670 F.2d 1148 (D.C. Cir. 1981), 81-1391, United States v. Green

Docket Nº:81-1391.
Citation:670 F.2d 1148
Party Name:UNITED STATES of America v. Gary Barrett GREEN, Appellant.
Case Date:December 24, 1981
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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670 F.2d 1148 (D.C. Cir. 1981)

UNITED STATES of America

v.

Gary Barrett GREEN, Appellant.

No. 81-1391.

United States Court of Appeals, District of Columbia Circuit

December 24, 1981

Argued Sept. 14, 1981.

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Appeal from the United States District Court for the District of Columbia (D.C. Criminal No. 81-10).

Ed Wilhite, Washington, D. C. (appointed by this Court), for appellant.

Marc B. Tucker, Asst. U. S. Atty., Washington, D.C., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry, John R. Fisher and Robert B. Cornell, Asst. U. S. Attys., Washington, D. C., were on the brief for appellee.

Before TAMM, WILKEY and EDWARDS, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

In this case Gary Barrett Green appeals his conviction for possession of a controlled substance (heroin) with intent to distribute, a violation of 21 U.S.C. § 841(a) (1976). After the District Court denied Green's motion to suppress evidence, United States v. Green, Crim. No. 81-10 (D.D.C. March 12, 1981) (memorandum order explaining previous ruling from the bench denying motion to suppress), Green waived trial by jury and was found guilty on a stipulation of the evidence, United States v. Green, Crim. No. 81-10 (D.D.C. March 10, 1981).

On appeal Green challenges the outcome of the suppression hearing on two grounds: first, that the police lacked probable cause for arrest and, therefore, could not properly seize a paper bag found to contain heroin; and second, that the District Court erred when it sustained the Government's objection to the disclosure of the Police Department's surveillance location.

For the reasons set forth below, we find that there was probable cause to arrest Green and, therefore, that the paper bag was validly seized incident to a lawful arrest. We also conclude that the Government has a qualified privilege during a suppression hearing not to disclose its surveillance locations and that the District Court's recognition of that privilege in this case was not error. Accordingly, we affirm the denial of the motion to suppress and Green's resulting conviction.

I. BACKGROUND

During the morning of December 6, 1980, Officer Timothy Allman, an experienced member of the Third District Drug Enforcement Unit of the District of Columbia, was stationed in an undisclosed observation post investigating narcotics activity at the intersection of 14th and V Streets, N.W. The District Court found that this neighborhood is notorious for the trafficking of heroin and other narcotics. At about 11:25 a. m., Officer Allman observed with the aid of binoculars a man later identified as appellant Green, a woman later identified as Carol Turner, and an unidentified man on the southwest corner of the intersection. Officer Allman saw the unidentified man approach Ms. Turner, converse briefly with her, and then hand her some paper currency. Turner then walked several feet to Green and handed him the money. Green took the money, stuffed it in his left trouser pocket, reached into a paper bag in his left jacket pocket, and appeared to hand a small object from the bag to Turner. Officer Allman was unable to see the exchanged object which was concealed in Green's cupped hand and then in Turner's. Turner returned to the unidentified man and handed him the object. After receiving it from Turner, the unidentified man left the area. Officer Allman then saw Green push the top of the brown paper bag back into his left jacket pocket, concealing it from view.

Believing that he had just observed a typical "two-party drug transaction," 1 Officer

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Allman radioed descriptions of Green and Turner to officers awaiting his instructions in an unmarked patrol car two blocks north of the 14th and V intersection. The officers drove to the intersection, and Officer David Willis spotted Green from Allman's description. Green apparently recognized either the unmarked police car 2 or the officers as they approached. He walked quickly into Willie's Carryout at 2030 14th Street, looking back over his shoulder at Officer Willis who had left the patrol car to pursue Green on foot. Officer Willis saw Green open the carryout door with his left hand, move five or six feet inside the carryout, motion with his right hand, and then start to move back out the door. As Green exited the carryout, Officer Willis arrested him. Officer Willis found a brown paper bag lying on the unoccupied counter inside the carryout, only three to five feet away from Green's position at the time of the arrest. The paper bag was within Green's reach and could have been placed on the counter by the movement of Green's right hand that Officer Willis had observed just before Green started out of the carryout. The bag contained fourteen small packets of heroin. A search of Green resulted in the seizure of $242.00.

