text:
    UNITED STATES ex rel. James HORELICK, Petitioner-Appellee, v. The CRIMINAL COURT OF the CITY OF NEW YORK et al., Respondents-Appellants.
    No. 35, Docket 74-1183.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 23, 1974.
    Decided Dec. 5, 1974.

      Margery Evans Reifler, Deputy Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen., of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., of counsel), for respondents-appellants.
    Paul Chevigny, New York Civ. Liberties Union, New York City (Alan H. Levine, New York City, of counsel), for petitioner-appellee.
    Before LUMBARD, FEINBERG and OAKES, Circuit Judges.
   OAKES, Circuit Judge:

This appeal is by the State of New York from a grant of habeas corpus relief from convictions on two counts of criminal trespass under the old N.Y. Penal Law § 140.10 (McKinney’s Consol. Laws, c. 40, 1967); the court below denied relief for a conviction on one count of resisting arrest under N.Y. Penal Law § 205.30 (McKinney 1967) which is not appealed. Appellee was sentenced on June 18, 1970, by the Criminal Court of the City of New York, which conviction was affirmed by the Appellate Division in November, 1971, and in turn by a 4-3 vote in the New York Court of Appeals in June, 1972, People v. Horelick, 30 N.Y.2d 453, 285 N.E.2d 864, 334 N.Y.S.2d 623 (1972), motion for reargument denied, 31 N.Y.2d 709, 337 N.Y.S.2d 1029, 289 N.E.2d 569, cert. denied, 410 U.S. 943, 93 S.Ct. 1372, 35 L.Ed.2d 610 (1973). The original sentence was to pay a fine of $250 or serve 30 days in jail on one criminal trespass count and the resisting arrest count, and an additional $250 or 30 days for the second criminal trespass count. District Judge Lasker below by order of November 26, 1973, held the convictions for trespass to be unconstitutional and set them aside, granting the writ in full unless the State resentenced the appellee for resisting arrest within 30 days. United States ex rel. Horelick v. Criminal Court of the City of New York, 366 F.Supp. 1140 (1973). The State appeals.

The district court held that Horelick’s conviction deprived him of due process of law because, since the proof adduced did not support the charge of trespass, he had no fair notice of the charge against him and because it subjected him to retroactive judicial legislation. This ex post facto act, Judge Lasker held, consisted of the New York Court of Appeals’ importing the law of forcible entry and detainer into the criminal trespass law. We are thus required to examine the facts underlying the conviction and to determine whether the record is totally devoid of evidentiary support of the finding of criminal trespass and then to determine whether the New York Court of Appeals retroactively amended or changed the criminal trespass statute in such a way as to punish Horelick for conduct that was not criminal at the time that he committed it. See Rabe v. Washington, 405 U.S. 313, 92 S.Ct. 993, 31 L.Ed.2d 358 (1972) (obscenity statute); Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964) (trespass statute). See also Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948).

The convictions in question resulted from incidents occurring during the well-known, if not now too well-remembered, strike of public school teachers in New York City in 1968. This strike, it will be recalled, was held to be illegal. See Rankin v. Shanker, 23 N.Y.2d 111, 242 N.E.2d 802, 295 N.Y.S.2d 625 (1968); N.Y.Civ.Serv.Law § 210 (McKinney 1973). On October 16, 1968, Mr. John Doar, the president of the Board of Education, issued a statement on its behalf reading in part as follows:

To assure that our system, partially crippled by this illegal strike, remains open and available to those administrators, teachers and students who choose to work, the Superintendent has directed all District Superintendents to open — and keep open — every school where any teacher, in fact where only one teacher, reports to work. He has directed that if only one teacher reports — in the absence of other administrators — that teacher is to be in charge of the school.

In accordance with, but supplementary to, the instructions of the Board of Education and the Superintendent of Schools, the Executive Deputy Superintendent at 110 Livingston Street, Brooklyn, on October 17, 1968, issued a statement which said in part:

Wherever a competent teacher of a ' school appears and is willing to assume responsibility for the supervision of the school, such a teacher should be designated to open the school. Please do this in writing, on official stationery, addressing the letter to the custodian.

The Executive Deputy Superintendent’s declaration went on to say,

In the event that the school cannot be opened because the custodian refuses to open the school, or is not present, call the borough custodial headquarters — as a second step, call the office of Mr. Hudson and Mr. McLaren.

Apparently some of the school custodians were sympathetic to the strike and were refusing to open the schools for those teachers who wanted to work.

On October 17 a group of teachers, including the designated “teacher in charge” and Horelick, went to Washington Irving High School where they were assigned to teach and presented to the school custodian the “letter of authorization” to the teacher in charge from the district superintendent. The custodian refused to open the building because he was unable to verify by phone the authenticity of the letter. Horelick nevertheless entered the building through a window with the intention of opening the doors himself. Inside the building he was stopped by the custodian who called for the police; they placed him under arrest after an altercation. Horelick’s entrance was gained through a basement window which had been broken by a student that morning. While the custodian was nailing all the windows shut, Horelick had followed the student to the side of the school, jumped a fence and then entered the school through the broken window.

The second criminal trespass charge arose on Saturday evening, October 19, 1968, when at 10:00 p.m. Horelick and a group of people again entered the school, which was open that evening for a concert. Horelick announced to the custodian that they intended to stay over in the school until Monday in order to keep the school open. Shortly thereafter approximately 40 policemen arrived, and the custodian and the police told Horel-ick and the group to leave. Horelick left, spoke to a lawyer outside, and reentered the building. After considerable discussion, he was again arrested for criminal trespass a few minutes after midnight on October 20, 1968.

The majority of the New York Court of Appeals, per Breitel, J., held that the issue was “whether the resort to self-help by ‘breaking and entering’ in the classic sense, is permitted” and that this issue was “laid to rest long ago by successive and ancient statutes relating to forcible entry and detainer ( . former Penal Law, § 2804 ... as to use of force against the person to gain entry . . .. [sic])” 30 N.Y.2d at 456, 334 N.Y.S.2d at 624. The majority opinion said, too, that “ultimately, analyses related to claims of right by owners and others entitled to rights of entry under property law” are immaterial. The majority noted that Horelick did not follow the prescription for opening schools improperly closed and that he did not call Borough Custodian headquarters or the offices of Mr. Hudson and Mr. McLaren, as the October 17 directive required. Putting the issue another way, the majority said that “the issue turns on whether the affected teachers had a ‘license’ or ‘privilege’ to open the school by surreptitious entry and force, and not whether they had a right or duty to be in the school (Penal Law, § 140.00, subd. 5).” 30 N.Y.2d at 458, 334 N.Y.S.2d at 626. The policy underlying the decision was stated to be that “It would be of the gravest consequence . . . to suggest that self-help force may be condoned or justified by an inapplicable analysis whether the school ‘lawfully’ should have been opened or closed.” Id. The three dissenting judges in an opinion per Bergan, J., relied on the Board of Education’s directive that the schools be open “if there is only one teacher going to the school” and that this placed a duty on Horelick to be at the school in spite of an illegal strike. The dissent said, “That defendant came in through a window is not remarkable in the light of the hostility of the custodians who were wrongfully closing the school.” Legally, the dissent said that the prosecutor “has not established beyond a reasonable doubt that the defendant was ‘wrongfully’ in the school in which he was assigned to teach . . . ” and that, relying on People v. Barton, 18 A.D.2d 612, 234 N.Y.S.2d 263 (1962), a colorable claim of right — even if it were mistaken — negatived the criminal intent necessary for conviction under the predecessor to § 140.10. The dissenting opinion did not, however, rely on the ex post facto argument made here and which Judge Lasker found persuasive. Apparently that argument was not made until the motion to reargue was presented to the Court of Appeals; that motion was denied without opinion. 31 N.Y.2d 709, 337 N.Y.S.2d 1029, 289 N.E.2d 569.

We cannot say that the record here was so totally devoid of evidentiary support as to raise a due process question. Garner v. Louisiana, 368 U.S. 157, 163, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961); Thompson v. City of Louisville, 362 U.S. 199, 206, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960); United States ex rel. Terry v. Henderson, 462 F.2d 1125, 1131 (2d Cir. 1972). To be sure, a colorable claim of privilege or license is a defense to a charge of trespass under New York law. People v. Stevens, 109 N.Y. 159, 16 N.E. 53 (1888); People v. Barton, supra; Denzer & McQuillan, Practice Commentary, 39 McKinney’s Consolidated Laws at 347 (1967). Judge Lasker held that even if Horelick’s entry were in fact unauthorized, his conviction for trespass is vulnerable if he reasonably believed it to be authorized, reiterating the holding in People v. Barton that a colorable claim of right — even if it were mistaken — negatives the criminal intent necessary for conviction. 18 A.D.2d at 612 — 613, 234 N.Y.S.2d at 264. Judge Lasker agreed with the dissent in the Court of Appeals that under the Board of Education directive Horelick had not only a right but indeed a duty to be at the school in spite of the illegal strike.

But we agree with the majority of the Court of Appeals that a license to do one thing, i. e., go in the front door, is not necessarily a license to enter surreptitiously through a basement window (the October 17 incident) or to enter for a concert on Saturday night and claim the right to stay the whole weekend (the October 19 — 20 incident). There was sufficient evidence for the trier of fact to determine that Horelick’s alleged claim of right went beyond any reasonable interpretation of the scope of his license or privilege as set forth in the declaration of the Executive Deputy Superintendent on October 16, or in the letter of authorization to the teacher in charge.

