Christensen v. United States

• Decision Date: 28 August 1958
• Docket Number: No. 14377.,14377.
• Citation: 259 F.2d 192,104 US App. DC 35
• Parties: George A. CHRISTENSEN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

104 US App. DC 35, 259 F.2d 192 (1958)

George A. CHRISTENSEN, Appellant, v. UNITED STATES of America, Appellee.

No. 14377.

United States Court of Appeals District of Columbia Circuit.

Argued June 27, 1958.

Decided August 28, 1958.

Petition for Rehearing Denied September 24, 1958.

Mr. Harold J. Nussbaum, Washington, D. C., with whom Mr. Nathan M. Lubar, Washington, D. C. (both appointed by this court) was on the brief, for appellant.

Mr. Harry T. Alexander, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., Carl W. Belcher and Joseph A. Lowther, Asst. U. S. Attys., were on the brief, for appellee. Mr. Louis M. Kaplan, Asst. U. S. Atty., also entered an appearance for appellee.

Before MADDEN, Judge, United States Court of Claims,^* and BAZELON and BURGER, Circuit Judges.

Petition for Rehearing In Banc Denied September 24, 1958.

BURGER, Circuit Judge.

Appellant was convicted of housebreaking, larceny and unlawful possession of dangerous drugs.¹ Unidentified informants described and identified appellant to police and told where he could be found selling the stolen drugs. Upon going to the place fixed by the "tip", a police plainclothesman found appellant going from place to place engaging persons in whispered conversation. Shortly thereafter appellant was seen to carry a small brown paper bag through the restaurant, and set it down while he put on his coat. This bag had been observed by the officer near appellant's feet as he sat at one table. He was arrested before he picked the bag up again, and when directed to take the bag he denied ownership, possession or any knowledge of the bag or its contents. The bag's contents were identified by a doctor as drugs stolen from his office. Before and on trial appellant claimed illegal search and seizure and moved to suppress and urges that point here. He also urges that there was no proof that the articles under dispute were in fact those stolen or that he had ever had possession of them.

The threshold question is whether there was probable cause to arrest appellant in these circumstances; if there was, his arrest and any seizure incident thereto were lawful. Cf. Smith v. United States, 103 U.S.App.D.C. 48, 254 F.2d 751. In determining whether there was probable cause for the arrest, we must view the situation as it appeared to "the eyes of a reasonable, cautious and prudent peace officer under the circumstances of the moment." Bell v. United States, 1958, 102 U.S.App.D.C. 383, 254 F.2d 82, 86. Taking into account the detailed description of appellant secured through the advance "tip" along with the detective's observations of appellant's appearance and conduct at the restaurant,² we hold that there was probable cause for the officer to make the arrest. We cannot view the advance "tip" information and the observations of the police detective in two separate, logic-tight compartments. Neither one standing alone would constitute probable cause, but together they composed a picture meaningful to a trained, experienced observer.

The property which the appellant claims was illegally seized from him was taken incident to this lawful arrest.³ Hence there are only two issues remaining with respect to this property: (a) whether it was in fact the stolen property and (b) whether it was in fact in the possession of appellant. The jury resolved both these issues adversely to appellant, and its finding is conclusive here.

Urging that there was insufficient evidence to support the first of these two factual conclusions, appellant also claims that a three-week interval between a theft and his arrest in possession of the stolen goods is too long to support the inference that the possession is guilty possession.⁴ We agree with Boehm v. United States⁵ that while the passage of time weakens the inference of guilt, the question whether or not to make the inference was for the jury.

Affirmed.

BAZELON, Circuit Judge (dissenting).

I would reverse the judgment and remand the case for a new trial because appellant's conviction was based on evidence obtained in violation of his constitutional right to be free from unreasonable search and seizure. A somewhat fuller statement of the facts is necessary to clarify the issues.

A police officer had received information from an undisclosed informer that two persons responsible for a housebreaking would be in a certain restaurant at a certain time "peddling" the loot. The informer described the persons and said that one of them would have a paper bag containing the stolen property. Some of the information reached the officer by telephone. How the rest of it was supplied — whether by the informer in person, through an intermediary, or in writing — the record does not show.

