United States v. Thompson

Decision Date19 November 1968
Docket NumberCr. A. No. 1899.
Citation292 F. Supp. 757
PartiesUNITED STATES of America, Plaintiff, v. Clyde Marvin THOMPSON, Jr., Defendant.
CourtU.S. District Court — District of Delaware

Alexander Greenfeld, U. S. Atty., and L. Vincent Ramunno, Asst. U. S. Atty., Wilmington, Del., for the United States of America.

Thomas G. Hughes, of O'Donnell, Hughes & Lowicki, Wilmington, Del., for defendant.


LATCHUM, District Judge.

In a one count indictment, defendant is charged with the unlawful possession of a sawed-off shotgun in violation of 26 U.S.C. § 5851 because the weapon had been made in violation of 26 U.S.C. § 5821 and had been transferred in violation of 26 U.S.C. §§ 5811, 5814.1 Defendant has moved to suppress evidence on the ground that it is the fruit of a search incident to an unlawful arrest, and to dismiss the indictment on the ground that § 5851 violates his Fifth Amendment privilege against self-incrimination. The government and defendant have stipulated, with regard to defendant's motion to suppress evidence, that the facts shall be determined from the testimony given before the United States Commissioner on April 25, 1968 and information contained in the police report of November 22, 1967.

The police report and the testimony of the officers before the Commissioner are not entirely consistent. But upon reading both, and giving deference to the fact that the police report is somewhat abbreviated, the testimony, though remote in time from the incident, is more descriptive and complete. Thus the essential facts surrounding defendant's apprehension may be summarized as follows:

On November 22, 1967, shortly before 5:30 a. m. Officers Hedrick and Lehowit of the Wilmington Police Department were driving in a police truck north on Market Street in Wilmington when they observed defendant sitting in his automobile which was parked on the premises of a service station at the corner of Thirtieth and Market Streets. The officers were suspicious of defendant due to the early hour of the morning and the fact that his car was facing the street and was not located near the gas pumps, the station's office or rest rooms. Officer Hedrick also recognized the defendant as a man who had been arrested approximately two weeks before for driving a motor vehicle without a driver's license. The officers parked their vehicle in a position to observe the defendant. Apparently, when the defendant saw the police, he hurriedly entered his car and drove east on Thirtieth Street. The police followed defendant for some distance observing that he entered a one-way street and drove in the wrong direction for approximately 50 to 75 feet. They also noticed that defendant's car emitted an excessively loud noise due to an apparently defective muffler and that his windshield contained several holes stuffed with some paper materials, all in violation of the Delaware Motor Vehicle Code. 21 Del.C. §§ 4309, 4311.

As they were following defendant's car the officers communicated with police headquarters by radio, informing the central office of their actions and requesting that a second police vehicle be assigned to "cover" their apprehension of the defendant. When they were joined by Sergeant Curtis they stopped defendant's vehicle at Eleventh and Bennett Streets. The police truck parked behind defendant's car and Sergeant Curtis positioned his car in front of defendant's vehicle to reduce the possibility of escape. The three officers approached defendant on the left side of his car and Officer Hedrick asked defendant to produce his driver's license and automobile registration. When defendant, who was alone in the vehicle, showed only a "learner's permit" which requires that a licensed driver be with the permittee in the car, 21 Del.C. § 2708, defendant was formally arrested for driving a motor vehicle in violation of his learner's permit.

Defendant was seated in the front seat of his car during this time and after Officer Hedrick informed defendant that he was under arrest and advised him of his constitutional rights, Hedrick observed defendant reaching his right hand between his legs and under his seat. The officer saw that defendant had his hand on the butt of a gun and that he was attempting to pull it from under the seat. He immediately recognized the weapon as a sawed-off shotgun. Hedrick told Curtis "He is going for something" whereupon the sergeant removed defendant from the vehicle. Officer Hedrick then retrieved the gun from the car. Defendant attempted to escape but was subdued by Sergeant Curtis. Numerous charges were thereafter placed against defendant at Central Headquarters in addition to the learner's permit violation, including driving a motor vehicle with improper equipment. The shotgun, which is the subject matter of the present prosecution, was fully loaded with the safety off at the time it was found. It measured 25 inches in length with a double barrel 16¼ inches long and thus is within the statutory definition of a "firearm" under the National Firearms Act. 26 U.S.C. § 5848(1).


