United States v. Cumberland, 5085.

• Decision Date: 17 February 1970
• Docket Number: No. 5085.,5085.
• Citation: 262 A.2d 341
• Parties: UNITED STATES, Appellant, v. Robert Harmon CUMBERLAND, Appellee.
• Court: D.C. Court of Appeals

Page 341

262 A.2d 341

UNITED STATES, Appellant, v. Robert Harmon CUMBERLAND, Appellee.

No. 5085.

District of Columbia Court of Appeals.

Argued January 5, 1970.

Decided February 17, 1970.

Warren R. King, Asst. U. S. Atty., with whom Thomas A. Flannery, U. S. Atty., John A. Terry and John F. Evans, Asst. U. S. Attys., were on the brief, for appellant.

Sarah E. Brown, Washington, D. C., for appellee.

John Vanderstar, J. Dean Heller, and Ralph J. Temple, Washington, D. C., counsel for American Civil Liberties Union Fund, filed a brief as amicus curiae urging affirmance.

Before HOOD, Chief Judge, and GALLAGHER and NEBEKER, Associate Judges.

NEBEKER, Associate Judge:

This is an appeal by the United States¹ from the suppression for use as evidence of marijuana ceased from Cumberland incident to his arrest. Because the suppressed contraband² is substantial proof of the pending charge, the Government may appeal, and indeed must prevail if its prosecution is to go forward.

Cumberland was arrested without a warrant on June 23, 1969, for disorderly conduct. In the estimation of the officer, who was patient and sensitive to the delicate situation³ created by Cumberland's bellicose conduct, he was finally left with no other choice than to make an arrest. The officer, on foot patrol, approached a sidewalk restaurant from around a corner. As he did so, he heard a loud argument in process. The language was punctuated with profane expressions including one of recent vogue which is often abbreviated for convenience as "M.F." The owner of the restaurant asked the officer to remove those who were arguing. The group, including Cumberland, was asked to leave peacefully. The officer also seized a bottle of liquor from the belt of one of the men. Cumberland claimed it was his bottle by exclaiming, "Hey, [M.F.], where are you going with my jug?" He continued to be profanely loud and boisterous. In order to avoid a public "scene" or "incident", the officer asked Cumberland to step into a nearby alley. At this point, Cumberland began goading the officer with statements challenging the officer to arrest him. Cumberland followed the officer from the alley to a point some distance away and across from a bits terminal. Despite repeated admonitions to break off the confrontation and go in peace, Cumberland continued with his challenge in an increasingly heated tone. He charged that the officer did not have the "[M.F.] guts" and was, in less polite terms, not possessed of sufficient virility to "lock him up." Cumberland also made a vile dispositive comment about "the judge", apparently referring to any judicial officer he might be brought before if arrested for his conduct. The officer continued his admonition for Cumberland to go home. He said, "If you can't behave yourself, go on home. I don't want to see you get in trouble." The officer also offered to take him home. Cumberland's conduct culminated in a crescendo sufficient to cause eight or ten people to approach from the bus terminal.⁴

When Cumberland was searched after being arrested, a piece of metal foil fell from his left-front pocket. It was recovered and its contents later testified positively as marijuana.

Appellee urged before the hearing judge that he was not lawfully arrested because no misdemeanor was committed in the presence of the arresting officer⁵ Appellee relied upon Williams v. District of Columbia, D.C.Cir., 419 F.2d 638, (decided June 20, 1969),⁶ which, he says, limits the type of conduct possessing the attributes of the offense. The hearing judge, at appellee's urging, ruled that:

A crime has not been proven beyond a reasonable doubt. There was [therefore] no probable cause to arrest for disorderly conduct.

The application of this standard was error. Legality of an arrest in our jurisprudence hinges on conclusions derived from reasonable probabilities, not absence of doubt, which reasonable men may entertain. Since the hearing judge permitted and conducted a full and exhaustive inquiry into the facts surrounding the arrest⁷ and articulated his view that the only believable version was that of the officer, we see no need to remand for another hearing.⁸ Accordingly, we reverse the order of suppression and remand with instructions to proceed with the trial.

Not only did the hearing judge confuse his function and that of the evidence presented, he also confused the nature of "the tribunals which determine" the issues of probable cause for arrest and search and of guilt or innocence,⁹ Draper v. United States, 358 U.S. 307, 312, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). At a time when some have been heard to say that certain areas of criminal law are too fluid to give rise to needed definiteness, it may be stated with certainty that there is one basic rule in the law of arrest — that is, that the magistrate or the arresting officer need not have evidence before him sufficient to establish guilt beyond a reasonable doubt. See Draper v. United States, supra; Brinegar v. United States, 338 U.S. 160, 172-173, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Bailey v. United States, 128 U.S.App.D.C. 354, 357-358, 389 F.2d 305, 308-309 (1967); Washington v. United States, 92 U.S.App.D.C., 31, 202 F.2d 214 (1953), cert. denied, 345 U.S. 956, 73 S.Ct. 938, 97 L.Ed. 1377 (1953). It is enough if the officer "in the particular circumstances, conditioned by his observations and information * * * reasonably could have believed that a crime had been committed by the person to be arrested." Jackson v. United States, 112 U.S.App. D.C. 260, 262, 302 F.2d 194, 196 (1962).

We see no reason why these principles should not govern in cases of arrest without a warrant where the offense, felony or misdemeanor, is committed in the officer's presence. Appellee attaches significance to D.C.Code 1967, § 4-140(a) (Supp. II, 1969), which permits members of the Metropolitan Police Department to arrest without a warrant, with certain exceptions, only if the person

* * * commits, or threatens or attempts to commit, in the presence of, or within the view of, such officer or member any breach of the peace or offense directly prohibited by an Act of Congress or by any other law in force in the District [of Columbia].

He argues that this language supports the view that something more than probable cause is required. We disagree.

A police officer can hardly be expected to function effectively if he must apply the criterion the courts apply at criminal trials to everyday situations that confront him on the street. Indeed, he is not required to anticipate changes in the law when deciding whether to make a warrantless arrest. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Worthy v. United States, 133 U.S. App.D.C. 188, 409 F.2d 1105 (1968). It makes no sense then to have the validity of warrantless arrests turn on whether reasonable men may have a reasonable doubt as to the ultimate guilt of the person arrested — and that is what reasonable doubt is all about. See Curley v. United States, 81 U.S.App.D.C. 389, 392, 160 F.2d 229, 232 (1947). No policeman should have to...