At the time specified by the informer, the officer went to the restaurant. When he entered he saw the appellant, who answered the description of one of the men referred to by the informer, sitting at the bar in conversation with two other men. After a while the two men left and appellant moved down to the end of the bar, sat down next to another man and conversed with him. The various conversations were in low tones and were not overheard by the officer. As appellant was rising to leave, the officer saw him lean down and take a paper bag from the floor at his feet and walk with it to the coat-rack. Then he saw appellant lay the bag on a radiator so he could put on his coat. Thereupon the officer arrested appellant and took possession of the bag. Under examination by the appellant, the officer testified:

"Q. When you arrested me did I have the bag on my person? A. Within your control.

"Q. On my person? Did I have it in my hand or anywhere on my body? A. I think when I first walked up to you your hand was still on the bag.

"Q. You have testified previously I was putting my coat on —

"The Court: Let him answer.

"The Witness: This happened in a matter of less than a second. As I approached you I thought you were going to make the door and you stopped and reached up for the coat with one hand and reached over and laid the bag down with the other hand and at that time you turned around and saw my badge and your hand came off the bag about the same instant."

All of the foregoing facts were brought out by the testimony of the arresting officer in the Government's case in chief.

Before the trial the appellant had filed a motion to suppress the evidence taken by the officer. Both in the motion and the supporting affidavit, he had denied any connection with the property sought to be suppressed. The motion was denied "without prejudice" upon a ground not disclosed by the record. At the trial, after testimony by the arresting officer detailing the circumstances of the arrest and the taking of the bag, as set forth above, the Government offered the contents of the bag in evidence. Appellant objected to the offer upon the ground, among others, that the bag had been seized pursuant to an illegal arrest. The trial judge overruled the objection, saying that the arrest was legal and that, even if it were not, he would receive the evidence. It is not clear whether the judge held that appellant lacked standing to object. He did, however, clearly hold the arrest to have been legal.¹

The Government makes two contentions on this appeal: (1) that appellant lacked standing to attack the legality of the means by which the evidence was obtained; and (2) that, even if appellant had such standing, the evidence was legally obtained as an incident of a valid arrest. My brethren, choosing to call the Government's second contention a "threshold question", hold that the evidence was legally obtained and do not reach the standing issue. It would seem that, if either of the Government's contentions presents a "threshold question", it is the contention that appellant had no standing to attack the evidence. Moreover, I disagree with the majority's holding that the arrest was lawful, so that the validity of the conviction necessarily turns, in my view, upon the question of standing. I shall therefore express my views on both questions.

I. The Standing Question

The Fourth Amendment confers a "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures * * *." Things taken in violation of this right are to be excluded from evidence. Weeks v. United States, 1914, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652.²

We have said "the settled doctrine is that objection to evidence obtained in violation of the prohibition of the Fourth Amendment may be raised only by one who claims ownership in or right to possession of the premises searched or the property seized * * *." Gibson v. United States, 1945, 80 U.S.App.D.C. 81, 84, 149 F.2d 381, 384. Assuming the correctness of this doctrine, which is the doctrine uniformly held by the lower federal courts,³ both fairness and logic require that we limit it to the situations exemplified by Shore v. United States, 1931, 60 App.D.C. 137, 49 F.2d 519. In that case there was a challenge to the propriety of police conduct in opening two trunks in the office of an express company. The trunks, which contained contraband liquor, were consigned to one Willoughby care of defendant Shore. Shore, who denied that he knew Willoughby and claimed no interest in the trunks or their contents, was held to be without standing to suppress the evidence. That holding makes sense. To hold otherwise would mean that, when there is a search and seizure in a public or semi-public place, anyone in the world, even a stranger to the property found, has standing to take it from the officers' possession. Similarly, when gambling paraphernalia are seized in a raid on a gambling house, while a person claiming possession of the premises has standing to suppress the evidence. Washington v. United States, 92 U.S.App.D.C. 31, 202 F.2d 214, certiorari denied, 1953, 345 U.S. 956, 73 S.Ct. 938, 97 L.Ed. 1377, those claiming no interest in...