Campbell v. United States, 5359.

• Decision Date: 03 February 1971
• Docket Number: No. 5359.,5359.
• Citation: 273 A.2d 252
• Parties: Charles Edward CAMPBELL, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

273 A.2d 252

Charles Edward CAMPBELL, Appellant, v. UNITED STATES, Appellee.

No. 5359.

District of Columbia Court of Appeals.

Argued November 10, 1970.

Decided February 3, 1971.

Sol Rosen, Washington, D.C., appointed by this court, for appellant.

John E. Rogers, Asst. U. S. Atty., with whom Thomas A. Flannery, U. S. Atty., John A. Terry and Edwin K. Hall, Asst. U. S. Attys., were on the brief, for appellee.

Before KELLY, FICKLING and REILLY, Associate Judges.

FICKLING, Associate Judge:

We reverse appellant's convictions for petit larceny, destruction of property, and attempted burglary II. Since there was no probable cause to arrest, the seizure of a television set during that arrest was illegal and therefore it could not have been properly admitted into evidence.¹

About 4 o'clock in the afternoon, while routinely patrolling a neighborhood in an unmarked car, two police officers operating in the "old clothes unit" (without uniforms) observed appellant and a companion walking together. Appellant was openly holding a screwdriver; his companion carried a television set. Recognizing that televisions are often the fruit of housebreakings, the officers became suspicious. They left their car and approached the suspects. At that point appellant dropped the screwdriver. The officers recovered it, and appellant, when confronted, denied ownership.

One of the officers testified that he asked appellant how he and his companion obtained the television. Appellant replied that he had just purchased it from his companion's cousin; that the cousin had driven them to a point one block south, from which point they were presently walking. After asking for and receiving the cousin's name, the officer testified that he then "asked them if they would go to the sub-station with [him] for further investigation to follow their story up and they agreed." The officers had no knowledge of any housebreaking, nor had they been advised to be on the "lookout" for any suspects. Upon their arrival at the station, the officers' inquiries still revealed no housebreaking or other crime with which the suspects could be connected.

During the police investigation, the suspects were placed in an unlocked upstairs room at the station, where they allegedly "voluntarily" remained for approximately one and one-half hours. Though they were not told that they were under arrest, neither were they told that they were free to take the television and leave.

After an hour the cousin was located and he denied having seen the companion in the past 2 years.² However, appellant and his companion were not released or told they were free to go. At 5:30 p.m., a housebreaking was reported at an address only 25 feet from where the suspects were first sighted. The television set was taken to the scene and identified by complainant as his. The suspects were then formally arrested and advised of their rights.

To resolve this appeal, we must first determine the time of arrest and seizure of the television set;³ then, whether there was probable cause at that time.

Assuming appellant and his companion voluntarily went to the precinct, we hold that when the suspects were in the police station, at some point prior to the report of a housebreaking, they were in fact under arrest.

An arrest involves a restraint of freedom. A formal declaration of intent to arrest is not necessary. Kelley v. United States, 111 U.S.App.D.C. 396, 298 F.2d 310 (1961). In fact, in some circumstances it is proper for courts to determine that there has been an arrest despite an express disclaimer of such an intent given by a police officer to a suspect. Seals v. United States, 117 U.S.App.D.C. 79, 325 F.2d 1006 (1963), cert. denied, 376 U.S. 964, 84 S.Ct. 1123, 11 L.Ed.2d 982 (1964). It is necessary then to look at all the circumstances surrounding a situation and determine their natural effect upon a reasonable man;⁴ would he be "rash indeed to suppose he was not under arrest."

In the instant case, we find nothing improper in the officers' conduct on the street. Asking questions after their suspicions were understandably aroused was commendable police action. After the suspects were brought to the station and their story was allegedly checked out and found untrue, however, the situation changed. They were not then told they could leave; rather, nothing was said regarding their freedom and they remained until a housebreaking report was received. Under these circumstances, particularly after their story had been discredited, it is clear that they could not have felt free to leave the precinct.

We emphasize that we are not now saying it is impossible for someone to voluntarily accompany officers to a police station. Such is not the case. Fuller v. United States, 132 U.S.App.D.C. 264, 407 F.2d 1199 (1968), cert. denied, 393 U.S. 1120, 89 S.Ct. 999, 22 L.Ed.2d 125 (1969). We do say, however, that it is always more difficult, and sometimes impossible, to find voluntariness absent a statement to the suspect informing him of his right to leave.

We must now determine whether the police had probable cause to arrest prior to receiving the housebreaking report at 5:30 p.m.

Probable cause demands that before an arrest a prudent police officer must have reasonable grounds to believe both that a felony has been committed and that the suspect was responsible.⁵ Bell v. United States, 102 U.S.App.D.C. 383, 388, 254 F.2d 82, 87, cert. denied, 358 U.S. 885, 79 S.Ct. 126, 3 L.Ed.2d 113 (1958); Harrison v. United States, D.C.App., 267 A.2d 368 (1970). The question for the court is whether the officer acted reasonably bearing in mind that if he is to act at all, he must often react swiftly to developing factual situations. Such an officer does not have the benefit of the calm, detached atmosphere found in law libraries. Jackson v. United States, 112 U.S.App.D.C. 260, 302 F.2d 194 (1962).

One of the more significant factual considerations is whether an officer has been expressly advised of the commission of a particular crime. It is clear that such information is not a condition precedent. Bell v. United States, supra; Wright v. United States, D.C.App., 242 A.2d 833 (1968). In fact it is evident that responsible performance of their duties frequently requires the police to act without such express information. Probable cause to believe a crime has been committed can be readily implied from factual circumstances. Nevertheless, it is usually easier to understand police conduct and find it reasonable where they have actual knowledge of a crime and the only probability is whether the suspect is the criminal. That principle is well illustrated by a comparison of the present case with Clemm v. United States D.C.App., 260 A.2d 687 (1970). In Clemm the officer was advised that a housebreaking had occurred at a certain address. Two minutes later he saw a man carrying away a television set less than CO yards from that address. He knew a crime had been committed and we agreed that he had probable cause to believe that the man had done it. The facts here are almost identical except for the lack of information as to...