Nixon v. United States

• Decision Date: 05 June 1979
• Docket Number: No. 13446.,13446.
• Citation: 402 A.2d 816
• Parties: Luther Lee NIXON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

402 A.2d 816

Luther Lee NIXON, Appellant, v. UNITED STATES, Appellee.

No. 13446.

District of Columbia Court of Appeals.

Argued January 25, 1979.

Decided June 5, 1979.

Constance T. O'Bryant, Public Defender Service, Washington, D. C., for appellant.

Norman M. Monhait, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., and John A. Terry, Peter E. George, and Cheryl M. Long, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before KELLY, GALLAGHER, and HARRIS, Associate Judges.

HARRIS, Associate Judge:

Appellant was convicted after a jury trial of petit larceny. D.C.Code 1973, § 22-2202. He argues that the trial court erred in denying his motion to suppress a small box and its contents, which he was charged with stealing, on three grounds: (1) there was an inadequate basis for his original detention by police officers; (2) there was an inadequate basis for his arrest; and (3) the officers' opening of the box incident to the arrest was impermissible. We affirm.

I

At approximately 9:00 o'clock one morning, Metropolitan Police Officers Trauger and Goulart were patrolling in an unmarked vehicle when they first observed appellant. He was looking intently into parked cars as he walked west on the 2800 block of Q Street, N.W. The officers did not know appellant, nor had they received a report of the commission of a crime, but their suspicions were aroused and they followed him in their car for some two and one-half blocks. During this three-to-fiveminute period, appellant continued to peer into parked cars, and the officers noticed that he carried a folded newspaper under his arm. Officer Trauger knew that the neighborhood recently had experienced several larcenies (including ones from automobiles) and burglaries.

The officers lost sight of appellant as they drove past him and circled the block, but some four minutes later they spotted him running across Q Street (in the 3000 block) to hail a cab. At that time Officer Trauger saw protruding from the folded newspaper under appellant's arm a small brown box which appellant apparently had not been carrying when they observed him minutes before.

Their suspicions heightened, the officers pursued the cab as it drove east on Q Street away from Georgetown, and stopped it within a few blocks. Officer Goulart opened the front passenger door and asked appellant to step out and identify himself. Appellant got out and exhibited a valid driver's license. Goulart could see the box protruding from the folded newspaper on the front seat of the cab, and noted that it resembled a jewelry box. Appellant then was outside the cab, and Officer Trauger asked him about the box. When appellant responded that he had found it in the Adams Mill Road area thai morning, Officer Trauger felt certain the explanation was a lie, because he had not seen the box in appellant's possession only minutes earlier. Without asking any further questions, Officer Trauger placed appellant under arrest.

In the meantime, Officer Goulart walked to the front seat and seized the box. Goulart testified that after the arrest he opened the box and found it to contain some jewelry, coins, and papers in the name of another person. The papers promptly led the police to the owner of the box at a nearby address on Q Street, who stated that it had been stolen.

The testimony of the lone defense witness at the suppression hearing — the taxi driver — added nothing significant, and the court substantially credited the officers' testimony. In denying appellant's motion to suppress, the court found that considering the totality of circumstances there was probable cause for the arrest, and that the seizure and opening of the box was a valid search incident to the arrest.

II

We conclude initially that on the basis of articulable suspicions — indeed, if not more — the officers acted properly (1) in stopping appellant as he rode away from the scene, and (2) in ordering him out of the cab to investigate further. The officers did intrude upon appellant's liberty for Fourth Amendment purposes in so doing, but the particular intrusion clearly was warranted by "specific and articulable facts . . . taken together with rational inferences from those facts." Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). See also Jones v. United States, D.C.App., 391 A.2d 1188 (1978).

The trial court found as facts that the two officers had been patrolling the area on plainclothes detail specifically in response to the recent high incidence of burglary and larceny in the area, and that "their training led them to feel that the actions of [appellant] in looking in the cars marked him as someone who was suspicious." This evolved to articulable suspicion that an offense had been committed when minutes later they spotted appellant hurrying to catch a cab to leave the locale, carrying the box which the officers previously had not seen. The Supreme Court in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) envisioned the type of circumstances presented by this case in stating:

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. . . . A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be the most reasonable in light of the facts known to the officer at the time. [Id., at 145-46, 92 S.Ct. at 1923.]

