Sanders v. United States, 7930.

Docket NºNo. 7930.
Citation339 A.2d 373
Case DateJune 12, 1975
CourtCourt of Appeals of Columbia District
339 A.2d 373
Robert B. SANDERS, Appellant,
No. 7930.
District of Columbia Court of Appeals.
Argued June 19, 1974.
Decided June 12, 1975.

Page 374

Richard T. Tomar, Washington, D. C., appointed by this court, for appellant.

Page 375

Barry L. Leibowitz, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., and John A. Terry and Jonathan B. Marks, Asst. U. S. Attys., were on the brief, for appellee.

Before REILLY, Chief Judge, and KERN and HARRIS, Associate Judges.

HARRIS, Associate Judge:

Appellant was found guilty of carrying a pistol without a license, D.C.Code 1973, § 22-3204, failure to register a firearm, D. C.Pol.Reg. Art. 51, § 1, and the unlawful possession of ammunition, id. Art. 53, § 2. He contends that the pistol and ammunition should have been suppressed as evidence. We disagree, and affirm.


On the afternoon in question, Officer Douglas Jenkins of the Metropolitan Police Department observed appellant walking along the sidewalk on 19th Street, N.W. The officer testified at a pretrial suppression hearing that the block was "near the hotels on Connecticut Avenue, and there are a lot of petit larcenies from autos in the area." Officer Jenkins watched appellant for a "couple of minutes", during all of which time appellant was walking slowly, "looking in the direction of the parked cars" from a distance of only two or three feet. Appellant then seemed to notice Officer Jenkins and his partner, and promptly walked away "sort of looking back at us."

Suspecting that appellant might be "a person breaking into a car", Officer Jenkins approached him and asked for identification. Appellant produced an identification card on which his last name was misspelled as Saunders (rather than Sanders). The officer "filled out a contact card . . . with information — location, name, date of birth and with a description." Officer Jenkins then "told him thank you very much and let him go on his way."

Officer Jenkins radioed appellant's name — as incorrectly spelled on appellant's own identification card — and birthdate to a dispatcher, who responded that there was an Arlington County, Virginia, arrest warrant for a person of that name. The dispatcher asked for a description of appellant, which Jenkins supplied. The dispatcher responded that the man described "sounded like" the subject of the warrant.

Officer Jenkins had kept appellant in sight, and approached him again. He asked appellant "if he had ever been locked up in Arlington County." When appellant acknowledged that he had been, the officer said "that I would have to take him to the station to check the warrant out." At that point, appellant "couldn't go anywhere and that was clear to him." Consistent with the normal procedures associated with taking a subject into custody pursuant to a warrant, Officer Jenkins and his partner patted down appellant. A pistol was retrieved from appellant's belt; a further search revealed forbidden ammunition. Immediately after appellant was arrested on the gun charge, the dispatcher radioed that Arlington County would not seek extradition on the warrant. Further inquiry led to a realization that the warrant actually was for the arrest of another man, not for appellant.1

The trial court took the motion to suppress under advisement. Two days later, a written order was issued denying the motion. In it, the court stated its conclusion that the defendant had been "looking into parked cars". Our dissenting colleague expresses the belief that such a conclusion was incorrect, since Officer Jenkins' specific testimony was that the defendant had been looking "in the direction of the parked cars." However, we are

Page 376

bound by the inference drawn by the trial court from the totality of the testimony, since it is not "plainly wrong or without evidence to support it." D.C.Code 1973, § 17-305. We accept the trial court's evaluation of the evidence, and proceed to the legal question presented.


Appellant, the government, and our dissenting colleague rely principally in support of their differing positions on Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L. Ed.2d 889 (1968). However, we conclude that neither the first nor the second stop fell within the Terry category. In Terry, the Supreme Court noted (id. at 19 n. 16, 88 S.Ct. at 1879):

We . . . decide nothing today concerning the constitutional propriety of an investigative "seizure" upon less than probable cause for purposes of "detention" and/or interrogation. Obviously, not all personal intercourse between policemen and citizens involves "seizures" of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a "seizure" has occurred.

