Smith v. United States
Smith v. United States
Opinion of the Court
After trial by a jury, appellant was found guilty of petit larceny
The facts are not in dispute. Assigned to the Old Clothes Unit, Officer Cunningham of the Metropolitan Police Department, Second District, was, on July 3, 1971 — the day of the arrest — on a “[rjoutine patrol, looking for burglary suspects or people breaking into automobiles.” He first observed appellant and an unidentified companion walking west on Calvert Street and looking into parked automobiles. The officer’s observation of appellant and his companion continued for approximately one and one-half hours,
[appellant] walked throughout the area near the Sheraton Park Hotel and around Garfield Street, Woodley Road, 28th, 29th, 27th Streets and that area, looking in cars. I observed him look into, ... a Dodge Charger. They stopped by the car, they looked in it, they walked away from it, went back to it and then they left the automobile.
Appellant and his companion were then observed to proceed north on Connecticut Avenue toward the National Zoo and about 3:30 p. m. enter the grounds of the zoo through the Connecticut Avenue gate. Officer Cunningham waited at the same entrance for his partner to return with the cruiser and the two officers then patrolled the grounds of the zoo for “approximately 25 minutes trying to pick them up again.” Unsuccessful in locating appellant and his companion, the officers returned to the
In response to a question by the court, the officer said, “I didn’t know what was in the bag. I knew it was something square shaped, and I had an idea of what would be in the bag from past experiences.” The officer was then asked, “What would you assume would be in the bag?” to which the officer replied, “Stereo tape deck or a radio of some kind.”
It is the arrest and seizure of the tape deck (following this sequence of events) which we are asked to condemn as violative of appellant’s fourth amendment rights. We decline to so do. The record discloses a prolonged course of suspicious conduct which a trained police officer could reasonably expect to culminate in a theft of something from a parked automobile. It is true, of course, that while appellant was in the zoo grounds he was not within the sight of the officers, but it is uncontroverted that when he entered the zoo he had nothing in his hands and that when he emerged he had a paper bag containing what appeared to be a square shaped article. Based on his experiences and his observations of appellant’s highly suspicious conduct, the officer, in our view, had reasonable grounds to believe that the bag contained the proceeds of a crime.
Considering the totality of the circumstances, including the flight
In Terry this Court recognized that “a police officer may in appropriate circumstances and in an appropriate manner*67 approach a person for the purpose of investigating possible criminal behavior even though there is no probable cause to make an arrest.” 392 U.S., at 22 [, 88 S.Ct. 1868 at 1880], The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. See id., at 23 [, 88 S.Ct. 1868 at 1881]. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. Id., at 21-22, [88 S.Ct. 1868 at 1879-1880]; see Gaines v. Craven, 448 F.2d 1236 (CA9 1971); United States v. Unverzagt, 424 F.2d 396 (CA8 1970).8
In the instant case, as in Jenkins v. United States, D.C.App., 284 A.2d 460 (1971), and United States v. Unverzagt, 424 F.2d 396 (8th Cir. 1970), the officer did not know at the time he stopped appellant that a crime had in fact been committed, but he certainly had reasonable basis for believing that further investigation was indicated. As a preliminary consideration, therefore, the officer was entitled to “maintain the status quo momentarily”, Adams, supra, and it was at this early stage of the confrontation that the tape deck came into view. Thus at the time of the arrest, the officer had probable cause to believe that appellant was possessed of the proceeds of crime within the purview of D.C.Code 1967, § 23-581 (a) (1) (B) & (C), and (2) (A) (Supp. V, 1972). As stated by Mr. Chief Justice Burger (then Burger, J.) :
‘[P]robable cause is not to be evaluated from a remote vantage point of a library, but rather from the viewpoint of a prudent and cautious police officer on the scene at the time of arrest. The question to be answered is whether such an officer in the particular circumstances, conditioned by his observations and information, and guided by the whole of his police experience, reasonably could have believed that a crime had been committed by the person to be arrested. . . .9
On appeal the Government must be afforded all legitimate inferences from un-controverted facts established by the evidence, Jenkins, supra. We are, therefore, unable to conclude that any of appellant’s constitutional rights were violated when he was requested to put the bag down. Appellant apparently concedes that once the officer saw the contents of the bag there existed probable cause
We consider secondly appellant’s claim that the motion to suppress should have been heard out of the presence of the jury. At the commencement of the trial, appellant’s counsel was asked if there were any preliminary matters to be taken up, “such as search and seizure.” Counsel indicated that “[f]rom my understanding there was not a matter of search, but of abandonment under the Fourth Amendment.” It was only after direct examination of the Government’s last witness that counsel approached the bench and indicated that he
THE COURT: Are you developing information for the motion to suppress? If it is, I think it would be better if we called the officer back on the motion to suppress.
