Kalodner, Ganey*fn* and Max Rosenn, Circuit Judges.
MAX ROSENN, Circuit Judge.
Kelley Davis and Inez Davis appeal from the denial of their motion for judgment of acquittal and motion for a new trial after they were found guilty under a multi-count indictment charging them with receiving and concealing narcotic drugs in violation of 21 U.S.C. § 174 and of possessing narcotic drugs not in or from the original stamped package in violation of 26 U.S.C. § 4704(a).*fn1 Judge Teitelbaum's opinion denying their motions in the district court is reported at 329 F. Supp. 493 (W.D.Pa.1971).
This appeal raises two questions: (1) the denial of a motion to suppress evidence allegedly seized in contravention of the Davises' fourth amendment rights; and (2) the inadequacy of the evidence on which the jury could find Inez guilty. Both questions must be answered in favor of the Government.
I. THE WARRANTLESS ARREST AND SEARCH
A. Probable Cause for Arrest
On June 19, four agents of the Bureau of Narcotics and Dangerous Drugs ("BNDD") and the Chief of Police of Braddock, Pennsylvania, arrested Kelley and Inez in Inez' apartment in Braddock. When they were arrested, the agents found sizeable quantities of heroin on Kelley and within the area immediately under the control of Kelley or Inez. These seizures were the basis for the federal prosecution. The agents had neither a search nor an arrest warrant when they entered the apartment.
Appellants contend that the agents did not have probable cause for an arrest or search, and that in any case, the agents had not shown that it was reasonable to proceed without a warrant. Unless this search was incident to a lawful arrest, they argue the evidence must be suppressed.
The arrest took place in Inez' apartment in the evening. Generally, the need for a warrant for such an arrest is still an open question in fourth amendment law. Coolidge v. New Hampshire, 403 U.S. 443, 481, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); Jones v. United States, 357 U.S. 493, 499-500, 78 S. Ct. 1253, 2 L. Ed. 2d 1514 (1957). However, Mr. Justice Stewart, speaking for himself and three other justices and with the concurrence of Mr. Justice Harlan, noted in Coolidge v. New Hampshire, supra, 403 U.S. at 477-478, 91 S. Ct. at 2044, that:
See also, McDonald v. United States, 335 U.S. 451, 69 S. Ct. 191, 93 L. Ed. 153 (1948). The Court of Appeals for the District of Columbia has in fact adopted this rule, requiring the issuance of a warrant before a seizure can take place in a man's own home. Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (1970).
However, all these cases note that in certain situations, generally grouped under the heading "exigent circumstances," there need be no warrant. The fourth amendment protects only against unreasonable searches and seizures. It, therefore, requires the police to obtain warrants only when they have time and opportunity to do so without obstructing their efforts to apprehend criminals and the evidence or fruits of their crimes. Therefore, when officers are in "hot pursuit" of a criminal, Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967), when they "stop and frisk," Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), or when their attempt to secure a warrant might delay them sufficiently to cause the criminal to get away or destroy the fruits or evidence of his crime, Harris v. United States, 331 U.S. 145, 67 S. Ct. 1098, 91 L. Ed. 1399 (1947); United States ex rel. Cardaio v. Casscles, 446 F.2d 632 (2d Cir. 1971); United States v. Titus, 445 F.2d 577 (2d Cir. 1971), they may proceed without a warrant.*fn2
This case comes within the last exception. On June 19, 1970, Agent D'Addio of the Pittsburgh office of the BNDD received a telephone call around 6:45 P.M. from an informant stating that Inez had gone to New York to pick up a shipment of heroin. She was to return that evening. Agent D'Addio immediately dispatched four fellow agents to the Greater Pittsburgh Airport to intercept Inez on her return.
Within an hour of the first call, the informant called again to tell D'Addio that Inez had already returned from New York. She was said to be back at the apartment at 26 Braddock Avenue "cutting" the heroin for immediate distribution. The informant warned the BNDD agent that if he ...