Curtis v. United States

• Decision Date: 03 October 1966
• Docket Number: No. 3897.,No. 3895.,3895.,3897.
• Citation: 222 A.2d 840
• Court: D.C. Court of Appeals
• Parties: Shirley A. CURTIS, Appellant, v. UNITED STATES, Appellee. Shirley A. CURTIS, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

Page 840

222 A.2d 840

Shirley A. CURTIS, Appellant, v. UNITED STATES, Appellee.

Shirley A. CURTIS, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

No. 3895.

No. 3897.

District of Columbia Court of Appeals.

Argued July 25, 1966.

Decided October 3, 1966.

T. Emmett McKenzie, Washington, D. C., for appellant.

Charles A. Mays, Asst. U. S. Atty., with whom David G. Bress, U. S. Atty., and Frank Q. Nebeker and Edward T. Miller, Asst. U. S. Attys., were on the brief, for appellee in No. 3895.

Ted D. Kuemmerling, Asst. Corp. Counsel, with whom Milton D. Korman, Acting Corp. Counsel, and Hubert B. Pair, Asst. Corp. Counsel, were on the brief, for appellee in Nos. 3896 and 3897.

Before QUINN and MYERS, Associate Judges and CAYTON (Chief Judge, Retired).

QUINN, Associate Judge:

Appellant was convicted of vagrancy, disorderly conduct and possession of narcotics. These appeals question the legality of her arrest and the subsequent search and seizure of the narcotics.

The undisputed facts indicate that appellant, in the early hours of the morning, left a local hotel by a side door, setting off a burglar alarm. A member of the hotel staff found her outside, and after she had willingly returned to the lobby with him, he called the police.

The arresting officer testified that when he entered the hotel appellant was waiting at the front desk with the night manager and the night auditor. He stated that she was perfectly orderly and had violated no law in his presence. When he asked her what she was doing, she admitted committing an act of prostitution in the hotel, after which he checked two room numbers given him by appellant and found that both were occupied by married couples. He then testified: "I placed her under arrest on the D. C. charge of vagrancy under Section 1 because I knew the defendant to be a convicted thief and felon. At that time she became loud and boisterous and I placed her under arrest for disorderly conduct." Appellant's pocketbook was then searched and when certain paraphernalia was found, she was charged with the possession of narcotics.

Appellant argues that her initial arrest was illegal and that the evidence concerning the property seized as a result of the search of her pocketbook should have been suppressed. An arrest without a warrant may be made if there is probable cause to believe that a felony has been committed and that the arrested person committed it, or if a misdemeanor has been committed in the presence of the arresting officer. Stephens v. United States, 106 App.D.C. 249, 271 F.2d 832 (1959); Maghan v. Jerome, 67 App.D.C. 9, 88 F.2d 1001 (1937); Craig v. Cox, D.C.Mun.App., 171 A.2d 259 (1961), aff'd per curiam, 113 U.S.App.D.C. 78, 304 F.2d 954 (1962); see D.C.Code § 4-140 (1961). The statutory exceptions to this common law rule, which prescribe a probable cause standard for certain misdemeanors, are inapplicable to the case at bar. See, e. g., D.C.Code §§ 23-306,33-402, 33-416a (1961).

The arresting officer's testimony clearly shows he was not aware, nor had he probable cause to believe, that a felony had been committed. It is equally clear from the record that no misdemeanor was committed in his presence. Appellant was not seen loitering about a public place, an element of vagrancy under paragraph (1) of Section 22-3302, and even her confession of prostitution would not be sufficient to validate and arrest under paragraph (4) of that section, since the act was not committed in the officer's presence. We therefore hold that appellant's initial arrest for vagrancy was unlawful. Accord, Jones v. District of Columbia, D.C.Mun.App., 158 A.2d 771 (1960).

The government contends, however, that even if the vagrancy arrest cannot be upheld, appellant's arrest for disorderly conduct was valid. We disagree.

The record contains little information concerning this second arrest. Certain factors are significant however. The arresting officer testified that when he arrived at the hotel appellant was perfectly orderly. Appellant stated that she had willingly returned to the lobby when asked to do so by one of the night men, which testimony was uncontradicted. Appellant was arrested for vagrancy after a brief conversation with the officer and "at that time she became loud and boisterous." Counsel's effort to obtain from the officer a fuller description of her conduct was to no avail. While we are aware that in reviewing the record, we must give the government every permissible inference to be derived therefrom, we are of the opinion that only one inference can be drawn from these facts — appellant's loud and boisterous conduct was the direct result of, and was in resistance to, her illegal arrest for vagrancy.

The law is well settled that reasonable means including physical force may be used to resist an illegal arrest. Abrams v. United States, 99 U.S.App.D.C. 46, 237 F.2d 42 (1956); Williams v. State, 204 Md. 55, 102 A.2d 714 (1954); State v. Robinson, 145 Me. 77, 72 A.2d 260 (1950); People v. Cherry, 307 N.Y. 308, 121 N.E.2d 238 (1954); Walters v. State, 403 P.2d 267 (Okla.Crim.App.1965); Masden v....