MR. SACCARDI (Defense counsel): I think it is or should be done, during the trial.
THE COURT: We will have the officer back, and you may interrogate him on the legality of the arrest, and any other witnesses you wish to have here. If you are proceeding on probable cause, I will have to excuse the jury and we can proceed on that. I don’t think that is for the jury’s determination.
MR. SACCARDI: I don’t think they even know what we are talking about.
THE COURT: If you get into the interrogation of probable cause, I am going to excuse the jury.
MR. HEALEY (Government counsel) : Your Honor, I think this is like a judgment of acquittal. You could hear it and still take it out of the hands of the jury. I would like to make a motion at this time that his motion was untimely and should not be heard at this time.
MR. SACCARDI: I realize the motion is untimely, but I didn’t discover some of the facts until today.
THE COURT: I don’t think the defense counsel is in the position to waive the defendant’s rights under the Fourth Amendment.
MR. SACCARDI: I must say the defendant has given me little, almost no cooperation.
THE COURT: I will let you proceed. Go ahead.
Appellant now urges, and for the first time, that it was error to take testimony on the issue of probable cause in the presence of the jury. As a general rule, absent some showing of plain error, courts in this jurisdiction have refused to notice claims of error raised for the first time on appeal.
Appellant claims finally that the trial court committed plain error in failing to adequately instruct the jury on the elements of petit larceny. The short answer to this contention is that notwithstanding Superior Court Criminal Rule 30, trial counsel neither submitted written instructions nor objected to the court’s instructions to the jury. See Ginyard v. United States, D.C.App., 232 A.2d 590 (1967).
The judgment of conviction is affirmed.
. D.C.Code 1967, § 22-2202.
. The motion to suppress was made near the end of the Government’s ease and was apparently permitted under the second exception of Super.Ct.Crim.Rule 12 (b) (3). We have said repeatedly that the orderly administration of justice mandates that motions to suppress be heard pre-trial and that it is only in exceptional cases that such a motion should he entertained at trial. Jenkins v. United States, D.C.App., 284 A.2d 460 (1971); Jones v. United States, D.C.App., 282 A.2d 561 (1971); Bailey v. United States, D.C.App., 279 A.2d 508 (1971); District of Columbia v. Faison (Nebeker, J., concurring), D.C.App., 278 A.2d 688 (1971); Nicks v. United States, D.C.App., 273 A.2d 256 (1971); cf. Brown v. United States, D.C.App., 289 A.2d 891 (1972).
. At oral argument counsel for appellant did not press the third claim of error and we consider it as having been abandoned.
. We note that the close and extended surveillance of appellant was more consonant with sound police work than the precipitate confrontation disapproved of in Gray v. United States, D.C.App., 292 A.2d 153 (1972).
. At the time of the arrest, Officer Cunningham had no report of the theft of any tape deck in that general area. Sometime after 5:00 p. m. Mr. Gregg Allen, the complaining witness, reported that a tape deck, later identified as the one found in the possession of appellant, had been stolen from his automobile while parked at the zoo.
. See Jones v. United States, D.C.App., 286 A.2d 861 (1972).