See Dockery v. United States, D.C.App., 385 A.2d 767 (1978); Harris v. United States, D.C.App., 382 A.2d 1016 (1978); Cooper v. United States, D.C.App., 368 A.2d 554 (1977); Wray v. United States, D.C.App., 315 A.2d 843 (1974); Stephenson v. United States, D.C.App., 296 A.2d 606 (1972); Smith v. United States, D.C.App., 295 A.2d 64 (1972); Jenkins v. United States, D.C. App., 284 A.2d 460 (1971).

We are not dissuaded from this conclusion by appellant's citation to cases holding that vague suspicion, perhaps justifying some questioning, does not automatically justify a Terry-type frisk for weapons or other full-blown detention. See Whitten v. United States, D.C.App., 396 A.2d 208 (1978); Jones v. United States, supra; Coleman v. United States, D.C.App., 337 A.2d 767 (1975); Tyler v. United States, D.C. App., 302 A.2d 748 (1973); Gray v. United States, D.C.App., 292 A.2d 153 (1972). Those decisions, properly reflecting the teaching of Terry and its companion, Sibron v. New York, 392 U.S. 40, 63-64, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), are inapposite given the context and scope of this particular stop.

III

There is little (if any) dispute as to the facts as developed at the suppression hearing, but we are mindful that on this appeal the facts and reasonable inferences therefrom are to be viewed in the light most favorable to the government. See, e. g., Brooks v. United States, D.C.App., 367 A.2d 1297, 1304 (1976). In this light we conclude that appellant's arrest was supported by probable cause.

Strong articulable suspicions supported the initial stop, as a consequence of which not a great deal more was necessary to justify appellant's arrest. Probable cause, of course, is a flexible concept concerned with reasonable probabilities as evaluated by a prudent and cautious police officer. Crawford v. United States, D.C.App., 369 A.2d 595, 600 (1977). Given (1) Officer Trauger's awareness of the high incidence of larceny and burglary in the area, and (2) his observations of appellant's suspicious activities before the stop, appellant's implausible reply as to where he had gotten the box gave the officer, guided by the whole of his experience, reasonable cause to believe appellant had committed a crime. Ibid.; Harris v. United States, supra, at 1018; Patterson v. United States, D.C.App., 301 A.2d 67, 69 (1973); Jackson v. United States, 112 U.S.App.D.C. 260, 262, 302 F.2d 194, 196 (1962). See also United States v. Childs, D.C.App., 379 A.2d 1188, 1191 (1977); Wray v. United States, supra, at 845.

We have recognized that in evaluating probable cause determinations, we are to be guided by reasonableness and are not to be entangled in attempts to microscopically align the facts of the case at bar with those of prior cases having inevitably differing factual circumstances.¹ See Crawford v. United States, supra, at 600; Arrington v. United States, D.C.App., 311 A.2d 838, 839-40 (1973). The finding of probable cause is solidly supported by prior decisions of this court concluding that there was probable cause when police officers were confronted with suspicious activity, followed by a patently implausible explanation for that activity. United States v. Childs, supra; In re E. F. B., D.C.App., 320 A.2d 95 (1974); Wray v. United States, supra; Wright v. United States, D.C.App., 242 A.2d 833 (1968); Lee v. United States, D.C.App., 242 A.2d 212 (1968).²

While in some situations a more thorough questioning and/or investigation may be called for — see, e. g., Harris v. United States, supra; Cooper v. United States, supra — the scope of post-stop questioning is not dispositive as long as there is probable cause for arrest. Crawford v. United States, supra, at 600. Here, the officers' pre-arrest investigation was buttressed by the strong bases the officers had for the stop. We recognize that the presence or absence of a reported crime is a factor to be considered, which may be crucial in some contexts. However, we do not deem the absence of such a report to be of importance here, where the officers had good reason to believe they had just missed observing the actual commission of a crime. Edwards v. United States, D.C.App., 379 A.2d 976, 978 (1977); Cooper v. United States, supra, at 556 n. 3; ...