Robert W. JEFFREYS, Jr., and Charles Thrower, Appellants, v. UNITED STATES, Appellee.
Nos. 6254 and 6255.
District of Columbia Court of Appeals.
Decided Dec. 3, 1973.
Rehearing en Banc Denied in No. 6255 Jan. 28, 1974.
308, 309, 310, 311, 312
While the government has not proceeded to seek review of the money bond release order by way of motion, as permitted by
In view of appellant‘s past record of convictions, character, and the fact of conviction in the instant appeal, we hold that the order setting postconviction bail is unsupported respecting the necessary finding as to nondangerousness and that appellant should have been ordered detained pending appeal. The bail order is vacated. See Johnson v. United States, D.C.App., 291 A.2d 697 (1972). “[Appellant] will remain in custody nоt because [he lacks] the means to make bail, but for the reason that [his] release would present danger to the community”3 sufficient to preclude a finding “by clear and convincing evidence“,4 or any lesser standard, that he would not be dangerous.
So ordered.
Robert Case Liotta, Washington, D. C., appointed by this court, for appellant in No. 6254.
Mary Lеe Garfield, Washington, D. C., appointed by this court, for appellant in No. 6255.
William E. Reukauf, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and William J. Hardy, Asst. U. S. Attys., were on the briefs, for appellee.
Before REILLY, Chief Judge, and NEBEKER and PAIR, Associate Judges.
REILLY, Chief Judge:
These appeals are from one-year sentences imposed for the offense of carrying pistols without a license (
At the pretrial hearing on the motion, the government called the principal arresting officer as a witness. His testimony, credited by the court, may be summarized as follows:
At approximately 2:45 on the morning of October 14, 1971, two uniformed police officers were patrolling in a marked scout car on Seventh Street, S.E. Seeing an automobile standing there with the engine running, the lights off, and the driver “slouched down” in the front seat, they drove over to the curb at an intersection approximately 30 to 40 feet ahead to watch developments. Less than a minute later another man emerged from a house in front of which the police car was parked. Upon seeing that car, he started to walk toward the automobile the police had noticed, keeping as he passed them—his left arm stiff “as if he was holding something to his side . . . [he] was trying tо hide.” When he was about 10 feet from the automobile with the running motor, he placed something in his left coat pocket, and jumped into the passenger side. The automobile then pulled away and turned right at the intersection. The police immediately stopped it and summoned assistаnce.
When two other police cruisers arrived on the scene, the first two officers approached the car they had halted. One officer asked the driver, appellant Jeffreys, for his permit and registration. He produced a North Carolina permit, but no registration.1 The officer had him step out. At the same time his fellow policeman, who was on the other side, ordered the passenger, appellant Thrower, from the car and conducted a pat-down search of his outer clothing, which disclosed a loaded .22 calibre pistol in his left cоat pocket. Both appellants were taken to the rear of their car, where they were detained while
Appellants’ position is that (1) there was no probable cause to stop the car and search the occupants, and (2) even if the stop and frisk were lawful, thе search of the car without a warrant was illegal. In our opinion neither contention is supported by the evidence presented at the motions hearing, for none of the challenged actions of the police officers was unreasonable.
In the first place, the sight оf a parked car in a residential neighborhood almost three hours after midnight with its headlights turned off and its motor running, was in itself something which vigilant police officers could well have deemed suspicious—the circumstances suggesting the likelihood of a stealthy rendezvous and a quick getaway. At this рoint, the police would have been warranted in inquiring of the driver his identity and his business there. See Lucas v. United States, D.C. App., 256 A.2d 574 (1969). The officers, however, did nothing more at that time than to put the unlighted car under observation.
In any event, the behavior of the other party to the suspected rendezvous when he becamе aware of police surveillance provided additional grounds for suspecting that a criminal enterprise was about to unfold. We refer to the evidence concerning appellant Thrower‘s attempt to hide something he was carrying. While the officer testifying at the motiоns hearing may not have characterized the conduct by which the concealment was effected in the most apt fashion, we think that his description of what he saw would lead most people to infer that appellant Thrower was trying surreptitiously to hide some illegal article. See McGee v. United States, D.C.App., 270 A.2d 348 (1970).
Nor do we deem it farfetched for the officer, when he saw the rendezvous accomplished, to think that the object concealed was probably a weapon. The witness, a policeman with four years of experience, had made 24 weapons arrests in the previous year, including two under almost identical circumstances. In short, the circumstances here, like those in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), confronted the police with “unusual conduct which [led them] reasonably to conclude in light of [their] experience that criminal activity [might] be afoot and that the persons with whom [they were] dealing [might] be armed and presently dangerous. . . .” Terry v. Ohio, supra at 30, 88 S.Ct. at 1884. See Gaskins v. United States, D.C.App., 262 A.2d 810 (1970); United States v. Frye, D.C.App., 271 A.2d 788 (1970).
