William Von Sleichter v. United States

WRIGHT, Before LEVENTHAL, and MacKINNON, Judges. Circuit LEVENTHAL, Judge: Circuit following This case comes before us appeal allowance from the District of Columbia Appeals (DCCA). Court of 267 A.2d Appellant ap- peals his possession conviction for covering removing weapons, may heroin. facts are these: one standing evening, appellant person place in the command the his arrested building Georgetown shadows of a hands where could When be seen. young given company appellant, men. such a of two other command was hands, A the three from constituted a search but observed across com- the street and noticed their valid search. that lawful Once changing” “passing obeyed, plain hands were and mand the heroin was was among them. view. 390 Since area con- v. United Harris “high sidered L.Ed.2d to be U.S. 88 S.Ct. traffic,” question narcotic the officer decided to The central investigate. Crossing street, ap- he hold that arrest was lawful. We proached began was, weapons, Appellant the three men. and that the search rapidly arrest, away. to walk called incident likewise to a valid The officer him, you “I out to lawful. like to talk with Appellant a minute.” then shouted Appellant maintains that the arrest you” pe- “fuck and ran. There were predicate which was the for the search within destrians earshot at the time. cannot be sustained as valid. While gave apprehended The officer chase and may expletive four-letter at one time appellant away, one and one-half blocks arrests, now, have warranted he has pedestrians, with assistance of when says, commonplace that it has become appellant attempted to underneath crawl been drainеd of time offensiveness —that Volkswagen parked at curbside. The usage contemporary have leached appellant officer informed that he was meaning the word both of and shock disorderly under arrest for conduct and precedents value. on the He relies of place ordered him to his hands in view. Williams Columbia, District v. of Appellant ignored this command. After U.S.App.D.C. 56, (en 419 F.2d 638 banc ignored a second such com- 1969), California, and Cohen “bring mand, the officer told him to his 29 L.Ed.2d 284 stomach, hands out” from under or This contention reads Williams help bring the officer would him them narrowly. interpreted too The court Appellant obeyed. out. ground then On (22 prohibiting, 1107) statute D.C.Code§ lying where he had been was a disorderly conduct, as on a utterance bag heroin, plain of view. words,” street of “indecent or obscene opinion There DCCA, was no for the requiring as an element the offense Judge Gallagher since dissented, and the- (a) spoken either these words be Judges

