When an Informant's Tip Gives Officers Probable Cause to Arrest Drug Traffickers
Hendrie, Edward M., The FBI Law Enforcement Bulletin
Agent Marsh stood attentively at the Denver Union Station on September 9, 1956, watching the passengers as they came off the morning train from Chicago. He was a Federal Bureau of Narcotics agent, with 29 years of law enforcement experience. As he scanned the passengers, he saw a black male exit the train. "That's him," he thought, as he and his partner, a Denver police officer, followed the man. Agent Marsh was certain that was their man because his paid informant (Hereford), whom he always had found to be accurate and reliable, told him that James Draper would be arriving on the morning train from Chicago on either September 8th or 9th carrying a load of heroin. Hereford gave a detailed description of Draper. Just as described by Hereford, the suspect had a light brown complexion, was in his mid-20s, stood approximately 5 feet, 8 inches tall, and weighed approximately 160 pounds. As predicted by Hereford, the suspect was wearing brown slacks, black shoes, and a light-colored raincoat and was carrying a tan zippered bag. Agent Marsh saw the suspect walking fast toward the exit; Hereford had told him that the man habitually walked "real fast."
The officers arrested the suspect, who turned out to be James Draper. (1) They searched Draper incident to arrest and found two envelopes containing 865 grams of heroin clutched in his left hand, which had been thrust into his coat pocket. The officers also found a syringe in the tan zippered bag.
Draper filed a motion to suppress the evidence. The informant died 4 days after the arrest and, therefore, was not available to testify at the motion to suppress. The trial court denied the motion to suppress, and the evidence seized from Draper was introduced against him at trial. Draper's conviction was upheld upon appeal, and he filed a petition for a writ of certiorari to the U.S. Supreme Court, which was granted.
Draper raised two issues in his appeal to the U.S. Supreme Court. (2) His first argument was that the information given to the agent was hearsay, and because hearsay is not admissible in a court hearing, it should not be considered when determining probable cause. The Supreme Court dispensed with that argument by quoting from Judge Learned Hand:
It is well settled that an arrest may be made upon hearsay evidence; and indeed, the 'reasonable cause' necessary to support an arrest cannot demand the same strictness of proof as the accused's guilt upon a trial, unless the powers of peace officers are to be so cut down that they cannot possibly perform their duties. (3)
Draper's second argument was that even if the hearsay could lawfully have been considered, it was insufficient to establish probable cause to believe that Draper was violating the narcotics laws. He argued that because his arrest was unlawful, the evidence seized pursuant to that arrest should be suppressed. The Draper Court looked at the facts as presented to the agent and ruled that the agent would have been derelict in his duties if he had not arrested Draper. The court stated that at the moment the agent arrested Draper he had verified every facet of the information given to him by the informant, except for whether Draper had accomplished his mission and had heroin on his person. Every innocent detail of the informant's tip was personally corroborated by the agent; he, therefore, had reasonable grounds to believe that the remaining unverified criminal detail of the informant's tip (that Draper would have the heroin with him) was likewise true. (4)
In drug courier cases, officers typically corroborate the information before making an arrest. (5) Draper v. United States (6) is instructive regarding the level of corroboration needed to establish probable cause to arrest a drug courier. It is not necessary, however, for an officer to corroborate the information before he approaches the defendant. …