U.S. v. Glover, 83-1176

• Decision Date: 17 January 1984
• Docket Number: No. 83-1176,83-1176
• Citation: 725 F.2d 120
• Parties: UNITED STATES of America v. Fred M. GLOVER aka Blackbuster, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 120

725 F.2d 120

233 U.S.App.D.C. 161

UNITED STATES of America v. Fred M. GLOVER aka Blackbuster, Appellant.

No. 83-1176.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 30, 1983.

Decided Jan. 17, 1984.

Appeal from the United States District Court for the District of Columbia (D.C. Criminal No. 82-00315-01).

Alan M. Palmer, Washington, D.C., for appellant.

Mary Incontro, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty. (at the time the brief was filed), Michael W. Farrell and Theodore A. Shmanda, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before BORK and SCALIA, Circuit Judges, and WILLIAMS, ^* Senior District Judge, United States District Court for the Central District of California.

Opinion for the Court filed by Senior District Judge DAVID W. WILLIAMS.

DAVID W. WILLIAMS, Senior District Judge:

This case concerns the validity of a warrantless arrest of appellant Glover for carrying a gun without a license. The arresting officers mistook Glover for a fugitive they were seeking named Larry Mathis. Glover moved to suppress the gun as evidence but the District Court denied his motion, 555 F.Supp. 604. After a bench trial on stipulated evidence Glover was convicted of a violation of D.C.Code Sec. 22-3204. We affirm.

I.

Larry Mathis and two other men were indicted for a murder which occurred on September 25th, 1981. In May, 1982, FBI agents became involved in the case because the police received confidential information that Mathis was connected to death threats against certain homicide and narcotics officers and the federal prosecutor who handled the Grand Jury investigation which resulted in the indictment of Mathis and the others (Tr. 13-14). On July 30th, 1982, a bench warrant was issued for Mathis's arrest. He was considered armed and dangerous and his capture was eagerly sought.

None of the FBI agents involved in the search had previously seen Mathis. They were supplied with photographs of him and of his known associates, including Glover. Both Mathis and Glover are black males; at that time Mathis was 32 years old, dark complexioned, 5' 11" tall, weighed 180 pounds and wore a short beard and mustache. Glover was a little taller, darker and older, and was described as weighing 10 pounds less than Mathis. He had no facial hair in the photograph of him supplied to the FBI. Both these men were well-known to the local police involved in the search for Mathis.

The pace of the search for Mathis greatly accelerated in September. Several confidential civilian sources provided information, which in conjunction with police observations established the following: (a) Mathis knew he was wanted and was running (Tr. 8); (b) he was seen on August 6th as a passenger in a Mercedes Benz driven by Glover in the 900 block of French Street (Tr. 18); (c) he was seen on September 15th in the same block driving a dark-colored Dodge bearing D.C. license plate number 736-798; (d) the car was determined to be registered to Susie May Herring of 429 N Street, S.W., apartment 501 (Tr.23); (e) on September 22nd, an officer saw Mathis driving the same Dodge but lost it in pursuit (Tr. 25-26); and (f) police sources had seen Mathis and Glover enter the N Street apartment building and go to apartment 501 (Tr. 55-57, 75-76).

Day and night surveillance of the N Street apartment took place between September 22nd and 24th. FBI agent Deborah Martin made several spot checks of the area and at about 7 p.m. on September 24th, she received a radio message intended for agent Heieck which stated that "the individual we had been looking for had just arrived at the apartment and that the car was parked out front." (Tr. 103). She immediately drove to the N Street address and saw the Dodge parked nearby. She made herself inconspicuous and awaited the expected arrival of other units.

Meanwhile, agent Mardigian formulated a plan to contain movement of the Dodge and at the same time to arrest Mathis who was thought to be in apartment 501 (Tr. 156). Mardigian sought to verify the location of the Dodge and rode with agent Vatter to the position where it was sighted. As they approached the Dodge, Mardigian was startled to see a black male leaning against it. He was able to view the man for only a few seconds, but nevertheless concluded that the man "very strongly resembled the photograph" of Mathis although he didn't have any noticeable facial hair. (Tr. 160-61, 187-88). When he was out of the man's view Mardigian announced to other agents that he had seen an individual leaning against the Dodge. (Tr. 160). Through her rear-view mirror agent Martin noticed a black male leaning against the Dodge in a manner which she thought indicated he was either its owner or knew who was (Tr. 110).

Using a mobile telephone in his car Mardigian called his civilian source within the apartment building to find out whether Mathis had left the building. The source stated that the person they were looking for had left the building and was no longer wearing a hat or coat. ¹ At this point apparently, Mardigian notified other agents by radio that the man was Mathis. (Tr. 110-12). Suddenly an unexpected event occurred which caused the immediate scrapping of the containment plan the agents had decided upon. A white Mercedes pulled up near the Dodge and the man who had been leaning against it entered the rear seat of the Mercedes and it drove away. Agent Mardigian thought the man leaning against the car was Mathis and that he was about to escape. Using his radio he called other agents and ordered the car stopped. Agents quickly ran toward it with drawn guns. Agent Chmiel pushed his gun through the driver's side window, pointed it at the passenger in the rear seat and said "FBI--don't move Mathis." (Tr. 302). The occupant of the rear seat was rapidly hustled out of the car and placed face-down on the ground. After handcuffing him, Mardigian attempted to assist him to his feet and noticed that he had a gun in his waistband. As soon as the arrested person was brought to his feet the agents realized he was not Mathis.

II.

The arrest of a person who is mistakenly thought to be someone else is valid if the arresting officer (a) has probable cause to arrest the person sought, and (b) reasonably believed the person arrested was the person sought. Hill v. California, 401 U.S. 797, 802, 91 S.Ct. 1106, 1110, 28 L.Ed.2d 484 (1971); United States v. McEachern, 675 F.2d 618, 621 (4th Cir.1982); Sanders v. United States, 339 A.2d 373, 379 (D.C.Ct. of Appeals 1975). The agents in this case clearly had probable cause to arrest Mathis and possessed a warrant for his arrest. We must, therefore, address the remaining question whether their belief that appellant Glover was Mathis was reasonable.

The agents' subjective good-faith belief alone is insufficient to validate the arrest. Hill, 401 U.S. at 804, 91 S.Ct. at 1110-1111. The reasonableness of the arresting officers' conduct must be determined by considering the totality of the circumstances surrounding the arrest. United States v. Allen, 629 F.2d 51, 56 (D.C.Cir.1980); United States v. Young, 598 F.2d 296, 298 (D.C.Cir.1979). Thus, the Court must consider the facts as a whole to determine whether there is a reasonable basis for the agents' belief that Glover was the fugitive Mathis.

In Hill, the Supreme Court noted that "sufficient probability, not certainty is the touchstone of reasonableness under the Fourth Amendment." 401 U.S. at 804, 91 S.Ct. at 1111. The agents established that Mathis had been seen driving the Dodge car on at least two recent occasions. Further, Mathis and Glover had been seen entering the apartment of the woman who owned the Dodge. While on surveillance, the agents were informed that Mathis had arrived at the N Street apartment and that the Dodge was parked out front. Appellant was seen leaning against the car and agent Mardigian felt he "strongly resembled" Mathis. Appellant and Mathis were similar physically, a difference of approximately ten pounds in weight and two inches in height is negligible especially when a person is being viewed from a distance as was the case here. Further, although Glover and Mathis had different complexions, such nuances are difficult to distinguish under the twilight conditions the agents faced. The most telling difference between Glover and Mathis was Glover's lack of facial hair. Mardigian did not...