254 F.2d 82 | D.C. Cir. | 1958
Lead Opinion
Appellant was indicted, tried and convicted for housebreaking and larceny. He claims an unreasonable search and seizure.
At about three-thirty o’clock one morning two police officers in a scout car saw appellant and another man in an automobile pull away from the curb in front of a food store and drive some two blocks without lights. The officers stopped them and asked to see the driver’s license and registration card. The inquiring officer used his flashlight and, while asking questions about the documents, flicked the light about the rear of the car. On the back seat were some forty cartons of cigarettes. The officer asked about them. Appellant’s companion made a motion to reach under the seat, whereupon the officer ordered both men out of the car.
Up to this point the members of the court are in agreement. A police officer certainly has a right to stop a car driving without lights at three-thirty o’clock in the morning, and he certainly has a right
After ordering the two men out of the car the officer placed them under arrest. At this point our disagreement begins.
The Supreme Court held in Mallory
In Carroll v. United States
“To show probable cause it is not necessary that the arresting officer should have had before him legal evidence of the suspected illegal act. Dumbra v. United States, 268 U.S. 435, 441 [45 S.Ct. 546, 69 L.Ed. 1032]; Carroll v. United States, supra. It is enough if the apparent facts which have come to his attention are sufficient, in the circumstances, to lead a reasonably discreet and prudent man to believe that liquor is illegally possessed in the automobile to be searched. See Dumbra v. United States, supra; Stacey v. Emery, 97 U.S. 642, 645 [24 L.Ed. 1035].”
Mr. Justice Rutledge wrote in Brinegar:
“However, if those standards [for determination of guilt] were to be made applicable in determining probable cause for an arrest or for search and seizure, more especially in cases such as this involving moving vehicles used in the commission of crime, few indeed would be the situations in which an officer, charged with protecting the public interest by enforcing the law, could take effective action toward that end. Those standards have seldom been so applied.
“In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.
“ ‘The substance of all the definitions’ of probable cause ‘is a reasonable ground for belief of guilt.’ McCarthy v. De Armit, 99 Pa.St. 63, 69, quoted with approval in the Carroll opinion. 267 U.S. at [page] 161 [45 S.Ct. at page 288, 69 L.Ed. 543]. And this ‘means less than evidence which would justify condemnation’ or conviction, as Marshall, C. J., said for the Court more than a century ago in Locke v. United States, 7 Cranch 339, 348 [3 L.Ed. 364]. Since Marshall’s time, at any rate, it has come to mean more than bare suspicion: Probable cause exists where ‘the facts and circumstances within their [the officers’] knowledge and of which they had reason*85 ably 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. Carroll v. United States, 267 U.S. 132, 162 [45 S.Ct. 280, 69 L.Ed. 543],
“These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officer’s whims or caprice.”
The Supreme Court in Mallory, supra, said “The police may not arrest upon mere suspicion”.
Reasonable grounds are determined by the circumstances. “ [F] actual and practical considerations of everyday life”, “facts and circumstances”, “acting on facts”, “the apparent facts”, “in the circumstances” are some of the expressions used by the Court in the opinions from which we have quoted. The pertinent circumstances are those of the moment, the actual ones.
Among the other pertinent circumstances is the qualification and function of the person making the arrest. The standard is a reasonable, cautious and prudent man. But the question is whether the person making the arrest had probable cause. Probable cause is not a philosophical concept existing in a vacuum ; it is a practical and factual matter.
The problem faced by the officer is one of probabilities — not certainties and not necessarily eventual truth.
At the trial in the case at bar, in answer to the question, “And for what offense were they being arrested at that time?”, the officer testified, “Investigation of housebreaking.” Of course there is no such crime as “Investigation”. But this description given by the officer does not go to the question of probable cause. The question is not what name the officer attached to his action; it is whether, in the situation in which he found himself, he had reasonable ground to believe a felony had been committed and that the men in the car had committed it. The situation was a sudden, unanticipated development. Suppose the officer had arrested these men upon belief that they had committed a housebreaking, but the legal lights in charge of preparing indictments had decided the offense was robbery; or suppose later information had disclosed a murder. Would the arrest have been invalid? Of course not. So to hold would make a mockery of the Supreme Court’s admonition to us that probable cause is a matter of practicalities, not of technicalities.
