464 F.

2d 1093

UNITED STATES of America

v.
Lonnie F. LAMPKIN, Appellant.
No. 72-1066.

United States Court of Appeals,

Third Circuit.
Argued April 14, 1972.
Decided June 27, 1972.

Byrd R. Brown, Pittsburgh, Pa., for appellant.

Charles F. Scarlata, Asst. U. S. Atty., Pittsburgh, Pa., for appellee.
Before McLAUGHLIN, VAN DUSEN and ALDISERT, Circuit Judges.
OPINION OF THE COURT
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.
3

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.
4

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.
5

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.
7

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.
8

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. Sec.
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 Sec. 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 choice 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.

10

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 pocket and the arrest valid, the heroin was lawfully
discovered and held by the agents. The motion to suppress it must accordingly
be denied.

11

The judgment of the district court will be affirmed.

12

VAN DUSEN, Circuit Judge (dissenting).

13

I respectfully dissent from the majority's conclusion that the federal agents had
constitutionally adequate probable cause to arrest and search Lampkin as they
did at the Greater Pittsburgh Airport Terminal on June 3, 1970, and believe that
at the least the judgment of conviction and sentence should be vacated and the
case remanded to the district court for further findings in light of the Supreme
Court's decision in Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28
L.Ed.2d 306 (1971). I agree with the majority that Lampkin was arrested at the
instant that the federal agents approached him with their guns drawn and
detained him, before they had asked him his name, and that this detention was
not simply a "stop and frisk" which may be justified by less stringent probable
cause standards, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889
(1968); United States v. Fields, 458 F.2d 1194 (3d Cir., 1972). Thus, as the
majority states, whether Lampkin's arrest was constitutionally valid will depend
upon whether the record before the district court supports the conclusion that at
the moment that the federal officers approached Lampkin "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).1

14

The only evidence introduced at the pre-trial suppression hearing conducted on

January 18, 1971, was the testimony of Agent Sheid, a special agent with the
United States Bureau of Narcotics and Dangerous Drugs. Agent Sheid testified
that on the morning of June 3, 1970, as he and two other special agents were
proceeding west on Interstate 76 toward the Greater Pittsburgh Airport, they
observed a 1967 Cadillac car occupied by "two male Negro individuals" also
proceeding toward the airport. N.T. 3-4. When asked on direct examination
whether he recognized either of the two occupants of the automobile, Agent
Sheid declared:

15recognized them only to the extent that I though that I had perhaps seen one of
"I
them earlier, prior to that occasion . . . [d]uring my work as an undercover agent in
the Hill District of Pittsburgh, Pennsylvania." N.T. 4.
16

On cross-examination, however, Agent Sheid acknowledged that he had never

seen the passenger of the vehicle before (who was, in fact, the defendant
Lampkin) and did not know his name (N.T. 16), so that it must have been the

driver of the automobile that he had "thought" that he "had perhaps seen"
earlier. Apparently because of this identification and the fact that Agent Sheid
"thought that [he] had seen this subject vehicle in the Hill District of Pittsburgh"
(N.T. 4), Agent Sheid radioed the Pittsburgh office of the Bureau for a
registration check on the car while the agents followed it to the airport (N.T. 45). The Pittsburgh office reported that the automobile was registered in the
name of Lonnie F. Lampkin. N.T. 5. Since the name Lampkin was familiar to
Agent Sheid as the surname of a Joseph Lampkin, whose name was included in
the narcotics files of the Pittsburgh District Office of the Bureau, Agent Sheid
ordered the Pittsburgh office to contact the City of Pittsburgh Narcotics Squad
for any additional information they could provide. N.T. 5, 17-18.
17

The Pittsburgh Police Department reported, according to Agent Sheid, that

"Lonny F. Lampkin was the name which appeared on an arrest warrant
charging him with illegal sale of narcotics in violation of Pennsylvania Drug,
Device, and Cosmetic Act" and that "Lonny F. Lampkin was currently under
investigation by their department and was a known narcotics dealer in the city
of Pittsburgh, and the fact that his suspected source of supply was in New York
City." N.T. 7.

18

When the vehicle registered in the name of Lonnie F. Lampkin arrived at the
airport, two agents followed the passenger (actually the defendant Lampkin) to
a ticket counter and determined that he purchased a ticket in the name of Gene
McClary for a flight to Newark, New Jersey, leaving that morning. N.T. 6.
After "Gene McClary" got on the plane, a request was made by the Pittsburgh
office to the Newark office to follow him after his arrival in Newark. N.T. 7-8.
The Newark agents reported to Agent Sheid that after arriving in Newark, the
suspect inquired at a ticket counter about a return flight to Pittsburgh that day
and then went into the New York City area, where they lost sight of him. Under
prodding from the prosecutor, Agent Sheid acknowledged that the surveillance
of Lampkin was "discontinued in the neighborhood of Pratt's residence or place
of business" (N.T. 9), and that Pratt was a "well known trafficker in large
quantities of narcotics" (N.T. 11). However, there is no indication in the record
that the fact that the Newark agents lost track of the suspect "in the vicinity of
Pratts" was known by the agents at the moment of their arrest of Lampkin,
which is the critical time on the issue of whether there was probable cause to
arrest. See, e. g., Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d
889 (1968). Agent Sheid did not, directly or indirectly, indicate that he had this
information prior to arrest and, in fact, when asked whether he received any
other report concerning the defendant Lampkin from the time that his airplane
left the Pittsburgh airport until the time he arrested him, Agent Sheid testified
that he did not. N.T. 23. Since the district court made absolutely no mention of

