United States v. Johnson, 23900.

Decision Date22 March 1971
Docket NumberNo. 23900.,23900.
PartiesUNITED STATES of America, Appellant, v. Sheldon A. JOHNSON, Reginald Colbert.
CourtU.S. Court of Appeals — District of Columbia Circuit

Mr. Richard A. Hibey, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., John A. Terry, Asst. U. S. Atty., and Terry P. Segal, Asst. U. S. Atty., at the time the brief was filed, were on the brief, for appellant.

Mr. John Bodner, Jr., Washington, D. C., with whom Mr. Stanley J. Krieger, Washington, D. C. (both appointed by this court) was on the brief, for appellee Johnson.

Mr. Stanley Dietz, Washington, D. C. (appointed by this court) for appellee Colbert.

Before BAZELON, Chief Judge, WILBUR K. MILLER, Senior Circuit Judge, and McGOWAN, Circuit Judge.

McGOWAN, Circuit Judge:

This is an appeal by the Government, authorized by Section 1301 of the Omnibus Crime Control and Safe Streets Act (82 Stat. 237, amending 18 U.S.C. § 3731), from a grant by the District Court of a pretrial motion to suppress evidence, in this case narcotics. Appellees were under indictment for violations of two federal narcotics statutes, 26 U.S.C. § 4704(a) and 21 U.S.C. § 174. Our reading of the testimony leads us to the conclusion that the District Court's ruling did not take account of one critical undisputed fact, namely, that the narcotics were observed in plain view by the arresting officer in the course of an investigatory stop which the officer was fully authorized to make. For this reason, we reverse.

I

At the hearing on the motion to suppress, only one witness testified. That was Officer Herring, a ten-year police veteran with prior narcotics training and experience. Our summary of his testimony is derived directly from the transcript, a fact we emphasize because the District Court did not make findings of fact as such; and, in the examination of the witness as well as in arguments to this court, there has been some exploration and emphasis of matters which are not central to the circumstance we regard as controlling.

Officer Herring testified that, at about 11:17 on the night of April 13, 1969, he was driving a scout car, accompanied by Officer Anderson, in the right lane of the 1200 block of New York Avenue, going west. The scout car was passed on its left by a 1968 Chevrolet with three men in the front seat. Herring noticed that the right vent window was broken, and that the rear license plate did not have on it a 1970 sticker as required by law. Thinking from these facts that the car might be stolen, and possessed of authority in any event to investigate the absence of the sticker, Herring immediately turned on his red dome light, indicating that the car should pull over to the side of the street and stop. The Chevrolet did not stop but continued for a full block through the 13th street intersection, closely followed by the scout car. At this point Herring turned on his siren as a further signal for the Chevrolet to stop. Instead, it continued up to the intersection at New York Avenue and H Street. The red traffic light was against the Chevrolet at this intersection. It paused momentarily, but started up again to cross against the red light. Its motor stalled and died, however, before it made it through the intersection. Herring stopped the scout car in the middle of the intersection behind the Chevrolet and made his way as speedily as he could to the driver's side of the Chevrolet. His partner, Officer Anderson, ran around to the other side of the Chevrolet.1

As Herring approached the driver's side of the Chevrolet, its driver, appellee Johnson, opened the door and was in the process of getting out when Herring came up.2 In response to a question as to whether he could see into the car at that time, Herring said:

"Johnson got out of the car and I stopped him at the car and I did see inside the car, yes, sir.
* * * * * *
"I wasn\'t looking for anything particularly but just when he stepped out of the car, the dome light of the Chevrolet is on and you can see the inside of the car. At this time I saw a bunch of little white capsules laying around on the floor."

Herring's testimony was that, by the time he reached the Chevrolet, appellee Johnson was out of the car and standing, with the car door swung wide open and the car's dome light, accordingly, on. Herring asked Johnson for his driver's permit and registration and simultaneously searched him:

"Q. How did you search him?
A. Just frisked him.
Q. A quick frisk?
A. Yes.
* * * * * *
Q. And you just walked up to him and patted him down?
A. That\'s right."

Herring testified that the other two passengers were still seated in the car at this point, but that his partner Officer Anderson, stated that he was ordering appellee Colbert to get out of the car because he appeared to be holding something in his hand.