votes of Nebeker and Kern for in circumstances which create a threat affirmance distinctly were based on violence, (b) “is, that the legal premises.1 different ‘contemporary under ards,’ community stand disorderly While conduct is a so public offensive to members physical crime without actually evidence or it as overhear fruits,2 policeman apprehending amount U.S.App. to a nuisance.” 136 possibility danger may (footnotes conduct a D.C. 419 F.2d at 646 omitted). search incident to a lawful arrest for dis There is a “in state interest orderly protecting purpose conduct for the passers-by” of dis- sensibilities Judge po Nebeker considered that cause for such arrest. position drugs liceman’s order ap- sustainable under Kern took the Terry Ohio, рeared as the result of search (1968), ground 20 L.Ed.2d 889 on the valid because incident ato valid investigation, the situation merited conduct. affirm We policeman’s appropriate ground opinion. order was set forth in Kern’s protection his own and that it was irrele policeman already vant whether Mills, had 2. See United States v. U.S.App. suspect arrested his -, or whether (en 1972). he D.O. 472 F.2d 1231 banc York, target may primary against shock, been v. New verbal see Street 1365, officer; a con- out but cannot stake S.Ct. disregard right shock stitutional L.Ed.2d 572 showing tendency passers-by. depend on a notes, result in violence.3 Williams deciding appel- here We are not Code, reference to Model Penal the ALI’s disorderly conduct, guilty lant was the statute is directed ato policeman’s account merely annoyance, applicable guilt necessarily appellant’s establishes policeman’speace quiet are because a unrefuted. The trial of these cases narrowing disturbed. This construction come speech the interests of free to balance infirmity avoids the constitutional good The ultimate order. Wilson, invalidity, Gooding facial balancing interests, cf. often deli- of these L.Ed.2d S.Ct. place in difficult, cate and take (1972).4 court rather than the beat. Williams rationale is sufficient to estab- Appellant’s words were in a context probable ap- of lish pellant cause for the arrest pertinent. that is We are not to be disorderly for conduct. suggesting taken as words these distinguishable. uttered, Cohen suffice California is for an written, than a hypothetical put take It involved a rather ‍​​‌​‌​​​​​‌‌​​‌​​‌‌‌‌​‌‌​‌‌​‌​​‌​‌​​‌‌‌‌‌​​‌‌‌‌‌‍in case shouted, Williams, by “hapless Harlan took Justice a sentiment. stonemason” who people accidentally note toe, of when he said that stubs and whose might spontaneous profanity who patently be could avoid offended is devoid “averting possible by modestly any appellant’s of distress eyes.” their offense. But response words were in 403 U.S. 15 at 91 S.Ct. 1780. to an officer’s inquiry, part request cooperation civil Even a of a as written word it was a for political concerning draft, may lawfully reasonably statement be language large may and the kind any directed to citizens at without charge protected by thing held say Amendment crime. It is one First cooperation context, paramount that a citizen’s its “re- is a moral duty deeming value,” legal may pro- duty rather social than a not that can compelled.5 quite tected another It context where its is another to coarsely contend provides offensive nature unrelieved. Constitution immunity an person from arrest for a upholding In the search on the unwilling- chooses to manifest his basis of a valid arrest for cooperate ness to with the shout of a fully conduct, we mind that such expletive four-letter public street, on a showing dependent by an arrest is a within passers-by. earshot of His probable the Government cause to 3. pe- “Coarse or indecent nuisance. Court held the regardless nalized . . . actual state court decisions had not narrowed the presumed tendency to evoke disorder construction of the overbroad statute. among hearers, jurisdiction, provided since the interest we Williams has protect present seek narrowing is freedom from construction. nuisance rather than from freedom antici- noted, 5. As Danaher while pated § violence.” Model Penal Code may questions, person may ask decline 250.1, (Tent. Comment at 7 Draft No. talk, States, see Green United 1961). U.S.App.D.C. 259 F.2d 180 Gooding specificity required fact, flight, considers While this or even is not necessary ground arrest, of a statute to sustain a convic- for be taken into fighting words, along tion because account with other in con- tendency sidering ground has a “direct to cause there is for a by person whom, stop acts of violence al- cause arrest. As individually, ready (supra, 1) remark is addressed.” note we do not noted any way separate not discuss determine this case whether there was problem of the use in words on a basis for detention narcotics charge. offensive to amount to a Wrightson make the arrest. v. been presence, committed in the officer’s States, by running away, United 95 D.C. man now hence o,f shrug appel- validity Nor do off show the the arrest. lant’s contention that his re- shouted hand, As to the officer sponse today bland obsolete patrol had been on foot on this beat— expletive, debased to non- overuse carney (from block 108 Wisconsin Avenue meaning, potential and without Streets) Street, to 30th and from N to R being coarsely But the re- offensive. approximately —-for three months when quirement support on the Government to place in this incident took front validity of the arrest is rooted in Northwest, Street, approxi- O 3146% practical common sense and reasonable- mately p. 8:15 on October m. ness, aptly as was noted why The reason the officer wanted Wright, court, Bailey v. United appellant was, coneededly, only talk to U.S.App.D.C. 354, 357-358, suspicion drug suspicion of traffic. —a (omitting 308-309 testified, And aware, the officer was citations) : appellant required plastic concept depart. Probable answer him and free depends whosе 12). (Transcript, p. existence on the facts did particular merely circumstances depart. He also shouted what It has “profane