Pratt in its opinion (including its 21-paragraph findings of fact), it seems clear
that this information was learned by the arresting officers after the arrest.2
19

Meanwhile, Agent Sheid remained at the Pittsburgh airport and obtained

information regarding return flights from the New York area. N.T. 11. Later
that afternoon he saw the same individual who had driven Lampkin to the
airport in the morning enter the airport and meet Lampkin and proceed to a
Ford Thunderbird automobile (not the Cadillac that they had driven to the
airport in the morning). N.T. 12-13. As these men began to enter the car, the
federal agents approached with their guns drawn and arrested both Lampkin
and his companion (N.T. 13, Stipulation of January 18, 1971).

20

What then did the federal agents know about Lampkin that would have given
them probable cause to arrest him at the moment that they did? The record in
this case indicates that all these agents knew at the time of arrest was that
Lampkin (whom the agents did not recognize) was driven to the airport for a
one-day trip to New York City by another male Negro individual whom one of
the agents "thought that [he] had perhaps seen . . . earlier" in a car which this
same agent "thought that [he] had seen . . . in the Hill District of Pittsburgh"
and which was registered in the name of Lonnie F. Lampkin, that the name
Lampkin was familiar to the federal agent as the last name of one "suspected of
being a drug trafficker," and that the Pittsburgh Police had reported that Lonnie
F. Lampkin was the subject of a state arrest warrant charging him with illegal
sale of narcotics and was "currently under investigation" as "a known narcotics
dealer in the city of Pittsburgh" with a "suspected source of narcotics . . . in
New York."

21

I believe that at the least the Supreme Court's recent decision in Whiteley v.
Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), requires this
court to remand this case to the district court for further findings of fact. In
Whiteley the Court held that, although in general a police officer acting
pursuant to an arrest warrant is entitled to assume that the warrant is based
upon probable cause, if this is not the case the fact of the warrant cannot justify
an "otherwise illegal" arrest. See 401 U.S. at 568, 91 S.Ct. 1031. In the instant
case, the majority acknowledges that the Pittsburgh Police Department report
of an outstanding state arrest warrant for Lonnie F. Lampkin for narcotics
violations "is now thought to have been seemingly erroneous," but declares that
Whiteley is not controlling because "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."' But if the Pittsburgh Police Department
report of a state arrest warrant is to be discounted as "seemingly erroneous,"
then I would think it also possible that the contemporaneously received

Pittsburgh Police Department report that Lonnie F. Lampkin was "currently

under investigation" as "a known narcotics dealer in the city of Pittsburgh" with
a "suspected source of narcotics . . . in New York" is also "seemingly
erroneous."3 The district court, whose decision was announced on February 23,
1971, more than a month before the Supreme Court announced its decision in
Whiteley on March 29, 1971, made no findings as to whether either of the
reports by the Pittsburgh Police Department was substantially true. I believe
that at the least this court should remand this case to the district court for
findings as to whether the reports received from the Pittsburgh Police
Department were substantially accurate, since without this information I think it
is clear that the arrest was "otherwise illegal."
22

However, assuming that the arresting agents were entitled to rely on the report
of the Pittsburgh Police Department that Lonnie F. Lampkin was a "known
narcotics dealer" in Pittsburgh with a suspected source of narcotics in New
York City, I believe that these agents did not have probable cause to arrest the
defendant Lampkin at the time that they did so. The record reveals that at the
time of arrest, before Lampkin had been asked his name, the federal agents
knew only that Lampkin (whom none of the agents recognized or identified)
had been driven to the Pittsburgh airport for a one-day trip to New York City
by a man that one of the undercover agents "thought that [he] had perhaps
seen" earlier in a car which was registered in the name of one identified by the
Pittsburgh police as a "known narcotics dealer" with a "suspected source of
narcotics in New York City," and was about to be driven from the airport by
this same man in a different car. At the time of arrest, the agents had no reason
to believe that Lampkin was not Gene McClary, the name he had used on the
flight to Newark. Officer Sheid testified that he did not assume that the person
he arrested was Lonnie F. Lampkin (N.T. 2) and that, in fact, he would have
placed him under arrest even if Lampkin had said that his name was McClary
(N.T. 24). In these circumstances, the information possessed by the federal
agents at the time of their arrest of Lampkin does not seem "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).

