United States v. Esmeraldo Gazard Colon, 419 F.2d 120, 2d Cir. (1969)

419 F.
2d 120
UNITED STATES of America, Appellee,

v.
Esmeraldo GAZARD COLON, Appellant.
No. 299.
Docket 33931.
United States Court of Appeals Second Circuit.

Argued November 18, 1969.
Decided December 11, 1969.
Henry K. Chapman, New York City, for appellant.

John J. Kelleher, Asst. U. S. Atty., Southern District of N. Y. (Robert M.
Morgenthau, U. S. Atty., and Paul B. Galvani, Asst. U. S. Atty., Southern
District of New York, on the brief), for appellee.
Before LUMBARD, Chief Judge, and DANAHER * and ANDERSON,
Circuit Judges.
PER CURIAM:
Esmeraldo G. Colon was sentenced on April 22, 1969 to 12 years

imprisonment, as a second offender, following his conviction for receiving and
concealing 11.350 grams of heroin in violation of 21 U.S.C. 173 and 174.
On this appeal he raises two points, first, that there was a lack of probable
cause for his warrantless arrest and the incidental search; and, second, that the
trial court erred in not requiring the Government to reveal the name of the
informer. Probable cause for the arrest was based upon what the informer told
the narcotics agents and their own knowledge and observations. The informer
had told Agent Moser about illicit narcotics activities during the preceding five
months, and had given him at least six tips three of which had led to arrests
and the seizure of a quarter of a kilogram of pure heroin. The cases stemming
from the arrests were still pending at the time of Colon's arrest on April 23,
1968. The agents knew that Colon had been convicted in Puerto Rico and more
recently had been arrested in New York on narcotics charges.

3
The informer, who had been a runner for Colon, told the agents that on the
previous day he had observed Colon with one Nelson, his lieutenant, in a
yellow 1968 Chevrolet with black vinyl top; that Colon gave a packet enclosed
in tinfoil to Nelson, who entered the hallway of a nearby building and
distributed the contents to persons whom the informer knew were Colon's
runners; and that he also heard that Colon would return the next morning, April
23rd, with narcotics, which Colon usually carried, concealed, under the front
seat of his automobile. After giving the agents this information, the informer
led them to a place in the Bronx where Colon kept his car. The informer left,
and the agents kept the car under surveillance. Shortly thereafter Colon
appeared, unlocked his car after looking around, reached in his right hand
pocket and bent over as if he were placing something under the front seat. He
drove off but was stopped and placed under arrest. A search revealed a packet
of heroin under the front seat.
The appellant argues that, unless the prior information on which the agents
based their conclusion as to the informer's reliability led to convictions, it may
not be considered dependable. But this is not so. A variety of factors having
nothing to do with the truth and dependability of the informer's story may
prevent a conviction, and it would be highly technical and unnecessary to make
this a prerequisite. If such previous disclosures led to arrests and the discovery
of narcotics, the trier is justified in finding that the agents properly considered
such past experiences with the informer as factors supporting the reliability of
what the informer said to them relative to the investigation then being pursued.
See Smith v. United States, 123 U.S.App.D.C. 202, 358 F.2d 833 (1966), cert.
denied 386 U.S. 1008, 87 S.Ct. 1350, 18 L.Ed.2d 448 (1967).
The appellant further argues that even if the informer was believable, there was
still insufficient information in hand to constitute probable cause for arrest
under the holdings of Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21
L.Ed.2d 637 (1969), and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12
L.Ed.2d 723 (1964). We are satisfied, however, that the principles enunciated
in those cases have been fulfilled. There were present circumstances which
were sufficient to show the general reliability of the informer and the basis and
source of his information. United States v. Acarino, 408 F.2d 512, 514 (2 Cir.),
cert. denied, 395 U.S. 961, 89 S.Ct. 2101, 23 L.Ed.2d 746 (1969).
Appellant's claim of error in the trial court's refusal to order the Government to
disclose the name of the informer must also be rejected. There is nothing in the
case that has cast the slightest suspicion or doubt on the accuracy of the
informer's information, and the agents own knowledge and observations of

Colon substantially confirmed the informer's story. Under these circumstances
it was not error for the trial court to refuse to order disclosure of the informer's
name. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967);
United States v. Tucker, 380 F.2d 206, 211-214 (2 Cir. 1967); United States v.
Shyvers, 385 F.2d 837, 839 (2 Cir. 1967), cert. denied, 390 U.S. 998, 88 S.Ct.
1203, 20 L.Ed.2d 98, rehearing denied 390 U.S. 1046, 88 S.Ct. 1640, 20
L.Ed.2d 311 (1968).
7
The judgment of conviction is affirmed.
Notes:
*
John A. Danaher, Senior Circuit Judge of the District of Columbia Circuit,

sitting by designation

United States v. Esmeraldo Gazard Colon, 419 F.2d 120, 2d Cir. (1969)

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419 F.

UNITED STATES of America, Appellee,

United States Court of Appeals Second Circuit.

Henry K. Chapman, New York City, for appellant.

Esmeraldo G. Colon was sentenced on April 22, 1969 to 12 years

recently had been arrested in New York on narcotics charges.

informer's information, and the agents own knowledge and observations of

The judgment of conviction is affirmed.

John A. Danaher, Senior Circuit Judge of the District of Columbia Circuit,

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