Reference can properly be made to two exhaustive articles upon the subject before us. Professor Wilgus, in his Arrest Without A Warrant, published in 1924,
“If a felony were actually committed a person might be arrested without a warrant by any one, if he were reasonably suspected of having committed the felony; and a constable could go further if he had reasonable ground for supposing a certain person committed the supposed felony, he might arrest him though no felony had actually been committed.”16
Professor Wilgus adds: “These cases-have settled the rule as to officers, and' there seems to be no dissent; they are-referred to or quoted in nearly all the-innumerable cases that have followed.”' The rule is bottomed on “reasonable-ground”. Professor Foote in a recent article, Safeguards in the Law of Ar
The sum total of the reams that have been written on the subject is that a peace officer may arrest without a warrant when he has reasonable grounds, in light of the circumstances of the moment as viewed through his eyes, for belief that a felony has been committed and that the person before him committed it. We require police officers to be reasonable; we too must be reasonable.
We examine the circumstances under which this officer acted. The two men were in an automobile. The Supreme Court pointed out in Carroll and Brinegar, supra, the significance of that fact in an appraisal of an officer’s action. A moving vehicle presents a problem different from that presented where a house is involved. It was about three o’clock in the morning. Nighttime presents problems different from those of daytime. The car had pulled away from in front of a store; the men had not been parked in a residential district. The car was running without lights. There were forty cartons of cigarettes on the back seat. The only explanation offered as to the source of the cigarettes was “a place in Maryland”, surely an unconvincing reply to a question by an officer. An automobile driven without lights in the middle of the night and with forty cartons of cigarettes (8,000 cigarettes) in the back seat calls for investigation and for reasonable explanation. One of the men reached as though for a weapon.
Perhaps no one of these circumstances, taken separately, would spell probable cause. We do not say it would. The officer was faced with a combination of circumstances. We must treat the situation as he faced it. We think that under these circumstances a police officer had reasonable grounds for belief that a felony had been committed and that these men had committed it. He had probable cause for arrest. The trial court concluded, “This is a very clear case of excellent police work and lawful arrest on suspicion of housebreaking.” We agree.
What else should the officer have done ? He was on duty patrolling the streets in a commercial area for the very purpose of preventing — or of apprehending a person who might have done — inter alia, the thing which apparently had been done. The circumstances required inquiry at least. Some satisfactory explanation should have been forthcoming. None was. An apparently threatening gesture was made. What should the patrolman have done? Forthwith gesture these men on? Or detain them for further inquiry — for investigation of the obviously reasonable suspicion? Clearly his duty required the latter.
The arrest was legal. A subsequent search revealed various and sundry articles and money which were shown to have been stolen. The admission in evidence of these items is the problem in the case. The search was incidental to the valid arrest and so was legal.
Affirmed.
. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957).
. 267 U.S. 132, 161, 45 S.Ct. 280, 69 L.Ed. 543 (1925).
. Infra note 5.
. 282 U.S. 694, 700-701, 51 S.Ct. 240, 75. L.Ed. 629 (1931).
. Brinegar v. United States, 338 U.S. 160, 174-176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).
. 354 U.S. at page 454, 77 S.Ct. at page 1359.
. 62 Stat. 803 (1948).
. 64 Stat. 1239 (1951), 18 U.S.C. § 3052.
. United States v. Di Re, 332 U.S. 581, 592, 68 S.Ct. 222, 92 L.Ed. 210 (1948). See also Trupiano v. United States, 334 U.S. 699, 708, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948); Poldo v. United States, 55 F.2d 866 (9th Cir., 1932).
. Stinnett v. Commonwealth of Virginia, 55 F.2d 644, 645 (1932).
. In Brinegar, for example, the Supreme Court recited as material the facts that the arresting officer knew the subject as a bootlegger and observed that the automobile was low on its axles. See also Carroll v. United States, supra; United States v. Sebo, 101 F.2d 889, 890 (7th Cir., 1939); Kwong How v. United States, 71 F.2d 71, 73-74 (9th Cir., 1934).
. Brinegar v. United States, supra.
. 22 Mich.L.Rev. 541, 673, 798.
. Id. at 686.
. [1866] 1 Q.B. 444, 456.
. Supra note 13, at 689.
. 52 Nw.U.L.Rev. 16 (1957).
. Id. at 18.
Dissenting Opinion
(dissenting).
I agree with my brothers that the police officer acted reasonably in (1) stopping the car in which appellant and his companion were riding without lights at 3:30 A.M., (2) flashing his light about the back seat, and (3) ordering both men out of the car when one of the occupants made a gesture reaching under the seat.
Since the search was not incident to a valid arrest, the evidence seized is barred. I therefore dissent from the court’s decision approving the admission of such evidence.
. The search revealed no weapons.