*1 appreciably However, re- power restraint. modest to make this economic cient showing necessary it is not to make in TBA. commerce strain also, a “rule of for a reason” case. See findings, properly Specific quantitative discussion of the substan to Sinclair’s supported, made were tiality test, case, the Standard Stations Maryland. Over power in 10% economic 6 9 1051. were gasoline the state stations holding gas previous We reaffirm our than and more Sinclair’s 10% un- ample the record in this case discloses an also is There oline it. was sold lawful pow restraint of trade Sin- between evidence of the effectiveness Mary- generally clair and its prod dealers tied to restrain commerce er degree. tying land. This restraint consisted of uct, TBA, insubstantial to a not finding sale of TBA to Judge’s the lease of service propriety gasoline. stations and generally If the sale of this effect as to the dealers plaintiff injury suffered a result not Pacific R. Co. contested. In Northern this illegality, recovery. he is entitled to pages 78 S.Ct. at it was stated: rehearing Petition for denied. has seller where the “Of course tying over or dominance control represent not product it does so that buy weapon pressure an effectual taking item the tied ers into attributable of trade restraint arrangements ob tying would insignificant
viously at most. dozen simple example, of a if one community were in a food stores CARLO, Appellant, buyer to sell flour unless refuse hardly sugar tend would also took it UNITED America, STATES of sugar competition if restrain Appellee. ready competitors able its No. Docket 26499. to sell flour itself.” Appeals States Court of Pacific is in Northern The standard Second Circuit. quantitative the seller one. Just so Argued Jan. power size to exert some of sufficient restrained is amount of commerce Decided Feb. insignificant, met. standard is industry-wide If data all of the economic ar had to be shown for which Sinclair
gues, it would convert tie-in eases require
“rule reason” cases with the public injury. facts, ment of When here, trade, per reveal se restraint of necessary plaintiff for the prove, data, voluminous economic public generally injured, has been Broadway-Hale Stores, 1959, Klors v. 3 L.Ed.2d 741. What the Court in Northern Pacific sought point out is demonstrated given: simply the illustration it is that a
de competition minimis restraint would not constitute an unlawful tie-in. There must be some not insubstantial *2 City, George Todaro, for J. York New
appellant. Atty., Curran, Paul New J. U. Asst. S. Jr., City (S. Gillespie, York U. Hazard Atty., S. New for District of Southern York, Klingsberg, L. David Jonathan Rosett, U. Rosner and Arthur I. Attys., Asst. S. brief), City, New York appellee. Judge, LUMBARD, Before Chief Judges. SMITH, MEDINA and Circuit
MEDINA, Judge. Circuit
On certain Bureau of Narcotics of the United States Treasury Department entered John Car- lo’s Number 8 at 313 East Street, 118th City, New York and seized glas- containing six sine within which were six ounces of heroin and two cardboard containing boxes kilos of heroin. 1% With the narcotics in one of the card- $20,100 board boxes of United States currency tightly wrapped in a bag. arraignment After the arrest and charge John Carlo on a of violation of Laws, the Narcotics his before in- dictment, proceeding he initiated this suppress the evidence thus seized and to compel property the return of the to him ground there been an unreasonable search and seizure in viola- rights tion of his constitutional hearing Fourth Amendment. After respective par- witnesses for which contradictory ties testified versions of circumstances, the attendant Mur- testimony phy held, reviewed “we government agents’ accept testimony testimony reject petitioner, brother, Joseph DiCarlo, wife, his his daughter, Matilda his Mil- petition The denied and dred.” appeals. apart- City, After New York parking 12:20 P.M. entered the Carlo about got P.M.; they car, Davenport had no out and ment at about 7:15 any per- walking after man arrest of some around met the warrant either *3 premises. Joseph Di- son or for who later the search of turned out to be agent of the Carlo. under As we are here with one Dukas had them concerned give significant observation, Davenport Di- of the most and he saw fundamental Rights, bag,” provisions we must and Bill Carlo “a small brown with meticulous DiCarlo scrutinize the evidence handed “her another paper bag care to that no determination arm.” make sure that he carried under his by Davenport made any watering us in shall constitute this case sold the contents of the Brown, of the down erosion was later and it rights guaranteed by Fourth Amend- ascertained nar- that the contained agents ment. cotics. None of the that identity Dukas knew the of DiCarlo. testimony On the of the basis him followed and saw