U.S. v. Chatman

• Decision Date: 01 December 1977
• Docket Number: No. 77-1455,77-1455
• Citation: 573 F.2d 565
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Albert CHATMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 565

573 F.2d 565

UNITED STATES of America, Plaintiff-Appellee, v. Robert Albert CHATMAN, Defendant-Appellant.

No. 77-1455.

United States Court of Appeals Ninth Circuit.

Dec. 1, 1977.

Rehearing and Rehearing En Banc Denied Jan. 18, 1978.

William J. Bender, (argued), Seattle, Wash., for defendant-appellant.

Harry J. McCarthy, Asst. U.S. Atty., (argued), Seattle, Wash., for plaintiff-appellee.

On Appeal from the United States District Court for the Western District of Washington.

Before MERRILL and TRASK, Circuit Judges, and TAKASUGI, ^* District Judge.

PER CURIAM:

The district court, sitting without a jury convicted Chatman of possession with intent to distribute heroin in violation of Title 21, United States Code, §§ 841(a)(1) and 841(b)(1)(A). We affirm.

Chatman argues that the evidence received at trial was obtained as the result of an unlawful search and seizure. We find the facts discussed below sufficient to establish probable cause to arrest Chatman, thereby making the search one incident to a valid arrest. The facts, which must be viewed in the light most favorable to the government, United States v. Vital-Padilla, 500 F.2d 641, 642-43 (9th Cir. 1974), are as follows:

Appellant, the day prior to his early morning arrest, had purchased an airline ticket in Seattle for a short stay in San Francisco after failing to meet two other flight reservations, both of which also provided for a short layover. The ticket was purchased with cash taken from a roll of currency. Appellant traveled alone and carried no luggage, stating he would only be in San Francisco for an hour and a half. With this information, obtained from the airline ticket agent, an agent of the Drug Enforcement Agency directed surveillance of appellant in San Francisco.

At the San Francisco Airport appellant was met by a man and driven into the city. In San Francisco he was driven to a restaurant, where, after the two had looked about, the car was parked. After again looking about the two entered the restaurant and appellant's companion made three telephone calls from a pay booth. After the two were joined by a woman, the male companion made two more telephone calls. Appellant did not eat or drink at the restaurant. The three then drove to three residences in different parts of San Francisco, two of which were located in an area known to have a high incidence of narcotics traffic. Each stop was of short duration. The manner in which the car was driven indicated a desire to avoid surveillance. U-turns were executed on three occasions, and on several occasions a block was completely squared. Appellant and his companions frequently looked out the rear window. Ultimately surveillance was lost when the car darted across two lanes of traffic. With this additional information an agent of the Drug Enforcement Agency directed that Chatman left the San Francisco Airport on a Western Airlines flight at approximately 2:20 a. m. and arrived in Seattle at approximately 4:15 a. m. On his arrival he was approached for interrogation by an agent of the Drug Enforcement Agency who was accompanied by two uniformed police officers. Additional facts then came to the agent's attention. It was learned that appellant and his companion were traveling under aliases. Appellant carried no identification and seemed extremely nervous when stopped for interrogation. Appellant was then directed to an interview room. En route he repeatedly attempted to hide a bulge in his trousers pocket. In the interview room appellant was ordered to empty his pockets. He did not produce the article causing the bulge. He was directed to produce it and refused to do so. He was then directed to remove his trousers. He did so, the trousers were searched, and narcotics were discovered in the bulging pocket. It is this search that appellant challenges.

appellant be interrogated on his arrival in Seattle.

Appellant contends that the act of directing him to proceed to an interview room constituted an arrest and that probable cause should have existed at that time. We disagree. Founded suspicion based on the facts then known to the agent justified the interrogation, and it was not improper, in absence of protest or coercive circumstances, to arrange that it take place free from public view with its attendant embarrassment. We agree with United States v. Salter, 521 F.2d 1326, 1328-29 (2d Cir. 1975), where it was said:

"We likewise see nothing wrong in Agent Fernan's asking Salter to step into the baggage room, a place more convenient for interrogation than an open platform * * *."

The same point is made in United States v. Oates, 560 F.2d 45, 57 (2d Cir. 1977), where Salter is quoted. See United States v. Scheiblauer, 472 F.2d 297, 299-300 (9th Cir. 1973).