case. been said that “‘[t]he the officer referred to as these words,” substance of all definitions’ of when there or six were five probable ground hearing range (tran- cause ‘is a reasonable citizens within script, ” guilt.’ began a Much p. less evi- 12), belief and run. required dence than is to establish Judge Gallagher DCCA, In the dissent- guilt necessary. is The standard is ground ed on the that the officer “said reasonable, that of “a and cautious he did know had even not whether prudent peace officer” and must be obscenity.” heard 342] A.2d [267 judged light experience in the of his police respect, all technical an With this is too training. and The must have approach problem to a that all concede enough information “to a wаrrant man looked at in terms of reasonable- be of reasonable caution in the belief” that practicalities. course the ness Of a crime has been committed and that policeman did not take time to canvass person arrested has committed it. passers-by they to learn had finding probable depends A cause in fact been offended. The “practical considerations o.f running away. The had to everyday life on which reasonable and immediately act or not at all. Nor was prudent men, legal technicians, not required, apprehending he on defendant act.” away, some blocks to the return The requirement essence of original aof scene for an interview with showing probable cause in of ar- spectators. they fact that had rest without requires a warrant is that it gone the meanwhile about their business police go beyond officer involved to would not undercut the The of- arrest. bring suspicion, intuitive “a experience forward ficer’s own included —which objective believing substantial basis for service in this area—led him consider person that the to be arrested has com- “profanities.” these words as He was mitted a ,for crime.”6 bring What the officer required to the reason forward brought this, arrest, forth in the case at once had done bar was not but objective upset mere intuition but arrest is not to factors that unlawful sufficed, think, judicial probable we unless there is a determination show probable cause that it to believe that a was without cause. misdemeanor Pre-Arraignment 2, 1969) (Tent.Draft 6. American Institute 3.01. § Law Model No. Code Anything possible; We reiterate that we are not possible is is deciding guilty policeman that defendant was that this was an old-fashioned conduct, disorderly fuddy-duddy would a decision that who was not aware that the concerning require yester-year a today’s determination com shockers of com- munity standards. The standard that mon idiom on the residential streets of governs Georgetown. require proof not Bailey many But as enough *' to convict. The officer’s other cases7 reiterate —over and over probable again question stand is, for arrest not what would —the though prosecutor needs additional held merits, at a trial on the but what hearing preliminary evidence for the it was policeman reasonable for the to do in the give trial. circumstances. We must policeman ability credit to the We are aware that conventions ordinary assess impact language change. fashions do sights and hears, sounds he at least for think that can be doubted that purposes of an initial detеrmination these words have at some minimal least part on his arrest, subject make an recognize quality shock —we if might brought whatever out enough well shouted a cross-examination rebuttal courtroom, or corridor —that even court hearing preliminary or trial. areWe proceed- is sufficient to allow a criminal prepared lay down a rule that there ing begun. And that is to be privilege such constitutional to shout validity of an involved arrest. public four-letter words on a street implicit recognition Indeed, there policeman explains that he had appellant’s such shock value another of shouting made arrest for the of such cursing arguments is a useful —that hearing within citizens safety-valve hostility; pent-up the street must be held to have failed to charge using there a cathartic show cause. We think the value, words with shock record permit before us does not tous justifies of such in the use vitiate the arrest for conduct.8 service of a broader interest. Affirmed. therapeutic may Whatever claims be made safety-valve for this in context of the WRIGHT, Judge, language J. spoken solely SKELLY Circuit policeman, a to dissenting: in private, we do not see it as estab- lishing shocking a and license shout majority’s I af share the reluctance to expressions offensive on the firm this conviction the basis streets, regard public annoy- without Judge expressed by views Nebeker. See majority opinion 1246 had ance. n. I g., Draper States, 7. E. v. United 358 when an for one violation is arrest made Here, 307, 329, ; (1959) 3 of another. L.Ed.2d 327 defended basis States, disorderly conduct, U.S.App.D.C. v. Lewis United 135 arrest for was 187, (1969) ; cause Davis v. we hold that there 417 F.2d 755 172, States, U.S.App.D.C. 133 conduct violation. United 409 Gallagher dissenting ; Judge in F.2d 453 v. Heit- Neither United States (2d ner, 1945). appellant DCOA, 149 F.2d before us —-who 105 Cir. nor argu- spirited both in brief and oral certainly precluded not We are from sus- by position challenging taken ment taining ground an arrest on the set forth opinion claim Kern’s —made arresting merely officer, because objection- opinion was Kern’s own, prosecutor of his reasons —for validity sustaining of the ar- able as perhaps sought uphold tactical — ground on a to which rest ground, on a broader search that he had not fair- counter-evidence had depend ar- on the existence of a valid present. ly given opportunity been rest. pro- inquire We need not as to problem may be involved cedural

1250 Terry spoke anything v. not in that context thought words he justify un 1, 1868, L.Ed. so offensive as arrest Ohio, 20 392 Gooding explained long-stand principles changed der (1968), 2d 889 1103, resulting Wilson, 518, ing from v. 405 U.S. S.Ct. rule that evidence (1972), v. Cali L.Ed.2d Cohen arrest to an unlawful search incident forniа, I doubted S.Ct. inadmissible. Nor' announces, Dis v. L.Ed.2d 284 Williams policeman on the beat when a Columbia, U.S.App.D.C. arrest,” he means trict under “You are banc.) (1969) (en says, Al 419 F.2d 638 though and his words sufficient that, “con concedes that an arrest.1It follows effect invalid, ventions fashions search the incident arrest change,” proceeds hold well, confined nonetheless even if it is invalid as appellant’s “shock would that words still retain superficial frisk which the sort of Terry doing, my following quality.” re permissible In so brothers have been question States, which D.C. solve a of fact about stop. Clarke v. United Any expertise no no and on which A., court has A.2d 786 7 C. n. stringent record was made below. mean less rule would reasonable had the whenever my view, function of it is not the stop, necessary Terry suspicion judges to their own decide on the basis of suspect they instead could retain “shock sensibilities words which indignities subjеct him to all the today’s quality” “are common and which losing implies without an arrest which author idiom.” No case that know long seized the benefit figu judicial process izes use of the might have uncov been as that evidence ratively of criminal wash out the mouths superficial court frisk. As ered defendants who which use Cunningham, 138 said United States “dirty” judge, own, on his considers 942, 943, 29, 30, U.S.App.D.C. F.2d Writing only “offensive.”3 a few denied, 914, 90 cert. S.Ct. ago in months Huffman United prob (1970): “A lack of 26 L.Ed.2d 572 U.S.App.D.C. 470' up hind able cannot made (decided 1971), Judge October sight by hypothetical in the variation “Judges concerned Leventhal warned: conducted.” basis on a search many comprised in our with the elements Morris, U.S.App. ‍​​‌​‌​​​​​‌‌​​‌​​‌‌‌‌​‌‌​‌‌​‌​​‌​‌​​‌‌‌‌‌​​‌‌‌‌‌‍ States United Cf. society free, take care democratic D. C. lest decide these cases on the basis disgust agree, however, indignation simply * * that this con I do not of their post viction take that be rеhabilitated one Because theory probable warning hoc existed seriously, that cause this case think do for a arrest.2 Nor conduct deter should remanded a factual be for arresting approve majority’s treat cavalier mination as to whether the of argument appellant’s ment of cause to believe ficer Judge agreement 1. I thus in with am full which au- 3. I know of Nor do person Gallagher’s judge “A can observations: the offensive a to assess thorizes hardly spoken potential more arrest than when be under the street of words plainly him he is. “if tells would do on the basis of what he courtroom, law criminal these are critical words were shouted * * * Majority op. conversation.” Von v. not mere Sleichter corridor.” court D.C.C.A., contrary, thought A.2d I had United at On the 1249. (1970) (dissenting statement). permitted sanc- the Constitution speech in courts and around tions nоting the Government It worth ap- permissible not be which would argument did not even before advance plied v. streets. See Cohen judge trial or the District Colum- 15, 19, California, 91 S.Ct. 403 U.S. argument Appeals. bia Court of (1971) ; Louisi- Cox v. L.Ed.2d Judge appearance its first makes 562-564, ana, opinion, in which neither Kern’s (1965). Gallagher concurred. L.Ed.2d nor Nebeker

