U.S. v. Purry, 75-1339

• Decision Date: 12 November 1976
• Docket Number: No. 75-1339,75-1339
• Parties: UNITED STATES of America v. Larue H. PURRY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 217

545 F.2d 217

178 U.S.App.D.C. 139

UNITED STATES of America v. Larue H. PURRY, Appellant.

No. 75-1339.

United States Court of Appeals District of Columbia Circuit.

Argued March 5, 1976.

Decided Nov. 12, 1976.

James T. Kilbreth, III, ^* with whom Steven H. Brose, Washington, D. C. (appointed by this court), was on the brief for appellant.

Jordan A. Luke, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, William D. Pease and James F. Rutherford, Asst. U. S. Attys., Washington, D. C., were on the brief for appellee. John W. Polk, Asst. U. S. Atty., Washington, D. C., also entered an appearance for appellee.

Before LEVENTHAL, ROBINSON and ROBB, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROBB.

ROBB, Circuit Judge:

After a trial by jury the defendant Purry was convicted of armed bank robbery, 18 U.S.C. § 2113(a), (d), possession of an unregistered shotgun, 26 U.S.C. § 5861, and carrying a dangerous weapon, 22 D.C.Code § 3204. On this appeal he contends that the District Court erred in overruling (1) his motion to suppress testimony that he was identified in a "showup" at the scene of the robbery thirty minutes after the event, and (2) his motion to suppress as evidence a shirt taken from him at the time of his arrest.

At approximately 12:00 o'clock noon on August 29, 1974 three masked men entered the lobby of the branch banking office of the Union Trust Company at the corner of Connecticut Avenue and N Street, N. W. in Washington. Two of the men jumped over the counter and went into the tellers' cages. The third man, described by witnesses as tall and slender and wearing a navy blue printed shirt with a distinctive red pattern or print, and jeans, and holding a rifle or shotgun, stood to one side. He ordered the bank personnel and customers to lie on the floor. One witness testified that when he "yelled something" he pulled his mask up to the bridge of his nose. After approximately three minutes in the bank the robbers ran out, taking more than $10,000 of the bank's money. As they left they took off their masks.

Included in the money taken from the bank were three packages composed of tear gas and red dye bombs disguised as sheafs of currency. When these packages were removed from a cash drawer an explosive device was electronically activated and timed to explode several minutes later.

When the robbers left the bank witnesses saw them run to an automobile parked nearby on N Street. At the car the tall robber dropped a black bag from which red smoke issued. The men got into the car and sped west on N Street. Then the bogus currency exploded, filling the car with red smoke, and the men abandoned it at the intersection of 20th and N Streets, about two blocks from the bank. ¹

Metropolitan Police Officer Robert D. Swygert and his partner, Officer Mary V. Foos, cruising in a marked police car in the vicinity of the bank, heard of the holdup when they monitored a "robbery in progress" broadcast on the police radio. They went to the bank, where they were informed that the robbers, three or four in number, had left in an automobile. The officers were instructed to "cruise the area". Shortly thereafter, at about 12:15 P.M., the officers heard on the radio that the robbers had abandoned their car near 20th and L Streets. The cruiser was then at 21st Street and Massachusetts Avenue, about three blocks from 20th and L Streets. At this time Swygert saw Purry, on foot and heading away from 20th and L Streets. Purry was walking fast, perspiring profusely, and Swygert thought he looked excited and as though he might have just been running. There was something that looked like fresh dirt on Purry's right pants leg. Swygert stopped Purry and asked him for identification. Purry said he had none with him. Swygert told him there had been a bank robbery in the area and he was going to take Purry "back to the bank to have a showup in front of the bank." Swygert testified:

A. Mr. Purry informed me, if I remember correctly, that he knew nothing of the bank robbery or something to that effect.

Q. Did you get any more communication on the radio at this time?

A. I an sure there was, but at this time I was standing outside the cruiser by the right rear fender.

Q. What happened next?

A. Well, I placed my arm on Mr. Purry and he then turned and pulled away and a Second District plainclothes officer came up and the two of us handcuffed Mr. Purry and were about to place him in a patrol wagon and take him back to the bank.

Q. Then what happened?

A. On or about this time, my partner, Mary Foos, who had been in the cruiser, she was taking a lookout, from what I understand, and she, in turn, gave the lookout to me.

Q. Was there any conversation between you and Mary Foos about the lookout?

A. Yes, sir. She related to me one of the subjects was approximately six foot tall, medium complexioned, a bluish-reddish shirt on with jeans, dark jeans.

Q. So then did you take the defendant back to the bank?

A. That is correct, I believe he went in wagon 23. We took him back to the bank.

Purry is approximately six feet tall, of medium complexion and was wearing a "bluish-reddish shirt" with dark jeans. In other words the broadcast description, communicated to Swygert just after Purry was handcuffed, fitted him. This description had been obtained by the police from witnesses to the holdup, all of whom had focused on the tall robber wearing a blue printed shirt and jeans.

Pressed on cross examination to explain his decision to take Purry back to the bank Officer Swygert testified that in addition to the objective facts which he observed

I have been on the Metropolitan Police Department for four and half years and this is not the first time I have arrested anyone for an offense such as this.

And I guess that, along with my own intuition, just led me to believe that he was a subject that should have been taken back to the bank.

Q. Have you ever arrested anyone that was not identified or involved in an incident such as this, since you are making a comparison?

A. Are you speaking of armed robbery?

Q. Yes.

A. No, sir; I have not, Everyone I have arrested has been wanted in this particular offense.

Specifically, there has been about five cases.

Taken to the bank in a patrol wagon Purry was there identified by eight witnesses as one of the robbers.

Purry's shirt was taken from him and was identified by witnesses at trial as the shirt worn by the tall slender robber. As we have indicated Purry moved to suppress this shirt, together with the evidence of the identifications at the bank, but his motion was overruled.

THE ARREST

Counsel for Purry argues that his motion to suppress should have been granted on the ground that Purry was arrested without probable cause. We disagree.

Analysis of the events at 21st Street and Massachusetts Avenue must start from the premise that Officer Swygert lawfully stopped and questioned Purry. Swygert knew that moments before the robbers had abandoned their car only three blocks from the Massachusetts Avenue intersection. He saw Purry walking rapidly, sweating profusely, looking excited and as though he might have been running. There appeared to be dirt on Purry's leg, suggesting that he might have fallen. The officer evaluated these facts in light of his experience as a policeman for four and one-half years, during which he had arrested five other armed robbery suspects without a mistake. The combination of these facts plainly justified the officer in stopping Purry to determine his identity and to question him. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); United States v. Hines, 147 U.S.App.D.C. 249, 455 F.2d 1317, cert. denied, 406 U.S. 975, 92 S.Ct. 2427, 32 L.Ed.2d 675 (1972); United States v. Davis, 147 U.S.App.D.C. 400, 402-03, 458 F.2d 819, 821-22 (1972).

Having lawfully stopped Purry Officer Swygert was entitled "to maintain the status quo momentarily while obtaining more information", Adams v. Williams, supra at 146, 92 S.Ct. at 1923, and in maintaining the status quo he was entitled to use reasonable force. We think the handcuffing of Purry was reasonable, as a corollary of the lawful stop. See Terry v. Ohio, supra, 392 U.S. at 27, 28, 88 S.Ct. 1868. Given Swygert's suspicions he was entitled to obtain more information about Purry's possible implication in the holdup; and when Purry attempted to frustrate further inquiry Swygert was not required to shrug his shoulders and allow the suspected criminal...