The question presented by the appeal is whether, at the time appellant was directed to empty his pockets, there was probable cause to suppose that he was in possession of narcotics and subject to arrest. We conclude that there was. The agent, at the time of entry into the interview room, had probable cause to believe that the trip to San Francisco had been made for the purpose of clandestinely engaging in illegal business of some kind and that appellant had something in his pocket which he wished to conceal. We also conclude that the most reasonable probability under all the circumstances was that the object which he was attempting to conceal was contraband or goods the possession or concealment of which would constitute a crime. See Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); United States v. Canada, 527 F.2d 1374, 1379-80 (9th Cir.), cert. denied, 423 U.S. 895, 96 S.Ct. 196, 46 L.Ed.2d 128 (1975).

When appellant entered the interview room the agent then had probable cause to place him under arrest. "Once there is probable cause for an arrest without a warrant it is immaterial that a search (without a warrant) precedes the arrest." Busby v. United States, 296 F.2d 328, 332 (9th Cir.), cert. denied, 369 U.S. 876, 82 S.Ct. 1147, 8 L.Ed.2d 278 (1961). As long as probable cause to arrest exists before the search, a search substantially contemporaneous with the arrest is incident thereto. United States v. Murray, 492 F.2d 178, 188 (9th Cir. 1973), cert. denied, 419 U.S. 854, 95 S.Ct. 98, 42 L.Ed.2d 87 (1974); accord, United States v. Jenkins, 496 F.2d 57, 73 (2d Cir. 1974), cert. denied, 420 U.S. 925, 95 S.Ct. 1119, 43 L.Ed.2d 394 (1975). A search of the defendant's person, as was conducted here, is clearly within the proper scope of such a search incident to a valid arrest. United States v. Rogers, 453 F.2d 860, 861-62 (9th Cir. 1972).

The search of Chatman was substantially contemporaneous with the arrest based on probable cause. We conclude that the district court properly denied appellant's motion Judgment affirmed.

to suppress the evidence obtained from that search.

TAKASUGI, District Judge, dissenting:

I respectfully dissent.

This case addresses difficult issues relating to various stages of police activity ranging from investigation through final arrest. An understanding is required of the distinctions between probable cause for arrest and founded suspicion justifying an investigatory stop.

Although it is difficult for this court to place itself in the role of police officers who are required to make decisions and take action without the benefit of quiet reflection, the Fourth Amendment requires judicial intervention when police activity compromises the right of the people to be secure from unreasonable searches and seizures. Terry v. Ohio condemns "judicial opinion(s) can comprehend the protean variety of the street encounter." 392 U.S. 1, 15, 88 S.Ct. 1868, 1876, 20 L.Ed.2d 889 (1967). Accordingly, search and seizure issues are to be decided on the facts of the particular case. Id. at 15, 30, 88 S.Ct. 1868.

Terry established that a police officer could stop and question a person upon less than probable cause for arrest. Such an investigatory "stop" is clearly within the Fourth Amendment language governing "seizures." Id. at 16. The Court balanced the government's interest in crime prevention against the constitutionally protected interests of the private citizen and found that, to justify the intrusion of a "stop," the police officer must be able to "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. at 20-21, 88 S.Ct. at 1880. ¹

Upon making an investigatory stop upon founded suspicion, an officer may, under certain circumstances, ² "frisk" the suspects, but being based upon less than probable cause, the frisk must be limited in scope to an outer clothing pat-down for weapons. Thus, a Terry frisk is "limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby, and may realistically be characterized as something less than a 'full' search, even though it remains a serious intrusion." 392 U.S. at 26, 88 S.Ct. at 1882. ³

Once the Terry stop has been effected, it is of course possible that new facts will be presented to the investigating officer sufficient to create probable cause for arrest and search. See United States v. Solomon, 528 "It is axiomatic that an incident search may not precede an arrest and serve as part of its justification."

F.2d 88, 91 (9th Cir. 1975). There is a crucial distinction to be made, however, between probable cause naturally developing during the course of the Terry questioning and probable cause being bootstrapped into existence by evidence discovered in a search exceeding the bounds permitted by Terry. As stated by the Supreme Court in Sibron v. New York, 392 U.S. 40, 63, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917 (1967):

It is only after a police officer has probable cause for arrest that he or she may exceed the strictly limited frisk allowed by Terry and fully search the suspect. See United States v. Robinson...