him enter Agents and M. Gabriel Dukas James building It at 313 East 118th Street. testimony Burke, disregarding and May was not until appellant not credi- and his witnesses as government agents Apart- knew that ble, Judge Murphy, shall now as did them, ment Number 8 ofwas interest to chronological sequence. state the facts or that the woman who turned out to be following per- We are concerned with Matilda Carlo lived Brown, “undercover sons: Robert an agent” Narcotics, Anna of the Bureau of Things 24,, May came to a head on alleged Davenport, Paul an distributor Davenport I960! At about 1 and P.M. May lots, narcotics in 24, arrested on small appeared Brown in an automobile at charged of the with violation 173rd Street and Third Avenue in the Laws, Carlo, Narcotics Matilda arrested point got Bronx. Davenport At this out charged with violátion walking of the car and started down DiCarlo, Laws, Joseph of the Narcotics street; Carlo, she met Matilda whose 24,May appellant, brother of arrested on identity shortly will become known to 1960, charged Nar- with violation of the agents, the Davenport and Matilda Carlo handed Laws, appellant cotics bag. Dukas, shoe who had Matilda, the husband of the lessee of pair observation, waited until Apartment Number 8 at 313 East 118th passed Matilda sight, Carlo had out of Street, group and the last he then arrested searched May charged arrested on with purse, her found that in the shoe violation of the Narcotics Laws. eight glassine envelopes containing powder a white turned out to be any govern The first contact questioned heroin. Dukas Davenport agents any persons ment had February 17th, about the transac- arrested on some sort tion, replied, per- he testified she “a of a transaction Matil between Sonny son she knew as and also as Carlo, Davenport Joe da ruary 1, on Feb Brown person was the who delivered agents nar- had never her cotics to at that time on the 17th.” before, seen Matilda did not know or where she who she was lived. She appear It does not followed, apparently pur wras agents followed Matilda Carlo after she agents did not ascertain her pose place delivered the Davenport heroin to kept residence. She May 24, 1960; but, after the arrest of under surveillance and she was seen Davenport, Dukas obtained certain infor- agents May 24, again about an mation automobile license num- Joseph picture telephone DiCarlo comes into the ber phoned number. He tele- February day 1960. On that office, these to the central some checking done, Brown and arrived automo- and at about 3 P.M. Avenue, 125th and Park agent bile at Street the Narcotics Bureau informed Agent Burke radio in her his car that ad- immediately placed Burke Di- dress 313 East 118th There Street. Up under arrest. to this moment nothing testimony reason, there is no on the record before us, suppose indicate when Matilda Carlo returned knew even to her left home that afternoon. She the existence of John Carlo or had however, Street, 313 East about suspect.that 118th reason to any he had committed Agent 7 P.M. her come saw crime. and after a minutes he saw the same few In the machine, kitchen was a giving the small observed and, agent DiCarlo, after the arrest of Davenport on brown 17, *4 Dukas paper a observed small brown house, go apartment into the plain sight, washing top on 313 East 118th This Street. argument On machine. oral Joseph Dukas turned out to DiCarlo. appeal we were small inclined think the building, up one followed him into the bag paper lying bi’own open, was its side flight stairs, Apart- him enter and saw that, taking possession so without This ment appears floor. Number 8 on the second looking inside, its con to be the first time seen, Judge Murphy’s tents could be government agents anyone suspected saw opinion they states: “At the time saw having dealings go into in narcotics glassine a envelopes number of contain particular apartment East in 313 ing powder washing white machine a February they 118th 17, All knew on Street. in the kitchen and asked owned who en- that DiCarlo was seen testimony specific them.” -But no such tering building at that address. given by Burke, either Dukas or agent meantime, and must Du followed take the In the Burke fact bag, young paper and kas saw the small son Matilda her with picked up, it looked her Laundromat inside and saw bundle of clothes to the glassine envelopes nearby. ar- six Burke and the white In Laundromat powder proved narcotics later to be six ounces rested Matilda because of afternoon heroin. same transaction she had that described. with as above point At this following there was the found Carlo but Burke Matilda searched colloquy between John Carlo and Dukas: laundry no either “Carlo: What is this all about? agents purse. her Burke or in “Dukas: Your wife is under ar- Dugan take about to Cockrill rest for violation of the federal nar- boy down little Matilda Carlo and cotics laws. allowed headquarters, asked she “Carlo: her, You can’t take the child. home to leave her to return to hers, that is mine. waiting above somewhere Dukas was you you “Dukas: Do know what having floor, seen landing on the second talking are about? 