Nor do we see that the majority of the Court of Appeals by interpreting what is a “claim of right” was retroactively changing the law of trespass; rather it was fleshing out that law within the background of the common law, since the precise question had not been previously ruled on.

It is true that the majority did refer to the forcible entry and detainer statutes. But the majority went on in its citations to this proposition not only to refer to those statutes but to the Model Penal Code § 3.06 (Tent.Draft No. 8, 1958); to the Restatement (Second) of Torts § 88 and Scope Note at 158 — 59 (1965); and also to the annotation, Right to Use Force at 141 A.L.R. 250, 276.

In doing so the majority opinion drew on the historical background of the law relating to the use of force in (re)taking possession of land. Under the common law of England, one entitled to possession of land was privileged to use force, short of that which threatened death or serious bodily harm, against one wrongfully withholding land from him. At a very early date, however, the Statutes of Forcible Entry and Detainer were enacted making it a crime in England to use force to gain possession of land. See Restatement (Second) of Torts § 88 at 159. The limitation of such self-help remedies expressed the policy, which most states have recognized as part of their common law, that property rights were to be recognized as being secondary to the preservation of order. The Restatement (Second) of Torts, in developing the “common law background” in this area, makes it clear that the use of force in entering upon premises has been narrowly circumscribed, and as such that background serves to undercut the reasonableness of Horelick’s “claim of right” here.

The reference to the forcible entry and detainer laws, which Judge Lasker was careful to show apply only where the force is unusual or of an extraordinary nature with a tendency to bring about a breach of the peace, Drinkhouse v. Parka Corp., 3 N.Y.2d 82, 143 N.E.2d 767, 164 N.Y.S.2d 1 (1957); Fults v. Monroe, 202 N.Y. 34, 95 N.E. 23 (1911), was made, as we see it, only by way of background. Judge Lasker concluded that “Horelick’s conviction for trespass was sustained essentially because the majority of the Court of Appeals found that his conduct constituted forcible entry and detainer.” We disagree; we view the Court of Appeals majority’s holding to have been that

Since only force or some other illegal method could be used to effect an entry which would inevitably provoke counter-force (in this case, even riot), the remedy to open the school was by seeking the assistance of superiors who had the power (and perhaps the duty) to open the school. Even they were not entitled to use force, but they, if they wished to persist in their purpose to open the school, had to resort to the assistance of the police, and beyond that the courts.

30 N.Y.2d at 458, 334 N.Y.S.2d at 626. In effect, the majority opinion was saying that under the circumstances Horel-ick’s authorization to be at the school could have implied no reasonable claim of right which would have justified the use of force, rather than the use of administrative or judicial process, to enter the school on October 17, or with respect to the October 19 — 20 incident to remain in the school through a weekend awaiting Monday’s classes.

Certainly the dissent in the Court of Appeals did not consider that there was a change in the New York law wrought by the majority; there was simply a disagreement as to whether it had been established beyond a reasonable doubt that defendant was “wrongfully” in the school. In short, the state trial court’s conclusion that petitioner “was not in the position to assert that his entry was under a color of right,” either in connection with the October 17 incident or the October 19-20 incident, has to be sustained. Williams, the designated teacher in charge, was never authorized to try to force his way in, and, indeed, there was no authorization to him which would have permitted him to delegate his authority to Horelick to enter even peacefully. See Adickes v. Leary, 436 F.2d 540 (2d Cir.), cert. denied, 404 U.S. 862, 92 S.Ct. 66, 30 L.Ed.2d 606 (1971). In short, the New York Court of Appeals’ holding that the defense of license or privilege cannot be invoked to justify conduct beyond that authorized by the license was a reasonable interpretation of New York law. Cf. Reed v. New York & Richmond Gas Co., 93 A.D. 453, 87 N.Y.S. 810 (1904); Restatement (Second) of Torts §§ 168 — 170, 214, comment at 407. We believe the statute provided “a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.” United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954). We, of course, are bound by New York’s own interpretation of New York state law. O’Brian v. Skinner, 414 U.S. 524, 94 S.Ct. 740, 38 L.Ed.2d 702 (1974); Garner v. Louisiana, supra. See also Schaefer v. Leone, 443 F.2d 182 (2d Cir.), cert. denied, 404 U.S. 939, 92 S.Ct. 277, 30 L.Ed.2d 184 (1971).

Judgment reversed.

      . The statute read:
      A person is guilty of criminal trespass in the second degree when he knowingly enters or remains unlawfully in a building or upon real property which is fenced or otherwise enclosed in a manner designed to exclude intruders.
      Criminal trespass in the second degree is a Class B misdemeanor.
      While the statute has since been retitled to make the crime criminal trespass in the third degree, it is still a Class B misdemeanor.

      . After his initial arrest Horelick brought a civil rights action in federal court for an injunction against his prosecution and for damages, but the complaint was dismissed and the dismissal affirmed by this court. Adickes v. Leary, 436 F.2d 540 (2d Cir.), cert. denied, 404 U.S. 862, 92 S.Ct. 66, 30 L.Ed.2d 606 (1971). Simultaneously Horelick sought to remove the prosecution to the federal court, but the case was remanded to the state court and the remand affirmed by this court. People v. Horelick, 424 F.2d 697 (2d Cir.), cert. denied, 398 U.S. 939, 90 S.Ct. 1839, 26 L.Ed.2d 273 (1970).

      . On October 17, there was a crowd outside of the school and a substantial number of police were present when Horelick’s surreptitious entry and scuffle occurred. When Judge Lasker found no threat of a riot, we suppose in the context of an angry strike that it was not unreasonable for the Court of Appeals majority to have considered it a possibility. This seems further to distinguish the present case from People v. Barton, supra (where one corporate officer and one-third shareholder kicked open the door of an apartment used by the corporation); there the exercise of a claim of right carried with it no such potential for dire consequences.


source: Caselaw Access Project

author: ROBERT P. ANDERSON, Circuit Judge:

license: Public Domain

text:
    REA EXPRESS, INC., Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, and Air Express International Corporation, Intervenor.
    No. 49, Docket 74-1251.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 2, 1974.
    Decided Dec. 5, 1974.

      Peter G. Wolfe, New York City (Arthur M. Wisehart, New York City, on the brief), for petitioner.
    Barbara Thorson, Civ. Aeronautics Bd., Washington, D. C. (Thomas E. Kauper, Asst. Atty. Gen., Carl D. Lawson, and Arnold P. Lav, Dept, of Justice, Washington, D. C., Thomas J. Heye, Gen. Counsel, Civ. Aeronautics Bd., O. D. Ozment, Deputy Gen. Counsel, and Glen M. Bendixsen, Assoc. Gen. Counsel, Washington, D. C., on the brief), for respondent.
    John M. Gibbons, Washington, D. C. (Stroock & Stroock & Lavan and Henry J. Silberberg, New York City, on the brief), for intervenor.
    Before HAYS, ANDERSON and MANSFIELD, Circuit Judges.
   ROBERT P. ANDERSON, Circuit Judge:

REA Express, Inc. (REA) is a common carrier which provides an expedited air service advertised as “Air Express” or “REA Air Express.” The Civil Aeronautics. Board (Board) regulates REA’s activities as an air carrier and periodically has reviewed and approved REA’s service. Although it is not the only company which provides an expedited air service, appellant claims that “REA Air Express” has several unique features of direct benefit to shippers. In addition, REA has been granted the service mark “Air Express” by the United States Patent Office and has spent substantial sums in advertising that term. The Board on various occasions has recognized the distinctiveness of REA’s air service. See, Air Freight Forwarder Case, 9 C.A.B. 473, 488 (1948).

The Civil Aeronautics Board also regulates the activities of Air Express International Corporation (International), in-tervenor, which has been authorized to conduct its business as a domestic and international air carrier under that name, with slight interruption, since 1935. Similarly Domestic Air Express, Inc. (Domestic) has been operating a domestic service under its present name since 1956.

On October 4, 1972, REA filed a complaint alleging that the utilization of the words “Air Express,” long associated with a distinctive REA service, in the corporate titles of International and Domestic was “inherently likely to confuse Air Express customers of REA and make them believe that [their] services are really those of REA,” and constituted an unfair method of competition within the meaning of § 411 of the Federal Aviation Act of 1958, 72 Stat. 769, 49 U.S.C. § 1381. REA requested the Board to order International and Domestic to cease and desist from further use of the allegedly confusing trade names.

After receipt of answers from International and Domestic, Richard J. O’Melia, Director of the Board’s Bureau of Enforcement, notified the parties on June 8, 1973 of his determination not to institute an investigation because REA had failed to establish a prima facie case of public confusion, inasmuch as the corporate names were sufficiently dissimilar to preclude inherent or likely public confusion and REA had failed to show any actual public confusion.

REA thereupon filed motions with the Board to review O’Melia’s determination, and to amend its complaint to allege that International’s and Domestic’s use of the words “Air Express” had resulted in actual public confusion. REA attached an affidavit to those motions setting forth 22 alleged instances of customer confusion between May 31, 1973 and June 19, 1973. REA further stated in its supporting affidavit that the New Jersey Telephone Company’s internal listings set forth Air Express International Corporation as a subordinate listing under REA Express; that many telephone calls were received both by petitioner and International and Domestic from confused shippers; and that REA often received mail intended for Domestic or International. REA claimed that it had not compiled more exhaustive data on public confusion because it had been previously owned by the railroads which would not allow it to do so, but offered to submit additional evidence at a proposed future hearing.