Considering the suspicious nature of appellant's conduct, there was nothing impermissible in Officer Jenkins' approach to request identification. See Coleman v. United States, D.C.App., 337 A.2d 767 at 772 (1975); United States v. Lee, D.C. App., 271 A.2d 566, 567-68 (1970); State v. Tsukiyama, 525 P.2d 1099 (Hawaii 1974). However, we need not resolve the question whether there were sufficient articulable suspicions to warrant a protective frisk at that time, for no such frisk then was made. Rather, after Officer Jenkins made a note of appellant's identity, appellant was free to go, and did so.

The actual search was made later, and its constitutionality under the Fourth Amendment must be measured against different standards. Appellant was taken into custody solely on the assumption — significantly contributed to by appellant's production of a flawed identification card and his acknowledgement of a prior arrest in Arlington County — that an arrest warrant was outstanding against him. Unquestionably he then was arrested. See generally Campbell v. United States, D.C.App., 273 A.2d 252, 254 (1971).

In considering the merits of appellant's claim that the pistol and ammunition should have been suppressed, we examine principally three prior decisions. The Supreme Court's opinion in Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed. 2d 306 (1971), and this court's opinion in Gilchrist v. United States, D.C.App., 300 A.2d 453 (1973), arguably could support suppression of the evidence on the grounds that it was seized pursuant to an arrest based on a warrant which called for the arrest of another man.2 Appellant places his primary reliance on such an approach. On the other hand, Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971), decided one week subsequently to Whiteley, would appear to compel affirmance on the ground that appellant's arrest was made pursuant to a presumably valid warrant for the arrest of "Saunders", and, although the arrest was mistaken, it was carried out by police officers acting reasonably and in good faith. We are persuaded that the rationale of Hill controls.

In Whiteley, the sheriff of a sparsely populated Wyoming county swore out a complaint stating that Whiteley was believed to be guilty of burglarizing a local business establishment. The fact that the sheriff's sole basis for the charge was the uncorroborated tip of an unidentified informant was not revealed to the magistrate. An arrest warrant was issued, and the sheriff broadcast that fact. Whiteley was arrested in another locality by officers acting upon that radio notification.

Page 377

The Supreme Court found (1) that the warrant was patently deficient, and (2) that no independent probable cause existed for Whiteley's arrest. The Court concluded that the arrest thus was illegal, and that the evidence seized incident thereto was inadmissible. In response to the governemnt's argument that the radio bulletin supplied the arresting officers with the requisite probable cause or, in the alternative, with reasonable grounds to believe that probable cause existed, the Court stated (401 U.S. at 568-69, 91 S.Ct. at 1037):

We do not, of course, question that the Laramie police were entitled to act on the strength of the radio bulletin. Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause. Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest.

In sum, the complaint on which the warrant issued here clearly could not support a finding of probable cause by the issuing magistrate. The arresting officer was not himself possessed of any factual data tending to corroborate the informer's tip that Daley and Whiteley committed the crime. Therefore, petitioner's arrest violated his constitutional rights under the Fourth [Amendment]. . . . [Footnote omitted.]

Thus, an arrest is illegal if it is made solely pursuant to a warrant which has not been validly issued, i. e., a warrant which is based on a fundamental infirmity in the magistrate's determination of probable cause, or on an impropriety on the part of the swearing officer or the issuing magistrate. See also Darnall v. United States, D.C.Mun.App., 33 A.2d 734 (1943). Put somewhat differently, if an agent...

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    ...of the offense, a principle for which we find no support. The court in Gordon adopted the language of Sanders v. United States , 339 A.2d 373 (D.C. App. 1975), when discussing the standard for determining whether an officer's actions were in "reasonable good faith" in the context of mistake......
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