J251 appellant’s Landry words were so offensive Daley, N.D.Ill., F. spoken Supp. 183,187, where as to threaten a breach of 192-193 Wil Cf. peace. Columbia, supra, liams v. District U.S.App.D.C. at 64 n. After of Colum Williams District True, at 646 n. 23. there some evi bia, supra, it clear that a con should be dence in the record that other viction under 22 D.C.Code § passers-by epithet, heard Von Sleichter’s permissible only very special cir although unambigu even this fact is not enough cumstances. It is not that “ob ously established.4 there is no evi “profane” spoken scene” or bystanders at all dence these public place. in a In addition lan “the about to resort in order to re violence guage spoken in circumstances [must] taliate a verbal assault not di peace. which threaten a breach of the rected at them. Hence the situation purposes And these a breach of essentially as that described same peace is threatened either because California, supra: Cohen v. creates a risk of substantial “ * * * provoking violence, is, un because While four-letter word * * * ‘contemporary community standards,’ der uncommonly employed is not grossly so offensive to of the personally provocative fashion, members in a public actually who clearly overhear it as not ‘direct- instance * * U.S.App. amount nuisance.” person ed to the of the hearer.’ (Footnotes at D.C. 419 F.2d at 646. do Nоr we have here an instance omitted.) Any reading broader police pow- exercise State’s ' statute would interfere “unwrit prevent speaker er to from intention- part ten amenities have been in ally given provoking [which] group to hos- * * * * * responsible giving people our tile reaction. There is * * * feeling independence and self-confi showing anyone no dence, feeling creativity” violently in fact aroused or that encouraged high which “have lives of intended such a result.” spirits hushed, suffocating rather than 403 U.S. 15 at 91 S.Ct. 1780 at 1786. Papachristou City silence.” of Jack appellant’s justified If arrest is to be sonville, all, then, supported it must 31 L.Ed.2d 110 basis of the second branch of the Wil- is, I do not liams understand test —that because his words argue are, ‘contemporary that Von “under Sleichter’s permissible standards,’ under the first branch of offensive to mem- is, prob- actually the Williаms test —that bers of the because overhear able existed to believe that amount to a nuisance.” Von [them] Columbia, supra, Sleichter’s words created im- a risk of Williams v. District of U.S.App.D.C. minent violence. Nor 419 F.2d at would such an argument grave me, however, be tenable. di- seems con- Von Sleichter epithet arresting questions rected his offi- stitutional can be raised as at the cer, pro- continuing validity and it is clear that the risk of the second voking policeman branch cannot of Williams after violence justify Gooding. police, an arrest since the as decisions in Cohen Court’s representatives law, Supreme In held to Cohen held that are Court higher ordinary presumed presence standard than citizens. “the mere of unwit- arresting 4. The No, officer testified as follows “A. I didn’t. during hearing: they “Q. You don’t know if did or * * * speak not; “A. X if I asked could is that correct? profanities him and he shouted the “A. That’s correct.” began Transcript to run. at 13. any peo- You didn’t “Q. ask of these ple you? this; if heard did com- departed from standards of the not serve ting or viewers listeners curtailing munity all occurred. in which incident justify automatically to majority fill lacuna seeks to 403 The giving offense.” speech capable of taking judicial fact that True, notice Cohen at 91 S.Ct. some “have at least Von Sleichter’s words written expletive which was involved an Majority opin- was, quality.” minimal in shock which shouted and rather than respect, seems ion at it can 1249. With all sense, the same political. But Gooding, represents a con- to this speech in me formulation for the said not be watering of the Williams policeman in a down siderable was shouted at which thing this ex- find that em test. It is to strikingly one to that similar manner pletive minimal shock “at has least some at 519- рloyed case. in this quality,” quite find that another 1103. The 92 S.Ct. at 520 n. community is, ‘contemporary un it “under the statute nonetheless found Court * * standards,’ so offensive prosecuted was defendant which the der scope to a facially amount nuisance.” its because invalid likely pro “fighting limited to words” applied, test I is When the correct Chaplin immediate violence. voke seriously question Cf. on a can think one Hampshire, sky v. New still these words factual level whether In 86 L.Ed. although Thus, upper New fit within it. rejected doing explicitly the Court England hardly com- for its lax is known argument interest it that state’s Aldrich, standards, munity Chief merely speech preventing which was writing the First Circuit Court unlikely to it “offensive” Appeals used in about the same statute A violence. lead immediate case, stated, this has cannot think “[W]e peace’ mere it a which “makes ‘breach many that students is unknown to who ly speak to some оffensive words school,” high year of noted the last * * * sweeps broad hear too them “by young radi- that the words used ly.” U.S. at protesters from to coast.” cals coast