What we say today in no way attempts to extend Terry. We recognize that at the point appellant was halted, he was “seized.” The fourth amendment, however, does not proscribe all seizures, only “unreasonable seizures.” We view the request of Officer Cunningham to “put the bag down,” as reasonable under the circumstances. The officer was not required to speculate as to the contents of the bag. What is presented in this factual situation, therefore, is a Terry stop, not a Terry frisk. See and compare Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), with Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).
. Flight may at times support an inference of guilt. However, such conduct, when viewed in the totality of the circumstances may always be considered on the issue of probable cause and may tip the scales. Hinton v. United States, 137 U.S.App.D.C. 388, 424 F.2d 876 (1969); see also United States v. Rubio, 404 F.2d 678 (7th Cir. 1968), cert. denied, 394 U.S. 993, 89 S.Ct. 1482, 22 L.Ed.2d 770 (1969).
. See Lee v. United States, 95 U.S.App.D.C. 156, 221 F.2d 29 (1954); United States v. Lee, D.C.App., 271 A.2d 566 (1970); Anderson v. Super. Ct. of Los Angeles County, 9 Cal.App.3d 851, 88 Cal.Rptr. 617 (1970).
. Jackson v. United States, 112 U.S.App.D.C. 260, 262, 302 F.2d 194, 196 (1962). See also Bell v. United States, 102 U.S.App.D.C. 383, 254 F.2d 82, cert. denied, 358 U.S. 885, 79 S.Ct. 126, 3 L.Ed.2d 113 (1958); Jenkins v. United States, D.C.App., 284 A.2d 460 (1971); Munn v. United States, D.C.App., 283 A.2d 28 (1971).
.D.C.Code 1967, § 23-581 (a) (1) (B) & (C), and (2) (A) (Supp. Y, 1972).
. Bunter v. United States, D.C.App., 245 A.2d 839 (1968). See also Harris v. United States, 112 U.S.App.D.C. 100, 299 F.2d 931 (1962); Kelly v. District of Columbia, D.C.Mun.App., 102 A.2d 308 (1954).
. See Roe v. United States, 316 F.2d 617 (5th Cir. 1963).
. See United States v. Scoblick, 124 F.Supp. 881 (M.D.Pa. 1954), aff’d, 225 F.2d 779 (3d Cir. 1955); United States v. Katz, 78 F.Supp. 435 (M.D.Pa. 1945), aff’d, 173 F.2d 116 (3 Cir. 1949); cf. United States v. Brooks, 146 U.S.App.D.C. 1, 449 F.2d 1077 (1971).
. Byas v. United States, 86 U.S.App.D.C. 309, 182 F.2d 94 (1950); Laney v. United States, 54 App.D.C. 56, 294 F. 412 (1923); United States v. Greenberg, 419 F.2d 808 (3d Cir. 1969).
Dissenting Opinion
(dissenting) :
I have no disagreement with that part of the majority’s holding that the officer had a reasonable basis for believing that further investigation of appellant was required when he emerged from the zoo. In light of the course of conduct which he had observed,
In the instant case the officer’s conduct overreached the scope of an allowable Terry
The majority does not cite a single case, nor have I found one, in which a suspect was required to remove or put down his personal belongings unless the officer feared for his safety or probable cause existed for the search or arrest of the suspect. The delicate nature of a confrontation based on less than probable cause grounds has been highlighted in the hundreds of “stop and frisk” cases since Terry v. Ohio, supra. The fourth amendment will not allow that confrontation to include a search for the proceeds of a crime on mere suspicion; there must be probable cause. I therefore must respectfully dissent.
. See majority opinion at 65-66.
. There is no contention that probable cause for the arrest or search existed before the tape deck came into view.
. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).
. See text, infra.
. Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972).
. Terry v. Ohio, supra note 3.
. Webster’s Third New International Dictionary (P.B.Gove ed. 1969).
. Cf. Gray v. United States, D.C.App., 292 A.2d 153 (1972); Irwin v. Super. Ct. of Los Angeles County, 1 Cal.3d 423, 82 Cal.Rptr. 484, 462 P.2d 12 (1969).
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