In an order filed August 8, 1973, affirming O’Melia’s determination, the Board, without an investigation, found that the complaint, even as amended, failed to state a cause of action warranting the assumption of jurisdiction under § 411 because the mere similarity of names did not result in substantial public confusion, and the conclusory nature of the affidavit lacked sufficient specificity, especially in light of the lack of previous complaints about the use of the words

“Air Express” to meet the “public interest” jurisdictional standard. REA’s petition for reconsideration was also denied.

The question on appeal is whether the Board had discretion to dismiss a complaint alleging an unfair method of competition because insufficient facts were alleged to establish the reasonable likelihood that the admittedly unfair method of competition caused “specific and substantial” public injury.

Congress has committed to the Board’s discretion, by the terms of § 411, the questions whether and under what circumstances it will initiate an investigation in response to a formal complaint. See generally, Transcontinental Bus System, Inc. v. Civil Aeronautics Board, 383 F.2d 466, 478 (5 Cir. 1967); Flying Tiger Line, Inc. v. Civil Aeronautics Board, 121 U.S.App.D.C. 332, 350 F.2d 462, 465 (1965). This discretion, however, is not absolute and decision by the Board is a reviewable final order under 49 U.S.C. § 1486. See, Trailways of New England v. Civil Aeronautics Board, 412 F.2d 926, 931 (1 Cir. 1969). The function of a reviewing court, in light of the nature of the Board’s authority, is the limited one of ensuring that the Board has not abused its discretion. See, Pan American-Grace Airways v. Civil Aeronautics Board, 85 U.S.App.D.C. 297, 178 F.2d 34, 36 (1949). Under the narrow scope of review mandated by this standard, the Board’s determination should not be disturbed if, on the record as a whole, it is supported by substantial evidence. Golden State Bottling Co. v. NLRB, 414 U.S. 168, 172, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973); Universal Camera Corp. v. NLRB, 340 U.S. 474, 491, 71 S.Ct. 456, 95 L.Ed. 456 (1951); American Cyanamid Co. v. Federal Trade Commission, 363 F.2d 757 (6 Cir. 1966); American Airlines v. Civil Aeronautics Board, 97 U.S.App. D.C. 324, 231 F.2d 483, 486 (1956).

It has long been recognized that, under the above standard, an administrative agency properly exercises its discretionary authority when it refuses to investigate a complaint, which, accepting as true its factual allegations, fails to establish a prima facie claim for relief. Nebraska Department of Aeronautics v. Civil Aeronautics Board, 298 F.2d 286, 295 (8 Cir. 1962); Flight Engineers’ International Association v. Civil Aeronautics Board, 118 U.S.App.D.C. 112, 332 F.2d 312, 314-315 (1964). The Board in this case found that REA failed to establish a prima facie claim for in-junctive relief because insufficient facts were alleged to establish the likelihood of “specific and substantial” public confusion. It accordingly dismissed the complaint without an investigation. Because it is arguable that REA in its amended complaint could have established a prima facie case under some less rigorous standard than the “specific and substantial” criteria adopted by the Board, we must determine the reasonableness of the Board’s interpretation of the type of claim for which it may grant relief under § 411, which is concerned neither with the punishment of wrongdoing nor with the protection of injured competitors, but rather with protection of the public interest. American Airlines v. North American Airlines, 351 U.S. 79, 83, 76 S.Ct. 600, 100 L.Ed. 953 (1956). It has been held that an administrative agency, with authority similar to that of this Board, may not employ its powers to vindicate private rights. Federal Trade Commission v. Klesner, 280 U.S. 19, 25-30, 50 S.Ct. 1, 74 L.Ed. 138 (1929); see also, Pan American World Airways v. United States, 371 U.S. 296, 306, 83 S.Ct. 476, 9 L.Ed.2d 325 (1963). If the Board were to assume jurisdiction over all such matters, the public-private distinction which lies at the base of its jurisdiction under § 411 would be hopelessly blurred. The maintenance of such distinction requires that the Board assume jurisdiction under § 411 only in those cases where the injury to the public is substantial.

There is no question that the creation of name confusion may constitute an unfair method of competition within the meaning of § 411 if the name denotes a particular carrier or a specific service. American Airlines v. North American Airlines, supra. In this case, REA alleged that the multiple use of the term “Air Express”, incorporated in a number of names has resulted in public confusion because of the services it provides and the distinctive type of its business. In order to ensure that such confusion affected the public interest generally and not merely petitioner’s interest in sharpening its public identity, the Board was correct in finding that the use of similar names by competitive carriers violates § 411 only to the extent that they result in “specific” and “substantial” public confusion. In order to establish this, REA should have set out instances of frequent and common confusion which had persisted over a substantial span of time. The 22 instances of actual confusion, recited in petitioner’s affidavit, took place within a three-week period and hardly evidence the type of allegation necessary to establish a prima facie case for relief under § 411. The confusion alleged resulted from the multiple use of the descriptive term “Air Express,” which means simply the speedy delivery of goods by air and not any company’s particularized kind of service. REA had the additional burden in this case, therefore, of pleading facts which tend to establish the existence of substantial confusion as to carrier identity or character of service, but it did not do so.

The claim that the railroads had prevented REA from collecting information to establish the existence of substantial confusion as to carrier identity or character of service does not affect petitioner’s burden of establishing a prima facie claim for relief, nor does it mitigate REA’s failure to meet that burden in this case. REA argues, nevertheless, that the Board acted improperly because it failed to make findings to support its conclusion. Although it is often true that a court cannot review an administrative determination unless the agency sets forth the reasons and evidence in support of its position, Trailways of New England v. Civil Aeronautics Board, supra, 412 F.2d at 932, this is not the case when, as here, the agency has dismissed a complaint for failure to establish a prima facie case. To require ■ the Board to marshal evidence which showed there was, in fact, no “significant and substantial” public confusion, as petitioner would have us do, would place the burden of proof upon the wrong party. Such a showing, difficult at best, is not required for appeals courts to rule fairly on the reasonableness of an administrative agency’s exercise of discretion.

The Board’s refusal to initiate an investigation because REA failed to plead sufficient facts to establish a prima facie case for relief under § 411 of the Federal Aviation Act is affirmed.

      . These alleged benefits include (1) service to all airport cities in the nation as a single carrier, with integrated operation and under a single through way bill with single carrier responsibility, (2) carriage of virtually all tendered commodities, and (3) REA’s arrangement for priority placement on aircraft.

      . Section 411 of the Federal Aviation Act, 49 U.S.C. § 1381, provides as follows:
      “The Board may, upon its own initiative or upon complaint by any air carrier . if it considers that such action by it would be in the interest of the public, investigate and determine whether any áir carrier has been or is engaged in unfair or deceptive practices or unfair methods of competition in air transportation or the sale thereof. If the Board shall find, after notice and hearing, that such air carrier . is engaged in such unfair or deceptive practices or unfair methods of competition, it shall order such air carrier ... to cease and desist from such practices or methods of competition.” (Emphasis added.)

      . Nothing we have said herein prejudices REA’s right to commence a private suit, involving, as it would, a different cause of action from the present one, the dismissal of which we here affirm.


author: ALBERT V. BRYAN, Senior Circuit Judge:

text:
    MARSHALL EXPORTS, INC., Appellant, v. C. A. PHILLIPS, d/b/a Phillips Hardwood Sales Co., and Takashimaya Co., Ltd., Appellees.
    No. 74-1362.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 2, 1974.
    Decided Dec. 3, 1974.
    Marvin E. Taylor, Jr., Raleigh, N. C. (George B. Mast, Joseph T. Nall and Mast, Tew & Nall, Smithfield, N. C., on brief), for appellant.
    Larry B. Sitton, Greensboro, N. C. (Beverly C. Moore, H. Miles Foy, III, and Smith, Moore, Smith, Schell & Hunter, Greensboro, N. C., on brief), for appel-lees.
    Before BRYAN, Senior Circuit Judge, and BUTZNER and WIDENER, Circuit Judges.
   ALBERT V. BRYAN, Senior Circuit Judge:

With diversity of citizenship undisputed, the controversy in this contract action is on whether personal jurisdiction was ever obtained over the nonresident defendant foreign corporation. The District Court dismissed for want of such jurisdiction.

On February 23, 1973 in the State court, Marshall Exports, Inc. of North Carolina sued C. A. Phillips, a resident of Mississippi, and Takashimaya Company, Ltd., a Japanese corporation, for damages of several million dollars alleged as suffered from the breach by the defendants of two lumber purchase agreements. These documents were signed by Marshall and Phillips, but not by Taka-shimaya. The case was duly removed to the Federal court.

Although not a signatory to either of them, liability on the contracts is imputed to Takashimaya by the allegations that each contract was made in this way: the defendant Phillips “acting as agent for, and on behalf of defendant, Takashi-maya, entered into a written contract whereby plaintiff was to sell and to ship from the State of North Carolina to the defendant Takashimaya in Japan, and the defendant Takashimaya was to purchase from plaintiff” the lumber therein described.

These averments are expanded by assertions of Phillips’ representations to the plaintiff at the time of the execution and delivery of the contracts, and on numerous occasions during the prior negotiations, of his agency for Takashima-ya and his authorization as agent to enter into such contracts for and on behalf of Takashimaya; that Takashimaya clothed Phillips with indicia of agency and held him out as its agent; and that plaintiff relied upon this apparent authority in executing the contracts with Phillips.