8 a Apartment Number enter DiCarlo “Carlo: Yes. before, Matilda Carlo while minutes few way you Laundromat. her “Dukas: If admit this is yours I you. will have arrest child, Carlo and her to- Matilda When you I “Carlo: told that is mine.” gether Burke and the other officers with Street, Thereupon placed at 313 East 118th she Dukas arrived John Carlo un- opened inquiry der Number arrest. led them When made as to using key, door, rest,” without and she whereabouts of “the and after apartment, followed statement entered Du- Dukas that Mrs. Carlo Burke, up who the hall of would not be went arrested on kas account glassine kitchen, apartment powder to the where with white brothers, Joseph paper DiCarlo found in the the two small brown saw washing sitting machine, drink- John Carlo at a table .and John Carlo went ing can Burke of beer. and Cockrill into Draper States, 1959, on the pointed two boxes bedroom and it 3 L.Ed.2d seized bureau which were (358 by Draper at was also settled of heroin. kilos and found to contain 1% page 331) day discovered next it was The “amongst grounds believe” “reasonable in one words the narcotics” equivalent phrase “probable are to the $20,100 United States the boxes was tightly wrapped cause” in the Fourth Amendment. currency “in a bag.” question an- Thus the first we must is, Joseph swer was the arrest of issue the critical We think without a take warrant a lawful arrest. We Dukas to whether was clearly, yes. think the answer is possession of the brown probable open cannot doubt cause there was it to examine machine and Agent to him DiCarlo. saw its contents. deliver the small brown Davenport the entrance to While 17, 1960; her Matilda Carlo was effected information from undercover derived voluntary act, and there was own *5 agent Brown induced Dukas to believe any use or the or disturbance time noise delivered same small any force, us that clear to of it seems him, paper and it justi- here can be the search and seizure to contain narcotics. When Dukas saw only ground inci- fied that it is man, this same who he had reason to be- There was dental to a lawful arrest. lieve had delivered narcotics to Daven- to search the no warrant go port, upstairs and enter controlling is the follow- statute Number 8 in 313 East 118th May on Street ing part of of the Narcotics Control Act recognized him; 24, 1960, he 1956, 26 U.S.C. 7607: § passed after Dukas had this information Additional au- “Section 7607. along Burke, and as soon as Mrs. Car- thority bureau of agents go opened lo door and let the bureau customs. of apartment, placed the man into this Commissioner, Deputy “The Com- he under arrest and turned out missioner, Assistant to the Commis- Joseph DiCarlo, the brother of John Carlo agents, sioner, and of of the Bureau apartment in. There whose Department of of the Narcotics proof had DiCarlo Treasury, and officers the customs of under surveillance in the interval between (as 401(1) defined in section February 17, amended; Tariff Act of intervening lapse Nor could the U.S.C., 1401(1)), may— 19 sec. period recol- of time have so dimmed the United drugs (as or marihuana 4761) where the violation is commit- violation.” lieve that ted in the making rant for has son has reasonable “(2) [*] committed or is make arrests without war- [*] States violations defined arrest or presence [*] (as relating defined committing where grounds to to be arrested section to narcotic law n -:< such section person 4731) per- [*] be- pecially as what Dukas observed was in nessed the occurrence tained the course able into grounds Dukas did not know the lection Dukas 1960 1960 that the small brown after that something grounds narcotics, to believe” DiCarlo had committed a so, it did contain narcotics. of his official to believe” on and he was informed there- short as to transform “reason- certainly May 24, 1960, such “reasonable February 17, duty. February 17, suspected he wit- crime, While con- es- In Congress effect, committed on the crime was Feb- That it was very presence ruary 17, authority upon 1960 in the of confer such who, Dukas; at the and it was held has been Bureau Narcotics 846 give Judge
hearing
Murphy,
arrest was not
does not
law
testified
unlawful
before
enforcement officerscarte blanche to rum-
arrest
hold the
what he saw. We
mage
lawful, despite
about at will in
home
other
been
to have
place
delay
made and then
despite
a war
where an arrest
the absence
by
Cir.,
justify
Garnes, 2
seek to
a blanket
their conduct
United States v.
rant. See
by
denied,
statement
“search” made
F.2d
certiorari
All
them was incidental to an arrest.