23

In Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), the
Supreme Court held that a policeman could not constitutionally arrest Sibron
merely because the officer saw Sibron talking to a number of known narcotics
addicts over a period of eight hours in circumstances in which narcotics may
have been transferred. A different result in this case would be contrary to
Sibron, particularly since Lampkin was never even seen in the company of a
known narcotics addict or trafficker (at most, he was in such a person's car),

and the narcotics agents had no specific reason to believe that Lampkin had an
illegal reason for taking a one-day trip to New York from Pittsburgh. It may
well be that in both cases the police had their suspicions aroused because of the
capacity for illegal activity inherent in the suspects' activities. But unless the
constitutional standard for effecting an arrest (as opposed to a "stop and frisk")
is to be relaxed to include mere suspicion, I do not see how an arrest can be
justified.
24

Dicta from the recent decision of this court in United States v. Fields, 458 F.2d
1194 (3d Cir., 1972), supports the view that there was no probable cause to
arrest Lampkin at the moment that he was arrested. In Fields, special agents of
the Federal Bureau of Narcotics and Dangerous Drugs, while waiting at the
Pittsburgh airport on Monday, December 22, 1969, for several embarking
passengers who did not appear, observed the debarkation of three Negro
passengers, two men and a woman. The men carried no luggage and the woman
carried a pocketbook and a flight bag. At least one of the narcotics agents,
actually recognized both of the men, Fields and Davis, as persons believed to be
illegally trafficking in narcotics and knew of a Bureau report from an informant
(believed to be reliable) that Fields frequently went to New York and usually
returned by plane on Monday accompanied by a woman who carried drugs for
him. The narcotics agents kept Davis, Fields and the woman under surveillance
and noted that they did not walk together or speak to one another and, in fact,
the woman appeared to be intentionally avoiding contact with Davis. After
Davis left the airport, Fields waited in the entrance to the passenger terminal
about 30 minutes while parking attendants got his car. The woman waited
nearby, apparently nervous and ill at ease, but not communicating with Fields.
When the car finally arrived. Fields walked to the driver's side and the woman
walked to the passenger's door. At this point the federal agents stopped Fields
and the woman and asked the woman what was in her flight bag. The woman
responded that the bag belonged to Fields, who immediately exclaimed that it
was not his. The agent then asked to look into the flight bag and she obliged by
extending it to him, although maintaining that it was not hers.

25

In these circumstances, the Court declared that "[i]t is doubtful whether the
information possessed by the federal agents, supplemented by their observation
of the suspects, supplied probable cause to justify a search of the flight bag in
invitum" (458 F.2d at 1197). If there was not probable cause to arrest the
suspects in Fields and search the flight bag, a fortiori there was not probable
cause to arrest Lampkin as the officers did in the instant case. In Fields the
narcotics agents stopped an individual who was known to them as a suspected
narcotics trafficker behaving suspiciously and acting consistently with a
reliably reported modus operandi. In the instant case, in contrast, the narcotics

agents arrested an individual whom they had never seen or heard of before,
whose specific actions were not unusual, and who was not acting consistent
with any specific modus operandi characteristic of a criminal enterprise. I
recognize, of course, that local and federal law enforcement officials must be
given reasonable latitude if the safety and welfare of the community are to be
maintained, particularly so in the case of narcotics traffic, which is both
insidious and difficult to detect and prevent. Thus, in Fields, Judge Hastie,
speaking for this court, declared that the narcotics agents had a privilege,
indeed a responsibility, to stop Fields and his woman companion in order to
question them and ask to examine the flight bag. But Judge Hastie followed this
declaration with the following caution:
26 so ruling, we do not sanction or in any way condone the stopping and harassing
"In
of persons merely because they have criminal records or bad reputations."
27

458 F.2d at 1198.

28

I believe that Lampkin's arrest under the circumstances presented in the record
constituted a violation of the Fourth Amendment and would reverse the
judgment of conviction.

It is settled that the term "reasonable cause" in 26 U.S.C. Sec. 7607, cited by
the majority, is substantially equivalent to the term "probable cause" in the
Fourth Amendment. See e. g., Draper v. United States, 358 U.S. 307, 310 n. 3,
79 S.Ct. 329, 3 L.Ed.2d 327 (1959); United States v. Simon, 409 F.2d 474 (7th
Cir.), cert. denied, 396 U.S. 829, 90 S.Ct. 79, 24 L.Ed.2d 79 (1969); Rocha v.
United States, 387 F.2d 1019, 1022 n. 2 (9th Cir. 1967), cert. denied, 390 U.S.
1004, 88 S.Ct. 1247, 20 L.Ed.2d 104 (1968); United States v. Burruss, 306
F.Supp. 915, 918 (E.D.Pa.1969)

Testimony at Lampkin's sentencing proceeding is consistent with the

acquisition of this information after the arrest. At the sentencing proceeding
held on December 15, 1971, Special Agent Lund, of the Federal Bureau of
Narcotics and Dangerous Drugs, testified that after Lampkin was arrested he
cooperated with the Bureau and told them that he had been sent to New York
by his father to purchase narcotics from someone named Pratt. N.T. 6-7

At Lampkin's sentencing hearing, Special Agent Lund acknowledged that it

was Lampkin's father who was suspected and had a reputation of being
involved in the narcotics traffic and that the defendant Lampkin "wasn't known
to us to the best of our knowledge." N.T. 6-7