389 F.2d 305 (D.C. Cir. 1967), 20623, Bailey v. United States

Docket Nº:20623, 20625, 20729.
Citation:389 F.2d 305
Party Name:Barry J. BAILEY, Appellant, v. UNITED STATES of America, Appellee. Maurice FRYE, Appellant, v. UNITED STATES of America, Appellee. Gary R. OLIVER, Appellant, v. UNITED STATES of America, Appellee. Leonard T. RUSSELL, Appellant, v. UNITED STATES of America, Appellee.
Case Date:December 14, 1967
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 305

389 F.2d 305 (D.C. Cir. 1967)

Barry J. BAILEY, Appellant,

v.

UNITED STATES of America, Appellee.

Maurice FRYE, Appellant,

v.

UNITED STATES of America, Appellee.

Gary R. OLIVER, Appellant,

v.

UNITED STATES of America, Appellee.

Leonard T. RUSSELL, Appellant,

v.

UNITED STATES of America, Appellee.

Nos. 20623, 20625, 20729.

United States Court of Appeals, District of Columbia Circuit.

December 14, 1967

Argued Sept. 14, 1967.

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Page 307

Mr. Robert M. Price, Washington, d.C. (appointed by this court), for appellant in No. 20, 623.

Mr. Bruce D. Beaudin, Washington, D.C., for appellant in No. 20, 624.

Mr. Joseph Paull, Washington, D.C. (appointed by this court), for appellant in No. 20, 625.

Mr. Alfred T. Spada, Washington, D.C. (appointed by this court), for appellant in No. 20, 729.

Mr. Joel M. Finkelstein, Special Attorney, Office of the U.S. Atty., of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Messrs. David G. Bress, U.S. Atty., and Frank Q. Nebeker and John A. Terry, Asst. U.S. Attys., were on the brief, for appellee. Mr. James A. Strazzella, Asst. U.S. Atty. at the time the record was filed, also entered an appearance for appellee in No. 20, 623. Mr. Lee A. Freeman, Asst. U.S. Atty., entered an appearance for appellee in No. 20, 624 and Mr. Carl S. Rauh, Asst. U.S. Atty., entered an appearance for appellee in No. 20, 729.

Before WRIGHT, TAMM and LEVENTHAL, Circuit Judges.

J. SKELLY WRIGHT, Circuit Judge.

At about 5:00 P.M. on January 25, 1966, on Erie Street, S.E., three men assaulted and robbed James Warwick of a wallet, approximately $200 in cash, and two checks payable to Warwick's employer, W. A. Dawson. Immediately after the attack on Warwick, a motorist, Donald R. Leigh, saw three Negro males running from the scene of the robbery. Though he did not then know that a crime had been committed, Leigh did notice that the three men jumped into a blue 1953 or 1954 Chevrolet hardtop. Subsequently, after he came to the aid of Warwick, the District of Columbia police arrived and Leigh gave them this description of the car and the men.

At about 5:20 P.M., the police broadcast a radio lookout for three male Negroes in a 1953 blue Chevrolet wanted in connection with the robbery and assault on Erie Street. Shortly thereafter Police Officer Bailey, who was stationed about 3.7 miles from Erie Street, spotted a blue 1954 Chevrolet hardtop, occupied by four Negro males, heading away from the direction of the crime. Unable to follow, the officer broadcast his observation, including the D.C. license plate number of the car. Police headquarters also issued a supplemental lookout describing the occupants of the car as Negro males in their late teens or early twenties wearing dark clothing.

Officer Stone and his partner, who were cruising in Officer Bailey's area, heard both the initial lookout and the Bailey broadcast. Stone soon spotted the car Bailey had observed and followed it for several blocks while awaiting other squad cars summoned to the area. At around 5:40 P.M., at 14th and C Streets, N.E., about six miles from the robbery, Officer Stone's squad car forced appellants' car to the side of the road while two other police cars blocked it from the front and rear. Officer Stone approached appellants' car, apparently with his gun in hand, and ordered the occupants to sit still and keep their hands in plain sight. He then opened the front door on the driver's side and asked the driver, appellant Russell, for his driver's permit. As the officer was returning the permit he noticed a wallet on the right side of the floor of the car. He then went to the other side of the car, opened the door, and retrieved the wallet. In it were the two checks payable to W. A. Dawson. The appellants were then frisked on the scene and taken to the precinct house where they were thoroughly searched. Each had between $55 and $91 in cash. They were then placed in a lineup, after which Warwick stated that the clothing of three of them, appellants Frye, Bailey and Oliver, resembled that worn by his three assailants.

