472 F.2d 1244 (D.C. Cir. 1972), 24456, Von Sleichter v. United States

Docket Nº:24456.
Citation:472 F.2d 1244
Party Name:William VON SLEICHTER, Appellant, v. UNITED STATES of America, Appellee.
Case Date:June 15, 1972
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 1244

472 F.2d 1244 (D.C. Cir. 1972)

William VON SLEICHTER, Appellant,


UNITED STATES of America, Appellee.

No. 24456.

United States Court of Appeals, District of Columbia Circuit.

June 15, 1972

Argued Jan. 24, 1972.

Rehearing Denied Aug. 4, 1972.

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Mr. William A. Dobrovir, Washington, D. C. (appointed by this court), for appellant.

Mr. John O'B. Clarke, Jr., Washington, D. C., with whom Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.

Messrs. John Vanderstar and Ralph J. Temple, Washington, D. C., filed a brief on behalf of The American Civil Liberties Union Fund of the National Capital Area, as amicus curiae.

Before WRIGHT, LEVENTHAL, and MacKINNON, Circuit Judges.

LEVENTHAL, Circuit Judge:

This case comes before us following allowance of appeal from the District of Columbia Court of Appeals (DCCA). See 267 A.2d 336 (1970). Appellant appeals his conviction for possession of

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heroin. The facts are these: one evening, appellant was standing in the shadows of a building in Georgetown in the company of two other young men. A police officer observed the three from across the street and noticed that their hands were "passing and changing" among them. Since this area is considered by the police to be "high in narcotic traffic, " the officer decided to investigate. Crossing the street, he approached the three men. Appellant began to walk rapidly away. The officer called out to him, "I would like to talk with you a minute." Appellant then shouted "fuck you" and ran. There were pedestrians within earshot at the time. The officer gave chase and apprehended appellant one and one-half blocks away, with the assistance of pedestrians, when appellant attempted to crawl underneath a Volkswagen parked at curbside. The officer informed appellant that he was under arrest for disorderly conduct and ordered him to place his hands in view. Appellant ignored this command. After appellant ignored a second such command, the officer told him to "bring his hands out" from under his stomach, or the officer would help him bring them out. Appellant then obeyed. On the ground where he had been lying was a bag of heroin, in plain view.

There was no opinion for the DCCA, since Judge Gallagher dissented, and the votes of Judges Nebeker and Kern for affirmance were based on distinctly different legal premises. 1

While disorderly conduct is a crime without physical evidence or fruits, 2 a policeman apprehending the possibility of danger may conduct a search incident to a lawful arrest for disorderly conduct for the purpose of discovering and removing weapons, and may command the person arrested to place his hands where they could be seen. When such a command was given to appellant, it constituted a search of his hands, but a valid search. Once that lawful command was obeyed, the heroin was in plain view. See Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). The central question is whether the arrest was lawful. We hold that it was, and that the search for weapons, incident to a valid arrest, was likewise lawful.

Appellant maintains that the arrest which was the predicate for the search cannot be sustained as valid. While the four-letter expletive may at one time have warranted arrests, it has now, he says, become so commonplace that it has been drained of offensiveness-that time and contemporary usage have leached the word both of meaning and shock value. He relies on the precedents of Williams v. District of Columbia, 136 U.S.App.D.C. 56, 419 F.2d 638 (en banc 1969), and Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971).

This contention reads Williams too narrowly. The court interpreted the statute (22 D.C.Code § 1107) prohibiting, as disorderly conduct, the utterance on a street of "indecent or obscene words, " as requiring as an element of the offense either (a) that these words be spoken in circumstances which create a threat of violence, or (b) that the language "is, under 'contemporary community standards, ' so grossly offensive to members of the public who actually overhear it as to amount to a nuisance." 136 U.S.App.D.C. at 64, 419 F.2d at 646 (footnotes omitted). There is a state interest "in protecting the sensibilities of passers-by"