II. PROBABLE CAUSE

The District Court found that the totality of facts and circumstances presented in this case was sufficient to establish probable cause for Officer Willis' arrest of the appellant. 3 In particular, the trial court relied on the combination of three factors to support its conclusion: (1) the sequence of events between Green, Turner and the unidentified man, which was typical of a two-party narcotics transaction; (2) the movements of the three persons' cupped hands and Green's subsequent stuffing of the protruding paper bag back into his coat pocket, suggesting an attempt to conceal the object of their transaction; and (3) the appearance of flight and evasion by Green when pursued by Officer Willis. We agree that these three factors, especially when observed by experienced police officers in an area noted for the regularity of narcotics trafficking, provided probable cause for the arrest.

In reaching this conclusion we recognize that no one of these factors alone would be adequate to establish probable cause. First, a sequence of events which is typical of a common form of narcotics transaction may create a suspicion in a police officer's mind, but probable cause, of course, requires more than mere suspicion. Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949). This court has never held that the observance of a suspicious transaction, without more, provides probable cause for arrest. See United States v. Davis, 561 F.2d 1014, 1017 (D.C.Cir.), cert. denied, 434 U.S. 929, 98 S.Ct. 416, 54 L.Ed.2d 290 (1977); Von Sleichter v. United States, 472 F.2d 1244, 1246, 1248 (D.C.Cir.), cert. denied, 409 U.S. 1063, 93 S.Ct. 555, 34 L.Ed.2d 517 (1972). 4

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Second, the sole fact that individuals may seek to conceal the subject of their business from potentially prying eyes, even on a public sidewalk, does not grant the police the power to arrest them. While it is true that persons engaged in illegal transactions will desire to conceal those transactions, the desire for privacy in one's affairs is common among law-abiding persons as well. Thus, the police cannot conclude that merely because an object or a transaction is not openly displayed, it is necessarily illegal.

Third, this court has held that flight is not a "reliable indicator of guilt without other circumstances to make its import less ambiguous." Hinton v. United States, 424 F.2d 876, 879 (D.C.Cir.1969) (footnote omitted). Of course, " 'when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime,' (flight or evasion) may properly be considered in assessing probable cause," Hinton v. United States, 424 F.2d at 879 (footnote omitted) (quoting Sibron v. New York, 392 U.S. 40, 66, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917 (1968)), but flight alone is insufficient to give the police probable cause to arrest.

Fourth, the presence of a person in a neighborhood notorious for the frequency of narcotic sales or other crimes does not create probable cause to arrest that person. Although our decisions have stated that geographic area is a valid consideration in the probable cause calculus, e.g., United States v. Davis, 458 F.2d 819, 822 (D.C.Cir.1972) (per curiam), this fact without more does not even establish grounds for an investigatory stop, Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) (unanimous Court), let alone probable cause for an arrest.

Although none of these four factors is adequate by itself to establish probable cause, it is their combination in the particular circumstances confronting Officers Allman and Willis that is the proper subject of consideration. Probable cause is not determined by observing some single factor which this court has deemed relevant, or even by observing any certain number of them. 5 Rather, probable cause exists if the totality of the circumstances, as viewed by a reasonable and prudent police officer in light of his training and experience, would lead that police officer to believe that a criminal offense has been or is being committed. See, e.g., Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964); United States v. Davis, 458 F.2d 819, 821 (D.C.Cir.1972) (per curiam).

In this case the basis for that reasonable belief of criminal activity existed. When Officer Allman observed the appellant

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Green, Carol Turner, and the unidentified man engage in a pecuniary transaction of a type common to narcotics peddling, his suspicion was aroused. This was only natural given that Officer Allman...

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