648 F.2d 29 (D.C. Cir. 1981), 80-1087, United States v. White
|Docket Nº:||80-1087, 80-1121.|
|Citation:||648 F.2d 29|
|Party Name:||UNITED STATES of America, v. Orson G. WHITE, Appellant. UNITED STATES of America, v. Lawrence ANDERSON, Appellant.|
|Case Date:||February 06, 1981|
|Court:||United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit|
Argued Oct. 16, 1980.
As Amended April 10, 1981.
Appeals from the United States District Court for the District of Columbia (D.C. Criminal No. 79-477).
Michael S. Frisch, Washington, D. C. (appointed by this Court), for Orson G. White.
William J. Garber, Washington, D. C. (appointed by this Court), for Lawrence Anderson.
John C. Aisenbrey, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry, Michael W. Farrell and W. Randolph Teslik, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.
Before WILKEY, WALD and EDWARDS, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
Dissenting opinion filed by Circuit Judge EDWARDS.
WALD, Circuit Judge:
Close cases involving the exclusionary rule present difficult issues for courts as well as law enforcement officials. This close case 1 presents the question of whether narcotics squad officers acting on an anonymous tip "unreasonably" made an investigatory stop which culminated in an arrest and seizure of narcotics so as to violate the defendants' Fourth Amendment rights and require suppression of the narcotics. The trial court denied the suppression motion and we affirm its decision.
I. THE FACTS
Orson G. White and Lawrence Anderson were convicted of possession of heroin and possession of heroin with intent to distribute. 2 They contend that the evidence crucial to their conviction was seized in violation of their Fourth Amendment rights. 3
At about 7:30 on the evening of September 11, 1979, Detective Norman A. Hill of the Metropolitan Police Department Narcotics Branch received an anonymous tip, by telephone, regarding drug traffic in the area of 15th and East Capitol Streets. Tr. 4, 16. 4 The caller said that a young black man known as "Nicky," about 19 or 20 years old, wearing a blue jumpsuit with white stripes, had parked a 1971 Ford LTD in front of No. 1 15th Street, N.E., entered
a 1974 Oldsmobile four door, and driven away in it. The caller identified the color of the Ford, and supplied the license tag numbers of both cars. Tr. 5-7. He concluded by stating that "Nicky" and the unidentified driver of the Oldsmobile were involved in narcotics traffic and would be "dirty" with drugs when they returned. Tr. 6.
Detective Hill had not used this informer before, Tr. 32; the caller refused to identify himself when asked. Id. Neither did he reveal how he came by his information. Id.
Immediately upon receipt of the tip, Detective Hill and his partner, Detective Ruben Sanchez-Serrano, drug squad veterans of eleven and eight years respectively, Tr. 120, 208, went to 15th and East Capitol Streets, N.E. in an unmarked police car 5 to establish surveillance. Tr. 8. They found the Ford described by the tipster, parked in front of No. 1 15th Street, N.E. Id. While waiting for the Oldsmobile to return, the officers ran a check on the cars' license numbers and registered owners; they found that neither car was reported as stolen and that no criminal warrants were outstanding against their owners. 6 Tr. 49-50.
The detectives spotted the Oldsmobile at the traffic light at 15th and East Capitol Streets at about 7:45. As it pulled behind the Ford, they observed its three occupants: 7 the driver, later identified as appellant Orson White; a black male passenger in a blue sweatsuit, later identified as appellant Lawrence Anderson; 8 and a child in the rear seat, later identified as White's fourteen year old stepson. 9 The officers could see partially inside the car, though it was "dark" 10 or "dusky" 11 out, because the car was parked beneath a high intensity street light. 12 In addition, the dome light inside the car 13 was on, illuminating the upper body portions of the occupants.
Detective Hill promptly pulled the unmarked cruiser alongside the Oldsmobile, stopping at the rear of the left quarter panel to let Detective Sanchez-Serrano out, Tr. 10, and then continued a bit further before exiting himself. The cruiser was placed so as to make it difficult but not impossible for the Oldsmobile to pull away. Tr. 18-19. Both officers put on identifying arm bands and approached the car; Hill testified he also attached a police badge to his collar and held his identification holder in his left hand.
