Hutcherson v. United States

• Decision Date: 18 March 1965
• Docket Number: No. 18375.,18375.
• Citation: 345 F.2d 964,120 US App. DC 274
• Parties: Louis R. HUTCHERSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

120 US App. DC 274, 345 F.2d 964 (1965)

Louis R. HUTCHERSON, Appellant, v. UNITED STATES of America, Appellee.

No. 18375.

United States Court of Appeals District of Columbia Circuit.

Argued September 21, 1964.

Decided March 18, 1965.

Petition for Rehearing Denied May 6, 1965.

Mr. Aloysius B. McCabe (appointed by this court), Washington, D. C., for appellant.

Mr. Gerald E. Gilbert, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker and Joseph A. Lowther, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, WILBUR K. MILLER, Senior Circuit Judge, and BURGER, Circuit Judge.

Petition for Rehearing en Banc Denied May 6, 1965.

WILBUR K. MILLER, Senior Circuit Judge.

Louis R. Hutcherson was taken into custody September 12, 1963, for a misdemeanor committed in the presence of the arresting officer.¹ It was immediately discovered that he had on his person a vial containing 28 capsules of heroin hydrochloride not in or from the original stamped package, whereupon the officer arrested him on a narcotics charge. An indictment returned October 28, 1963, accused Hutcherson of violating two sections of the narcotics statutes.² He filed a motion to suppress the evidence of the arresting officer as to the 28 capsules on the theory that the narcotics officer was really looking for contraband drugs and made a sham arrest for a minor unrelated misdemeanor merely to have a pretext for searching his person for narcotics; that the search was therefore illegal.

At a pre-trial hearing on the motion to suppress, the arresting officer and the appellant testified, after which Chief Judge McGuire denied the motion. The case came on for trial in December, 1963, at which the motion to suppress was renewed and again denied. Thomas Didone, the arresting officer, testified substantially as he did at the pre-trial hearing on the motion to suppress and a Government chemist identified the contents of the capsules as heroin hydrochloride; the appellant did not testify and introduced no witnesses.

After the jury had found him guilty under both counts of the indictment, the Government showed he had twice before been sentenced for narcotics violations. Following this, the trial judge imposed as to each count the minimum sentence of ten years fixed by statute, but directed that they run concurrently. Hutcherson appeals.

His first point is that the trial court erred in denying his motion to suppress the evidence of Didone concerning the 28 capsules of heroin. His theory is that, as the officer was a member of the narcotics squad and was patroling an area known to be frequented by traffickers in illegal drugs, it follows that his purpose was to search appellant for narcotics and that the arrest on a misdemeanor charge was merely a pretext for the subsequent search. He argues that narcotics officers do not ordinarily arrest people for drinking in public.

Although the arresting officer was attached to the narcotics squad, that assignment did not restrict him to narcotics work and did not detract from his general authority as a member of the Metropolitan Police Department. He had statutory authority to arrest without a warrant any person committing an offense in his presence or within his view.³

The officer's uncontradicted testimony showed he observed Hutcherson drinking from a wine bottle in an alley just before he was taken into custody. The subsequent search of appellant was the usual routine weapon search, and in this case the officer was fortified by the fact that appellant admitted he had a weapon on his person. This appears from Didone's testimony.

"A. We were — Detective Seibert and I — he was driving and we were in the detective cruiser going north, in the vicinity of Fourteenth and V Streets, Northwest, in Washington, D. C. I observed the defendant and another man standing on the corner of Fourteenth and V Streets. That would be the southwest corner. There is a Big Boy Restaurant there. I didn\'t recognize them as to who they were. I just saw them. We proceeded north and they turned into V Street.

* * * * * *

"As we proceeded a distance into V street we came to an alley that ran perpendicular to the fourteen hundred block of V Street and in that alley I observed the defendant and this other individual.

"As Detective Seibert turned into the alley I observed the defendant bringing a small bottle up to his mouth and drink from it, and we proceeded down the alley as he was drinking.

"As we came abreast of the defendant Detective Seibert stopped the car and at that time the defendant was taking the bottle down and topping it.

"I was in the rider\'s seat. We stopped by the defendant who was standing on the west side of the alley by a little ridge. He was about two feet from me. I could see the bottle said Thunderbird Wine and he smelled of wine.