U.S.
Cir.,
including
circumstances,
Volkell,
637;
the:
attendant
delay making
2d
United States
denied,
the rea-
the arrest and
251 F.2d
certiorari
into,
delay
taken
L.Ed.2d
sons for such
must be
Cir.,
Perez,
242 F.2d
consideration.
United States v.
denied, 1957, 354 U.S.
certiorari
possession
it lawful
take
Was
1405,1
L.Ed.2d
the small brown
apart
machine in John Carlo’s
Delay
of
law enforcement
1960 as incidental
ment
arresting
suspect
or
ficers in
does
Joseph
DiCarlo? This is
the arrest
legality
dinarily
the arrest.
affect
question,
is not the
because this
closer
months,
delay
and we
Here the
was three
Moreover,
our
of DiCarlo.
suppose
have no reason to
must not
of the issues here
determination
than it was
made sooner
could have been
fact
the small
affected'
States, 284
DiBella v. United
made.
In
actually
contain
did
897, 907,
this Court
F.2d
decided
heroin,
that John Carlo-
nor
the fact
Waterman
November
*6
huge quantity
hero
later revealed the
dissenting opinion
Di-
that
in his
states
Byers Unit
in
v.
in found
the bedroom.
for
surveillance
Bella
“been under
29,
States, 1927,
28,
273 U.S.
ed
248,
after
his arrest and
months” before
seven
520;
Di
v.
L.Ed.
United States
alleged
for
the crime
commission of
the
222,
581,
Re,
68 S.Ct.
332 U.S.
Law enforcement
which was arrested.
States,
210;
v. United
Johnson
hope
right
the
to wait in
have a
officers
10, 16-17,
68 S.Ct.
333 U.S.
strengthen,
they may
their case
that
ferreting
good
“is
or bad
The search
L.Ed. 436.
or discov
further evidence
Re,Di
v.
starts.” United States
it
when
identifying
ering
confederates
page
supra,
68 S.Ct.
every
is
time there
But
collaborators.
gomay
Indeed,
far as to
so
making
delay
of the arrest and
in the
say
in narcotics
that traffic
the fact
that
made as incidental
a search
there is
despicable
makes it all
crime
is such
arrest,
officers
enforcement
law
the
the
scrupulously
necessary to be
the more
charged
they will be
risk that
take the
protect
and other
constitutional
careful to
pretext
using
mere
arrest as a
with
rights
cases.
in such
v. Lef
United States
See
for the search.
452, 467,
it is
kowitz,
At least
clear that there
was no-
877;
United
obtain a
v.
time to
search warrant.
It was
76 L.Ed.
Henderson
Cir.,
51 A.L. not
known
States,
12 F.2d
even
States,
Worthington
in
420;
United
lived
Number
v.
Carlos
8 until
R.
566;
very
time before
Cir.,
F.2d
Clifton a
short
the arrest of
Cir., 1955,
presence
224 F.2d
And the
DiCarlo.
small
United
bag containing
McCunn,
glas-
330;
D.C.
the six
States v.
filled
heroin
D.N.Y.,
40 F.2d
with
was ob-
sine
S.
washing
just
Chodak, D.C.D.Md.1946,
on the
machine
68 F.
served
States
Supp.
words,
delay
or two after the arrest
Di-
other
moment
In
in a
agents may
suspected
making
The
one of
have
the factors to Carlo.
is
supply
from
the source
which Di-
into consideration when
taken
judicial
Matilda Carlo obtained
for a
determination of the Carlo
comes
Davenport
delivered
was
question
or not the search
of whether
neighborhood,
mere fact
this
somewhere
“reasonable.”
Lefkowitz, supra.
application for United States v.