The direct examination of Herring by the defense then turned to what articles were seized by the police. Herring testified that they were (1) $188 in currency, which was what appellee Colbert was holding in his hand, and (2) 50 heroin capsules and a plastic green bottle. After defense counsel took Herring through a detailed description of the capsules and the bottle, the following colloquy occurred:

"Q. When did you see these capsules?
A. Oh, right then. After we put the gentlemen in the wagon — called for the wagon and put them in the wagon.
Q. And you placed them under arrest? Did you tell them what they were under arrest for?
A. Yes, sir.
Q. What was that?
A. Johnson would be traffic violation and suspected narcotics.
Q. Suspected, but not for stealing the car?
A. No, sir.
Q. When you checked his license — checked his license and registration, that appeared in order?
A. Yes, sir.
Q. At the time you stopped this car at about 11:15 or 11:17, didn\'t you suspect or have a hunch that you would find narcotics in this car?
A. No, sir.
Q. You had no idea whatsoever?
A. No, sir."

Herring then testified that the capsules were lying scattered over the left front floorboard, "where the driver's feet would be." Then this exchange occurred:

"Q. Would you — could you immediately identify these capsules — did you immediately identify these capsules that were lying on the floor?
A. I didn\'t immediately, no sir. I suspected what they were and the field test was made approximately fifteen or twenty minutes after that and it was positive."

Herring asked the occupants of the car who the capsules belonged to, and "all three denied any knowledge that they were on the floor." Herring was then asked whether he "searched the defendant prior to the time you saw these capsules," and he replied in the affirmative, presumably referring to his earlier account of the protective frisk which he gave Johnson. In response to a question as to whether he advised Johnson of his rights, Herring testified that, at approximately 11:18 or 11:19, he told Johnson that he was "under arrest for suspected narcotics and a traffic violation," and that he did not have to make any statement. He explicitly said he did not place Johnson under arrest for auto theft because the latter's permit and registration checked out. Johnson, said Herring, was "automatically locked up for traffic violations and immediately after I observed the capsules on the floor of the automobile." Herring further testified that, after Johnson and Colbert had been placed in the police wagon which had been promptly summoned, he looked under the front and back seats of the car but found nothing more.

The examination of Herring by counsel for appellee Colbert sought to show that Herring had acted contrary to police practice in taking appellee Johnson to the stationhouse for a traffic violation. Herring's response was that he regarded the matter as aggravated because Johnson did not respond to his signals to stop, resulting in a second law violation by reason of his running a red light.3 Colbert, said Herring, was arrested for a narcotics violation. In this examination, Herring again responded affirmatively when asked if he saw the capsules inside the car after he had placed Johnson under arrest. A later colloquy, however, suggested that Herring differentiated between his first sight of the capsules and his later collection and close examination of them:

"Q. When did you pick up these fifty capsules?
A. After we placed the subjects in the wagon.
Q. When they were in the wagon?
A. Yes.
Q. And you put the capsules into the green vial?
A. Yes.
Q. Did they all fit in?
A. Yes, sir, they did.
Q. Did you find in the automobile a cap for that green vial?
A. That\'s right.
Q. Where did you find that?
A. Laying on the floor, loose on the floor.
Q. In the same area?
A. Yes, sir.
Q. When you say that same area, you mean around the area of the driver\'s feet, where the driver\'s feet would be?
A. Yes."

Government counsel asked no questions of the witness. The testimony ended with this exchange between the court and the witness:

"THE COURT: All right. Officer Herring, you testified that you placed the Defendant Johnson under arrest immediately as he stepped out of the car?
THE WITNESS: Yes, sir.
THE COURT: That is before you saw the white capsules?
THE WITNESS: Right.
THE COURT: What did you charge him with at that time?
THE WITNESS: Stopped him for traffic violation.
THE COURT: Did you tell him what traffic violation?
THE WITNESS: Yes, sir.
THE COURT: Do you ordinarily search a man for a traffic violation?
THE WITNESS: Like I say, I suspected it being a stolen vehicle before I saw the registration and permit for the car.
THE COURT: You may step down."

After hearing the arguments of counsel, the court, in a brief statement, granted the motion to suppress on the ground that, in the light of our decision in Hill v. United States, 135 U.S.App.D.C. 233, 418 F.2d 449 (1968), "this has to be held a sham arrest, the purpose being that the officer was looking for something." The court...

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