209 F. Supp. 223 | D. Del. | 1962
During the early morning of October 3, 1961, two city policemen noticed an automobile with Pennsylvania license plates parked in the 500 block of South Market Street in Wilmington, Delaware. The car was apparently vacant or abandoned. The neighborhood is notorious for the many breakings and enterings of warehouses, gasoline stations and other business buildings in the locality. The officers walked over to the car and played a flashlight inside. Lying on the front seat was a Negro apparently asleep. While one officer questioned him, the other walked around the car shining his flashlight inside but not opening the doors. Questioning produced the information that the Negro occupant was Clarence Gaither proceeding from Phila
Defendant takes the position that the arrest was illegal and the fruits of the investigation invalidly obtained. This argument is difficult to follow. Defendant concedes the right of the officers to investigate the suspicious situation presented by an apparently unoccupied car at 3:00 a. m., in a neighborhood notorious for crime. But he argues that once the defendant gave his name, address and destination the officers should have waived him on his way, overlooking the apparently minor details that, the car was out of gas, the defendant penniless, without any identification and scantily dressed, and the wires “jumped”. The police were not obliged to believe that the defendant lived in Philadelphia. For all they knew the car might have been abandoned and the defendant, without sufficient clothing to withstand the cold and lacking funds for a lodging, was wandering along the highway and crawled into the car to sleep. They felt there was reasonable ground for a vagrancy charge. The “jumped” wires were discovered even before the vagrancy charge was placed and during the perfectly proper investigation of a car parked under suspicious circumstances.
Excessive zeal on behalf of the rights of citizens found under highly suspicious circumstances such as here present must be tempered by a recognition that the interests and safety of the public are involved. Sometimes it would seem that even the courts lose sight of this simple proposition.
All this is well stated in the very sensible opinion by Judge Prettyman of the United States Court of Appeals for the District of Columbia, Bell v. U. S., 102 U.S.App.D.C. 383, 254 F.2d 82, 85, where it is said;
“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. Officers patrolling the streets at night do not prearrange the setting. They do not schedule their steps in the calm of an office. Things just happen. They are required as a matter of duty to act as reasonably prudent men would act under the circumstances as those circumstances happen. Even the ultimate power of an officer in the case of a felony, the justification for killing an offender, depends on the circumstances of the moment. As Judge Parker wrote for the Fourth Circuit, the rule is that an officer has the right to use such force ‘as under the circumstances appears reasonably necessary’ to effect the arrest, and, as he said, the jury must judge of the necessity ‘in the light of the circumstances as they reasonably appear to the officer at the time.’
“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. A fact which spells reasonable cause to a doctor may make no impression on a carpenter, and vice versa. - Did the person who made the arrest, if a reasonable and prudent man, have probable cause? An officer experienced in the narcotics traffic may find probable cause in the smell of drugs and the appearance of paraphernalia which to the lay eye is without significance. His action is not measured by what might be probable cause to an un*226 trained civilian passerby. When a peace officer makes the arrest the standard means a reasonable, cautious and prudent peace officer. The question is what constituted probable cause in the eyes of a reasqnable, cautious and prudent peace officer under the circumstances of the moment.
“The problem faced by the officer is one of probabilities — not certainties and not necessarily eventual truth. As we have quoted Mr. Justice Rutledge, ‘In dealing with probable cause, however, as the very name implies, we deal with probabilities.’ And the Justice went on to write that room must be allowed for some mistakes, so long as the mistakes are ‘those of reasonable men, acting on facts leading sensibly to their conclusions of probability.’
“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.”
Motion denied.
. Query. Tie legality of tlie arrest aside, was the admission that the car was stolen and the “jumped” wires not legally obtained in any event? Compare Wong Sun v. United States, 288 F.2d 366, 370-371 (9th Cir.Ct., 1961), cert. granted 368 U.S. 817, 82 S.Ct. 75, 7 L.Ed.2d 23 (1961).
. Undoubtedly, this statute meets the standards of the Fourth Amendment to the Federal Constitution. Cf. Henry v. United States, 361 U.S. 98, 100, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959).
. “ ‘Tramp’ means any person without a home in the town or hundred in which he may be found wandering about without employment and any regular and visible means of living;
“ ‘Vagrants’ include (1) all beggars and vagabonds who roam about from place to place, without any lawful business or occupation, sleeping in out-houses, barns, market places, sheds, or in the open air not giving a good account of themselves * * 11 Del.C. § 881.