"I said Police, and showed my badge. At that time the other person was standing a few feet from him. I asked the defendant if he knew it was a violation of law to drink in public. He said yes. I said, `You know it is a violation of the law to drink in public?\' He said yes.

"I then left the cruiser, got out of the cruiser, and placed the defendant under arrest and advised him he was under arrest for drinking in public.

"Afterwards I asked the defendant if he had a knife or any weapon on him. He was facing me. As he said yes, he turned his body slightly toward the right and with his left hand, slipped it under his shirt. His shirt was outside of his pants and he slipped his left hand underneath his shirt. As he did that I grabbed his forearm and said, `I\'ll get it.\' I then withdrew his forearm and lifted his shirt up.

"When I lifted his shirt up I observed his undershorts had elastic and they were pulled up about two or three inches from his pants and I felt for a knife in there. As I felt, I felt a lump and I removed it. It was a small clear glass bottle containing a quantity of white powder."

The situation thus disclosed is quite unlike that in White v. United States, 106 U.S.App.D.C. 246, 271 F.2d 829 (1959), cited by the appellant, where a divided court held that the search of one arrested for vagrancy was illegal because the officer had no warrant and no probable cause for making the arrest. Here there is no doubt of probable cause, as the offense was committed in the officer's view.

The appellant refers to Taglavore v. United States, 291 F.2d 262 (9th Cir. 1961), in which it was held that the Fourth Amendment was violated where an arrest for a minor traffic violation was used as a pretext for a search for marijuana cigarettes; then he likens this case to that one by saying, "Here, too, the Government's evidence was obtained as a result of an arrest for a minor and unrelated misdemeanor used as an obvious pretext to search for suspected narcotics." In the Taglavore case, it plainly appeared that the officers deliberately planned the arrest as a pretext for searching for marijuana which they believed the defendant had in his possession. Here, there was no such factual situation. The unplanned arrest was fully justified, and the search was warranted not only by the arrest but also by Hutcherson's admission that he had a weapon which he seemed to be about to reach for under his clothing.

Hutcherson's next contention is that he was denied due process because he was indicted and convicted under federal statutes instead of under the D.C. Code.⁴ His point is that the offenses denounced by the federal and local statutes are identical and that he was entitled to be prosecuted under the latter because the penalty for violating it is less severe than that provided by the federal statute. The theory is untenable. A defendant has no constitutional right to elect which of two applicable statutes shall be the basis of his indictment and prosecution. That choice is to be made by the United States Attorney. This was aptly stated by the Fifth Circuit in Deutsch v. Aderhold, Warden, 80 F.2d 677, 678 (1935):

"The United States attorney of the district where a violation of a federal statute occurs is charged with the duty of prosecution and vested with complete control over the proceedings, in the exercise of sound discretion. If the facts show a violation of two or more statutes, he may elect under which he will prosecute, in the absence of a prohibitory statute. * * *"

Appellant's final reason for reversal is that a ten-year sentence in this case constitutes cruel and unusual punishment under the Eighth Amendment. This argument is so obviously unsound that detailed discussion is unnecessary. As the Supreme Court said in Blockburger v. United States, 284 U.S. 299, 305, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932):

"* * * The plain meaning of the provision the Narcotics Act is that each offense is subject to the penalty prescribed; and, if that be too harsh, the remedy must be afforded by act of Congress, not by judicial legislation under the guise of construction. * * *"

In this connection, it is noted that Hutcherson's punishment could lawfully have been imprisonment for twenty years, had the trial judge made the two sentences consecutive instead of concurrent.

Affirmed.

BURGER, Circuit Judge (concurring):

I agree entirely with Judge Miller's treatment of the sham-arrest issue. It would be the ultimate in absurdity to let a defendant be heard to complain that a police officer specially trained in narcotics law enforcement can make arrests only for narcotics violations, or for judges otherwise to question an officer's motives for his official actions. See, e. g., Mellon v. Brewer, 57 App.D.C. 126, 18 F.2d 168, 53 A.L.R. 1519 (1927). When a police officer observes overt criminal conduct and makes an arrest, the fact that the officer suspects other violations not manifest at the time, such as illegal possession of narcotics, weapons or stolen goods, is totally irrelevant. The police officer would himself have been guilty of a misdemeanor...