United States v. Pannell

Decision Date09 March 1978
Docket NumberNo. 12135.,12135.
Citation383 A.2d 1078
PartiesUNITED STATES, Appellant, v. Major A. PANNELL, Jr. and Robert W. Dean, Appellees.
CourtD.C. Court of Appeals

Robert I. Richter, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., and John A. Terry and David W. Stanley, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellant.

Robert F. Muse, Public Defender Service, for appellee Pannell.

Michael J. Walsh, appointed by this court, for appellee Dean.

Before NEWMAN, Chief Judge, and MACK and FERREN, Associate Judges.

MACK, Associate Judge:

Appellees were charged in a two count indictment with second-degree burglary (D.C.Code 1973, § 22-1801(b)) and grand larceny (D.C.Code 1973, § 22-2201). The trial court granted a pretrial motion to suppress evidence, and the United States appeals pursuant to D.C.Code 1973, § 23104(a)(1).

At approximately six a.m. on December 20, 1976, Officer Jack Vincent discovered that a panel in the rear door of an Amvets Store near 14th Street and Brentwood Road, N.E. had been removed. The officer reported a burglary; he did not know if anything had been taken, however, because he was relieved thereafter by officers on the day shift. Around 11:20 that evening Officer Vincent and his partner were driving a marked police car on their way to the Amvets location to check the store for security when they observed the appellees walking on 14th Street at Brentwood carrying what appeared to be a television set.

The officers stopped appellees and found that Mr. Pannell was carrying the television set, and that Mr. Dean had a paper bag containing a radio-clock and desk lamp combination and a portable radio. Appellees stated that they had found the property at the rear of the Amvets Store either in or near a trash dumpster. Officer Vincent knew that there was no trash dumpster at that location. After asking several other questions the officers recorded appellees' names, took possession of the property, and told appellees how they could secure release of it if they could prove rightful ownership. At some point during the questioning, although it is not clear whether it was before or after the property had been seized, appellees told the officers that the property had been stolen earlier that day by a man named "Hucks" (a known burglar), and that Bucks had planned to come back later and pick it up. In any event, appellees were not arrested and went on their way. Subsequent investigation revealed that the seized property had been taken not from the Amvets Store, but in another burglary which occurred sometime after 9:00 that same evening. The trial court concluded that the government had failed to establish that the officers had probable cause to seize the property. We agree and affirm.

The government contends that the seizure of the property was valid because the officers had probable cause to believe that it had been stolen. This argument could have validity only if the officers had probable cause to believe that appellees had committed the crimes of stealing or receiving stolen property — i.e., if the officers had probable cause to arrest. The cases relied upon by the government involve seizures incident to arrest. See, e.g., Cooper v. United States, D.C.App., 368 A.2d 554 (1977); In re E.F.B., D.C.App., 320 A.2d 95 (1974); Wray v. United States, D.C.App., 315 A.2d 843 (1974). But here, the officers admitted that they did not have probable cause to arrest. During the suppression hearing, defense counsel inquired of Officer Vincent, "Why didn't you arrest them for receiving stolen property?" The officer responded, "We were not sure that the property had come from any particular establishment at that time. . . . We didn't know that it had actually been stolen."

In rejecting the government's contention the trial court relied upon Daugherty v. United States, D.C.App., 272 A.2d 675 (1971), in which the defendant had been convicted of receiving stolen property. Reversing the conviction this court concluded that ". . . in our opinion, the fact that appellant was seen carrying a portable television down a street in a neighborhood where burglaries were regular occurrences, even when his explanation for possession of the set heightened suspicions already aroused, does not amount to probable cause to believe that a crime had been committed." Id. at 676 (footnote omitted).

Although the Supreme Court has upheld the power of police officers to effect a warrantless seizure of evidence in "plain view," it has also cautioned that the object must be of an incriminating nature. Coolidge v. New Hampshire, 403 U.S. 443, 464-473, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). See also William E. Ringel, Searches and Seizures, Arrests and Confessions § 161 (1972). A television set is far from being obvious contraband, and there is nothing intrinsically wrong with walking down the street carrying one. As this court stated in Campbell v. United States, D.C.App., 273 A.2d 252, 255 (1971), "[o]ur often criticized society has not yet deteriorated to the point where we can say that a man who carries openly, on the street, a large household appliance is probably a thief."

The government seeks support from the statement made by appellees that the property they were carrying had been stolen by a Mr. Hucks. Appellees counter that the statement must have been made after the seizure of the property, for if they had proffered such an explanation before the seizure, the police would have concluded that t...

To continue reading

Request your trial
5 cases
  • Womack v. US, 93-CF-1548.
    • United States
    • Court of Appeals of Columbia District
    • 14 March 1996
    ...all reasonable inferences in that party's favor. Peay v. United States, 597 A.2d 1318, 1320 (D.C.1991) (en banc); United States v. Pannell, 383 A.2d 1078, 1080 (D.C.1978). Whether the evidence, as found by the motions judge, establishes that Womack was seized in violation of his Fourth Amen......
  • Smith v. Whiteshead
    • United States
    • Court of Appeals of Columbia District
    • 10 September 1981
    ...of stolen goods. We have previously stated, "[a] television set is far from being obvious contraband . . ." United States v. Pannell, D.C.App., 383 A.2d 1078, 1080 (1978). This applies equally to other ordinary consumer items. Thus there was nothing inherently incriminating about the goods ......
  • Nixon v. United States, 13446.
    • United States
    • Court of Appeals of Columbia District
    • 5 June 1979
    ...for a police officer to believe a crime has been committed. We reaffirmed this general principle recently in United States v. Pannell, D.C. App., 383 A.2d 1078, 1080 (1978). In Daugherty, supra, police officers were confronted with a person carrying a television set on the street in a burgl......
  • Wilkerson v. United States, 79-809.
    • United States
    • Court of Appeals of Columbia District
    • 10 June 1981
    ...however, whether the officer knew that probable cause to arrest was required in order to justify the seizure. United States v. Pannell, D.C.App., 383 A.2d 1078, 1079-80 (1978). His testimony reflects a belief that he was justified in seizing the goods, as contrasted with arresting the appel......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT