Williams v. Adams, 64

• Decision Date: 16 December 1970
• Docket Number: No. 64,Docket 34826.,64
• Citation: 436 F.2d 30
• Parties: Robert WILLIAMS, Petitioner-Appellant, v. Frederick E. ADAMS, Warden, Connecticut State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

436 F.2d 30 (1970)

Robert WILLIAMS, Petitioner-Appellant, v. Frederick E. ADAMS, Warden, Connecticut State Prison, Respondent-Appellee.

No. 64, Docket 34826.

United States Court of Appeals, Second Circuit.

Argued September 29, 1970.

Decided December 16, 1970.

Reversed on Reconsideration April 14, 1971.

Donald A. Browne, Asst. State's Atty., Fairfield County, Conn. (Joseph T. Gormley, Jr., State's Atty.), for respondent-appellee.

Edward F. Hennessey, Hartford, Conn., for petitioner-appellant.

Before DANAHER,^* FRIENDLY and HAYS, Circuit Judges.

Reversed on Reconsideration In Banc April 14, 1971.

DANAHER, Senior Circuit Judge:

Charged with carrying a pistol on his person without a permit, § 29-35 of the Connecticut General Statutes, with having narcotic drugs in his control, § 19-246, and having a weapon in a motor vehicle occupied by him, § 29-38, appellant was convicted in the Superior Court for Fairfield County, Connecticut, after a trial to the court. His conviction was affirmed on appeal. State v. Williams, 157 Conn. 114, 249 A.2d 245 (1968), cert. denied 395 U.S. 927, 89 S.Ct. 1783, 23 L.Ed.2d 2414 (1969). Thereupon he sought habeas corpus in the United States District Court for the District of Connecticut raising claims identical with those which had been considered theretofore in the state courts. His petition alleged that the evidence used against him in his state court trial was the product of an illegal search and seizure. Additionally he claimed he had been denied a speedy trial. District Judge Clarie denied relief, and appellant now has turned to us. We affirm.

I.

After a hearing, Judge Clarie found to have been substantiated the facts set forth in the Superior Court record and relied upon by the Supreme Court of Connecticut. Compendiously restated, we may note the following as here pertinent:

"At 2:15 on a Sunday morning, a sergeant of the Bridgeport police department was patrolling alone in a section of Bridgeport noted for its high incidence of crimes of various kinds. There he met a person known to him and considered by him to be trustworthy and reliable who pointed to an automobile parked on the other side of the street and told him that a person seated in the vehicle was armed with a pistol at his waist and had narcotics in his possession. The defendant was the occupant of this automobile and was seated on the passenger\'s side of the front seat. The sergeant walked across the street, tapped on the window of the automobile and told the defendant to open the door. The defendant rolled down the window of the door, and the sergeant immediately reached directly to the defendant\'s waistband and removed a fully loaded, .32-caliber revolver from the waistband of the defendant\'s trousers. He thereupon arrested the defendant, and thereafter a search was made of the defendant and the automobile. The search disclosed * * * a machete under the front seat, twenty-one cellophane packets containing a white substance in the defendant\'s wallet and six similar packets in a jar in the defendant\'s right-hand coat pocket. Later tests of ten of the cellophane packets established that they contained heroin." State v. Williams, supra, 157 Conn. at 116, 117, 249 A.2d at 246.

The Supreme Court of Connecticut decided that under the circumstances shown, the conduct of the officer was justifiable under the applicable Connecticut statutes.¹ Thus the arrest which followed was fully sustainable quite aside from any authority given the officer by § 6-49; his action was reasonable for he had not conducted a general exploratory search, he had merely grabbed the loaded revolver from the place where his informant had said it would be. In reliance upon Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Court found that the course taken by the officer was far less extensive than that found reasonable in Terry.

II.

