and from international airport on 2 occasions. On a third occasion our raid came off at the airport and TUCKER WAS arrest coming from Fla. with a pound of heroin. Record check revealed that FORREST has been arrested 14 time for various offenses. Due to all of the above I conducted a surveillance on the location 4439 Paul St. and observed PUGLIATTI come out of the residence at least five time on 1-13 and this afternoon on 1-14-77 engage in a conversation with persons waiting on corner, exchange something and go back into the residence 4439 Paul St. Due to my information and surveillance I am led to believe that Narcotics are stored and sold at the location 4439 Paul St. in violation of the controlled Sub act. (Exhibit G-5-1).
The defendant contends that the Court erred in denying his motion to suppress the marijuana, methamphetamines and heroin which the police seized in a search of the 4439 Paul Street residence pursuant to the search warrant. He alleges that the above quoted affidavit on its face does not support a finding of probable cause; that the underlying facts upon which the affidavit was based were erroneous; and that the inclusion of the prior record of the defendant and ...