Bates v. United States, 7572.

• Decision Date: 29 October 1974
• Docket Number: No. 7572.,7572.
• Citation: 327 A.2d 542
• Parties: George W. BATES, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

327 A.2d 542

George W. BATES, Appellant, v. UNITED STATES, Appellee.

No. 7572.

District of Columbia Court of Appeals.

Argued August 15, 1974.

Decided October 29, 1974.

Rehearing and Rehearing en Banc Denied January 7, 1975.

Warren C. Nighswander, Washington,

D. C., appointed by this court, for appellant. Robert Golten, Washington, D. C., also appointed by this court, entered an appearance for appellant.

E. Lawrence Barcella, Jr., Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry, James F. McMullin and John C. Lenahan, Asst. U. S. Attys., were on the brief, for appellee. Joel DuBoff, Asst. U. S. Atty., also entered an appearance for appellee.

Before KELLY and KERN, Associate Judges, and PAIR, Associate Judge, Retired.

PAIR, Associate Judge, Retired:

This appeal is from judgments of conviction for armed robbery (D.C.Code 1973, §§ 22-2901, 22-3201) and assault with a dangerous weapon (D.C.Code 1973, § 22-502). Sentences of fifteen years for the armed robbery and five years for the assault with a dangerous weapon were imposed and the sentences were made to run consecutively to each other and consecutively to any other sentence then being served.¹

The armed robbery and assault occurred at the Littlejohn Furniture Store, 2471 18th Street, N. W., in the late afternoon of December 20, 1972. A short time thereafter-appellant was apprehended in the area, returned to the store, identified as the robber and found to be in possession of a man's wristwatch, which was one of the items taken during the robbery.

Assigned as error on this appeal is the ruling of the trial court on a motion to suppress as evidence the on-the-scene and in-court identifications and the watch seized from appellant after he was transported to the store and identified. Error is assigned also in permitting the jury to render a separate verdict on the assault with a dangerous weapon charge and in sentencing appellant on such charge to a prison term to run consecutively with the sentence for armed robbery. Finding no error requiring reversal, we affirm the judgments of conviction.

Viewing the evidence as we must in the light most favorable to the government,² what appears is that sometime in the mid-afternoon of the day involved, a man, later identified as the appellant, entered the furniture store and expressed to Mrs. Lula Morton, the only employee on duty, an interest in furniture for an apartment. Mrs. Morton conducted appellant through the store, discussing with him the furniture on display. After about one-half hour, appellant left the store but returned a short time later and inquired of Mrs. Morton about rugs. Waiting until all other persons in the store had departed, appellant moved near the door, displayed a gun and said to Mrs. Morton, "get over to that drawer and give me the money. This is a holdup." Mrs. Morton opened the cash register, removed from the cash drawer all of the money and a man's wristwatch which she placed in a paper bag held by appellant. Appellant then required Mrs. Morton to lie on the floor behind the cash register as he attempted to find additional money in the lower drawer. Finding none, appellant demanded Mrs. Morton's purse and removed from it twenty-five dollars which he placed in the bag with the money and wristwatch taken from the cash register.

Still brandishing the gun, appellant forced Mrs. Morton to walk to the rear of the store behind a partition and demanded that she open her blouse. Appellant then searched around inside her garments and, finding nothing of value and apparently satisfied that there was nothing of value in that part of the store, he turned to leave but admonished Mrs. Morton by saying, "You better not come out here before I get out of here. I'm liable to shoot you."

As appellant was leaving the store, Mr. Littlejohn, the owner, walked in. Mrs. Morton, mindful of appellant's warning, did not move out into the store or speak but attracted Mr. Littlejohn's attention by gesturing vigorously and pointing to appellant as he walked out of the door. Observing Mrs. Morton's behavior, Mr. Littlejohn followed appellant, who commenced running in a northerly direction on 18th Street, N. W. As the pursuit continued, Mr. Littlejohn alerted a police officer who was seated in a scout car parked on 18th Street. The police officer joined in the pursuit but, shortly thereafter, returned and picked up Mr. Littlejohn and then drove about the immediate neighborhood.