Potential personal jurisdiction of Ta-kashimaya was pleaded by the complaint’s allegations of its “doing business in the State of New York, the State of North Carolina and other states with an office in the State of New York”. It also set forth that the contracts on which the suit was brought were entered into within the State of North Carolina by plaintiff and by Phillips acting for Takashimaya, as well as that the contracts were for the sale, and shipment from North Carolina to Japan, of the lumber described in the agreements.

Summons and complaint were attempted to be served upon Takashimaya by delivery of them to the Secretary of State of North Carolina in accordance with § 55-146 of the State’s General Statutes naming him as the agent for those foreign corporations subject to the jurisdiction of North Carolina. A similar attempt was made through service upon a lawyer in New York City but by affidavit he disclaimed any power to receive process for Takashimaya. This defendant thereafter moved under Rule 12(b), F.R.Civ.P. to dismiss the action for lack of jurisdiction.

To sustain jurisdiction, plaintiff cited the following long-arm statutes of North Carolina:

“G.S. § 1-75.4. Personal jurisdiction, grounds for generally. — A court of this State having jurisdiction on the subject matter has jurisdiction over a person served in an action pursuant to Rule 4(j) of the Rules of Civil Procedure under any of the following circumstances:
******
(5) Local Services, Goods or Contracts. — In any action which:
a. Arises out of a promise, made anywhere to the plaintiff or to some third party for the plaintiff’s benefit, by the defendant to perform services within this State or to pay for services to be performed in this State by the plaintiff; or
b. Arises out of services actually performed for the plaintiff by the defendant within this State, or services actually performed for the defendant by the plaintiff within this State if such performance within this State was authorized or ratified by the defendant; or
c. Arises out of a promise, made anywhere to the plaintiff or to some third party for the plaintiff’s benefit, by the defendant to deliver or receive within this State, or to ship from this State goods, documents of title, or other things of value; or * * *

“G.S. § 55-145. Jurisdiction over foreign corporations not transacting business in this State. — (a) Every foreign corporation shall be subject to suit in this State, by a resident of this State or by a person having a usual place of business in this State, whether or not such foreign corporation is transacting or has transacted business in this State and whether or not it is engaged exclusively in interstate or foreign commerce, on any cause of action arising as follows:

(1) Out of any contract made in this State or to be performed in this State; or
(2) Out of any business solicited in this State by mail or otherwise if the corporation has repeatedly so solicited business, whether the orders or offers relating thereto were accepted within or without the State;

In the main, plaintiff Marshall depended upon those portions of these statutes which conferred jurisdiction over persons and foreign corporations subject to a cause of action arising out of contracts made or to be performed in North Carolina, out of any business solicited in the State, or out of promises of services performed or to be performed in North Carolina by the plaintiff. Takashimaya denied it was ever to be found in the State in these circumstances.

Obviously the determinative question was whether the activities of Takashima-ya were within the descriptions of these statutes. Upon the issue of jurisdiction being formally raised by motion as permitted by Rule 12(b), the parties, as well as the Court, treated the motion as tendering an issue of fact like a traverse in an answer under Rule 12. See Rules 8(d) and 15(b); cf. Roberts v. Lewis, 144 U.S. 653, 656-658, 12 S.Ct. 781, 36 L.Ed. 579 (1892). Confirming this intention evidence was offered in the form of affidavits, counter-affidavits, interrogatories and answers thereto, upon the inquiry of whether Takashimaya’s operations came within the formulae of the North Carolina jurisdictional statutes. A jury was not demanded and the factual dispute was. left to the Court to resolve. Wright, Law of Federal Courts, 2d ed., 292.

In this posture of the litigation the burden was upon the plaintiff to show by a preponderance of the evidence that acts of the defendant placed it within the reach of the long-arm statute. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). This, the District Court concluded, the plaintiff had not done.

We cannot say that the findings of the District Judge are clearly erroneous; insightful and searching, they fully sustain the conclusion of the Court. Thus we affirm on the District Judge’s Memorandum of Decision and Order. Marshall Exports, Inc. v. Phillips et al., 385 F.Supp. 1250 (E.D.N.C.1974).

Affirmed.

      . Concededly Phillips was appropriately brought into the action and is not a contestant in this appeal.

      . The Court did not have to pass upon the due process limitations upon the long-arm statutes, as weighed in International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) and its successors, because it found that the activities of Taka-shimaya were not within these statutes.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Anthony S. CAROLLO, Defendant-Appellant.
    No. 74-1420.
    United States Court of Appeals, Fifth Circuit.
    Jan. 23, 1975.
    Rehearing and Rehearing En Banc Denied March 13, 1975.
    Michael F. Barry, New Orleans, La., for defendant-appellant.
    Gerald J. Gallinghouse, U. S. Atty., Stephen A. Mayo, J. Phillip Krajewski, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.

      On Petition for Rehearing
    Before WISDOM, GOLDBERG and GEE, Circuit Judges.
   PER CURIAM:

In response to the petition for rehearing, the prior unpublished opinion of the Court is withdrawn and the following is substituted.

Defendant-appellant Carollo, a restaurant proprietor, was convicted of having violated 26 U.S.C. § 5117(a) by purchasing distilled spirits for resale from one who was neither exempt nor a wholesale dealer in liquor who had paid the special dealer’s tax. Following his conviction Carollo was placed on six-months inactive probation and fined $50. The sole issue before this court on appeal is whether certain statements made by Carollo during an administrative inspection of his restaurant should have been excluded from evidence. Carollo argues that they should have been, alleging that these statements, which were incriminating, were elicited from him after he was in custody but before he was given any Miranda warnings.

On June 8, 1972, Special Agent Klotz and other agents of the Treasury’s Bureau of Alcohol, Tobacco and Firearms (ATF), pursuant to warrant, conducted an administrative inspection of the Venezia Restaurant. Upon entering the restaurant, Klotz identified himself and his fellow agents and explained the purpose of his visit. Carollo, in turn, introduced himself as the owner and proprietor of the restaurant and offered to help the ATF agents in any way that he could while they conducted their inspection. He then moved freely about his restaurant and on several occasions left the agents and waited on customers who had entered. While inspecting, Klotz noticed that a number of whiskey bottles behind the bar had price markings on them which resembled those used by retail distributors. His suspicions aroused, he asked Carollo where he purchased his spirits. Carollo at first named six wholesalers but then admitted that when he ran short he sometimes purchased liquor from “my friend over at John’s Liquor Store.” Upon further questioning, he gave the agents the location of the store and acknowledged that he had been purchasing liquor there for some time. At this point Klotz picked up two bottles of whiskey with prices marked on them and asked Carollo whether they had been purchased from “John’s.” Upon receiving an affirmative answer, he seized the bottles. Subsequent investigation revealed that “John’s” was in reality “L & J Liquor Store.” Its operators were the holders of only a federal retail special tax stamp. At no time during the inspection of his restaurant was Carollo read his Miranda rights.

The Fifth Amendment does not preclude the prosecution from making use of a defendant’s self-incriminating statements; rather, it forbids the state to compel a criminal defendant to be a witness against himself. In Miranda v. Arizona, supra, the Supreme Court determined that a custodial investigation is so fraught with coercive possibilities that statements made under such conditions (absent an attorney) should be considered compelled unless the defendant had been read and waived his now famous Miranda rights. But, absent custodial investigation or interrogation, the Miranda warnings are not necessarily required. This is so since, except possibly in some extremely rare case which we need not attempt to hypothesize here, absent custody the element of coercion disappears. Thus, the controlling question in this case becomes whether or not Carollo was in custody at the time he made his incriminating admission that he purchased distilled spirits from “John’s.” We conclude that he was not; that Miranda warnings were not, therefore, required; and that his conviction should be affirmed.

This court has attempted to define the meaning of “in custody” or “custodial investigation,” but its attempts have produced limited success. We know that Miranda teaches that “custodial interrogation” is “questioning initiated by law enforcement officers after a person has been taken into custody or deprived of his freedom of action in any significant way.” Miranda, supra, at 444, 86 S.Ct. at 1612. But this knowledge has not proved overly helpful for it leaves open the definition of the most important concept-custody. Lacking a general rule by means of which we can mechanically distinguish “custodial” from “non-custodial” interrogation, we have chosen to determine this issue on a case-by-case basis. Brown v. Beto, 468 F.2d 1284 (5th Cir. 1972); United States v. Phelps, 443 F.2d 246 (5th Cir. 1971). Nevertheless, we have, as Carollo points out, identified four significant factors which should be considered in making the determination. These are, (1) probable cause to arrest, (2) subjective intent of the police, (3) subjective belief of the defendant, and (4) focus of the investigation. Brown, supra, 468 F.2d at 1286; Phelps, supra, 443 F.2d at 247.

An examination of the facts shows that of the four factors mentioned above only the focus of investigation factor is even arguably present in the case under consideration. There was no probable cause to arrest Carollo before he made his damaging admissions. The price markings on the bottles were ambiguous .in nature; the bottles could have come from any number of sources, including a wholesaler. As to subjective intent of the police, Agent Klotz testified that he believed that Carollo was entirely free to leave at any time during the inspection and that he would not have prevented him from leaving. Carollo was never told that he could not leave; in fact, he walked away several times during his conversations with the ATF agents to conduct restaurant business. Carollo’s subjective belief about his freedom of action was indicated by his willingness to help the agents while conducting business as usual. Carollo insists, however, that when Agent Klotz began questioning him about where he got his liquor he became the focus of a criminal investigation.