Detective Hill testified that he was not certain precisely when he first withdrew his gun from the holster, Tr. 21, but he did so as he approached the car. When he reached the side of the car by the driver, Detective Hill announced, "Police, get out of the vehicle." He said he did so "in a very moderate tone," not "like a raid" but "like a normal approach to the vehicle." Tr. 41. 14 When the driver, White, did not exit promptly, Hill repeated twice in rapid succession, "Get out of the vehicle," and "Place your hands on the dashboard." Tr. 11. White started to place his hands on the dashboard, but stopped and put them back in his lap, becoming "fidgety." Id. When testifying as to what he saw White do with his hands, Hill said first that he saw White remove "a tinfoil item" from his pocket, and later that
"I didn't know what it was at that particular point." Tr. 12, 29. 15 Detective Hill then stepped back from the car, leveled his revolver through the windshield at White, and repeated, "Get out of the car." Id.
In the meantime, Detective Sanchez-Serrano approached the car from the passenger's side with his gun out of the holster but at his side and pointed downward. Tr. 53. When he heard his partner "yelling," he ordered Anderson and the boy in the rear seat to "(g)et out of the car," id., since he assumed that Hill had seen something "over there (on the driver's side) that was going to go wrong." Id. Anderson exited the vehicle; Sanchez-Serrano grabbed him and brought him around to the hood on the driver's side of the car.
They reached the driver's side just as White was emerging from the car. Tr. 54. As White stepped out, a tinfoil fell to the ground. Tr. 13. Detective Hill grabbed White with one hand, holstered his revolver 16 and picked up the tinfoil with the other. Id. Feeling something in it, he placed both appellants under arrest, id., and had his partner call for backup units.
Detective Sanchez-Serrano retained custody of the two appellants while Detective Hill searched the car. Hill found additional tinfoils on the floor and seat of the car. In addition, he noticed a shaving bag on the front seat in front of the armrest; when opened, the bag contained cutting agents, measuring spoons, a strainer, a hypodermic needle and other paraphernalia. Tr. 130, 132. He also recovered $400 from appellants' persons. 17
II. THE ISSUE
Prior to trial, appellants moved to suppress the evidence seized from the Oldsmobile, claiming that the search was the fruit of an illegal arrest, unsupported by probable cause, that took place at the point that the officers with guns drawn ordered appellants to exit the car. The district court denied the motion to suppress on the ground that the policemen's initial actions amounted to no more than an investigatory stop; the arrest, the trial judge concluded, took place only upon White's exit when Detective Hill saw the tinfoil fall out of the car, providing the requisite probable cause for the arrest. 18
Appellants appeal from the trial judge's ruling that the police actions preceding the arrest constituted a valid investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), rather than an illegal arrest without probable cause. Because the government has conceded that probable cause for arrest did not exist at the time the officers approached the car, Appellee's Brief at 12, and the appellants in turn do not contest the finding that probable cause for arrest did exist once Detective Hill sighted the tinfoil on White's exit, the question is whether the detectives' actions leading up to White's exit from the car constituted an infringement of appellants' Fourth Amendment rights to be free from unreasonable seizures.
Distinguishing Between An Investigatory Stop and An Arrest
The Supreme Court first recognized the legitimacy of an "investigatory stop" in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Terry defined such a "stop" to include "an entire rubric of police conduct necessarily swift action predicated upon the on-the-spot observations of the officer on the beat which historically has not been, and as a practical matter could not be, subjected to the warrant procedure." Id. at 20, 88 S.Ct. at 1879. In such situations, the Court held, police actions must be tested "by the Fourth Amendment's general proscription against unreasonable searches and seizures," id., rather than by the strict probable cause standard traditionally applied to judge arrests. See also Bailey v. United States, 389 F.2d 305, 314 (D.C.Cir.1967) (Leventhal, J., concurring) (citing Dorsey v. United States, 372 F.2d 928, 931 (D.C.Cir.1967)) ("If policemen are to serve any purpose of detecting and preventing crime by being out on the streets at all, they must be able to take a closer look at challenging situations as they encounter them.").
The Court has frequently reminded us since, however, that the Terry exception was meant to be of "narrow scope," Ybarra v. Illinois, 444 U.S. 85, 93, 100 S.Ct. 338, 343, 62 L.Ed.2d 238 (1979), and not a means by which to legalize otherwise illegal arrests. Indeed, in Terry's companion case, Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917, (1968), the Court reversed the conviction of a defendant 19 because it found the challenged...
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