On
for an
provided
basis
no
hand,
the other
that it
fact
the Carlo
to search
a warrant
apartment
DiCarlo’s
an
absolute
leading
emphasis is
cases
In all the
obstacle to
search whatever. Clifton
necessity
prompt and
placed upon
States, supra.
always a matter
speedy
This
action.
dealing
awith
we are
Here
of concern.
think it
reasonable
con
that,
moment’s
type
property
at a
that,
arrest,
clude
it
as incidental to his
gov-
suspicion that
merest
notice and the
at least to search DiCarlo’s
scent,
can be
are
ernment
anything
person and also to examine
near
contents
If the
a toilet.1
flushed down
sight
plain
DiCarlo
the Carlo
were ever
that small brown
apparently
kitchen that was
relevant
government, it was
be known to
to
absolutely necessary
alleged
narcotics,
DiCarlo’s
traffic
take
Dukas to
implements
as narcotics or
connected
possession.
his immediate
into
Surely
with
use of
narcotics.
one
control,
subject
knowledge
dealings
true
On the
with
between
general
was in
DiCarlo and
as
disclosed
there
Carlos who lived
record,
control
this
probable
could fail
think
there was
washing
children, but
ma-
their
with
cause
believe that the con
vicinity of
in the immediate
particular
chine
tents of this
small brown
kitchen table
he sat at the
paper bag
DiCarlo as
were the same
contents
drinking
If the
his
brother.
beer
paper bag
of the other small brown
top
lying
small
was delivered
DiCarlo to
belonged
washing
machine
and that the
good
to believe
Dukas had
reason
might
prove
and its contents were or
case,
might
DiCarlo was so near
be the
property
DiCarlo,
be the
or in his
object
particular
have
to it
might
possession or control. He
well
his control.
placed
within
have
ma
chine, just
put
hat,
as he would
down his
particular attendant cir-
all the
With
departure
to await the time of
mind,
his
from
what
case in
cumstances
*7
apartment.
lying
the
Had the
applied
been
principle to be
the
or
the test
open,
glassine
on its side
with the six
conclusion
a reasoned
reach
in order to
envelopes containing
powder
white
legality
in
concerning
the action
of
the
plain view,
supposed
as we first
to
up
be the
picking
the small brown
in
Dukas
case,
any
washing
say
would
person
sensible
top
that
of the
the
from
examining
unreasonable
the officers
be
its contents?
it would
in
and
machine
pick up
of
and its
and
principle
the
contents
in all cases
to
the
think go away
must
all
circum-
the officers
Di-
under
the
that
type
the same:
lying
reasonable,
the
on
leave
narcotics
must
Carlo and
the search
stances
background
pur-
top
against
machine?
and
of the
And
the
the
viewed
yet
had almost as much
Amendment. United
Dukas
reason
Fourth
the
pose of
56,
Rabinowitz, 1950,
suppose narcotics were in the
closed
to
v.
States
as
have
if
430,
It is clear
he would
U.S. cotics, v. Importing if he explained Co. even had not volunteered in Go-Bart page at States, supra, show the “the rest” where United 358, Accordingly, page and United was to be found. 51 at S.Ct. necessary at it is Lefkowitz, supra, U.S. not to consider for us States v. question, of whether page 465, page or not the search at bag, fur- the small brown deciding principal issue In thus apartment, ther search of the adhere reasonableness think we as incidental of Matilda to the arrest implicit histori- fundamentals Agnello Carlo. But see Fourth traditions embedded in cal Amendment, accord with even Frank- what was written Mr. Justice stirring find in United We that furter his dissent none of the arrests pretense making a Rabinowitz, supra, mere for therein for the States states, page passim, 339 search of the More- he U.S., et over, appellant’s “From is no there con- 438 of 70 merit in S.Ct.: Judge findings may Murphy’s tention that search this it follows that officers things physically subject only credibility and seize not of the wit- hearing within nesses arrested, those who before testified at the clearly physical him should be er- his immediate control.” set aside roneous, or for other reason. arguments advanced One reversal of appellant for the currency? On How about the no com there is Murphy’s order is May 27, In Commissioner bag delivered petent evidence Revenue, acting under the author ternal Davenport to Brown ity de of 26 U.S.C. §§ heroin contain year appellant’s ter to be taxable clared saw that Dukas the same May 24, and made minated day. It is on that deliver against appellant jeopardy assessment to believe had reason clear $54,240, wife in amount and his enough. bag, and that is same wife which notice of was served necessary produce Brown It was date. the same Also hearing give testi firsthand at the mony. prior cdmmencement quantum well settled It is proceeding, filed assessment was summary proof adduced on a Register City of New lien with suppress proceeding to evidence York, by 26 as authorized U.S.C. §§ issue required on a trial of the that guilt *8 6321-6323, Levy and and De Notice of the a of innocence of violation mand, pursuant 26 Section U.S.C. stat other criminal Laws or Narcotics George Gaffney, H. was served on Brinegar States, United v. utes. Supervisor Bu Federal District 160; 69 93 338 custody Narcotics, reau of then had who supra; States, 1879; Draper v. United May $20,100.00. Also on of the seized Henry States, Levy 27, 1960,pursuant Notice of to this L.Ed.2d 134. 