Bell v. United States

• Decision Date: 23 January 1958
• Docket Number: No. 13684.,13684.
• Citation: 254 F.2d 82,102 US App. DC 383
• Parties: Rhinelda M. BELL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

102 US App. DC 383, 254 F.2d 82 (1958)

Rhinelda M. BELL, Appellant, v. UNITED STATES of America, Appellee.

No. 13684.

United States Court of Appeals District of Columbia Circuit.

Argued November 19, 1957.

Decided January 23, 1958.

Petition for Rehearing Denied March 4, 1958.

Mr. Thomas E. Harris, Washington, D. C. (appointed by this Court), for appellant.

Mr. Harry T. Alexander, Asst. U. S. Atty., with whom Mr. Oliver Gasch, U. S. Atty., and Messrs. Lewis Carroll and Carl W. Belcher, Asst. U. S. Attys., were on the brief, for appellee. Mr. Arthur J. McLaughlin, Asst. U. S. Atty., also entered an appearance for appellee.

Before PRETTYMAN, BAZELON and BURGER, Circuit Judges.

PRETTYMAN, Circuit Judge.

Appellant was indicted, tried and convicted for housebreaking and larceny. He claims an unreasonable search and seizure.

At about three-thirty o'clock one morning two police officers in a scout car saw appellant and another man in an automobile pull away from the curb in front of a food store and drive some two blocks without lights. The officers stopped them and asked to see the driver's license and registration card. The inquiring officer used his flashlight and, while asking questions about the documents, flicked the light about the rear of the car. On the back seat were some forty cartons of cigarettes. The officer asked about them. Appellant's companion made a motion to reach under the seat, whereupon the officer ordered both men out of the car.

Up to this point the members of the court are in agreement. A police officer certainly has a right to stop a car driving without lights at three-thirty o'clock in the morning, and he certainly has a right to use his flashlight to examine the driver's credentials. When he approaches the driver's side of the car he has a right to flash his light about the back seat, for his own self-protection if for no other reason. Argument is presented on whether the flashing of the light was or was not an unreasonable search. We need not consider that question; if it was a search it was reasonable under the circumstances. When the officer inquired about where they got the cigarettes the answer was less than satisfactory — "at a place in Maryland."

After ordering the two men out of the car the officer placed them under arrest. At this point our disagreement begins.

The Supreme Court held in Mallory¹ that a police officer can arrest without a warrant for a felony if he has probable cause. What is probable cause, and did this officer have it?

In Carroll v. United States² the Supreme Court said, quoting the Supreme Court of Pennsylvania: "The substance of all the definitions of probable cause is a reasonable ground for belief in guilt." The Court repeated that quotation in Brinegar.³ In Husty v. United States⁴ Mr. Justice Stone wrote for the Court:

"To show probable cause it is not necessary that the arresting officer should have had before him legal evidence of the suspected illegal act. Dumbra v. United States, 268 U.S. 435, 441 45 S.Ct. 546, 69 L.Ed. 1032; Carroll v. United States, supra. It is enough if the apparent facts which have come to his attention are sufficient, in the circumstances, to lead a reasonably discreet and prudent man to believe that liquor is illegally possessed in the automobile to be searched. See Dumbra v. United States, supra; Stacey v. Emery, 97 U.S. 642, 645 24 L.Ed. 1035."

Mr. Justice Rutledge wrote in Brinegar:⁵

"However, if those standards for determination of guilt were to be made applicable in determining probable cause for an arrest or for search and seizure, more especially in cases such as this involving moving vehicles used in the commission of crime, few indeed would be the situations in which an officer, charged with protecting the public interest by enforcing the law, could take effective action toward that end. Those standards have seldom been so applied.

"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.St. 63, 69, quoted with approval in the Carroll opinion. 267 U.S. at page 161 45 S.Ct. at page 288, 69 L.Ed. 543. 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, 7 Cranch 339, 348 3 L.Ed. 364. 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, 69 L.Ed. 543.

"These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community\'s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officer\'s whims or caprice."

The Supreme Court in Mallory, supra, said "The police may not arrest upon mere suspicion".⁶ (Emphasis ours.) But suspicion on reasonable grounds is not mere suspicion. The opinions by Mr. Justice Stone and Mr. Justice Rutledge, to which we have referred, make this amply clear. And the United States Code also makes the difference clear. Section 2236 of Title 18⁷ provides that an officer searching a dwelling without a warrant is guilty of a misdemeanor, but it provides that the section shall not apply to an officer arresting a person "suspected on reasonable grounds of having committed a felony". And agents of the Federal Bureau of Investigation are authorized by statute⁸ to make arrests without warrant for a felony "if they have reasonable grounds to believe that the person to be arrested has committed" the felony.

Reasonable grounds are determined by the circumstances. "Factual and practical considerations of everyday life", "facts and circumstances", "acting on facts", "the apparent facts", "in the circumstances" are some of the expressions used by the Court in the opinions from which we have quoted. The pertinent circumstances are those of the moment, the actual ones.⁹ Officers patrolling the streets at night do not prearrange the setting. They do not schedule their steps in the calm of an office. Things just happen. They are required as a matter of duty to act as reasonably prudent men would act under the circumstances as those circumstances happen. Even the ultimate power of an officer in the case of a felony, the justification for killing an offender, depends on the circumstances of the moment. As Judge Parker wrote for the Fourth Circuit,¹⁰ the rule is that an officer has the right to use such force "as under the circumstances appears reasonably necessary" to effect the arrest, and, as he said, the jury must judge of the necessity "in the light of the circumstances as they reasonably appear to the officer at the time."

Among the other pertinent circumstances is the qualification and function of the person making the arrest. The standard is a reasonable, cautious and prudent man. But the question is whether the person making the arrest had probable cause. Probable cause is not a philosophical concept existing in a vacuum; it is a practical and factual matter. A fact which spells reasonable cause to a doctor may make no impression on a carpenter, and vice versa. Did the person who made the arrest, if a reasonable and prudent man, have probable cause?¹¹ An officer experienced in the narcotics traffic may find probable cause in the smell of drugs and the appearance of paraphernalia which to the lay eye is without significance. His action is not measured by what might be probable cause to an untrained civilian passerby. When a peace officer makes the arrest the standard means a reasonable, cautious and prudent peace officer. The question is what constituted probable cause in the eyes of a reasonable, cautious and prudent peace officer under the circumstances of the moment.

The problem faced by the officer is one of probabilities — not certainties and not necessarily eventual truth.¹² As we have quoted Mr. Justice Rutledge, "In dealing with probable cause, however, as the very name implies, we deal with probabilities." And the Justice went on to write that room must be allowed for some mistakes, so long as the mistakes are "those of reasonable men, acting on facts leading sensibly to their conclusions of probability."

At the trial in the case at bar, in answer to the question, "And for what offense were they being arrested at that time?", the officer testified, "Investigation of housebreaking." Of course there is no such crime as "Investigation". But this description given by the officer does not go to the question of probable cause. The question is not what name the officer attached to his action; it is whether, in the situation in which he found himself, he had reasonable ground to believe a felony had been committed and that the men in...