U.S. v. Edmond, 76-2097

• Decision Date: 22 March 1977
• Docket Number: No. 76-2097,76-2097
• Citation: 548 F.2d 1256
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Cleveland Dean EDMOND, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1256

548 F.2d 1256

UNITED STATES of America, Plaintiff-Appellant, v. Cleveland Dean EDMOND, Defendant-Appellee.

No. 76-2097.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 13, 1976.

Decided Feb. 10, 1977.

Rehearing and Rehearing En Banc Denied March 22, 1977.

Philip M. Van Dam, U. S. Atty., Steven W. Rhodes, Detroit, Mich., for plaintiff-appellant.

Thomas E. Jackson, Federal Defender, F. Randall Karfonta, William L. Woodard, Detroit, Mich., for defendant-appellee.

Before PHILLIPS, Chief Judge, and WEICK and McCREE, Circuit Judges.

WEICK, Circuit Judge.

The Government has appealed from an order of the District Court granting appellee Edmond's motion to suppress evidence seized by police officers of the Jackson Michigan Police Department in a warrantless search of his automobile. The evidence suppressed was a snub-nosed revolver. Its seizure resulted in an indictment charging Edmond with the receipt and possession of a firearm, Edmond having been previously convicted of a felony, in violation of 18 U.S.C. App. § 1202(a)(1), and charging Edmond with making a false statement in connection with the acquisition of the firearm, in violation of 18 U.S.C. § 922(a)(6).

The Jackson Michigan Police Department, in the early afternoon of May 9, 1975, received an anonymous telephone call on its "Tip" line which had been in service for about a year. The "Tip" line was established in order for citizens to call in, anonymously, information concerning criminal activity. The tip received was to the effect that a black man, named Cleveland Williams, was driving a green Pontiac Grand Prix automobile; that he had drugs and guns in his automobile, and was selling drugs in the area of the Franklin Homes Housing Project. This was a low-cost public housing complex located on Warwick Court, which is a dead end street. Cleveland Williams was further described as wearing a wide-brim hat.

Detective James Conant and Officer Robert Johnson, one being white and the other black, responded immediately to the call; they drove an unmarked car to the vicinity and stopped within about 100 yards of the housing project. They observed the area for about ten minutes, and observed the green Pontiac Grand Prix automobile parked in the street in front of the housing complex, and they saw three men standing next to the automobile, one of whom was wearing a wide-brim hat.

They also observed two transactions conducted by the man with the wide-brim hat. In the first transaction the man with the wide-brim hat reached into the automobile, took something out, and handed it to the individual who had approached him. This individual then in turn handed something to the man with the wide-brim hat. The second transaction was identical with the first, and was conducted with another man who drove up in an automobile.

Because of his experience with narcotic offenses Detective Conant was of the view that the man with the wide-brim hat was selling narcotics; however, because of the distance from which the surveillance was conducted the officers were unable to determine just what was exchanged.

After the second transaction the three subjects spotted the officers. The man with the wide-brim hat then opened the door of his car, took out an object which was wrapped in a white cloth, and transferred it to the trunk of his car. The officers immediately ended their surveillance and called for assistance. They approached the three subjects, identified themselves, and frisked the subjects for weapons. The subjects were not armed. The man with the wide-brim hat identified himself as Cleveland Edmond.

The officers explained to Edmond why they were there, but he denied involvement with drugs and guns; he was uncooperative and used profanity. A crowd of about forty hostile people quickly assembled, and one woman commenced to shout and scream, and had to be quieted by the officers.

The officers searched the inside of the car and found nothing. They procured a key to the trunk of the car from Edmond, opened the trunk, and located the snub-nosed revolver wrapped in a white cloth. Edmond was the only person placed under arrest. One of the three original subjects had disappeared.

The sole issue in the case is whether the officers had probable cause to arrest Edmond and to search his automobile as incident to the arrest.

The tip in the present case was not from a reliable informer. It had to be verified. The verification was conducted by the surveillance by the officers. The surveillance verified the following information furnished by the tip:

1) the green Grand Prix Pontiac automobile;

2) the black man with the wide-brim hat;

3) the man was Cleveland Edmond; (The fact that he was identified as Cleveland Edmond, rather than as Cleveland Williams, was not material; at least his given name was correct.)

4) two transactions conducted by Edmond with others, whereby something was passed back and forth between them; and

5) the suspicious conduct of Edmond after he spotted the officers, when he opened the door of his automobile, took out an object wrapped in a white cloth and transferred it to the trunk of his car.

Hearsay may be a basis for a search warrant. Jones v. United States,362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Where the hearsay has been verified by the surveillance by the police officers there is no good reason why the evidence obtained in the search should be suppressed. Suppression leads only to the exclusion of reliable and relevant evidence which may be the only evidence available to convict a criminal of an offense which he has committed against society.

A very similar factual situation existed in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), where the informer Hereford gave information to narcotics agent Marsh. The Court stated at page 313, 79 S.Ct. at page 333:

And when, in pursuing that information, he saw a man, having the exact physical attributes and wearing the precise clothing and carrying the tan zipper bag that Hereford had described, alight from one of the very trains from the very place stated by Hereford and start to walk at a "fast" pace toward the station exit, Marsh had personally verified every facet of the information given him by Hereford except whether petitioner had accomplished his mission and had the three ounces of heroin on his person or in his bag. And surely, with every other bit of Hereford's information being thus personally verified, Marsh had "reasonable grounds" to believe that the remaining unverified bit of Hereford's information that Draper would have the heroin with him was likewise true.

"In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Brinegar v. United States, supra, (338 U.S. (160), at 175 (69 S.Ct. (1302), at page 1310, 93 L.Ed. 1879). Probable cause exists where "the facts and circumstances within (the arresting 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. Carroll v. United States, 267 U.S. 132, 162 (45 S.Ct. 280, 288, 69 L.Ed. 543). (Footnote omitted)

In the present case, as in Draper, the officers had "reasonable grounds" to believe that the remaining, but unverified, bit of the tip, that the man with the wide-brim hat had drugs and guns with him, was true.

Although Draper involved a reliable informer, and in the present case the informer was anonymous, that situation was remedied when the information furnished by the tip had been verified and found by the police officers to be accurate.

When the police officers in the present case decided to and did investigate the tip, they were pursuing a "legitimate investigative sphere." Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). They witnessed two transactions completed on the street in front of the housing complex by the man with a wide-brim hat. The officers necessarily could not have known whether Edmond had completed other transactions before they arrived.

When Edmond and the other two subjects spotted the officers, Edmond immediately opened the door of his car and transferred something covered with a white cloth to the trunk of his car. This was a highly suspicious circumstance which caused the officers to stop and frisk Edmond and the other two subjects. This procedure was approved in Terry v. Ohio, supra.

The right to be secure against unreasonable searches, as guaranteed by the Fourth Amendment, is based on the right of privacy. As well stated by Mr. Justice Frankfurter in Wolf v. Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782 (1949):

The security of one's privacy against arbitrary intrusion by the police which is at the core of the Fourth Amendment is basic to a free society.

No right of privacy of Edmond's was invaded when he was conducting his transactions out in the open, on a public street, in front of a large low-cost public housing project, in plain view of anyone who desired to look. His transactions were in plain view of the police officers who witnessed them.

Furthermore, there were exigent circumstances which justified the search of the automobile. It was moveable. If it had not been searched, the automobile could have been quickly moved and the contraband therein, namely, the revolver removed.

It is settled that an automobile may be searched without a warrant under circumstances that would not justify the search of a house, provided there is probable cause to believe that the car contains articles that the officers are entitled to seize. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); ...