4 Demand, Gaffney mon and delivered the ey to hold that the Revenue are constrained to an officer of Internal We the deposited Service, of the small and it was thereafter seizure Treasury its and retention of States to examination the of and the the agents applied the were lawful and to the due taxes assessed as 'contents be Judge Murphy. owing appellant May 24, proper, held When as through misunderstanding Apparently, contain the six was found to a the facts, delivery powder, glassine especially full of these of a white belonged money to an admitted officerof the Internal John Carlo prior him, probable cause to Service to the there was arrest commence Revenue and, proceeding, Murphy ar- incidental to this ment of as appellant’s to believe that reasonable cause of granted so much at first engaged May the was 24 in of return petition demanded as war- without transactions and his arrest was resettled money. order Later entirety. may justified and the rant that time be in its petition denied upheld. searches There and seizures tightly currency legality course, of no issue here these of wrapped one in another entry of bags box with the cardboard and in may heroin, it quantity a the seized here, necessary It not to determine money should well be that return however, may justified that the arrest be because event refused in have been as of one vio- “who has committed such justified inference an these facts knowledge solely by lation” used money heroin ás well jus- February 17th transaction. Such illegal But we narcotics. traffic may questionable tification in view go decide far as to need not so discloses, failure, so far as record for used, error not was so as it to make effort to obtain and serve re Judge Murphy order to refuse to February warrant in the period between 41(e) money Rule turn May plenty 24. There Procedure, Rules Criminal Federal time to obtain a warrant of arrest “subject only U.S.C., not it was intervening. more than three months lien, tax detention” lawful because language While the and the of the statute paid already into it had been legislative history specific as to are not Treasury States. See of the United the time within which the officers stated States, 95 U.S. Welsh v. United App.D.C. act, may are to arrest without warrant Field 220 F.2d by the Con- authorized well have been States, Cir., certi 263 F.2d permit gress primarily in order denied, orari prompt where aban- in a situation action 1534; Simpson v. S.Ct. Thomas, 3 L.Ed.2d delay while donment of surveillance Cir., F.2d 450. 271 appellant, might obtaining escape warrant cause open if thus leave it Even a war- evidence. or destruction of rant, so, pursue chooses other do to the Con- in obedience obtained may remedies as him be available to requirements warrants stitutional against the determination of his claim reasonable executed arrest should be $20,100. the United States for may stale. promptness or it become Affirmed. Cir., 1958, Joines, United States 471, Seymour v. United 258 F.2d Judge (concurring). SMITH, Circuit U.S.App.D.C. An F.2d the result. I concur in by necessity exception carved out solely reliance While requirement should Constitutional question, may open 17 transaction However, greater if breadth. be allowed May arrest at the time of DiCarlo’s reasonably justified ain a rea- grounds existed for 24 sufficient at the time belief that part of the sonable belief on the prior 24 or within a reasonable *9 engaged in a violation that he then engaged a nar- DiCarlo was thereto narcotics law. transaction, and the sub- the arrest cotics sequent delivery of nar- held must be In view of the earlier search of the by DiCarlo the statute. cotics in a brown valid under .Here February reasonably justified move- a belief engaged. May apartment on 24 so that DiCarlo was ments DiCarlo to May and Matilda The search the brown delivery reasonable, therefore as was the follow- Matilda’s then Carlo on ing pres- his admission of of narcotics arrest of Carlo ownership, Di- and the further search there- ence of the brown kitchen, after authorized Carlo.