holding can I fail to how understand observe, “If Aldrich on to went * * * second with the branch reconciled be protected must students punishable Williams, words makes exposure, from would fear such public who “offensive to members Cir., Geanakos, 1 their future.” Keefe v. actually overhear [them].” engage Moreover, second even if branch my But intention to good law, there test still the Williams lan- arid certain debate about whether its guage barrier remains an insurmountable is not modern is or consonant with requires is, measure- community Williams use here. since there standards against “con- think, used important point ment of a more community temporary my standards.” view, made. this court commits measurement, perform impropriety in order such draws a a serious when it first content of those standards conclusion about standards Unfortunately, rec- any determined. without the benefit subject. altogether argu- permitting barren ord the record and without point ment trial There no whatever before indication judge.5 anyone “actually Von overhear [d]" thereby of- Sleichter’s verbal assault never one who believed been way judges fended, in their common should his words check judicial im to be lant. notice seems 5. The contends Since vogue, plicitly I think we notice the fact concedes he violated commun can people things by arguing ity relieve curs all do sorts standards op. hostility safety Majority pent ing up of no stretch valve. which a useful community imagination stand will violate doubt this “concession” at 1249. No appel surprise to ards. come as a considerable writing Judge Thоrnberry, today. they or Thus the bench sense when assume Circuit, recently good panel myopia of the Fifth substitute that studied is a judicial judges no judgment held that tice, “cannot take But neither and wisdom. evidence, judicial without even a scintilla of do I think the case for activism community obviously of premise stand constitutes need false rest decency any judges ard of at this other time. omnipotent or are and omnis- all, If such a standard exists at we would cient. view share Professor Jaffe’s expect that it would be in a constant that “constitutional of this coun- courts flux, evolutionary revolutionary try acknowledged and even are architects against guarantors our legal the fact of militates integrity which of of the exercising judgment system.” Jaffe, uninformed of L. Control Judicial particular point best time. At Action Administrative pure say would be a matter of chance as judges is not to can Court, everywhere everything. fact, individuals as a as we and see In judges left to by necessity our own devices and without most lead somewhat evidence, lives, aid of could determine cor very insulated and this detachment Groner, gives perspective rect standard.” United States v. de- which them the Cir., (decided policy cide broad them Janu issues of makes scholarly ary 11, 1972). Similarly, poor judges community standards opinion To and careful Mr. Justice the street. briner, has Court California Moreover, even if one assumes—erron-. obscenity held that an conviction cannot eously, my judges qual- view—that expert intro stand evidence is unless community ified to determine standards contemporary duced com at trial as general, it still does not follow that munity standards. they knowledge specialized have the “Relying principally es- on the well requires. which Williams Under Wil- liams, jurors only tablished should punished doctrine Von Sleichter can prerogative with the offensive endowed “so imposing personal actually their own standards members of the conduct, criminality overhear as to test as amount to a nuisance.” expert testimony U.S.App.D.C. hold that should we 419 F.2d at 646. community (Emphasis added.) be introduced to establish Hence the relevant ju- community cannot under the standards. We assume Williams test is not express necessarily city nation as a rors whole or themselves Washington. standards; community is, rather, reflect immedi- neighborhood possible ate so as in which the achieve far words spoken. Surely objective, application rather we cannot assume judges speak subjective, authoritatively can than a community determination as community portion An standards of a standards. even-hand- law, city they may applicаtion about which know ed of the criminal * (never nothing *, guidance evidentiary and which have even with sufficiently even entered. im- When faced with the in an ‍​​‌​‌​​​​​‌‌​​‌​​‌‌‌‌​‌‌​‌‌​‌​​‌​‌​​‌‌‌‌‌​​‌‌‌‌‌‍area difficult possible obscenity. articulating confusing task of such stand- intricate own, expert ards on their it is almost inevitable To sanction convictions without judges slip community will into the sort of over en- standards individualistic, subjective judgments courages jury to condemn as ob- designed which the Williams test was material as scene such conduct or avoid. personally distasteful or offensive ” * * * juror. particular It is fears such as these have respected judges led some of our Giannini, most Cal. 69 Cal.2d re giving eschew the Rptr. 655, 663, task of content 446 P.2d their (Footnote omitted.) own to standards —a course I And of majority casually task which the already assumes quoted Leventhal’s 1254 individualistic, standards, warning against community eloquent the evidence as to community