It is plain that the right of the police to engage in a stop and frisk did not evaporate merely because they deferred such action until the Jeffreys car started to go. It will be recalled that the officer in Terry did nоt accost the men he had been watching until they had left the place where their suspicious conduct had attracted his attention. See also United States v. Frye, supra. Significantly, in this instance, the Jeffreys car had proceeded only a block when the police officers stopped it. Their сonduct in calling for reinforcements before approaching the occupants of that car indicates that their subsequent conduct was prompted by a genuine apprehension that appellant Thrower was armed and dangerous.
Appellants, however, argue that the stopping of the car was a mere pretext, because the arresting officer first asked the driver, appellant Jeffreys, for his permit and registration before saying anything to the passenger. We find nothing wrong with that. Request for the production of such papers is conventiоnal police procedure in stopping a car for any reason. Moreover, the punctilio contemplated by Terry, absent exigent circumstances, is a
In a recent decision, this court stated that the factors to be considered in determining the reasonability of police conduct in a stop and frisk situation are: “(1) the particular activity of the person stopped for questioning which the investigating officer has observed, (2) that officer‘s knowledge about (a) the activity and the person observed and/or (b) the areа in which the activity is taking place, and (3) the immediate reaction or response of the person approached and questioned by the officer.” [Footnote omitted.] Stephenson v. United States, D.C.App., 296 A.2d 606, 609 (1972).
Having considered the facts of this case in light of these criteria, we are satisfied that the action of the police in stopping the Jeffreys car and frisking appellant Thrower was reasonable and justified. Once they discovered a concealed weapon on his person, the police had probable cause to arrest him.
On behalf of appellant Jeffreys, the argument is also made that irrespective of the legality of the flagging down of his automobile and the subsequent pat-down of his passenger, the second gun, with possession of which he was charged, should have been suppressed as this weapon was brought to light only by a warrantless search of the interior of the car—a procedure which the police had no right to undertake. Tacitly recognizing that in certain situations, warrantless searches of motor vehicles are justified, this appellant contends that because the second pistol was not within the plain view of the officers (see Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963)), the mere fact that Thrower was discovered to be armed did not provide probable cause to believe that the automobile contained another weapon.
This thesis fails to take into account the chain of events preceding the search in this particular case. We have already alluded to the fact that a standing car with a running engine and its lights off might well have stirred suspicion on the part of a passing police patrol, for plainly one purpose of the driver in handling his car in this way could have been to avoid awakening neighbors by starting a motor in the middle of the night, thereby permitting them to observe and identify in the beams of the headlights the person for whom he was waiting. When the latter, picked up by obvious prearrangement, turned out to be a man with a concealed handgun in his pocket, the police at this point of discovery had good reason to believe that the driver was an accomplice in some contemplated undercover project like a burglary, a robbery, or an armed assault. Under such circumstances, it was not unreasonable to infer that a search of the vehicle might uncover more weapons, burglars’ tools,4 or some other incriminating articles. Conse-
It is true that in those cases the police, prior to searching the vehicles in question, had received reports linking such vehicles to crimes that had recently occurred, but the Chambers holding on the propriety of warrantless searches of automobiles is not limited to situations where the police are looking for the perpetrators of a reported crime. See Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973).
We are not dealing here with the detention and search of an automobile for аn arrest based on a seeming traffic violation, cf. Tyler v. United States, D.C.App., 302 A.2d 748 (1973); Watts v. United States, D.C.App., 297 A.2d 790 (1972), but as an incident of arrest for an offense suggestive of the potentiality of the commission of a more serious crime. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The surreptitious nature of the meeting, combined with the discovery of the pistol, furnished probable cаuse to infer that some joint criminal enterprise was planned. Cf. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (where fruits of a justified search, i. e., a handgun, were considered in formulating probable cause for a search uncovering another gun). The search of the car, therefore, prompted by the likelihood that it would unсover the instrumentalities of such projected crime, cannot be deemed unreasonable.
Affirmed.
PAIR, Associate Judge (concurring in part and dissenting in part):
I concur in upholding the conviction of appellant Thrower. While the case is a close one, I am compelled to dissent as to the Jeffreys‘, conviction. The intrusion into the automobile and into the bag observed on the front seat, the exploratory search of the automobile, and the seizure of the pistol from beneath its front seat were, in my opinion, unreasonable and without justification on аny theory of probable cause.