Lead Opinion
Aftеr defendant’s conviction was affirmed by this court, he sought review by certiorari in the United States Supreme Court. The Supreme Court, in an order filed April 29, 1991, vacated our judgment and ordered the case remanded “for further consideration in light of the position presently asserted by the Solicitor General in his brief for the United States____” — U.S. -,
The brief submitted by the Solicitor General argued in favor of affirmance of our decision, but did state that it agreed with petitioner that district court probable cause determinations should be reviewed under a de novo standard. The rule in the Sixth Circuit, followed originally in this case, is that such review is under a “clearly erroneous” standard. See United States v. Sangineto-Miranda,
Although one panel of this court is bound by the on-point published decision of an earlier panel, we can nonetheless indicate what our result would be if we examined the probable cause determination de novo. Like the Solicitor General, we conclude that the result does not change:
By the time petitionеr was apprehended, the officers not only knew the facts that gave rise to their reasonable suspicion, but also had observed petitioner аnd his companion flee and refuse to halt in response to the officers’ command. Moreover, the officers saw petitioner’s companiоn tear a plastic bag open while he was fleeing and attempt to discard a substance that appeared to be crack cocaine. Petitioner states that “[m]erely being in the presence of one who commits a crime, even knowing that it is being committed, is not sufficient to charge the observer as a principal.” Pet. 7. But petitioner was more than a mere observer, and there was probable cause to arrest him as well as the other man. The police had watched the two men get off the bus together, walk to the car together, walk down the street together, and then flee from thе officers at the same time. When one of the two tried to rid himself, while he was fleeing, of a substance that appeared to be crack cocaine, the officers had an adequate basis to believe that both petitioner and his companion were acting in concert to transport аnd distribute cocaine. See United States v. Patrick, supra,899 F.2d at 171-72 .2 Thus, under any standard of review the lower courts’ conclu*222 sion that petitioner’s arrest was justified by probable cause was correct.
(Solicitor General’s Brief at 8-9).
We also note in passing that our analysis оf the issue of whether a seizure occurred when the officers began to chase the defendant and shouted, “Halt,” was totally consistent with the result reaсhed by the Supreme Court in the subsequent case of California v. Hodari D, — U.S. -,
Defendant’s conviction is AFFIRMED.
Notes
. The Solicitor General’s brief points out that there is a split in the circuits on this issue, but that the majority view is that review of probable cause determinations is de novo. See, e.g., United States v. Patrick,
As this Court has observed, probable cause deals not with certaintiеs, but with probabilities judged according to practical and common sense standards and based on the totality of the circumstances. See United States v. Sokolow,
Dissenting Opinion
dissenting.
In my original review of this case, I was particularly disturbed by the district court’s ■ apparently untroubled conclusion that probable cause supported Terrancе William’s arrest, despite the undeniably significant racial component underlying that determination. Believing that my Colleagues shared my concern, but equally mindful of the extremely deferential stance from which we review a trial court’s factual findings, I concurred, albeit with some reservation, in this panel’s original statement that, “[although we view the issue as a close one, we cannot say the conclusion of the district court was clearly erroneous.” The majority now сoncludes, somewhat inexplicably, that we would have reached the same conclusion had our initial review been plenary. Because the рassage of time has not lessened my conviction that race has no place in the assessment of probable cause, I dissent.
The district court fоund that the drug coui'ier profile employed by the officers in the instant case led them to focus their attention on travellers who were: (1) young African-American males; (2) arriving into Cleveland from Detroit; (3) using the Greyhound bus system; (4) arriving in the late evening or early morning hours; (5) carrying no luggage; and (6) not met by family members or acquaintаnces. Factors two, three, and four are in and of themselves hardly suspicious and, more important, gave the officers no logical grounds for suspeсting Williams and his companion above any of the other passengers who deboarded the bus that evening. Cf. United States v. Andrews,
That Williams was a young African-American male not only influenced the officers’ decision to trail Williams and his companion, but was explicitly relied upon by the district court in its determination that probable cause supported Williams’ apprehension and arrest. This court as well as others continue to operate under the misapprehension that race plays less of a role in this Nation’s treatment of its citizens, in particular through its law enforcement agents, than reality compels. The singling out of African Americans simply on the
I cannot come away from this case without feeling deеply troubled: troubled that this Nation’s citizens are receiving disparate treatment at the hands of police officers primarily on the basis of race, troubled that such unequal racial treatment is considered increasingly appropriate by trial courts, and most troubled by this court’s conclusion that such race-based treatment is entirely unobjectionable as a legal matter. It is undoubtedly tragic when a significant number of black Americans fear that they arе presumptively under suspicion of criminal activity in the eyes of the law merely because of their race. Infinitely more tragic is the strong possibility that their fear may be justified.
I respectfully dissent.