Von Sleichter v. United States

• Decision Date: 30 June 1970
• Docket Number: No. 5133.,5133.
• Citation: 267 A.2d 336
• Parties: William Von SLEICHTER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 336

267 A.2d 336

William Von SLEICHTER, Appellant, v. UNITED STATES, Appellee.

No. 5133.

District of Columbia Court of Appeals.

Argued January 20, 1970.

Decided June 30, 1970.

Sol Rosen, Washington, D. C., appointed by the court, for appellant.

John O'B. Clarke, Jr., Asst. U. S. Atty., with whom Thomas A. Flannery, U. S. Atty., John A. Terry and John G. Gill, Jr., Asst. U. S. Attys., were on the brief, for appellee.

Before KERN, GALLAGHER and NEBEKER, Associate Judges.

JUDGMENT

PER CURIAM.

This cause came on for hearing on the record on appeal and the briefs of the parties and was argued by counsel. On consideration thereof, it is by the court this 30th day of June, 1970,

Ordered and adjudged that the judgment of conviction be and hereby is affirmed.

Statement of Associate Judge NEBEKER, who votes to affirm: This is an appeal from a judgment of conviction of possession of heroin in violation of D.C.Code 1967, § 33-402. Appellant personally waived trial by jury and is taken to have agreed to the stipulation made just prior to the waiver that the issue of guilt depended entirely on the legality of the seizure of the heroin. For his possession of this most insidious of all dangerous drugs a fine of "$100 or 90 days" in jail was levied.

Officer Dinger, who had been assigned to the particular area in the Georgetown section of this city for about three months, was on foot patrol shortly after 8 p. m. on October 3, 1969. He described the area as being "high in narcotics traffic." From across a street, the officer saw appellant and two other male persons, whom he did not recognize, "standing in a darkened area." He concluded from what he saw "that there was a narcotic transaction made — because of the way the hands were changing in the group. * * * [T]he defendant and the other two male subjects [were] standing there close together. They were talking and their hands were going in between them. They were in a close group." The officer, being suspicious,¹ approached the group to investigate and as he did so, appellant, who observed him coming, "began to walk away rapidly." When the officer asked to speak to appellant for a minute he uttered a vile directive and ran. In giving chase, the officer rounded a corner and was told by a couple who were walking by that appellant had crossed the street and was hiding behind a Volkswagen parked at the curb. Officer Dinger walked to the other side of the car and found appellant lying on the ground next to the curb "attempting to crawl under the car." Appellant was prone with his hands under his stomach. The officer told appellant he was under arrest for disorderly conduct. Appellant refused two requests to bring his hands out, but on the third request, with an added statement that he would be assisted, appellant moved his hands into view and got to his feet. As he did so the officer saw "a plastic bag containing five pieces of tin foil" in the area where appellant had been lying. The officer seized the bag and it later proved to contain the contraband.

At the motion to suppress the parties dealt only with the issue of probable cause. Appellant also asserted that it was illegal to arrest him for disorderly conduct. He relied upon Williams v. District of Columbia, 136 U.S.App.D.C. 56, 419 F.2d 638 (1969), for the contention that the vile directive could not constitute the offense of disorderly conduct. The trial judge denied the motion without making specific findings.

As I see in this case we need not and should not reach these points because it can be otherwise concluded that the seizure did not result from unreasonable invasion of appellant's fourth amendment right to be secure from unreasonable seizure. Cf. United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970). Compare Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), and United States v. Curtis, 138 U.S.App.D.C. ___, 427 F.2d 630 (decided en banc May 19, 1970). And see Young et al. v. United States, U.S.App.D.C. (Nos. 21,756, 21,757, 21,857, decided June 26, 1970).