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Before trial there were three separate hearings on motions to suppress filed in behalf of the appellants. Three different judges heard the motions and decided that the evidence seized from the car and from appellants was admissible. At the ensuing trial before a fourth judge the Government offered in evidence the items seized, including the stolen wallet and the money found on each of the appellants. Appellants' objection to the offer was overruled by the trial judge, appellants were convicted, and these appeals followed.

Essentially three issues are raised on appeal. First, all appellants contend that the seized stolen items should not have been admitted in evidence. Second, each urges that there should have been a directed verdict of acquittal for insufficient evidence in that each may have been the fourth occupant of the car, seen by neither Warwick nor Leigh. Third, appellant Frye argues that he should have been permitted to testify at the hearing on his motion to suppress without waiving his Fifth Amendment right not to incriminate himself.

(1) Admissibility of the evidence.

The Fourth Amendment 1 prohibits unreasonable searches and seizures, but it is well established that a search incident to a lawful arrest is permissible even without a warrant. Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652 (1914). This right unquestionably extends to a contemporaneous search of the car in the control of the accused at the time of arrest. Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). The arrest which justifies the search, however, is lawful only if the Fourth Amendment standard of probable cause is met. Beck v. State of Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). And there must be probable cause before the search begins, for 'a search is not to be made legal by what it turns up. In law it is good or bad when it starts and does not change character from its success.' United States v. DiRe, 332 U.S. 581, 595, 68 S.Ct. 222, 229, 92 L.Ed. 210 (1948). This is true even when the arrest or search is made pursuant to a warrant. Where, as here, the arrest is made without a warrant the standard is at least as L.Ed.2d 134 (1959), concedes that in law U.S. 471, 479-480, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Beck v. State of Ohio, supra, 379 U.S. at 96, 85 S.Ct. 223.

Though the arresting officers here did not think that a formal arrest took place until after the stolen wallet was spotted, seized and examined, the Government, as in Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959), concedes that in law the arrest of the car's passengers as well as its driver took place at the time Officer Stone approached the car, perhaps with gun drawn, and told appellants to sit still and keep their hands in plain sight. Even if the formal arrest was not made until after the search, the search will be upheld so long as there is probable cause for an arrest before the search is begun. See United States v. Gorman, 2 Cir., 355 F.2d 151, 159-160 (1965), cert. denied, 384 U.S. 1024, 86 S.Ct. 1962, 16 L.Ed.2d 1027 (1966). Accepting the Government's concession, the question then is whether there was probable cause for an arrest when Officer Stone first approached appellants' car. We think that there was.

Probable cause is a plastic concept whose existence depends on the facts and circumstances of the particular case. It has been said that "the substance of all the definitions' of probable cause 'is a reasonable ground for belief of guilt." Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949). Much less evidence

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than is required to establish guilt is necessary. Draper v. United States, 358 U.S. 307, 311-312, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). The standard is that os 'a reasonable, cautious and prudent peace officer' and must be judged in the light of his experience and training. Bell v. United States, 102 U.S.App.D.C. 383, 387, 254 F.2d 82, 86, cert. denied, 358 U.S. 885, 79 S.Ct. 126, 3 L.Ed.2d 113 (1958). The police must have enough information to 'warrant a man of reasonable caution in the belief' that a crime has been committed and that the person arrested has committed it. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925). See also Henry v. United States, supra, 361 U.S. at 102, 80 S.Ct. 168. A finding of probable cause depends on the 'practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' Brinegar v. United States, supra, 338 U.S. at 175, 69 S.Ct. 1310.

We think the police acted reasonably in this case. They knew that a robbery had been committed by three Negro men who had then escaped in a 12-or 13-year-old car of which they had an apparently accurate description. They also had a general description of its occupants. A car matching this description was then seen at a time and distance from the robbery consistent with its being the getaway car. It was effective law enforcement which enabled the police to cordon off the suspects' car and avoid the hazards of a high speed chase. Clearly this was not an arrest for investigation of the kind we condemned in Gatlin v. United States, 117 U.S.App.D.C. 123, 326 F.2d 666 (1963). The police here were obviously quite certain they had the right men. And, most important, there is no suggestion of a roundup of innocent 'suspects' following the robbery.

We do not think it significant that the vintage blue car stopped here had...

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