judicially imposed to introduce standards. defendant is at least allowed supra. pages part at of rebuttal case. text 1250-1251 such evidence as See begin why clear explain made to As Mr. Frankfurter does Justice years ago: past on our refusal “rest this court’s to “ * * * of of character own untutored view” the through law the Since activity involved, v. United the Huffman ‘applying functionaries contem- its 254, States, supra, U.S.App.D.C. at 152 community porary in de- standards’ to extend at should not obscenity, F.2d termining what constitutes * * * this case. also United States surely ra- deemed it must be (1965); Klaw, Cir., tional, the relevant therefore Comment, Expert Testimony in Obscen- light obscenity, to be to allow issue Hastings ity Cases, L.J. 161 ‘contemporary com- shed on what those munity inter- are. Their standards’ jurisdic sure, To there are ought depend solely pretation on cases, juries, in some tiоns at least where hit-or-miss, necessarily limited, putatively ob allowed to evaluate are subjective be- what are view of guidance expert scene material without juror the individual lieved against no their own and measure ” * * * judge. community is. standard tions what the Cir., Wild, See, g., e. United States California, Smith v. denied, cert. F.2d 34 215, 225, 4 80 S.Ct. L.Ed.2d 205 29 L.Ed.2d (concurring opinion). Cir., (1971); Kahm United Yet in was ef- Von Sleichter denied, cert. fectively deprived opportunity to (1962). But 949, 8 L.Ed.2d 18 prove in conform- that his conduct was premised notion cases these are community dep- ance with standards —a as the juries function themselves according which, Mr. rivation Justice community there of the embodiment Frankfurter, “goes very to the essence experts require tell them fore no con- of the defense and to the therefore judges Appellate community thinks. safeguards process.” stitutional due not, course, the embodiment True, Id. at 80 S.Ct. at 225. Von community. Indeed, their decisions never made an actual offer of Sleichter legitimacy the fact that derive from proof community as to standards before judiciary transient from insulated judge, trial and none of his evidence prejudices. community passions reading was excluded. But close certainly appellate an court “Since hearing plain record makes .that compose not in a cross-section sense argue prosecutor did not there was effectively community, it cannot probable Sleichter Von carry in the function out review] [its Rather, conduct. his ar- di in the record absence gument presumably decision of —and proof of the rected toward judge premised the trial well—was Giannini, supra, 72 In re standard.” probable the existence of make a cause to (Foot Cal.Rptr. P.2d at 544. at Surely expect narcotics arrest.6 we too omitted.) note require much if the defendant an- jurisdictions Moreover, ticipate argument those and rebut expert permitting convictions without either Government failed to make prosecutor sition, ledge brings made the follow- Thus the case over ing statement summation: to attain cause. flight. rely solely question. don’t “We fine That’s the Government’s rely area; position. on three factors —the We We’ll leave court transaction, seemingly [sic] decide.” and, saw; transaction Tr. flight. Which, po- in the Government’s