The basis for defendant's motion to suppress evidence is that the police arrested defendant without a warrant when they directed him to stop his vehicle and that the arrest was made without probable cause. Defendant claims that the police obtained the shotgun through a search incident to an unlawful arrest, thus requiring suppression of the weapon as evidence and any other material gathered as a result of the arrest. At oral argument the government conceded, for the purposes of the present motion, that the arrest took place at the time the police stopped defendant's automobile. The question of when an arrest takes place, particularly in motor vehicle cases, is a most difficult one, subject to a diversity of opinion.2 In the absence of a controlling federal statute, the nature of an arrest is determined by the law of the state where the "seizure" of the defendant took place. See Busby v. United States, 296 F.2d 328, 331 (C.A. 9, 1961). It is not necessary, however, to decide here whether the stopping of defendant's vehicle satisfies the Delaware definition of an arrest.3 By ordering defendant to stop his automobile and by positioning their vehicles in such a manner that defendant's car could proceed no further, the police effectively deprived defendant of his freedom or liberty in a significant way. If at the time the police had "probable cause" to take this action, the detention was lawful regardless of whether it is considered an arrest or a mere investigatory detention.

"Probable cause exists when `the facts and circumstances within * * * the officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." Brinegar v. United States, 338 U.S. 160, 162, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949), quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1924). The arresting officers are not required to develop the degree of proof necessary for a conviction before they can act. Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); United States v. Gaither, 209 F.Supp. 223, 224 (D.Del.1962). Probable cause, which will sustain a warrantless arrest, is found somewhere between suspicion and sufficient evidence to convict. United States v. Margeson, 259 F.Supp. 256, 263 (E.D.Pa.1966). In the case of a warrantless arrest the police have the burden of demonstrating its validity. Beck v. Ohio, 379 U.S. 89, 97, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Rouse v. United States, 123 U.S.App.D.C. 348, 359 F.2d 1014, 1016 (1966). In this case, however, I am convinced that the evidence amply shows that they had sufficient probable cause to make an arrest without a warrant and that they acted lawfully under their authority to arrest "for violation of the motor vehicle and traffic laws of Delaware * * * upon view and without warrant * * *." 21 Del.C. § 701.

The initiation of the surveillance of defendant by the police may have been based on curiosity or, at most, suspicion that defendant was engaged in some questionable endeavor. Of course, suspicion alone is not a sufficient ground to support an arrest. Mallory v. United States, 354 U.S. 449, 454, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957); Henry v. United States, 361 U.S. 98, 101, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). In fact, under the construction which the Delaware Supreme Court has placed on the language of the state's investigative detention statute, 11 Del.C. § 1902, it appears that, although "reasonable suspicion" was designed by the legislature as the proper basis for an investigatory "stop", the minimum standard for such detention is probable cause or, as the court termed it, "reasonable belief." DeSalvatore v. Delaware, 2 Storey 550, 163 A.2d 244, 249 (1960); see Note, The Law of Arrest: Constitutionality of Detention and Frisk Acts, 59 Nw.U.L.Rev. 641, 645, 647 (1964). It appeared to the officers, according to the testimony of Officer Lehowit, that defendant's "hurried" departure from the service station was induced by the sight of the officers observing him and that his acts, particularly in driving the wrong way down a one-way street, were intended as evasive. See Sibron v. New York, 392 U.S. 40, 66-67, 88 S.Ct. 1889, 1912, 20 L.Ed.2d 917 (1968). There can be no doubt that Officer Hedrick's knowledge of defendant's prior arrest for driving without a license weighed heavily on the officers' minds as they were following defendant and they clearly suspected that he was driving without a license at this time as well. However, by the time they signaled to defendant to stop they had actually observed three infractions of the Delaware Motor Vehicle law, any one of which would constitute probable cause to stop defendant, whether or not such a stop should be termed an "arrest." See Bell v....

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  • United States v. Thompson
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 7 Enero 1970
    ...by the arresting police officers. The District Court, in a well-considered and thoughtful opinion by Judge Latchum, denied both motions. 292 F.Supp. 757. The defendant waived trial by From the testimony offered at the trial, it appears that at about 5:30 A.M. on the morning of November 22, ......
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