We shall assume without deciding that Agent Klotz’s questions were more than mere administrative inquiries and that they constituted a criminal investigation which had focused upon Carollo. Even accepting Carollo’s characterization of Agent Klotz’s questions, we are unpersuaded that, under the facts of this case, the focus-of-investigation factor alone was enough to create a custody situation. We decide this realizing full well that several of our past decisions have emphasized the importance of this particular factor. Phelps, supra; Bendelow v. United States, 418 F.2d 42 (5th Cir. 1969), cert. denied, 400 U.S. 967, 91 S.Ct. 379, 27 L.Ed.2d 387 (1970); Windsor v. United States, 389 F.2d 530 (5th Cir. 1968).

In spite of the broad language of these cases, it is clear that in each the police had probable cause to arrest before they focused their investigation on the defendant. In Phelps the ATF agents knew that there had been a violation of the law as soon as they observed the cutdown rifle in the showcase. Similarly, in Bendelow the highway patrolman had probable cause to make an arrest as soon as he noticed the altered license. Bendelow, supra, 418 F.2d at 47, fn. 6. Likewise, in Windsor, “Sharp had already given the agents sufficient evidence for them to conclude that Windsor was also involved in the interstate transportation of the stolen car. There was therefore probable cause to arrest him.” Windsor, supra, 389 F.2d at 534. In short, we have found no case in which it has been held that a defendant is “in custody” when the focus factor alone is present. Nor do we feel that such a per se holding would be wise. By way of example, we fail to see how it could possibly be said that a person at the opposite end of a telephone wire is “in custody” just because the policeman talking to him has focused an investigation on him. We choose to remain true to the basic teachings of Brown and Phelps that decisions on custody must be made on a case-by-case basis.

Since we are convinced that Carollo was not in custody at the time he was questioned by Klotz, his conviction is affirmed.

      . § 5117. Prohibited purchases by dealers
      (a) General. — It shall be unlawful for any dealer to purchase distilled spirits for resale from any person other than' — •
      (1) a wholesale dealer in liquors who has paid the special tax as such dealer to cover the place where such purchase is made; or
      (2) a wholesale dealer m liquors who is exempt, at the place where such purchase is made, from payment of such tax under any provision of this chapter; or
      (3) a person who is not required to pay special tax as a wholesale dealer in liquors.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: COLEMAN, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. George Leo BARFIELD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. William James RYBKA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. William Donny HALES, Defendant-Appellant.
    Nos. 74-2252, 74-2487, 74-2616.
    United States Court of Appeals, Fifth Circuit.
    Jan. 24, 1975.
    Certiorari Denied April 28, 1975.
    See 95 S.Ct. 1684.

      Joseph F. McDermott, St. Petersburg, Fla., John T. Blakely, Clearwater, Fla., Oscar Blasingame, St. Petersburg, Fla. (court-appointed), for defendants-appellants.
    John L. Briggs, U. S. Atty., D. Frank Winkles, Asst. U. S. Atty., Jacksonville, Fla., Claude H. Tison, Jr., John Lund, Asst. U. S. Attys., Tampa, Fla., for plaintiff-appellee.
    Before RIVES, WISDOM and COLEMAN, Circuit Judges.
   COLEMAN, Circuit Judge.

George Lee Barfield, William Hales, and William James Rybka, Juveniles, were found guilty of burglarizing the Barnett Bank of Auburndale, Florida. Adjudicated juvenile delinquents, they were committed to the custody of the Attorney General for the duration of their minority, 18 U.S.C. § 5031 et seq.

We note at the outset that the evidence of the guilt of these appellants was overwhelming. Nevertheless, Bar-field and Rybka appeal on the ground that the District Judge, who sat without a jury, admitted into evidence statements obtained from them, they say, in violation of their Fifth Amendment privilege against self incrimination. Hales says that his Fourth Amendment rights were violated by an F.B.I. search, that he was made the victim of the testimony of an incompetent witness, and that his conviction was based upon erroneous findings of fact.

The cases were argued together and we affirm the Judgments of the District Court.

I. THE EVIDENCE

The Bank was burglarized on November 17, 1973. A glass panel next to the back door was smashed, several teller boxes were broken open, and coins to the amount of $1184.14 were taken.

John Hales was a brother of defendant, William. On the evening of the burglary, he heard all three defendants discussing plans to break into the Bank. This conversation took place at the Hales residence, about 100 yards from the Bank. Two of the three left and walked toward the Bank. Some time later they returned to the house. Immediately a second trip was made in the direction of the Bank. The two defendants who made that trip returned with a white bag, which they placed under some bushes. Later in the night, John Hales drove all three of the defendants to the residence of one Stephanie Brightwell. There, the coins were dumped on the floor of the living room, sorted, and counted.

Stephanie testified that all three defendants and John Hales did come to her house one night during November, 1973. She was a most reluctant witness, frequently retreating within the walls of “I don’t know”, but she nevertheless said that the defendants did bring “a lot of change” to her house and that they did count and sort it. Stephanie further testified, over objection, that Barfield said that the defendants should have used stockings or should have covered their faces with stockings.

Kenneth Tripp testified that Barfield lived with his family. On the day following the Barnett Bank burglary, Bar-field told the Tripp brothers that he, together with Hales and Rybka, had robbed the Barnett Bank by breaking into the back door and prying open a cash deposit box. Barfield then took the Tripp brothers to a place near a railroad track, where some of the money was hidden. Barfield there displayed a lot of change in a canvas sack. This bag contained lettering, “Barnett Bank”. The Tripp brothers and Barfield took the money to Dade City where they changed it into paper money. Barfield gave Jerry Tripp $100 of the money. The District Court admitted Tripp’s testimony only as to the defendant Barfield.

Jerry Tripp corroborated Kenneth’s testimony, again admitted only as to Barfield.

Some three or four weeks after the burglary, one Jesse Clem overheard a conversation in which Barfield participated. Something was said about the Bank and subsequently Barfield told Clem not to repeat what he had heard. This evidence was admitted as to Bar-field alone.

Acting on information supplied by Barfield, F.B.I. agents obtained a search warrant and searched a small building at the Hales residence, where they found several coin wrappers, a Barnett Bank envelope, and five Canadian nickels.

Additionally, all three defendants confessed their participation in the burglary, but only the confessions of Barfield and Rybka were admitted in evidence.

II. RYBKA’S APPEAL

As already stated, Rybka argues that the confession he gave to the F.B.I. agents was obtained in violation of his Fifth Amendment privilege against self incrimination. Rybka was 16 years old. He was questioned by F.B.I. Special Agent Gamber, who was accompanied by Special Agent Roberts. The questioning took place at the Rybka home in the presence of his mother.

Upon- arrival at the Rybka residence, the agents identified themselves and handed the juvenile a form advising him of his rights, containing the customary Miranda warning. Rybka read a part of the warning aloud. He was then instructed to read its entire contents, whereupon he -told the agents that he understood the warning but agreed to answer questions anyway. He signed the customary waiver form.

Rybka at first denied any part in the bank burglary but very quickly thereafter admitted his participation. This admission, however, was made after Agent Gamber had told Rybka that it would be in his “best interest” to tell the “real story” and that telling a lie might result in his being left “holding the bag”.

Rybka testified that Agent Gamber had told him that “it will be a hell of a lot easier if you own up to it” and that if he (Rybka) did “own up to it”, he might get off on probation. Rybka claimed that he had been questioned for at least 5 minutes before receiving the Miranda warning. The District Court credited the agent’s version of the interrogation.

The issue is whether telling Rybka that (1) it would be in “his best interest” to tell the “real story” and (2) that telling a lie might result in his being left “holding the bag” foreclosed, as a matter of law, the voluntariness of his confession.

Rybka says that he was offered an inducement to incriminate himself, that some hope of reward was held out to him and that even the slightest inducement is prohibited, citing Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897).

In Bram, Mr. Justice [later Chief Justice] White quoted with approval the following language from 3 Russell on Crime 478 (6th ed.).

“But a confession, in order to be admissible, must be free and voluntary; that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. A confession can never be received in evidence where the prisoner has been influenced by any threat or promise; for the law cannot measure the force of the influence, used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted.” 168 U.S. at 542, 543, 18 S.Ct. at 187.

At a later point [168 U.S. at 549, 18 S.Ct. 183] the opinion stated that whether a confession is voluntary is primarily one of fact, and therefore every case must depend upon its own proof.

Undoubtedly, there may be circumstances when an admonition to the accused to tell the truth may render a subsequent statement inadmissible but it is now clearly the law that ordinarily such an admonition does not furnish sufficient inducement to render objectionable a confession thereby obtained unless threats or promises are brought into play, Martin v. United States, 4 Cir., 1948, 166 F.2d 76.

In Rivers v. United States, 5 Cir., 1968, 400 F.2d 935, a government agent was interviewing a suspect. He displayed a statute (18 U.S.C., Section 1001) dealing with the penalties for making a false statement. We held that there was no Fifth Amendment infirmity in this warning to tell the truth:

“This use of § 1001 merely emphasized that if Appellant was going to say anything, he had best tell the truth. No one made any intimation that Appellant had a duty to speak or that the statute placed such a duty upon him. Nothing in the statute was used as a coercive instrument to get Appellant to talk or confess. With Miranda awareness of his rights to remain silent, to have counsel, and his willingness to talk, he had no constitutional right to lie and an officer’s admonition to tell the truth, whether based on morals or even misguided notions of statutory prohibitions, does not of itself measure up to a paradoxical breach of the Constitution or coercive pressure rendering the statement involuntary.” 400 F.2d at 943.

We think the same reasoning applies to the statement that a lie might leave Rybka “holding the bag”. He had already been informed that he did not have to speak at all, either truthfully or falsely, and he was further informed that he could stop talking any time he chose.