Since the inception of the exclusionary rule, the question has always been — did the officers of the state have probable cause to encroach upon the liberty of the citizen? Phrased differently — was the action of the police reasonable under the circumstances? Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). The necessity always to decide this issue has earlier been taken for granted except where the defendant abandoned the evidence² or otherwise lacked standing to challenge its admissibility.³

With the decision of the Supreme Court of the United States in Terry v. Ohio, supra, a new approach appears permissible and desirable where police justifiably pursue an investigative course necessitating limited encroachment on personal freedom and security. This is not to say that if police conduct progresses to a point where significant and substantial trappings of formal arrest are present, including but not limited to an in-depth or body search, that a lack of probable cause can be plastered over and ignored. Such a case was recently decided by the United States Court of Appeals for the District of Columbia Circuit where the arrest was made with guns drawn and an immediate thorough search was undertaken. See United States v. Cunningham, 138 U.S.App.D.C. 29, 424 F.2d 942 (decided April 1, 1970). In the instant case as discussed infra, the events prior to the seizure of the heroin lacked significant and substantial indicia of formal arrest.

In its opinion in Terry, the Supreme Court clearly indicates that an officer's action can be held valid "regardless of whether he has probable cause to arrest the individual for a crime." Id. 392 U.S. at 27, 88 S.Ct. at 1883. See also Keiningham v. United States, 113 U.S.App.D.C. 295, 307 F.2d 632 (1962). Such approach permits a testing of certain limited police action resulting in seizure of evidence on a Terry standard without the necessity of first reaching, the question of probable cause. Cf. Young, et al. v. United States, supra, slip opinion at 5.

The desirability of looking initially to whether some police action was justified without necessarily first deciding whether probable cause existed is apparent when it is recognized that police should be encouraged to commendable behavior and discouraged from condemnable behavior. When, in his view, an officer deems it his duty to investigate ongoing activity, he should not be prompted to refrain from action because he, rightly or wrongly, may believe he lacks probable cause. Likewise, where his instinct to investigate is activated, he should not be placed in the intolerable position of knowing that further investigation may result in an "arrest" without probable cause. See Coleman v. United States, 137 U.S.App.D.C. 48, 420 F.2d 616 (1969) (Bazelon, C. J., concurring, Part II). I believe such a method of reviewing police action in cases where Terry rationale applies is appropriate and advisable.

The question as I see it here then is whether the circumstances and the conduct of the police permit an application of Terry principles to justify the seizure. Terry, of course, deals with a rapidly moving on-street investigation where the police must, to be effective, act in quick progression. This case is like Terry in that sense and, thus, I would hold that it is appropriately decided under that precedent. In making this decision it must be kept in mind that the Supreme Court was careful to limit the scope of circumstances and the nature of police conduct which would be justified short of arrest. Moreover, the Court emphatically rejected the proposition that a "seizure" of the person under circumstances not resulting in the "traditional" or formal arrest⁴ was beyond the proscription of the fourth amendment. Accordingly, a determination to apply the Terry rationale must be made with circumspection and in the fourth amendment context of reasonableness. In an analysis of the facts, it must be kept in mind that the police need "an escalating set of flexible responses, graduated in relation to the amount of information they possess." 392 U.S. at 10, 88 S.Ct. at 1874.

"The crux of this case * * * is not the propriety of Officer [Dinger's] taking steps to investigate [appellant's] suspicious behavior, but rather, whether there was justification for [Dinger's] invasion of [appellant's] personal security by [requiring him to move his hands into view and get off the ground]." Terry v. Ohio, supra at 23, 88 S.Ct. at 1881. In the course of investigating what might have been a narcotic transaction, the officer was met with vile words, flight and a bizarre attempt to hide under a small car. When the officer, naturally continuing his investigation, located appellant, it was reasonable, both for security and the sake of the investigation,⁵ to seize appellant by demanding that he put his hands into view and get up. It is, after all, too much to expect the officer to continue with appellant lying in the gutter concealing his hands. Terry, supra, at 23-24, 88 S.Ct. 1868.

Since the actions of the police officer were reasonable to the point of "seizing" appellant by demanding he put his hands in view, it cannot be said that the discarding of the narcotics was the product of illegal police action as in Williams v. United States, 99 U.S.App.D.C. 161, 237 F.2d 789 (1956). See, also Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L. Ed.2d 441 (1963). In Williams, the defendant, who was illegally arrested, attempted to discard the contraband while in the precinct station. It was held that the abandonment was the product of the illegal arrest and the Government was deprived of that approach to justify the seizure of the evidence. In addition, it cannot be said that Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), requires...