Moments later Officers Ford and Clarkson, patrolling the same area in another police car, received a radio broadcast that "a citizen was chasing a Negro male dressed in dark clothing, east in the 1700 block of Euclid Street, N. W." Approximately one minute later, the two officers observed, in the 1600 block of Kalorama Road, N. W., a man who, in their opinion, answered the general description of the man mentioned in the police broadcast. What transpired then is set forth in considerable detail by appellant in his statement of the facts, which we accept.

Officer Ford and his partner, Officer Clarkson, immediately pulled their cruiser abreast of the appellant "and proceeded to question him about his wherabouts [sic], and who he was, where he was going". Appellant, who approached the car on his own and appeared to be breathing normally, explained to the officers that he had just come from "his girlfriend's house on 18th Street" and "was on his way to the 1400 block of Clifton"

During the time Officer Ford was questioning the appellant, another police cruiser pulled up with an officer from the Special Operations Division who "mentioned" to Officers Ford and Clarkson the address on 18th Street from which the reporting citizen had apparently come. The officers did not, however, know at this time whether any crime had actually been committed. Officer Ford then asked appellant to accompany him in the police car to the scene of the reported "incident". Before appellant got into the car, Officer Ford "conducted a courtesy search" of appellant and discovered a closed hawk-billed knife in appellant's right front pocket. Officer Clarkson then conducted a further "pat-down" and discovered a "blunt object" which Mr. Bates identified as his watch. Appellant then put the watch back in his pocket and was "placed" in the police vehicle by the officers.

The police vehicle then made a U-turn on Kalorama Road and proceeded back toward 18th Street, with Officer Clarkson driving and Officer Ford in the back seat next to appellant. At that point, the cruiser slowed to a stop looking for the address and another car, scout 89, pulled past and stopped in front of it, with the reporting citizen, Mr. Littlejohn, in the front seat. Mr. Littlejohn, the owner of a used furniture store at 2471 18th Street, N. W., then pointed to appellant in the back seat of Officer Ford's car and stated "that's him". Upon hearing this, Officer Ford advised appellant "of his rights" and Officer Clarkson went into the store at 2471 18th Street. At that point, Officer Clarkson learned for the first time, and advised Officer Ford upon his return, that there had been a robbery at that address. On learning this, Officer Ford placed appellant in handcuffs and transported him into the store where he was identified by the complaining witness, Lula Morten [sic], and again by Mr. Littlejohn. In addition, Officer Clarkson again took the watch from appellant's pocket and Mrs. Morten and Mr. Littlejohn both identified it as having been taken during the course of the robbery.

Appellant was then placed formally under arrest and transported to police headquarters. . . .

Appellant's sole contention of substance is that the on-the-scene identifications by Mrs. Morton and Mr. Littlejohn, together with the watch seized from his person after such identifications, were fruits of an arrest without probable cause and should have been suppressed as evidence.

What constitutes probable cause for arrest depends upon the facts and circumstances of the particular case. Bailey v. United States, 128 U.S.App.D.C. 354, 357, 389 F.2d 305, 308 (1967). In Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949), the Court said:

In dealing with probable cause . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. . . .

See also Peterkin v. United States, D.C. App., 281 A.2d 567 (1971), cert. denied, 406 U.S. 922, 92 S.Ct. 1788, 32 L.Ed.2d 122 (1972); Cox v. United States, D.C.App., 256 A.2d 917 (1969); Lucas v. United States, D.C.App., 256 A.2d 574, 575 (1969). Recently this court held that,

"[p]robable cause exists where `the facts and circumstances within their [the arresting officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been . . . committed." Wray v. United States, D.C.App., 315 A.2d 843, 845 (1974), quoting from Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (1959). Crucial in the disposition of the question presented, therefore, is the totality of the information possessed by Officers Ford and Clarkson at the time of the arrest. Hinton v. United States, 137 U.S.App.D.C. 388, 391, 424 F.2d 876, 879 (1969).

We notice at the outset that appellant concedes ". . . that the stop . . . on the street for brief questioning as to his identity and present activity was permissible under the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)³ . . . [and that] the police might lawfully have kept him under some form of brief surveillance while awaiting further information with respect to the brief radio report." Cf. United States v. Horton, 142 U.S.App.D.C. 225, 440 F.2d 253 (1971). Thus, appellant's complaint...