While it is true that Rybka was only 16 years of age and the agents did not ascertain that his mother understood his constitutional rights, the District Court was nevertheless entitled to consider that the interview was conducted in the defendant’s home and not at the station house, that it was done in the presence of his mother, that Rybka read the Miranda warning and said that he understood it, that Rybka signed a waiver form, and neither he nor his mother ever denied at any time that they understood the rights as explained by the F.B.I. agents and the Miranda warning.

Our independent review of the “totality of the circumstances” leaves us in no doubt that the findings of the District Court as to the voluntary character of Rybka’s confession are strongly supported by the evidence and are not due to be disturbed on appeal.

III. BARFIELD’S APPEAL

Barfield makes the same attack on his confession. It was obtained by Special Agent Gamber, accompanied by three other agents, pursuant to questioning at the Tripp home, where Barfield was living. Mrs. Tripp testified that Barfield was “just like” one of her own children. The interrogation was conducted in her presence. The interview began with Gamber reading the Miranda warning. Barfield then signed the customary waiver. Like Rybka, Barfield at first denied any knowledge of the burglary. After about 15 minutes, he admitted knowledge of the burglary but denied that he took any part in it. After about 45 minutes, Barfield did admit his participation.

As frequently the case in such incidents, the testimony concerning Bar-field’s confession is in sharp conflict. Barfield testified that Gamber promised that if he told the truth he would be placed on probation, that if he did not he could get 30 years. Moreover, Barfield said that Gamber told him that lying would result in his being thrown in jail that night. He claimed that at one point the - agent told him that he was nothing but a “d_liar”. Nevertheless, on cross examination, Barfield said that he told the truth because Mrs. Tripp advised him to do it.

As in Rybka’s case, Barfield was questioned at his own home, in the presence of a lady who looked upon him as if he were a son. He was read the Miranda warning and said he understood it. He signed the customary form, admitting that he understood his constitutional right to silence but agreeing to give it up. Moreover, Barfield had had previous experience with the police. The trial judge found him to have a “maturity beyond his years”.

Barfield was only 14 years old but the individual questioned in West v. United States, 399 F.2d 467, 5 Cir. 1968, was only 15 and no parent was present at his interrogation, which was conducted at a juvenile facility.

As in Rybka’s case, and indeed as in all such cases involving the voluntary or involuntary character of an alleged confession, including the waiver or non-waiver of constitutional rights, we must resort to a critical, but fair and impartial, analysis of the totality of the circumstances.

In Barfield’s case that procedure produces a result no different to that reached as to his associate, Rybka.

IV. HALES’ APPEAL

The affidavit for the search warrant in this case executed by F.B.I. Special Agent Charles Long reads as follows:

I am assigned the duty of Bank Robbery Coordinator for the Tampa Division of the F.B.I. That on Thursday, December 26, 1973, Leo Barfield was interviewed by Special Agents Brooke D. Roberts and Cyril P. Gam-ber. That interview has been forwarded to me in my capacity as Bank Robbery Coordinator. Barfield was advised of his constitutional rights before the interview began. Barfield related that he, William Donny Hales, and William James Rybka had, on or about November 17, 1973, broken and entered the Barnett Bank of Auburn-dale, 300 Havendale Blvd., Auburn-dale, Florida. Barfield revealed that coins were stolen from the Bank and removed to said premises described above. Barfield also related that the tools used to break into the bank were also taken and placed in said premises. Barfield described the tools as a crowbar, hatchet, screwdriver, boots, stockings, and socks. Barfield related that he knows of his own personal knowledge and observation that the above tools and contraband are stored in said premises.

This affidavit was dated December 27, 1973. The warrant was issued the same day by the United States District Judge.

Hales argues that while Barfield told the agents that the stolen property was on the Hales’ premises on November 17, 1973, the affidavit was not made until 40 days later, thus the likelihood that the contraband could have been removed during that interval precluded a finding of probable cause to search the premises. This contention is without merit, Bastida v. Henderson, 5 Cir., 1973, 487 F.2d 860.

Neither do we see any merit to the contention that the affidavit was insufficient because it did not aver that Barfield was a reliable informant. The readily apparent answer to this is that Barfield was acting against his penal interest, he was supplying information which would enhance the chances of his own conviction of criminal participation in the burglary. This supplied its own indicia of reliability, United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). See, also, Harlow v. United States, 5 Cir., 1962, 301 F.2d 361, 372.

The attack on Brightwell’s testimony, however reluctantly given, is equally unavailing. A natural reluctance to incriminate a friend does not render a witness incompetent, and her credibility is for the trier of the fact.

As indicated at the outset, if believed by the District Judge, the evidence clearly established the guilt of these Juveniles. Able counsel have energetically raised every possible barrier to the validity of the convictions, but the barriers, really, are non-existent.

The Judgment of the District Court as to each appellant is

Affirmed.


author: PICKETT, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Thomas Michael MARTINEZ, Defendant-Appellant.
    No. 74-1227.
    United States Court of Appeals, Tenth Circuit.
    Dec. 16, 1974.

      Don J. Svet, Asst. U. S. Atty., Albuquerque, N. M., for plaintiff-appellee.
    Jack L. Love, Federal Public Defender, Albuquerque, N. M., for defendant-appellant.
    Before LEWIS, Chief Judge, and PICKETT and McWILLIAMS, Circuit Judges.
   PICKETT, Circuit Judge.

Thomas Michael Martinez was charged in a single count indictment with possession of a quantity of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Pretrial motions attacking the validity of the statute and the indictment were filed. There was also a motion to suppress a quantity of marijuana seized in an alleged unlawful search. These motions were all denied. The case was then submitted to the court without a jury upon a stipulation of facts including the use of the evidence offered by the parties at a hearing on a motion to suppress. The court found Martinez guilty and sentenced him to five years probation.

The constitutionality of 21 U.S.C. § 841(a)(1) is attacked on the ground of vagueness insofar as it charges an offense, with intent to distribute a controlled substance. With reference to a. similar argument, the constitutionality of the section was discussed by this court in United States v. King, 485 F.2d 353, 357 (10th Cir. 1973), where it was said:

[T]hat § 841(a) is constitutionally deficient because it fails to state “how much” of the controlled substance is necessary to permit the inference that the possessor had an intent to distribute. We deem this argument of the alleged vagueness of the statute to be without merit. The statute clearly, and without vagueness, makes unlawful the possession of any controlled substance with an intent to distribute. The question as to the quantity which would permit the inference that the possessor had an intent to distribute is evidentiary in nature and necessarily depends upon all the facts and circumstances of the case at hand, and mention thereof in the statute is entirely unnecessary.

The King case also disposes of the contention that 21 U.S.C. § 841(b)(4) is unconstitutionally ambiguous because that section provided that the distribution of a small amount of marijuana without remuneration shall be treated as provided in another section of the statute. As in the King case, the indictment in this case, in clear and concise language, charges an offense under § 841(a)(1), not § 841(b)(4). Our research has disclosed no cases holding that the statute is unconstitutional or that a similar indictment is insufficient.

A more serious question is whether the recovery of the marijuana thrown from the Martinez car resulted from an unlawful search. The recovery was made by an officer of the United States Border Patrol about fifteen miles from the border between Mexico and the State of New Mexico. The trial court held that the seizure of the marijuana was not the result of a “roving search” as condemned in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). We agree.

At about 6:30 in the evening of December 8, 1973, a border patrol officer, while patrolling a road west of Columbus, New Mexico, along the Mexican border, was notified over the patrol radio system by an inspector at the established port of entry facilities located near Columbus that a small light blue car with a taillight missing, driven by a female, was about to pick up a “load.” The term “load” was used to designate aliens unlawfully in the United States. Shortly thereafter the officer observed an automobile of that description about IV2 miles from the border proceeding easterly on the border road toward the town of Columbus. He followed the vehicle into the westerly edge of Columbus, where it turned onto another road leading northward to Deming, New Mexico, thereby avoiding the port of entry at Columbus. Between 10 and 20 miles north of Columbus the vehicle turned off the road and stopped in a wide parking space. The patrolman also stopped and approached the Volks wagon station wagon where he requested identification papers of the occupants. Martinez produced his driver’s license and stated that he was an American citizen. The female stated that she was born in Japan but was an American citizen; After observing that the back portion of the station wagon was empty, the officer saw that the space between the front and back seats was filled with something covered by a blanket. There was room in that space where two or three humans could be hidden under the blanket. The officer lifted the blanket to ascertain if there were any persons hidden there. He found that the space was filled with suitcases and clothing. Martinez quickly entered the vehicle and drove away. Within a short distance the patrolman observed a leather bag thrown from the window of the car, which he recovered, and found that it contained a substantial amount of marijuana. Martinez later returned to the same place where he and the patrol officer had formerly met and he was placed under arrest.

