U.S. v. Foster

• Citation: 190 U.S. App. D.C. 16,584 F.2d 997
• Decision Date: 04 December 1978
• Docket Number: Nos. 77-1954,77-1955 and 77-1992,s. 77-1954
• Parties: UNITED STATES of America v. Cecil B. FOSTER, Appellant. UNITED STATES of America v. Alvin J. STAFFORD, a/k/a "Butch", Appellant. UNITED STATES of America v. James E. PRINCE, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 997

584 F.2d 997

190 U.S.App.D.C. 16

UNITED STATES of America v. Cecil B. FOSTER, Appellant.

UNITED STATES of America v. Alvin J. STAFFORD, a/k/a "Butch", Appellant.

UNITED STATES of America v. James E. PRINCE, Appellant.

Nos. 77-1954, 77-1955 and 77-1992.

United States Court of Appeals District of Columbia Circuit.

Argued April 28, 1978.

Decided June 30, 1978.

Rehearing Denied July 27, 1978.

Certiorari Denied Dec. 4, 1978.

See 99 S.Ct. 620.

Richard A. Wolff, ^* with whom Michael E. Geltner, New York City (appointed by this Court) and Larry J. Ritchie, Washington, D. C., were on the brief, for appellant, James E. Prince.

David E. Schreiber, Washington, D. C. (appointed by this Court), for appellant, Cecil B. Foster.

John C. Monahan, Rockville, Md., with whom Henry J. Monahan, Rockville, Md. (appointed by this Court) was on the brief, for appellant, Alvin J. Stafford.

Estelle D. Kumar, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, and James M. Hanny, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before DANAHER, Senior Circuit Judge, and TAMM and ROBB, Circuit Judges.

Opinion for the Court filed by DANAHER, Senior Circuit Judge.

DANAHER, Senior Circuit Judge:

Defendants Stafford, Foster, Prince and Hughes had been charged with the unlawful possession of dangerous and narcotic drugs in violation of 21 U.S.C. § 841(a) and 33 D.C.Code §§ 402 and 702. All defendants entered pleas of not guilty and filed motions to suppress certain evidence obtained as incidental to or growing out of their arrest. Following a hearing on June 1, 1977, all motions were denied pursuant to a written memorandum dated June 7, 1977.

Senior District Judge Sirica in that June 7th memorandum noted that the "tangible evidence in question" had been lawfully obtained in the course of investigative efforts by the arresting officer. Subsequent developments resulted in a dismissal of all charges against defendant Hughes. The remaining parties stipulated for a bench trial, the Government proffered certain evidence not already in the record, and the parties were directed to submit post-trial memoranda, and they did so. Thereafter a Memorandum of Decision was filed on July 29, 1977, with the district judge then setting forth his ultimate findings and conclusions of law. Judge Sirica noted that the Government's proof had not established beyond a reasonable doubt that Stafford had possessed phencyclidine "with a specific intent to distribute." ¹ However, he concluded that beyond a reasonable doubt, defendants Prince, Stafford and Foster "are each guilty as charged of one count of unlawful possession of phencyclidine." ² Motions for acquittal were denied.

This appeal followed.

Our inquiry accordingly will be directed to the events giving rise to the Government's acquisition of the "tangible evidence."

I.

Pertinent background facts may here be supplied, compendiously to be distilled from the findings reported by the trial judge. About 1:30 p. m. on March 7, 1977, Officer McMaster, a six-year veteran of the Metropolitan Police Department, was on patrol in Southeast Washington. Over his radio he heard a police broadcast that a bank robbery had just taken place in nearby Maryland.

Two suspects had made their escape in a Volkswagen automobile. Based on his experience the officer undertook to station his cruiser at a location some two or three miles from the robbery scene and on a route most likely to be followed by the escaping robbers. Before he reached his intended lookout point, the officer saw a silver-painted Volkswagen already parked in the 2200 block of Southern Avenue, S.E. Later to be identified was the driver, one Hughes, and the other front seat passenger was the appellant Prince. The occupants of the rear seat turned out to be appellants Foster and Stafford.

Two men on the curbside were, as the judge put it, "huddled by the car talking to" the occupants of the Volkswagen.

Believing that he had located the getaway car, Officer McMaster drove on past the silver-painted Volkswagen, unnoticed by the cluster of individuals just referred to.

He had noted that there was a Maryland dealer's tag on the suspect car and that there was no registration plate on the front. Presently turning his cruiser around, the officer came up behind the Volkswagen and parked that he might approach on foot. He cautiously sought, tactically, to disguise his suspicion that he had come upon the getaway Volkswagen involved in the Maryland robbery and that before him were at least some of the robbers. He intended to ask Hughes to produce his driver's permit and the registration for the Volkswagen. He feared that if alarmed, the possible suspects might take flight or even resort to violent action.

