United States v. Cunningham, 23073

• Decision Date: 01 April 1970
• Docket Number: 23074.,No. 23073,23073
• Citation: 138 US App. DC 29,424 F.2d 942
• Parties: UNITED STATES of America v. Robert CUNNINGHAM, a/k/a Robert Watkins, Appellant. UNITED STATES of America v. Arthur L. THAXTON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

138 US App. DC 29, 424 F.2d 942 (1970)

UNITED STATES of America v. Robert CUNNINGHAM, a/k/a Robert Watkins, Appellant.

UNITED STATES of America v. Arthur L. THAXTON, Appellant.

Nos. 23073, 23074.

United States Court of Appeals, District of Columbia Circuit.

Argued March 9, 1970.

Decided April 1, 1970.

Certiorari Denied June 22, 1970.

Mr. Ralph E. Becker, Washington, D. C. (appointed by this Court) and Mr. William W. Becker, Washington, D. C., for appellants.

Mr. James L. Lyons, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., John A. Terry, and Nicholas S. Nunzio, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, and WRIGHT and MacKINNON, Circuit Judges.

Certiorari Denied June 22, 1970. See 90 S.Ct. 2218.

PER CURIAM:

Appellants raise a spate of objections to their convictions for second degree burglary, 22 D.C.Code § 1801(b) (Supp. II, 1969), grand larceny, 22 D.C.Code § 2201 (1967), and, in appellant Thaxton's case, carrying a dangerous weapon, 22 D.C.Code § 3204 (1967). We need discuss only their contention that the evidence obtained in a search incident to their arrest should have been suppressed for want of probable cause.

The Government's first response is that we need not reach the question of probable cause. It argues that, whether or not probable cause existed, appellant's conduct was suspicious enough to justify a "stop and frisk." Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968).¹ A frisk would have disclosed Thaxton's concealed pistol; the officers would then have had probable cause to arrest and search both men and their automobile. Therefore, the argument goes, an arrest and incident search (which were not permissible in the known circumstances) should be held valid if a frisk (which was justified) would eventually have produced the same incriminating evidence. But this syllogism must be rejected for the same reason that "a search is not to be made legal by what it turns up." United States v. Di Re, 332 U.S. 581, 595, 68 S.Ct. 222, 229, 92 L.Ed. 210 (1948). A lack of probable cause cannot be made up in hindsight by a hypothetical variation in the basis on which a search was conducted.

We turn then to the question of probable cause, which is an extremely close one in this case. A careful review of the record has led us to conclude that, on balance, the decision to arrest appellants had adequate support. The specific facts articulated by the arresting officers, including Cunningham's furtive disposal of the instrumentalities of the burglary and Thaxton's attempt to get his gun out of his pocket as the officers approached, "warranted a prudent man in believing that the offense had been committed" by the appellants. Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959).² Accordingly, the judgment of the District Court must be

Affirmed.

1 The Government presents its Terry rati...