We think that the patrol officer’s conduct here was well within his right to approach Martinez and investigate the possibility that a crime was being committed. In United States v. Bowman, 487 F.2d 1229 (10th Cir. 1973), a border patrol officer stopped an automobile within 100 miles of the border to determine if aliens illegally in the United States were being transported in the vehicle driven by Bowman. While in the process of making inquiry, the experienced patrolman detected the odor of marijuana and proceeded to search the car. This court held that the initial stopping of the car was not a violation of constitutional rights and that after the stop, the smell of marijuana constituted probable cause to make the search. The court said:

Immigration officers are authorized under 8 U.S.C. § 1357(a)(1) to “interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States.” The constitutionality of this provision has been consistently upheld. Fernandez v. United States, 9 Cir., 321 F.2d 283; United States v. Correia, 3 Cir., 207 F.2d 595; United States v. Mon-tez-Hernandez, E.D.Cal., 291 F.Supp. 712. The brief detention of a motorist for the purpose of determining his nationality has also been upheld without resort to this statutory provision. Contreras v. United States, 9 Cir., 291 F.2d 63. While the Almeida-Sanchez decision refers to 8 U.S.C. § 1357(a) generally, it is clear from both the reasoning and language of the majority opinion that it is the limitations of 8 U.S.C. § 1357(a)(3) specifically which are brought into question, for only that subsection authorizes the search and seizure which the Court found constitutionally impermissible under the facts of that ease. We therefore do not read the Court’s decision as challenging the right of immigration officials to make routine inquiries as to an individual’s nationality. (487 F.2d at 1231)

The Ninth Circuit disagrees with the Bowman decision, believing that it is inconsistent with the Almeida-Sanchez decision. See United States v. Brignoni-Ponce, 499 F.2d 1109 (1974). We do not, however, construe Almeida-Sanchez as designed to strip border patrol officers of all authority under statute 8 U.S.C. § 1357(a) to briefly detain and interrogate those suspected of illegal entry, and to make a reasonable investigation for reasons not reaching the level of probable cause for the purpose of ascertaining their citizenship status and their right to remain in the United States. Nor do we think that the decision has any effect on the right of an officer of the law in the course of his duties, under appropriate circumstances, to approach and question persons as to possible crimes, even though there are insufficient grounds at the time for an arrest. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Nevarez-Alcantar, 495 F.2d 678 (10th Cir. 1974); United States v. Granado, 453 F.2d 769 (10th Cir. 1972); United States v. Saldana, 453 F.2d 352 (10th Cir. 1972); United States v. Sanchez, 450 F.2d 525 (10th Cir. 1971).

The record discloses that in the instant case the border patrol officer was one of long experience in border patrol activities. For the past four years he had been assigned to the border near Columbus, New Mexico. That area had been particularly plagued with unlawful entries into the United States. Thousands had been arrested there, including more than 1,000 by the officer over the last four years. At the time that he first observed the Martinez car he was patrolling the road paralleling the border, which was about IV2 miles away. He had received notice to be on the lookout for that car. After following it to a point where it stopped, he made a routine check as to the citizenship of the occupants and observed from the outside the visible contents of the vehicle. Aside from the lifting of the blanket, no search was made, and the flight of Martinez and his attempt to dispose of the marijuana in his possession were his own voluntary acts. Under the circumstances, there was no violation of Martinez’ Fourth Amendment rights.

Other assignments of error have been considered and found to be without merit.

Affirmed.


author: VAN DUSEN, Circuit Judge.

text:
    Hector Avila ESTIEN, an infant by his next friend, Mariano Estien v. Clifford CHRISTIAN, Appellant, et al.
    No. 74-1855.
    United States Court of Appeals, Third Circuit.
    Argued Dec. 5, 1974.
    Decided Jan. 2, 1975.

      Edward J. Ocean, Christiansted, St. Croix, V. 1., for appellant.
    Leroy A. Mercer, Christiansted, St. Croix, V. I., for appellee.
    Before SEITZ, Chief Judge, and VAN DUSEN and ROSENN, Circuit Judges.
   OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This appeal challenges the amount of attorney’s fees awarded by the district court in a judgment entered in favor of the plaintiff, and against defendant Christian, on June 27, 1974. We vacate that part of the judgment which awarded the fees and remand for further consideration in light of our recent opinion in Lindy Bros. Bldrs., Inc. of Phila. v. American R. & S. San. Corp., 487 F.2d 161 (3d Cir. 1973); see also Merola v. Atlantic Richfield Co., 493 F.2d 292 (3d Cir. 1974).

The complaint, brought by a student at the public school where defendant Christian was then acting principal pleaded two separate causes of action. One was brought against the Government of the Virgin Islands pursuant to the Virgin Islands Tort Claims Act, Title 33 V.I.C. Ch. 118. The second cause of action was brought against Christian pursuant to 42 U.S.C. § 1983. Both causes of action were tried at the same time, but the claim against the Government was tried to the court, while the civil rights action was submitted to a jury. The jury returned a verdict for the plaintiff in the amount of $150.00 compensatory damages, declining to award any punitive damages. In addition to the damages assessed by the jury and nominal costs, the judgment of the court awarded the plaintiff an attorney’s fee of $1500.00.

5 V.I.C. § 541 provides in pertinent part:

“(a) Costs which may be allowed in a civil action include:
(6) Attorney’s fees as provided in subsection (b) of this section.
“(b) The measure and mode of compensation of attorneys shall be left to the agreement, expressed- or implied, of the parties; but there shall be allowed to the prevailing party in the judgment such sums as the court in its discretion may fix by way of indemnity for his attorneys fees in maintaining the action or defenses thereto.”

Although the matter of the award and its amount are within the district court’s discretion, “[t]he amount of attorney’s fees to be awarded to the prevailing party is intended to be an indemnification of the prevailing party for a fair and reasonable portion of his attorney’s fees incurred in the prosecution or defense of the action, and not for the whole amount charged by the attorney . . ..” Lucerne Investment Co. v. Estate Belvedere, Inc., 411 F.2d 1205, 1207 (3d Cir. 1969). Standards to guide the district courts in awarding such reasonable fees were stated by Chief Judge Seitz in Lindy, supra 487 F.2d at 167:

“Before the value of the attorney’s services can be determined, the district court must ascertain just what were those services. To this end the first inquiry of the court should be into the hours spent by the attorneys — how many hours were spent in what manner by which attorneys. It is not necessary to know the exact number of minutes spent nor the precise activity to which each hour was devoted nor the specific attainments of each attorney. But without some fairly definite information as to the hours devoted to various general activities . . ., the court cannot know the nature of the services for which compensation is sought.
“After determining, as above, the services performed by the attorneys, the district court must attempt to value those services.
“The value of an attorney’s time generally is reflected in his normal billing rate.”

No itemization of the hours spent by plaintiff’s attorney for his work appears in the record. The same evidence formed the gravamen of each cause of action stated in the complaint. The trial,- which began about four o’clock on the afternoon of June 24, was concluded about 10:30 o’clock on the night of June 25, 1974, when the verdict was returned. There is nothing in the record to indicate that the issues involved were complicated. Some 14 witnesses testified. Counsel agree that $50.00 per hour or $500.00 per day, is the going rate for conduct of a trial in the Virgin Islands. However, depositions were taken and other pre-trial activity must have been involved. As Lindy notes at 167, “. . . the court may find that the reasonable rate of compensation differs for different activities.”

Lindy finds two factors other than time pertinent to determining the amount of a reasonable award of attorney’s fees:

“While the amount thus found to constitute reasonable compensation should be the lodestar of the court’s fee determination, there are at least two other factors that must be taken into account in computing the value of attorneys’ services. The first of these is the contingent nature of success; In assessing the extent to which the attorneys’ compensation should be increased to reflect the unlikelihood of success, the district court should consider any information that may help to establish the probability of success. . . .
“The second additional factor the district court must consider is the extent, if any, to which the quality of an attorney’s ' work mandates increasing or decreasing the amount to which the court has found the attorney reasonably entitled. In evaluating the quality of an attorney’s work in a case, the district court should consider the complexity and novelty of the issues presented, the quality of the work that the judge has been able to observe, and the amount of the recovery obtained. ... In making allowance for the quality of work, the court must keep in mind that the attorney will receive an otherwise reasonable compensation for his time under the figure arrived at from the hourly rate. Any increase or decrease in fees to adjust for the quality of work is designed to take account of an unusual degree of skill, be it unusually poor or unusually good. If the district judge determines that particular work was of a typical quality, he should, in increasing or decreasing the fee, be cognizant of the amount of time devoted to that given activity. Further, in increasing or decreasing an attorney’s compensation, the district judge should set forth as specifically as possible the facts that support his conclusion.” 487 F.2d at 168 — 169 (footnotes omitted).

The information necessary to apply the above standards can be supplied by affidavits, e. g., Tranberg v. Tran-berg, 456 F.2d 173, 175 (3d Cir. 1972), stipulations, or a hearing. See Lindy, supra, 487 F.2d at 169.

Appellant objects particularly to what he terms “the disproportionate amount” of the attorney’s fees awarded on the two counts of the complaint in relation to the damage awards on these two counts. He contends that such disproportion “shows that the court failed to, consider any criteria in fixing the attorney’s fees” (p. 4 of appellant’s brief). Because of the lack of any basis in the record for application of the standards set forth in Lindy, supra, we need not determine this contention on the barren record now before us.

Since the record fails to supply the information necessary to apply the Lindy standard, it is clear that the award of the $1,500.00 counsel fee in this case was inconsistent with the sound exercise of discretion. See Lindy, supra, 487 F.2d at 170.

The award of attorney’s fees in the June 27, 1974, judgment will be vacated and the case remanded to the district court for further proceedings consistent with this opinion.

      . Count I, brought under Title 33 V.I.C. § 3408, alleged that Christian, while acting within the scope of his official capacity, inflicted unreasonable punishment on plaintiff by improperly administering a severe, unreasonable and unauthorized beating to Hector Estien. The court entered judgment of $8500.00 and an attorney’s fee of $1,000.00. See judgment of July 3, 1974 (D.V.I., Civil 216/73).