As McMaster walked up, he saw appellant Stafford ³ pass a hand-rolled cigarette to driver Hughes.

The latter exhaled what the experienced officer identified as marijuana smoke, just as Hughes was being asked ⁴ to produce his driver's permit and the car's registration. Hughes at once threw the cigarette to the ground. Hughes explained that the car had been rented in Maryland and that he had no registration for it, but he did produce his own driver's permit.

The officer seized the opportunity, ostensibly to check ⁵ on the information so provided and so returned to the police car. He thereupon was able to radio to his superiors and to inform them of his suspicions and of his likely need of assistance. Two Metropolitan Police lieutenants promptly responded. They noticed that the Volkswagen before them was gray whereas the getaway car was of an entirely different color. They informed McMaster that he had the "wrong ones." He, in any event, announced his purpose to arrest the two suspects who had been smoking marijuana.

Accordingly, he ordered driver Hughes to get out of the car, saying "You are under arrest." As McMaster was patting him down he saw Prince in the front passenger's seat remove from under a newspaper on his lap, a folded paper grocery bag. Prince pushed that paper bag between the two front seats, and then passed it back "stealthily" to appellants Stafford and Foster in the rear seats. We quote verbatim from the findings of the trial judge with particular reference to what next developed. ⁶

It became clear enough that Prince, Stafford and Foster sought to dissociate themselves from control of that bag and its contents.

But Officer McMaster believed the paper bag contained a weapon. He pushed Hughes out of the doorway of the car where he was being patted down and reached for the bag then held by Stafford. McMaster ordered the latter to get out of the car while, at the same time, holding Stafford's arm so that he could not reach into the bag.

The officer then feeling the bag which weighed at least a pound, noticed that its contents included a soft object and something which he believed to be "some type of weapon." Opening the bag, the officer found narcotics paraphernalia, cutting and packaging materials, individually-wrapped tinfoil and plastic packages containing some 35,570 milligrams of phencyclidine. ⁷

The trial judge concluded ⁸ that these appellants "beyond a reasonable doubt" had been engaged in a common enterprise, each participating in and guilty of a constructive possession of a dangerous drug within the meaning of 33 D.C.Code § 702.

II.

All of us at one time or other, one might say again and again, have considered cases where we reviewed the denial of motions for judgment of acquittal. We have recognized that the judge in the trial court and we in this court must view the question in the light most favorable to the Government's position. Judge Burger (now Chief Justice) so stated in Crawford v. United States, 126 U.S.App.D.C. 156, 158, 375 F.2d 332, 334 (1967). He pointed out similarly that we must accord to the Government the benefits of all legitimate inferences as he drew upon Thomas v. United States, 93 U.S.App.D.C. 392, 393, 211 F.2d 45, 46, Cert. denied, 347 U.S. 969, 74 S.Ct. 780, 98 L.Ed. 1110 (1954). The rule has been respected in numerous instances, such as Curley v. United States, 81 U.S.App.D.C. 389, 392, 394-395, 160 F.2d 229, 232, 234-235, Cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947), United States v. Fench, 152 U.S.App.D.C. 325, 333, 470 F.2d 1234, 1242, Cert. denied, 410 U.S. 909, 93 S.Ct. 964, 35 L.Ed.2d 271 (1973), United States v. Weston, 151 U.S.App. D.C. 264, 266, 466 F.2d 435, 437 (1972) and United States v. (Joseph) Davis, 183 U.S.App.D.C. 162, 562 F.2d 681, as lately as April 6, 1977. In our careful consideration of the claims here advanced, once again we have applied the principle, and with the record so viewed, we find no error.

Judge McGowan in United States v. Wylie, 186 U.S.App.D.C. ---, 569 F.2d 62, 66 (1977), observed that the Supreme Court in Terry v. Ohio, 392 U.S. 1, 13, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), had recognized that

"(s)treet encounters between citizens and police officers are incredibly rich in diversity," and consequently each case must be evaluated in light of the particular array of facts presented . . . .

It is our view that the police conduct at issue here involved a proper progression of escalating responses to circumstances which generated a mounting degree of suspicion that a crime had occurred.

The series of events here, as found by the trial judge, successively gave rise to the ultimate conclusion he reached. For example, a circumstance neutral of itself, upon becoming part of the gathering whole may, as here, take on important significance. In United States v. (Patrick) Davis, 147 U.S.App.D.C. 400, 403, 458 F.2d 819, 822 (1972), our opinion spelled out that the surreptitious passing of a package can become a possible element in establishing the probable cause mix. Again, the Wylie opinion, Supra, at 68, emphasized "that in judging the reasonableness of the actions" of a police...