629 F.2d 51 (D.C. Cir. 1980), 79-1626, United States v. Allen

Docket Nº:79-1626.
Citation:629 F.2d 51
Party Name:UNITED STATES of America v. Avance R. ALLEN, Appellant.
Case Date:May 27, 1980
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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629 F.2d 51 (D.C. Cir. 1980)



Avance R. ALLEN, Appellant.

No. 79-1626.

United States Court of Appeals, District of Columbia Circuit

May 27, 1980

Argued Jan. 10, 1980.

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[Copyrighted Material Omitted]

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David E. Schreiber, Washington, D. C. (Appointed by the Court), for appellant.

Thomas C. Hill, Asst. U. S. Atty., Washington, D. C., with whom Carl S. Rauh, [*] U. S. Atty., John A. Terry and David S. Krakoff, Asst. U. S. Attys., Washington, D. C., were on brief, for appellee.

Before BAZELON, Senior Circuit Judge, TAMM, Circuit Judge, and MARKEY, [**] Chief Judge of the United States Court of Customs and Patent Appeals.

Opinion for the Court filed by Chief Judge MARKEY.

Dissenting opinion filed by Senior Circuit Judge BAZELON.

MARKEY, Chief Judge:

Allen appeals his conviction, in the United States District Court for the District of Columbia, of possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a). We affirm.


Allen was arrested at 10:55 a. m. on December 20, 1978, for drinking in a public place in the District of Columbia. The arresting officer observed Allen drinking beer from a bottle in a brown paper bag. Barnett's, the place of arrest, is a catering and carry-out service selling sandwiches and similar foods to the public. The arresting officers took Allen out of Barnett's, handcuffed him, and called for transportation to the precinct house. The officers testified that Allen "flipped" a package of cigarettes from his rear trouser pocket while they were awaiting transportation. When an officer picked the package up and told Allen he had dropped it, Allen accused the police of trying to "plant dope" on him. The officer then opened the package and noted that it contained 28 tinfoil packets. Opening one of the packets, and finding a white powder, the officer told Allen he was under arrest for possession of narcotics. Allen said the cigarette package was not his and repeated his assertion that the police were trying to plant narcotics on him.

Before trial, Allen moved to suppress the cigarette package and its contents, i. e., the heroin. The basis of the motion was that Barnett's had a liquor license; hence his drinking there was lawful, his arrest was illegal, and all evidence obtained as a result of that arrest must be suppressed. After a hearing, the trial judge ruled the evidence admissible and trial commenced.

At trial the government introduced the heroin, photographs showing Barnett's, the area, and the close proximity (175 yards) of Barnett's to a D.C. high school, and testimony concerning the arrest and the number of students who frequent Barnett's during their lunch break. The government also produced testimony that though the heroin was of a stronger concentration than is normal on the street, each packet contained a smaller total quantity of narcotics than normal. Allen was convicted by the jury of possession with intent to distribute. Imposition of sentence was suspended and Allen was placed on 2 1/2 years probation.


Allen charges that the trial court erred in (1) refusing to exclude the heroin as the fruit of an illegal arrest, and (2) admitting the proximity evidence concerning the high school and its students.


(1) The Arrest

The touchstone in determining the legality of an arrest is whether the arresting officer, at the time of the arrest, had

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probable cause to believe a crime had been committed and that the arrested person had committed it. Hill v. California, 401 U.S. 797, 804, 91 S.Ct. 1106, 1110, 28 L.Ed.2d 484 (1971); Menard v. Mitchell, 430 F.2d 486, 493 (D.C. Cir. 1970); Pendergrast v. United States, 416 F.2d 776, 783 (D.C. Cir. 1969). The Supreme Court has defined probable cause as "facts and circumstances 'sufficient to warrant a prudent man in believing that the (suspect) had committed or was committing an offense.' " Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 862, 43 L.Ed.2d 54 (1974) (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964)).

Though determination of probable cause is dependent on facts and circumstances perceived in a particular case by the officers at the time of arrest, some guidelines are present in prior decisions of the Supreme Court and of this court.

In Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964), the Court held an arrest invalid for lack of probable cause in the mere knowledge of the police of what Beck looked like and of his criminal record. "Beyond that, the arresting officer who testified said no more than that someone (he did not say who) had told him something (he did not say what) about the petitioner." Id. at 97, 85 S.Ct. at 228.

In Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971), the Court upheld the arrest of a man police mistakenly believed to be Hill. The police arrived at Hill's apartment and confronted a man who fitted Hill's description. When arrested, the man protested that he was not Hill but a friend of Hill. The Court said, "They (the officers) were quite wrong as it turned out, and subjective good-faith belief would not in itself justify either the arrest or the subsequent search. But sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment and on the record before us the officers' mistake was understandable and the arrest a reasonable response to the situation facing them at the time." Id. at 804, 91 S.Ct. at 1110.

Those two cases indicate that an arrest based on factual assumptions later found erroneous may be valid if there is adequate factual basis in the record to determine the reasonableness of the officer's conduct in making the arrest.

This court, in United States v. Davis, 458 F.2d 819 (D.C. Cir. 1972) held probable cause for an arrest existed in police observance of the defendant, in the presence of several people apparently under the influence of narcotics, passing money to a man and taking a small package in return. The court also considered the geographical nature of the area (high drug use) and an indication of defendant's attempt to flee. Id. at 822. All factors would together have indicated to a reasonable officer that a crime was being committed. Id. Presumably, the arrest would have been valid if the package exchanged had turned out to have been something other than drugs.

In Pendergrast v. United States, 416 F.2d 776 (D.C. Cir. 1969), the court found probable cause for the arrest, citing the victim's bleeding face, his identification of the defendant, and his repeated assertion that he was not mistaken. Id. at 784. The arrest would presumably have been valid if the defendant had turned out to have been mis-identified. As the court there stated: "(I)t would smack of hypocrisy to require police officers to be reasonable if we cannot be reasonable too." Id. at 785.

Thus probable cause must be judged "on the facts and circumstances of the particular case . . . and on the 'practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act,' " Bailey v. United States, 389 F.2d 305, 309 (D.C. Cir. 1967) (quoting from Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949)), that is, on information available to the officer at the time of arrest, not on later-acquired information.

Errors there will be. In Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), the Court, in finding probable cause, recognized that some errors

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on the part of arresting officers are inevitable, but that those errors, "must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability." Id. at 176, 69 S.Ct. at 1311.

This court recently restated the applicable principle: "(I)n judging the reasonableness of the actions of the arresting officer the circumstances before him are not to be dissected and viewed singly; rather they must be considered as a whole. . . . (T)hey are to be viewed through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training." United States v. Young, 598 F.2d 296, 298 (D.C.Cir.1979) (emphasis added). That the principle is not new in this court is illustrated by Jackson v. United States, 112 U.S.App.D.C. 260, 262, 302 F.2d 194, 196 (1962), in which the court stated: "(P)robable cause is not to be evaluated from a remote vantage point of a library, but rather from the viewpoint of a prudent and cautious police officer on the scene at the time of arrest."

In sum, there must be cause. Ideally, cause would be certain and positive in every case. But the legal, and practical, criterion is probable cause. The burden of proving the legality of a challenged warrantless arrest rests upon the government. See Schnepp v. Hocker, 429 F.2d 1096, 1099 n.5 (9th Cir. 1970). Here the government asserted that the officer made an "honest mistake." 1

Whether the arresting officer here had probable cause to arrest Allen thus turns on the factual circumstances surrounding the arrest, that is, not on whether Allen's drinking was in fact illegal, but on whether a reasonable police officer, in light of all the circumstances before him, would have reason to believe that Allen's drinking was illegal. Barnett's, in which Allen was arrested, occupies one end of a building at 601 Division Avenue, N.E. Located at the opposite end of the same building, separated from Barnett's by a common kitchen, is the J.J. Lounge, in which beer and liquor are sold. The officer testified that "Mr. Barnett runs three separate operations there." 2

The sole basis here for challenging the presence of...

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