That the findings and conclusions of the Connecticut courts were not insulated from examination by Judge Clarie is obvious. Ker v. California, 374 U.S. 23, 34, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). Granting that the law of the state where the arrest without warrant took place determines its validity, United States v. Di Re, 332 U.S. 581, 589, 68 S.Ct. 222, 92 L.Ed. 210; United States v. Viale, 312 F.2d 595, 599 (2 Cir.1963), we take account of the federal constitutional standard in appraising the issue here. Williams was arrested for illegal possession of a revolver. If that arrest were lawful, evidence secured as an incident thereto might properly be received. Were the facts and circumstances within the knowledge of the officer and of which he had reasonably trustworthy information sufficient to warrant a man of reasonable caution in the belief that an offense was being committed? The answer to that question determines the present issue. Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); United States v. Traceski, 271 F.Supp. 883, 885 (D.Conn.1967); cf. United States v. Rosse, 418 F.2d 38, 39, n. 2 (2 Cir.1969), cert. denied, 397 U.S. 998, 90 S.Ct. 1143, 25 L.Ed.2d 408 (1970).

Inevitably, issues such as ours must be resolved upon the particular facts which vary from case to case. See, e.g., the discussion by Circuit Judge (now Justice) Blackmun in Rodgers v. United States, 362 F.2d 358, 362 (8 Cir. 1966), followed in Kayser v. United States, 394 F.2d 601, 605 (8 Cir.), cert. denied, 393 U.S. 919, 89 S.Ct. 250, 21 L. Ed.2d 206 (1968); Cf. Smith v. United States, 123 U.S.App.D.C. 202, 358 F.2d 833, 835 (1966) (Opinion by Circuit Judge, now Chief Justice, Burger).

So it is that our appellant relies upon Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L.Ed.2d 917 (1968) even as he would discount the companion case involving Peters, and would reject the reasoning of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Court itself spelled out a distinction in Chimel v. California, 395 U.S. 752, 762, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Where Terry had held that the scope of the search must be strictly tied to and justified by the circumstances involving a protective search for weapons, in Sibron the policeman had not been motivated by or his action limited to the objective of protection. On the contrary, Chimel explained, the officer had put his hand into the suspect's pocket with the purpose of finding narcotics which indeed were found.

In our case, the officer testified that he reached for the gun in concern for his own protection, and "I didn't want him to use the pistol on me, sir."

Chimel made clear that

"When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer\'s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee\'s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee\'s person and the area `within his immediate control\' — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence." 395 U.S. 752, 762-763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685.

So, we turn back, once again, to the circumstances under which the arrest occurred.

Here the officer received a complaint from an informant who was known to him, considered by the officer to be trustworthy and reliable, and one who in the past, as Judge Clarie found, had supplied valuable information regarding criminal activities. Cf. United States v. Gazard Colon, 419 F.2d 120, 122 (2 Cir. 1969). At once let it be noted additionally, that this was not the usual "informant" detailing aspects of some earlier action. He described current circumstances there and then constituting a felony under Connecticut law.

This was an eye-witness, invested with "built-in credibility." McCreary v. Sigler, 406 F.2d 1264, 1269 (8 Cir.), cert. denied, 395 U.S. 984, 89 S.Ct. 2149, 23 L.Ed.2d 773 (1969); cf. United States v. Acarino, 408 F.2d 512, 514 (2 Cir.), cert. denied, 395 U.S. 961, 89 S.Ct. 2101, 23 L.Ed.2d 746 (1969). He pointed out to the officer that there was at that very time a car parked across the street; there was a person seated in that vehicle; that person was armed; that he had a pistol at his waist and had narcotics in his possession.

Since this was a Bridgeport police sergeant, it is not unreasonable to infer he was experienced. Patrolling alone in an area noted for its high incidence of crimes of various kinds, he received the complaint that a crime was then in progress. Guided by Connecticut law, he was bound to act on the speedy information then at hand. Supra, note 1, and compare Jackson v. United States, 408 F.2d 1165, 1169 (8 Cir.), cert. denied, 396 U.S. 862, 90 S.Ct. 135, 24 L.Ed.2d 114 (1969). He crossed the street, saw the appellant in the car, and could readily check personally on the facts made available to him. Then he told that person to open the car door. Instead, the latter rolled down the window. The gun was at the appellant's waist just as the witness had described, and the officer seized a fully-loaded pistol. He thereupon arrested Williams.

That Williams, unlike Terry, was seated in a car is immaterial under the circumstances here. In determining whether the officer as a reasonably prudent man in the circumstances acted reasonably in the belief that his safety might be in danger, we can not fail to give due weight to the...