1255 hearing appellate and indication in arrest its brief this record the that the first, ing appear- made its unheralded officer such an assessment. which made testify opinion re- of the The officer did not that he ance one viewing judges community of Colum- aware of of the District standards Placing area, judgment Aрpeals. appellant this bur- that in his had bia Court of require standards, him he den on defendant would violated those or that thought prob- peace to of a lack of im introduce evidence breach every testimony Rather, for arrest crime minent. able cause the officer’s Thus, entirely listed in consisted the statute books. a skeletal account agreed majority judges prior if I Von with Sleichter’s conduct to the qualified Wrightson arrest. to discern the Our v. comments own, 392, States, U.S.App.D.C. 390, hold standard on their I would still United 95 556, (1955), to 222 F.2d this case should be remanded 558 where the Gov testimony similarly ellipti allow to introduce evidence on ernment cal, question. particularly apt: this vital seem point trial, “The here is that at the point final needs to One be made. when the search and the arrest were majority suggests principles illegal, under attack as the officer govеrning differ case are somehow prosecutor chose not to reveal what question ent us is not because before cause there was for the and thus actually whether Von Sleichter commit support legality. not to its is There conduct, ted the crime but governs arrest, law which is that law rather binding upon police officers, per- probable cause to the crime believe that right sons arrested have a to invoke had been committed. But is while it it.” true that proof burden of the Government’s substantially probable recently gone great is lower in a This court has to hearing lengths than cause it would in a crim to show that arrests are not prosecution, g., Brinegar see, inal v. somehow e. insulated from the constitution- States, protections United al 69 338 U.S. S.Ct. which surround the rest (1949), process. 93 differ criminal L.Ed. 1879 See Hall United thought States, ence has never U.S.App.D.C. beеn sufficient 148 F.2d 831, 459 (en transmogrify question banc). surprised 831 of fact about I am dis- required appointed which ques salutary principle into a is see this judge apparently tion of law which the can decide abandoned so soon after its exposition. without evidence. have held that We “[pjrobable plastic concept cause is a By citing Hall, however, I do not mean depends whose existence on the facts suggest upon rely the law case,” particular circumstances of the any way fact, is new. In it has been and that less evidence than “[m]uch clear years for at that, least 50 when the required guilt necessary.” to establish Fourth Amendment is raised chal- Bailey States, U.S.App. v. United 128 lenge admissibility evidence, 354, 357-358, D.C. 308-309 judge trial hearing must hold a to evalu- (1967). But also clear made competing ate the factual assertions of that the burden Government pаrties respect with how evi- probable establish cause and can dence was obtained. See Gouled v. Unit- by putting not meet this burden on testi States, ed 65 S.Ct. mony surrounding as to the facts bare (1921); L.Ed. 647 Nardone v. United depending upon the arrest trial S.Ct. judge agree gaps. fill in L.Ed. course, Of such a give “[w]e hearing meaningless would be a formal- policeman ability credit to the as ity judge permitted the trial ordinary sights impact sess the assume, evidence, without the benefit of and sounds hears.” no But there probable cause existed for a chai- ap- proof standard of g., lower See, Unit under lenged e. or arrest. search hearing. But plicable in Jeffers, ed States pos- of such (1951); theoretical existence United L.Ed. 59 S.Ct. case. sibility in this trouble us Cir., should not Johnson, States 802, Where, here, there is no evidence dismissed, cert. any- violence, no evidence (1971); imminent 21, Wil 92 L.Ed.2d 35 30 S.Ct. by the defendant’s one оffended Cir., 382 5 liams v. United only as words, evidence hardly inconclusive sur 48, (1967). is 50 Hence at the words were overheard whether Supreme has stood prising Court that the all, testi- require in I at least some would ready when conviction to reverse a mony community standards before as to appeared the rec on sufficient evidence disorderly sanctioning arrest. a conduct or seizure the search ord to show that us has reminded the As Justice Harlan of Mr. comported with the commands context, only slightly different g., in an See, Recznik e. Fourth Amendment. * * * 166, “Any ef- 168, view Lorain, 89 broader City of 393 U.S. v. majority fectively empower to silence (1968). a 342, More L.Ed.2d 317 21 S.Ct. personal simply matter of as a over, procedural requirements are dissidents these California, here, predilections.” su- where, Cohen particularly First as vital -rights 21, pra, at rights 91 S.Ct. 1780 403 U.S. 15 are at Amendment stake — effectively by a underestimate 1786. And lest we as can be stifled which by as prosecutions such wrongful a stakes in criminal seizure or Monaghan, one, an- wrongful Harlan offers this Mr. Justice conviction. Process”, 83 “Due other admonition: Amendment First (1970). 518, Mar 538 Harv.L.Rev. Cf. many, conse- “To the immediate Warrants, U.S. 367 cus Search freedom quence of [First Amendment] (1961); 6 L.Ed.2d may only appear verbal often Quantity Copies Kan of Books v. of A tumult, discord, ut- even offensive sas, L.Ed. S.Ct. however, are, within terance. These 2d 809 necessary limits, in truth established enduring why these of I loss understand side effects the broader am at a ig- open long-standing de- process principles values should be usually sure, permits That us achieve. in this case. bate nored To be in problem filled ver- air times seem with the Fourth Amendment arises identity sense[,] challenge cacophony is, not in bal context of a strength. sign weakness, defendant, here the issue but of whereas that, sight at all. cannot lose fact is a crime was committed We whether might surely a tri- not difference otherwise seem this is what fling annoying requires principle. of indi- instance Probable cause only by privilege, determination vidual distasteful abuse of a reasonable arresting suspect values these fundamental societal ” * ** probably truly guilty, implicated. de- a reasonable but also criminal termination the officer 24-25, Id. at at 1788. S.Ct. case, crim- conduct has occurred. In my view, has failed only inal occurred conduct can cognizance “fun- take sufficient violated. standards were implicated in damental societal values” And these we cannot know whether must, therefore, respectfully this case. standards violated until we have been dissent. stand- have some as to ards are. Supplemental Opinion imagine possible, suppose, Judge: LEYENTHAL, Circuit hyрothetical a fact where judicial sufficiently rehearing no- Appellant’s petition for obvious lodged noticed but can be tice a criminal trial memorandum amicus Wilson, Gooding court, talking policeman, focus back but rath- upholds policeman finding prob- 31 L.Ed.2d er S.Ct. California, appellant subjected and Cohen v. able cause to believe bystanders 29 L.Ed.2d to a S.Ct. nuisance. There is not opin- glimmer these We have considered in this record scintilla again, especially faith, or- ions view of the indication of bad harassment ders entered misconduct. Court Whether policeman in Rosenfeld June v. New Jer- cause to believe sey, City Orleans, Lewis v. New that a misdemeanor had been committed Oklahoma, presence erroneously Brown v. confused by appellant ques- quite S.Ct. 33 L.Ed.2d 321 va- with the distinct cating proof convictions con- tion of such therе was remanding beyond duct and for consideration a violation doubt. a reasonable light Gooding in the and Cohen. required We not of these cases constitu- None involve consider or under what circum- whether immunity particular con- person tional the stances a valid arrest of a not duct, very question flight the distinct of the policeman’s but turn on as- underlying of the certaining overbreadth statute. impact words on the under Convictions such statutes must part hearers or overhearers as though reversed a narrower statute In assessment of defendant’s conduct. concededly applied prohibit ‍​​‌​‌​​​​​‌‌​​‌​​‌‌‌‌​‌‌​‌‌​‌​​‌​‌​​‌‌‌‌‌​​‌‌‌‌‌‍flight, could this case flight, involved. The issue of statu- validly conduct detained from further tory problem overbreadth is not a in the weapons. properly was thus searched Columbia, District of because our dis- arresting The conduct of orderly laws, conduct circumstаnces, 22 D.C.Code §§ under reasonable subjected nar- have been to a subsequent discovery of heroin rowing by construction this court was not unlawful. Columbia, Williams District of rehearing Petition for denied. banc, U.S.App.D.C. 56, (en 419 F.2d 638 1969). WRIGHT, Judge, J. Circuit SKELLY dissenting: Apart “fighting from words” context, Williams forth that the sets stat majority For feels reasons, the obvious applicable ute “of in for mere use distinguish the Rosen- need only decent or obscene if the words” but feld, Lewis Brown de- cases language “is, ‘contemporary under com by Supreme after our cided Court standards,’ munity grossly so offensive panel opinions came down. submit actually to members of the sought distinctions to be made are with- overhear it as amount nuisance.” to a out substance. Gooding and We think this is valid under majority issue The asserts “[t]he Cohen.* statutory problem overbreadth is not a

