Young v. United States, 21756

• Decision Date: 26 June 1970
• Docket Number: 21757,21857.,No. 21756,21756
• Citation: Young v. United States, 435 F.2d 405, 140 U.S.App.D.C. 333 (D.C. Cir. 1970)
• Parties: Tyrone R. YOUNG, Appellant, v. UNITED STATES of America, Appellee. Guy D. HARRIS, Appellant, v. UNITED STATES of America, Appellee. Roy L. JOHNSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

140 US App. DC 333, 435 F.2d 405 (1970)

Tyrone R. YOUNG, Appellant, v.UNITED STATES of America, Appellee.

Guy D. HARRIS, Appellant, v.UNITED STATES of America, Appellee.

Roy L. JOHNSON, Appellant, v.UNITED STATES of America, Appellee.

Nos. 21756, 21757, 21857.

United States Court of Appeals, District of Columbia Circuit.

Argued March 3, 1970.

Decided June 26, 1970.

David S. Urey and Edward F. McKie, Jr., Washington, D. C. (both appointed by this Court), for appellants.

Mr. Roger E. Zuckerman, Asst. U. S. Atty., with whom Mr. David G. Bress, U. S. Atty., at the time the brief was filed, was on the brief, for appellee.Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry, Asst. U. S. Atty., also entered appearances for appellee.Mr. Daniel J. Givelber, Asst. U. S. Atty., also entered an appearance for appellee in No. 21,857.

Before BAZELON, Chief Judge, and LEVENTHAL and ROBINSON, Circuit Judges.

LEVENTHAL, Circuit Judge:

This is an appeal from appellants' conviction for robbery and assault with a dangerous weapon, and, in the case of appellant Young, an additional conviction for carrying a deadly weapon.All charges stem from the robbery of the Mathews Drug Store on February 27, 1967.The appeal was argued to another panel, which did not complete action on the case.^*It was reassigned to the present panel.

Appellants contend that the car in which they were riding was illegally stopped and searched by the police and that evidence obtained as a result thereof was improperly introduced at trial.For the reasons set out below, we think that this contention is without merit.Appellants also object to the Government's handling of its eyewitness identification testimony on the grounds that the stationhouse identification testified to at trial was unnecessarily suggestive and conducted during a period of unnecessary delay.While we find no merit in their other contentions we conclude that appellants' suggestiveness argument raises a substantial issue of due process, and accordingly we remand for further proceedings in the District Court.

I.Facts

The Mathews Drug Store was robbed by three men, one of whom carried a sawed-off shotgun, shortly before 11:00 a.m.At around noon of the same day officers Kerick and Rattay of the Metropolitan Police Special Operations Division observed a car occupied by five men parked in front of the American Security and Trust Bank.Their suspicions were aroused when this car made a U-turn and followed a delivery truck whose driver had just left the bank.Officers Kerick and Rattay decided to follow along, but lost track of the car some six blocks later.Further investigation revealed that the delivery truck was overdue.They radioed in a description of the automobile and suggested that it be stopped so that its occupants could be questioned.Shortly thereafter they again sighted the car.Other police cars had been called for assistance.An officer from the car that arrived first assisted Kerick and Rattay in bringing the suspicious vehicle to a stop.Officer Kerick approached the car from the rear, and as he stood along the side of the automobile he noticed what he believed to be the barrel of a shotgun protruding out from under the driver's seat.The occupants of the car, now four in number, were told to get out and a sawed-off shotgun was retrieved from under the seat.The car's occupants, the three appellants and one other named Lawrence Bell, were placed under arrest for carrying a shotgun without the permit required by the Federal Firearms Act.¹The car was stopped about 12:50 p.m., and appellants were taken to the Ninth Precinct stationhouse at about 1:00 p.m.

Shortly after the arrest of appellants Officer Kerick determined that they fitted the lookout he had received that morning after the robbery of the Mathews Drug Store.Around 2:00 p.m.Mr. Mathews was brought to the stationhouse to see if he could identify any of the occupants of the automobile.On the way to the lineup he was told that the suspects he would view "had a shotgun."The lineup consisted of six men: the four occupants of the car and two police officers.The police officers were dressed in coats and ties, whereas the suspects were dressed in turtlenecks and similar casual attire.The shotgun taken from the car was on view in the lineup room.Appellant Harris was dressed in an overcoat similar to one worn by the robber, and he testified that the coat was not his and that he wore it against his will.Mr. Mathews identified appellant Harris as the gunman, appellant Young as the other robber, and appellant Johnson as the lookout.Appellants were presented before a commissioner the following morning.At trial Mr. Mathews testified on direct concerning his stationhouse identification.

