Stephens v. United States

• Decision Date: 22 October 1959
• Docket Number: No. 15221.,15221.
• Citation: Stephens v. United States, 271 F.2d 832, 106 U.S.App.D.C. 249 (D.C. Cir. 1959)
• Parties: Leroy STEPHENS, Appellant v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

106 US App. DC 249, 271 F.2d 832 (1959)

Leroy STEPHENS, Appellant v. UNITED STATES of America, Appellee.

No. 15221.

United States Court of Appeals District of Columbia Circuit.

Argued September 14, 1959.

Decided October 22, 1959.

Messrs. William J. Garber and Curtis P. Mitchell, Washington, D. C., for appellant.

Mr. Carl W. Belcher, Asst. U. S. Atty., with whom Mr. Oliver Gasch, U. S. Atty., was on the brief, for appellee. Mr. Thomas O'Malley, Asst. U. S. Atty., also entered an appearance for appellee.

Before WILBUR K. MILLER, BAZELON and BASTIAN, Circuit Judges.

BAZELON, Circuit Judge.

This is an appeal from a conviction for possession of lottery tickets (D.C. Code, § 22-1502 (Supp. IV, 1958)). Appellant did not testify at the trial.

His sole contention on this appeal is that the trial court erred in refusing to suppress certain highly incriminating evidence seized under the following circumstances: On the morning of July 9, 1958, officers of the Metropolitan Police Department obtained search warrants for two separate premises, 1547 Third Street, N.W., and 1235 E. Street, N.W., based upon information that they were being used in the operation of a numbers lottery. That afternoon four officers executed the search warrant at the Third Street address. One stationed himself at the rear, the other three proceeded to the front door, knocked, announced their identity and mission, and were admitted by a 13-year-old girl. Immediately upon entering they saw appellant and a woman in the dining room, which was located straight ahead at the end of a short hallway. The couple had their backs to the officers and were observed going through a doorway at the rear of the dining room into the kitchen in what the officers described as "hastily" and in a "hurried manner." A door led from the kitchen to the back yard where the fourth officer was stationed. Appellant, but not the woman or child, was immediately arrested and searched. Numbers code slips and keys to the premises were found on his person.

The officers had no warrant for Stephens' arrest, and had never seen him previously. They did not observe appellant in the commission of any illegal act nor was any lottery paraphernalia immediately visible. It was not until fifteen minutes after appellant's arrest that the officers found numbers paraphernalia, records and books concealed in a closet and a kitchen cabinet. From all outward appearances, these premises were a private dwelling, typically appointed with dining room, living room and kitchen furniture.

If appellant is correct in his contention that his arrest was unlawful, it follows that the evidence seized was wrongfully admitted at his trial. In this jurisdiction, as in most others, an arrest without a warrant can be sustained if the arresting officer had probable cause to believe that an offense has been committed and that the person apprehended has committed it.¹ Probable cause means more than a "bare suspicion" but does not require sufficient evidence to sustain a conviction. Rather, "probable cause exists where `the facts and circumstances within their the officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." Brinegar v. United States, 1949, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879. And see Draper v. United States, 1959, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327. We think that in the circumstances disclosed by this record, the arresting officers had such probable cause.

At the time of Stephens' arrest the officers had the following information: During a period of two and one-half months a police officer assigned to the gambling and liquor squad had placed numbers bets on fifteen separate occasions with a co-defendant, Moses Taylor, at the E Street address. Simultaneously, two other officers began observing these premises. On ten separate occasions during the month preceding appellant's arrest these officers observed Taylor depart from the E Street premises at approximately 12:45 p. m., "with bulging pockets," board a street car, stop at two other addresses, finally enter the Third Street premises here in question around 2:15 p. m., and leave shortly thereafter "minus the bulge." Numerous other unidentified males and one "known numbers operator" were also seen to enter the Third Street premises with bulging pockets and depart shortly without the bulge. On seven of these occasions the officers observed another co-defendant, one Venson, enter the Third Street premises at about 2:30 p. m., and leave shortly thereafter carrying a large brown bag.

At the same time that the police secured search warrants for the two suspected premises, they also obtained arrest warrants for Taylor and...