United States v. Hobby, 5449.

• Decision Date: 22 March 1971
• Docket Number: No. 5449.,5449.
• Citation: 275 A.2d 235
• Parties: UNITED STATES, Appellant, v. Ronald E. HOBBY, Appellee.
• Court: D.C. Court of Appeals

275 A.2d 235

UNITED STATES, Appellant, v. Ronald E. HOBBY, Appellee.

No. 5449.

District of Columbia Court of Appeals.

Argued February 9, 1971.

Decided March 22, 1971.

Kenneth Michael Robinson, Asst. U. S. Atty., with whom Thomas A. Flannery, U. S. Atty., John A. Terry, Robert C. Crimmins and Lester B. Seidel, Asst. U. S. Attys., were on the brief, for appellant.

No appearance for appellee.

Before KERN, GALLAGHER, and REILLY, Associate Judges.

PER CURIAM

The Government has appealed an order granting a pre-trial motion by appellee, to suppress a shotgun taken from his car by a police officer at the time of his arrest. In the court below, appellee was charged in an information filed July 6, 1970, with a violation of D.C.Code 1967, § 22-3204, which prohibits inter cilia the carrying of a concealed weapon.

The charge was predicated on the very item of evidence suppressed at the motions session. The Government concedes that evidence proving the carrying of a shotgun would not sustain an asserted violation of Section 3204, supra, but suggests that this error in the information could have been cured by an amendment charging a violation of another section of the Code, viz., Section 3214 in lieu of Section 3204.¹ As both the foregoing concession and suggestion were made at the hearing on the motion, the Government argues that the motion should not have been granted, asserting that the only issue before the court at that stage of the proceedings was whether the seizure of the weapon was illegal.

While the facts developed in the hearing are sketchy, being based on the testimony — partially hearsay — of only one of the officers who participated in the arrest, the essence of the case before the motions judge was the following:

On a June afternoon, Officer Samuel Blackburn, in a private automobile, saw appellee, Ronald E. Hobby, take a shotgun from the trunk of his car then parked near Fourth and H Streets, N. W., get into the front seat with it, and speed after a cab driven by a man with whom he had just been conversing. The officer pursued the car, but before overtaking it, hailed another policeman in a scout car, Lonnie Bennett, Jr., and instructed him to follow.

Blackburn succeeded in stopping Hobby's car at the next intersection and directed him to step out. At that time, Bennett also arrived. Both officers, looking inside the car which had been halted, noticed that a shotgun separated into two parts was lying on the seats, one piece in front and the other in back. When asked what was going on, Hobby said that a cab driver had pulled a gun on him and he was going to "get" him. Bennett then told him he was under arrest, advised him of his rights, but Hobby persisted in saying that he was going to "get" the cab driver.

Upon ascertaining that the information was drawn under Section 22-3204,² the court — apparently regarding this section as inapplicable to shotguns — remarked that no violation had been shown. Government counsel agreed, but stated that they intended to amend the information by charging appellee with an offense defined by Section 3214(b). The court nevertheless granted the motion, stating "my ruling goes only to suppress for use as a dangerous weapon."³

In our opinion, the court erred in grounding the suppression of the evidence upon the defective information, because the grounds upon which a motion to suppress may be granted is limited by the very terms of the rule — in this instance GS Crim.Rule 41(e) — which authorizes the filing of such motions. The motion may be made only by a defendant "aggrieved by an unlawful search or seizure" and for the movant to prevail — under the facts shown at this hearing — it was necessary for him to demonstrate that "the property was illegally seized without warrant." The key word here is "illegally", for the police may arrest without warrant under certain circumstances, and as an incident to such arrest seize any incriminating items discovered in the immediate possession of the person arrested.⁴

In the circumstances described by the officer who testified, there can be no doubt that under certain provisions of D. C.Code 1967, § 4-140 (Supp. III, 1970),⁵ the officer had ample authority to arrest appellee without a warrant. If the officer's testimony may be accepted at face value he was entitled to regard the accused's armed pursuit of the taxi driver, coupled with his expression of intent to "get" him made in the presence of the officer, as a threat to commit a breach of the peace or assault with a dangerous weapon.

The record does show that Officer Blackburn testified that in making the arrest, he charged appellee with a breach of that same section of the Code erroneously cited later in the information — thus making the same mistake as the prosecutor who signed it. But the state of mind of an officer who makes an arrest is not the relevant test of whether such action is valid. United States v. Cumberland, D.C.App., 262 A.2d 341 (197...