II.Illegal Arrest Claim

Appellants contend that the shotgun and pistol taken from the car were the fruits of an illegal arrest and therefore should have been excluded from evidence at trial.We think no sound objection can be based on the action of the policemen in stopping the suspicious-acting car and detaining the car and its occupants for brief questioning.In Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688(1960), the Supreme Court suggested that, in such situations, probable cause is not required to justify a momentary detention when the police have no intention to detain a suspect beyond the requirements of routine interrogation.In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889(1968)the Court went further and held that a police officer may make not only a stop but also a protective frisk where he"observes unusual conduct which leads him reasonably to conclude in the light of his experience that criminal activity may be afoot and that the person with whom he is dealing may be armed and presently dangerous. * * *"Id. at 30, 88 S.Ct. at 1884.The power to stop a person for brief questioning was not discussed expressly but was an implied and necessary premise of the decision.SeeId. at 32-33, 88 S.Ct. 1868.Harlan, J. concurring.A greater invasion of the interests generally protected by the Fourth Amendment, and notably the interest in being let alone, is wrought by a frisk than by requiring someone to stop long enough to be asked a few questions aimed at clearing up suspicious circumstances.Obviously the officer is not required to meet a greater burden in justifying such a stop than in justifying the subsequent frisk.

A stop is to be distinguished from an arrest requiring probable cause.In Terrythe Court drew a distinction between traditional "arrests" and "seizures of the person which do not eventuate in a trip to the station house and prosecution for crime."An inter-related standard was put forward in the concurring opinion in Bailey v. United States, 128 U.S.App.D.C. 354, 389 F.2d 305(1967), which noted that the key question is "whether the constraints applied were protective of the police and bystanders, or were custodial."128 U. S.App.D.C. at 364, 389 F.2d at 315.Under this test or a test which focuses on the officer's intention to detain for only a brief time, it is apparent that the stop of the car in which appellants were riding was not an arrest requiring probable cause.

It remains to be determined whether, though lacking probable cause to believe appellants had committed a crime and should therefore be arrested, the police nonetheless had reasonable cause for the stop of the car and its occupants.Appellants argue that if we approve this stop we will confer absolute discretion on the policeman to stop any car on the pretext of requesting to see the driver's license and registration.We are not fairly confronted with any such issue.Stops as well as arrests must satisfy the Fourth Amendment requirement of reasonable cause commensurate with the extent of the official intrusion.If the defendant challenges evidence as the fruit of an illegal seizure, the government must come forward with "specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant that intrusion."Terry v. Ohio, supra,392 U.S. at 21, 88 S.Ct. at 1879.That showing has been made here.The close observation of the bank by the occupants of the car, their hasty U-turn to follow the delivery truck, and the report that the delivery truck was overdue, obviously contituted a situation which warranted further investigation into the possibility that a robbery was underway, and the conduct of that inquiry with the caution appropriate to a crime of violence.

Officer Kerick requested aid in making a "suspicious spot check."This phrase is apparently used by the local police to identify those stops in which the officer believes there is special need for protective measures.²The means used to satisfy this need for caution, the summoning of additional cars and police to assist in the stop, seems reasonably related to the object of preventing both flight and injury to police and bystanders.The reasonableness of protective measures was further supported by the fact that all but one of the officers present at the stop were on patrol in unmarked cars and wearing casual clothes.Officer Rattay testified that "generally when we wear old clothes we make it a habit to surround the car to give us more protection for ourselves."

III.Illegal Search Claim

There is no merit in appellants' contention that the shotgun taken from the car in which they were arrested was inadmissible as evidence because it was the fruit of an illegal search.

Given the reasonableness of the stop of the car and occupants for inquiry into the possibility of their implication in an attempted robbery, there was no search involved when Officer Kerick, from outside the car, saw what appeared to be a shotgun barrel protruding from under the car seat.Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L. Ed.2d 1067(1968).The officer's removal of a possible weapon from the...