      . The § 1983 action alleged deprivation of plaintiff’s rights and privileges as a United States citizen through an unreasonably severe beating administered as a disciplinary measure by Christian.

      . This record does not disclose whether or not defendant Christian had arranged to compensate his attorney on a contingent basis.

      . In Lucerne Investment Co. v. Estate Belved-ere, Inc., 411 F.2d 1205, 1207 (3d Cir. 1969), Judge Maris listed the following as “appropriate criteria for the court’s consideration in awarding attorney’s fees as costs to a prevailing party in a civil action under” 5 V.I.C. § 541:
      the time and labor required, the novelty and difficulty of the questions involved, the skill requisite properly to conduct the cause, the customary charges of the bar for similar services, the amount involved in the controversy, the benefits resulting to the client from the services, and the contingency or certainty of the compensation.”
      Also, this court has recognized that “the amount of the attorney’s fee agreed upon between attorney and client, or actually paid, is only one factor to be considered in making an award under section 541. Indeed, the relatively small allowances customarily made for attorneys’ fees in the Virgin Islands indicate that the normal award under section 541 is often only a minor fraction of what an attorney may reasonably have charged a client for the services involved in the litigation.” See Smith v. Government of the Virgin Islands, 361 F.2d 469, 471 (3d Cir. 1966). Another recent case considering in detail criteria governing attorney’s fees is Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (5th Cir. 1974.)

      . Appellant also called our attention to the October 22, 1974, judgment in Cargo Services, Inc. v. Merwin, et al. (Civil 175/1968, D.V.I.), where a $3500. attorney’s fee was awarded in a case imposing damages of more than $43,-000. We do not find the factual situation in that case sufficiently similar to this personal injury action to make it helpful.


author: GEWIN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ira ALMAS, Defendant-Appellant.
    No. 74-2574
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 27, 1975.
    Edward M. Kay, Hollywood, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Samuel A. Alter, Jr., Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

       Rule 18, 5 Cir., See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et at, 5 Cir. 1970, 431 F.2d 409, Part I.

   GEWIN, Circuit Judge:

The appellant Almas was convicted of the unlawful possession of controlled substances with intent to distribute them in violation of 21 U.S.C. § 841(a)(1). He was sentenced to two fifteen-month concurrent terms of imprisonment, and two additional two-year concurrent special parole terms.

Prior to trial, Almas filed an unsuccessful motion to suppress the introduction into evidence of the drugs seized subsequent to a warrantless stopping and search of his vehicle. His only contention on appeal is that the district court erred in denying his motion. Because we determine that the arresting officer had probable cause to stop as well as search the vehicle, we affirm the conviction.

The record reveals that on November 12, 1973, at 1:20 p. m. a reliable confidential informant, working with the Drug Enforcement Administration Task Force in Miami, purchased 30 cc of Demerol in a “controlled buy” at a certain apartment in Broward County, Florida. After the purchase, the informant met with Task Force agents in Hollywood, Florida, and told them that he had purchased the Demerol from a man named “John” who had shown him a black attache case containing narcotics and told him of a brown suitcase filled with prohibited drugs under the bed in the bedroom. The informant further reported that occupants of the apartment expected a large shipment of narcotics from Atlanta, Georgia later that same afternoon.

At 2:15 p. m. police who were conducting surveillance at the apartment in question observed the arrival of a car with Georgia license plates. The police verified that it was registered in the name of an Atlanta resident.

While several DEA agents continued their surveillance of the apartment, other agents returned to their Miami office to debrief the informant, test the purchased drug, and prepare an affidavit and search warrant for the apartment. By 7:15 p. m. they had secured a valid search warrant from a U.S. Magistrate and begun the trip back to Broward County.

Agent Barretto, who had remained at the apartment, was immediately notified that a search warrant had been signed and issued and that agents were returning with it. He was advised that persons in the apartment were probably armed and that large quantities of pharmaceuticals in boxes or suitcases were allegedly within the apartment.

At 8:00 p. m. Barretto observed Almas exit the front door of the apartment carrying two suitcases and then pause to speak to someone who remained inside. Barretto walked past the apartment door and engaged Almas in conversation, glanced into the apartment, and proceeded to his car followed by Almas who walked to a brown Ford van, placed the two suitcases in the back of the vehicle, and drove quickly off. Barretto followed the van, and after attempting in vain to contact other agents by walkie talkie, stopped Almas some two blocks away. The agent disclosed his identification, took out his gun and ordered Al-mas out of the van.

At this time Almas immediately and voluntarily stated that he had a gun in his pocket and that the narcotics were in the back of the vehicle. Barretto searched the appellant and removed a .25 caliber automatic pistol from his back pocket. Barretto then walked around to the passenger side, got into the van, and drove with Almas to a nearby parking lot where he opened the suitcases in the back of the van, discovered that they contained over 5000 tablets of a variety of controlled pharmaceuticals and removed them from the van. The agent then returned to the apartment with Al-mas and the suitcases where he found that his companions had already executed the search warrant.

The intrusion at issue in this case was the stopping of the van and the seizure and subsequent search of the suitcases contained in it. The probable cause supporting the search warrant for the apartment will not in itself justify the stopping of the van, absent additional circumstances. In this case, the arresting agent had reasonable grounds to believe that Almas was removing illegal drugs from the apartment under surveillance. The search warrant for the apartment described a large supply of illicit pharmaceuticals. The government informant had indicated that one of the occupants of the apartment had told him of a large suitcase, albeit of a different color from the ones Almas carried, which was filled with drugs. Furthermore, it was probable, as the informant had advised, that more contraband had been delivered by the driver of the automobile from Atlanta. While Almas individually was not under suspicion in the beginning of the investigation, the arresting agent was justified in the reasonable belief that the suitcases which Almas carried from the apartment contained drugs. At the moment of arrest, the circumstances were “sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.” Adams v. Williams, 407 U.S. 143, 148, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612, 618 (1972); Beck v. Ohio, 379 U.S. 89, 91, 145, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). See also United States v. Wysocki, 457 F.2d 1155 (5th Cir. 1972). Almas’s rapid departure in the van precluded the possibility of securing additional warrants to arrest him and search the vehicle.

The facts in this case are similar to those in United States v. Soriano, 497 F.2d 147 (5th Cir. 1974) (en banc) in which this court upheld the warrantless stopping of a taxi and seizure of suitcases found in the trunk. In Soriano, FBI agents had placed a house under surveillance after a reliable informant reported that the occupants were expecting a large shipment of narcotics. Several parties left the house and discarded wrapping paper containing traces of an opium derivative. Later, a group of men departed the dwelling carrying three large suitcases and drove away in a taxi. Federal agents stopped the taxi and arrested the passengers. This court, sitting en banc, concluded that the agents had probable cause to stop the vehicle and to seize and search the suitcases.

In affirming this conviction we rely on the Supreme Court’s analysis of probable cause in Brinegar v. United States, supra.

In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.
“The substance of all the definitions” of probable cause “is a reasonable ground for belief of guilt.” McCarthy v. De Armit, 99 Pa. 63, 69, quoted with approval in the Carroll opinion. 267 U.S. at page 161, 45 S.Ct. [280], at page 288, 69 L.Ed. 554, 39 A.L.R. 790. And this “means less than evidence which would justify condemnation” or conviction, as Marshall, C. J., said for the Court more than a century ago in Locke v. United States, [11 U.S. 339], 7 Cranch 339, 348, 3 L.Ed. 364, [367]. Since Marshall’s time, at any rate, it has come to mean more than bare suspicion: Probable cause exists where “the facts and circumstances within their [the officers’] knowledge, and of which they had reasonably trustworthy information [are] 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, 555, 39 A.L.R. 790. (footnotes omitted)

338 U.S. at 175, 69 S.Ct. at 1310, 93 L.Ed. at 1890. The foregoing principle has been approved in Adams v. Williams, supra, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Beck v. Ohio, supra.

Moreover, these events present a typical case justifying a stop, search and seizure under the probable cause plus “exigent circumstances” rationale of Carlton v. Estelle, 480 F.2d 759 (5th Cir. 1973), United States v. Chapman, 474 F.2d 300 (5th Cir. 1973), and United States v. Ra-mey, 464 F.2d 1240 (5th Cir. 1972). As heretofore noted, and we repeat for emphasis, the arresting officer had been fully informed of the illegal drug activities which had transpired and were transpiring at the apartment. Indeed, there had been a purchase of prohibited drugs at the very apartment from which Al-mas had departed. According to the reliable informant, an occupant of the apartment had a black attache case containing narcotics and spoke of a suitcase under the bed in the apartment filled with prohibited drugs. Occupants of the apartment also advised the informant of an expected shipment of a large quantity of illegal drugs from Atlanta, Georgia that very afternoon. This information was substantially corroborated by the arrival of a car with Georgia license plates which was ascertained to be registered in the name of an Atlanta resident. Government agents were advised by the informant that persons within the apartment were probably armed. As soon as Almas was stopped, he immediately volunteered the information that he was armed and that he was transporting narcotics. Cf. Fowler v. United States, 239 F.2d 93 (10th Cir. 1956). There was a direct nexus between the apartment and Almas. He departed the apartment locale quickly at a time when the agent conducting surveillance was alone. All of the foregoing factors clearly establish, under the cases cited supra, the existence of exigent circumstances which, plus probable cause, authorized the stop, the search, the seizure and the arrest.

Affirmed.

      . The informant met the test of reliability set down in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Informant had recently provided information which led to four arrests and four convictions and gathered the information in question in a manner known to agents as reliable.