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against shock, see Street v. New York, 394 U.S. 576, 591, 89 S.Ct. 1354, 1365, 22 L.Ed.2d 572 (1960), and this does not depend on a showing of any tendency to result in violence. 3 Williams notes, with reference to the ALI's Model Penal Code, that the statute is directed to a public annoyance, and is not applicable merely because a policeman's peace and quiet are disturbed. This narrowing construction avoids the constitutional infirmity of facial invalidity, cf. Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). 4

Appellant's words were in a context that is pertinent. We are not to be taken as suggesting that these words would suffice for an arrest if uttered, to take the hypothetical case put in Williams, by a "hapless stonemason" who accidentally stubs his toe, and whose spontaneous profanity is patently devoid of any possible offense. But appellant's words were in response to an officer's civil inquiry, a request for cooperation that may lawfully and reasonably be directed to citizens at large without any charge of crime. It is one thing to say that a citizen's cooperation is a moral duty rather than a legal duty that can be compelled. 5 It is quite another to contend that the Constitution provides an immunity from arrest for a person who chooses to manifest his unwillingness to cooperate with the shout of a four-letter expletive on a public street, within earshot of passers-by. His primary verbal target may have been the officer; but he cannot stake out a constitutional right to disregard shock on the passers-by.

We are not here deciding that appellant was guilty of disorderly conduct, or even that the policeman's account necessarily establishes appellant's guilt if unrefuted. The trial of these cases may come to balance the interests of free speech and good order. The ultimate balancing of these interests, often delicate and difficult, must take place in court rather than on the beat. The Williams rationale is sufficient to establish probable cause for the arrest of appellant for disorderly conduct.

Cohen v. California is distinguishable. It involved a written, rather than a shouted, sentiment. Justice Harlan took note of this when he said that people who might be offended could avoid distress by modestly "averting their eyes." 403 U.S. 15 at 21, 91 S.Ct. 1780. Even as a written word it was part of a political statement concerning the draft, and the kind of language that may be held protected by the First Amendment in that context, with its paramount "redeeming social value, " may not be protected in another context where its coarsely offensive nature is unrelieved.

In upholding the search on the basis of a valid arrest for disorderly conduct, we have fully in mind that such an arrest is dependent on a showing by the Government of probable cause to

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make the arrest. See Wrightson v. United States, 95 D.C. 390, 222 F.2d 556 (1955). Nor do we shrug off appellant's contention that his shouted response is today a bland and obsolete expletive, debased by overuse to nonmeaning, and without the potential of being coarsely offensive. But the requirement on the Government to support the validity of the arrest is rooted in practical common sense and reasonableness, as was aptly noted by Judge Wright, for the court, in Bailey v. United States, 128 U.S.App.D.C. 354, 357-358, 389 F.2d 305, 308-309 (1967) (omitting citations):

Probable cause is a plastic concept whose existence depends on the facts and circumstances of the particular case. It has been said that "'[t]he substance of all the definitions' of probable cause 'is a reasonable ground for a belief of guilt."' Much less evidence than is required to establish guilt is necessary. The standard is that of "a reasonable, cautious and prudent peace officer" and must be judged in the light of his experience and training. 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. A finding of probable cause depends on the "practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act."

The essence of the requirement of a showing of probable cause in case of arrest without a warrant is that it requires the police officer involved to go beyond intuitive suspicion, and bring forward "a substantial objective basis for believing that the person to be arrested has committed a crime." 6 What the officer brought forth in the case at bar was not mere intuition but objective factors that sufficed, we think, to show probable cause to believe that a misdemeanor had been committed in the officer's presence, by a man now running away, hence to show the validity of the arrest.

As to the case at hand, the officer had been on foot patrol on this beat-carney block 108 (from Wisconsin Avenue to 30th Street, and from N to R Streets)-for approximately three months when this incident took place in front of 3146 1/2 O Street, Northwest, at approximately 8:15 p. m. on October 3, 1969. The reason why the officer wanted to talk to appellant was, concededly, only a suspicion-a suspicion of drug traffic. And the officer was aware, he testified, that the appellant was not required to answer him and was free to depart. (Transcript, p. 12). But appellant did not merely depart. He also shouted what the officer referred to as these "profane words, " when there were five or six citizens within hearing range (transcript, p. 12), and began to run.

In the...

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