Appellant in the mis District Columbia” because believеs that we Williams, 1107 and 1121 “have been read and that D.C.Code it disallows §§ by narrowing statutory “talking subjected prohibition construction back” policeman. opinion this court v. District Our Williams * * in Rosenfeld disorderly Yet sanction Columbia an arrest conduct * Profaci, Supreme Jersey, hearer.” Rosenfeld v. New State N.J. A.2d With- remanded for Court reconsideration under attempting predict statute, prohibiting public uttering the outcome of out Rosenfeld, profane language, we see distinction between or indecent that was merely apply affects the sensibili- construed to whenever words were others, “likely, light gender age in the of the ties contemporary setting communi- offensive under of the listener and of the ut- ty terance, to a nuisance. as to amount to affect standards sensibilities Jersey Supreme sum- Court

v. New Jersey marily a New vacated Mr. Justice conviction оver conduct dissenting opinion wherein

Powell’s correctly pointed Jersey New out that the of its stat- construction Court’s construc- to the identical

ute was almost adopted Williams. our statute

tion of says task our also up can the fact

made easier without in this case

hold reaching question the under constitutionally sup

lying statute could overly Perhaps

port am conviction. matters, I had but simplistic about these pro thought Amendment that the First harassing arrests from citizens tected Indeed, the Su as convictions. well

preme ar held that when has even Court for con state officers are made rests possibly serve as cannot duct which conviction, predicate for constitutional obliga special have a the federal courts Younger v. tion to intervene. L. Harris, (1971); Dombrowski Ed.2d

Pfister, view, my In. L.Ed.2d ap obligation fulfill that should

peal. Appellants, al., C. et

Kenneth WILLIAMS COMPANY,

M.W. A. TRANSIT Appellee. No. 24485. Stanley Sher, Washington, D. Mr. O. C., Michael Kush- with whom Messrs. G. Appeals, United States Court Davis, Washington, D. nick Alan S. District ‍​​‌​‌​​​​​‌‌​​‌​​‌‌‌‌​‌‌​‌‌​‌​​‌​‌​​‌‌‌‌‌​​‌‌‌‌‌‍Columbia Circuit. brief, , appellants. C. were Argued June Washington, Devaney, Mr. William B. Decided June Stanley C., H. Kam- D. erow, Washington, with whom Mr. C., D.

brief, appellee. Corp. Murphy, Francis Messrs. C. Columbia, Counsel for the District Gorman, Richard W. Barton and Leo N.

Case Details

Case Name: William Von Sleichter v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Aug 4, 1972

Citation: 472 F.2d 1244

Docket Number: 24456

Court Abbreviation: D.C. Cir.