United States v. Poms

• Decision Date: 26 September 1973
• Docket Number: No. 72-1965.,72-1965.
• Citation: 484 F.2d 919
• Parties: UNITED STATES of America, Appellee, v. Alan Martin POMS, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

484 F.2d 919 (1973)

UNITED STATES of America, Appellee, v. Alan Martin POMS, Appellant.

No. 72-1965.

United States Court of Appeals, Fourth Circuit.

Submitted July 27, 1973.

Decided September 26, 1973.

Blair D. Howard, Alexandria, Va., on brief for appellant.

Brian P. Gettings, U. S. Atty., and K. Gregory Haynes, Asst. U. S. Atty., on brief for appellee.

Before BOREMAN, Senior Circuit Judge, and WINTER and CRAVEN, Circuit Judges.

PER CURIAM:

Alan Martin Poms was arrested on March 29, 1972, and was later indicted on two counts. Count I charged possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1); Count II charged possession of a firearm by a convicted felon, 18 U.S.C., Appendix, § 1202(a)(1). Poms filed a Motion to Suppress evidence seized from him at the time of his arrest and a Motion for a Bill of Particulars demanding disclosure of the identity of an informant. Both motions were denied after a hearing. The case was tried without a jury. On Count I Poms was found guilty of the lesser included offense of simple possession of cocaine, 21 U.S.C. § 844(a), and was sentenced to imprisonment for a term of one year. He was found not guilty of Count II. He appeals, assigning as error the denial of his Motions to Suppress and for a Bill of Particulars.

Federal authorities had received information from a confidential informant regarding Poms and one Gabriel D. Bobrow on several occasions in the two weeks preceding the date of Poms' arrest. The informant stated that Bobrow was heavily engaged in narcotics trafficking. The source reported also that Poms was associated with Bobrow in the latter's criminal activities and was presently and had been for several months living in Bobrow's apartment. The informant further revealed that Poms habitually carried a brown leather shoulder bag which always contained an automatic pistol.

On the basis of the information supplied by the informant a search warrant was secured for Bobrow's apartment on March 29, 1972. Approximately eight to twelve federal agents went to the building to participate in the search and, upon arriving, they encountered and arrested Bobrow and his son in an elevator.¹ The two Bobrows and the agents proceeded to the basement in the elevator. As the arrestees were being searched and given their Miranda warnings in the basement hallway, an adjacent elevator door opened and Poms emerged carrying a brown leather shoulder bag. An agent of the Alcohol, Tobacco and Firearms Division of the Treasury Department testified that he saw Poms as the elevator door opened, observed the shoulder bag, and noted that Poms had one hand on the zipper of the bag which was one-third open. The agent asked appellant if his name was Alan Martin Poms and upon receiving an affirmative reply took possession of the shoulder bag. When the bag was completely opened a loaded .38 caliber automatic pistol and a clear plastic bag of white crystal cocaine were observed therein. Poms was then arrested.

First, Poms claims that the cocaine should not have been admitted into evidence against him. He argues that the express purpose of the agents was to execute the search warrant for the apartment of Bobrow and that the agents' encounter with him was mere happenstance. Citing Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the defense contends that the informant's unverified tip was insufficient to provide probable cause for an arrest of Poms or a valid search of his shoulder bag.

This court need not decide whether the information provided by the informant would have been sufficient by itself to have supported an arrest or search of Poms. We are persuaded that on the facts in the record, the search of Poms' shoulder bag may be justified by the guidelines for protective searches established by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Since no arrest was effected until after the contraband was found in the shoulder bag, the validity of the arrest is dependent on the validity of the initial search and not vice versa.

To justify a protective search there must be compliance with the standards established in Terry.

"Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. at 1883.

Applying the teaching of Terry to the facts and circumstances here present we conclude that the protective search was justified and the federal agent's search of the shoulder bag for weapons was reasonable.² Here, the officers had received information from a reliable informant³ that Poms always carried a weapon in his shoulder bag. The source had provided an accurate description of the bag's appearance and color. Poms was known to be an associate of Bobrow and they were sharing an apartment according to the information furnished the agents. Additionally, the officers asked Poms to identify himself before they took any further action. It is quite reasonable to assume, and there is no contrary evidence in the record, that the agent who searched the bag was of the opinion that such a prophylactic measure was necessary to avert the possibility that Poms would draw a weapon in an attempt to free Bobrow from police custody.

A similar situation was present in United States v. Del Toro, 464 F.2d 520 (2 Cir. 1972). There the police had an arrest warrant for one Rivera, a known narcotics dealer. Eight agents kept Rivera and Del Toro, who was unknown to the police, under surveillance as they left a bar. The agents closed in with drawn revolvers and ordered the two men out of Del Toro's car. A search of Del Toro for weapons was held to be justified even though, as here, he was not uncooperative and the police were present in force. As stated in Del Toro, it would be "unreasonable to expect them government agents to expose themselves to a violent escape attempt, however futile, when the limited intrusion of a pat-down would promptly defuse what officers experienced in narcotics enforcement perceived as a potentially explosive situation." 464 F.2d at 521 (footnote omitted).

We cannot distinguish the cases on the basis that Del Toro had been Rivera's companion throughout the period of surveillance whereas Poms' presence at the arrest of Bobrow may have been fortuitous. The police had ample cause to take protective measures because they had been warned by a reliable source that Poms was Bobrow's associate in crime, was then residing with Bobrow, and that he always carried a weapon in his shoulder bag.⁴ Poms was potentially as dangerous to the arresting officers when he stepped off the...