John L. Worthy v. United States , 409 F.2d 1105 ( 1969 )

FAHY, Senior Circuit Judge:

In the early hours of October 21, 1965, before daylight, appellant was arrested without a warrant for vagrancy. Upon being searched incidental to the arrest a bottle of 53 capsules was found in one of his coat pockets. The arresting officers suspected that the capsules contained heroin, which proved to be the case. Later that day one of the officers swore out' a complaint against appellant for the offense of vagrancy, and the other officer signed a complaint charging appellant with possession of heroin not in the original stamped package and without the appropriate taxpaid stamps, in violation of 26 U.S.C. § 4704(a).

Our analysis of the record indicates that appellant, unable to post bond, was remanded to the custody of the District of Columbia Jail, and that after confinement there for about four months¹ the misdemeanor charge of vagrancy, for which the maximum possible imprisonment is 90 days, was nolle prossed by the Corporation Counsel for the District of Columbia. The United States contemporaneously indicted appellant for violations of Section 4704(a), supra, and 21 U.S.C. § 174. He was tried and convicted in the District Court of both narcotics charges.

Following the filing of an information by the United States Attorney that appellant had previously been convicted twice of violating Section 4704 and once of violating Section 174, the District Court sentenced appellant to serve the mandatory minimum sentence of ten years in prison on each of the two counts, these sentences, however, to run concurrently with each other and with sentences imposed in the two most recent prior narcotics convictions of appellant.

Appellant’s basic position is that his warrantless arrest for vagrancy was without probable cause to believe that he was committing a misdemeanor in the officers’ presence, and, therefore, was invalid. It follows, the contention continues, that the search which uncovered the narcotics was unlawful, so that appellant's motion to suppress this seized evidence, which was used at the trial, should have been granted, entitling him to reversal. Concluding that the arrest was supported by probable cause, we find no error in the admission of the evidence.

Two experienced police officers, Detectives Kuntz and Jenkins, participated in the arrest. Detective Kuntz testified at the hearing on the motion to suppress that he and Detective Jenkins, in the regular performance of their duties as members of the Vice Squad of the Metropolitan Police Department, had patrolled a particular neighborhood between midnight and 2:00 a. m. on the mornings of October 20 and 21, 1965. On the 20th they observed appellant loitering in front of “a house of ill fame” in the company of two known convicted prostitutes and vagrants, one of whom had also been convicted of narcotics violations. Detective Kuntz knew that appellant had a record which included larceny from the United States mail, forgery, petit larceny and violation of the narcotics laws. On October 21, at about 12:30 a. m., the officers again saw appellant in the same vicinity with one of the two prostitutes with whom they had observed him the night before — the one with the prior narcotics record — and with another prostitute and narcotics violator. At 2:00 a. m., the officers saw appellant again with the former woman. If we take in combination the testimony of the two officers on the motion to suppress and at trial there is evidence of another loitering observation some half hour or so prior to that of 2:00 a. m. on the 21st. Thus they observed appellant loitering in the company of known prostitutes and narcotics violators on four occasions during the two nights.

On the last occasion, according to Detective Kuntz’s testimony, the officers approached appellant and Detective Kuntz asked him his name, date of birth, and home address. The detective then asked his occupation. He replied that he had no occupation. He was asked how he supported himself, to which he replied that he did so by “hustling” and “stealing.” He then was asked his reason for being out at 2:00 a. m. and he answered that he was “just out.” At this point he was arrested and advised that his arrest was for vagrancy. Detective Kuntz then, as he testified “searched him for a weapon,” leading to discovery of the bottle of capsules, together with a bottle cooker, eye dropper, and needle. After this the officer informed appellant he was under arrest for violating the Harrison Act.

The testimony of Detective Kuntz about the arrest is no less credible than that of appellant. Accordingly, we cannot subscribe error to the District Court, who saw and heard the witnesses, in accepting the detective’s version as to the circumstances of the arrest.

D.C.Code § 33-416a(c) provides:

Whenever any law-enforcement officer has probable cause to believe that any person is a vagrant within the meaning of this section, he is authorized to place that person under arrest and to confine him in any place in the District of Columbia designated by the Commissioners thereof.

Section 33-416a(b) (1) defines a vagrant to include “any person who is a narcotic drug user or who has been convicted of a narcotic offense” and who,

having no lawful employment or visible means of support realized from a lawful occupation or source, is found mingling with others in public or loitering in any * * * public place and fails to give a good account of himself;

or

wanders about in public places at late or unusual hours of the night, either alone or in the company of or association with a narcotic drug user or convicted narcotic law violator, and fails to give a good account of himself;

or

is included within one of the classes of persons defined in paragraphs (1) through (9), inclusive, of section 22-3302.

Section 22-3302 includes as a vagrant any person

known to be a * * * felon * * and having no lawful employment and and having no lawful means of support realized from a lawful occupation or source, and not giving a good account of himself when found loitering around in any * * * public place * * *

and

any person who wanders about the streets at late or unusual hours of the night without any visible or lawful business and not giving a good account of himself.

As a matter of rational judgment we conclude the detectives had probable cause to believe appellant when arrested was within the above definitions of a vagrant. Whether a jury or judge would have convicted him is not the issue;- it is whether at the time and place and in the circumstances above set forth, including his responses to their inquiries and their knowledge of his record and the records of the women in his company, these two experienced officers could reasonably believe — not necessarily beyond a reasonable doubt — that appellant’s conduct came within the scope of the vagrancy statutes. Terry v. State of Ohio, 392 U.S. 1, 20-23, 88 S.Ct. 1868, 20 L.Ed.2d 889, and see concurring opinion of Mr. Justice Harlan in Sibron v. State of New York, 392 U.S. 40, 70, 88 S.Ct. 1889, 20 L.Ed.2d 917; Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134; Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879. The objective standards, Terry v. State of Ohio, 392 U.S. at 20-23, 88 S.Ct. 1868, 20 L.Ed.2d 889, by which to judge the reasonableness of the officers’ conclusion that there was probable cause to believe appellant was in violation of the vagrancy statutes, appear from the testimony. It is interesting in this connection to note the statement in Mr. Justice Douglas’ dissenting opinion in Terry that, “[i]f loitering were an issue and that was the offense charged, there would be ‘probable cause’ shown.” 392 U.S. at 35-36, 88 S.Ct. at 1887. Moreover, the facts before us are unlike those which led Mr. Chief Justice Warren in his dissenting opinion in Wainwright v. City of New Orleans, 392 U.S. 598, at 607, 88 S.Ct. 2243, at 2250, 20 L.Ed.2d 1322, to condemn the technique of “using a minor and imaginary charge to hold an individual,” for though relatively minor the charge here was- real.

We would not be justified in concluding, as appellant contends for the first time on appeal, that the arrest was a sham. We assume that by “sham” is meant that the arrest was not actually for vagrancy but on suspicion of a violation of the narcotics laws. There was no probing at trial of this possible motive. See Johnson v. United States, 125 U.S.App.D.C. 243, 244, 370 F.2d 489, 490. The probing went only to the issue of probable cause to arrest for vagrancy. It is possible for us now to speculate, in light of what developed, that the officers did suspect appellant of having narcotics in his possession in violation of law, but such speculation would not warrant us in invalidating the arrest, based independently as it was upon adequate probable cause. The officers did not arrest appellant on the 20th when they observed him loitering as described,² but only after further observation of continued conduct of the character proscribed by the vagrancy statutes. We do not view their conduct as intermeddling, given the circumstances in which they acted. The solid basis upon which they reasonably concluded that appellant was in violation of the vagrancy statutes, as the term vagrancy is defined in our Code, deters us from holding that the arrest was for some unassigned reason. This is so even were we to assume the officers hoped for greater results.³

The courts should be careful not to approve arrests for vagrancy upon inadequate basis. Such arrests are susceptible of abuse by being used for purposes foreign to the vagrancy statutes. In pointing this out the Report of the President’s Commission on Crime in the District of Columbia, p. 570, added, “The U. S. Attorney presently requires three ‘observations’ before prosecution will be authorized.” In any event the evidence shows no abuse in this case. In supporting this particular arrest we grant no license for abuse; but we do not feel justified in ruling this arrest invalid because in other situations an arrest for vagrancy might not be valid. While the arrest must stand or fall upon its own factual basis, the vagrancy indicia accompanying it pointed to the possibility of other crimes growing out of the situation. Valid arrests on probable cause to believe a particular crime is being committed often prevent the commission of other crimes.

The lawfulness of the arrest clothes with validity the subsequent search and seizure of the contraband narcotics. This leads us to agree that the use at trial of the contraband was not error. We note in passing that no statement of appellant of an incriminating nature was made by him after his arrest. No problem has been presented under Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

Though incident to an arrest for vagrancy the search was not for that reason required to be limited to a frisk. Absent probable cause for an arrest a suspect may be only stopped and frisked for weapons, as set forth in Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. This limitation does not apply to a search incident to a valid arrest, as is clearly recognized in Terry. The Court there said that a search incident to an arrest,

although justified in part by the acknowledged necessity to protect the arresting officer from assault with a concealed weapon, Preston v. United States, 376 U.S. 364, 367 [84 S.Ct. 881, 883, 11 L.Ed.2d 777] (1964), is also justified on other grounds, ibid., and can therefore involve a relatively extensive exploration of the person.

392 U.S. at 25, 88 S.Ct. at 1882. Mr. Justice Harlan in his concurring opinion refers to “a full search incident to a lawful arrest * * 392 U.S. at 33, 88 S.Ct. at 1886. It is true that Mr. Justice Harlan also said in Sibron that “If the nature of the suspected offense creates no reasonable apprehension for the officer’s safety, I would not permit him to frisk unless other circumstances did so.” 392 U.S. at 74, 88 S.Ct. at 1907. But he said this in connection with an investigative stop, that is, with respect to a suspected offense, not with reference to an arrest on probable cause. The relation between an officer and a suspect being stopped and frisked is different from that between an officer and a known previously convicted felon being arrested and taken into actual custody. This is not to say that a search incident to a lawful arrest does not also have limits. In Peters v. New York, 392 U.S. 40, at 67, 88 S.Ct. 1889, at 1905, 20 L.Ed.2d 917, the Court refers to the search there, which was incident to a lawful arrest, as “reasonably limited in scope” to “ ‘the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime.’ Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964).” The Court pointed out that the officer “did not engage in an unrestrained and thoroughgoing examination of Peters and his personal effects”; that in patting down Peters the officer “discovered an object in his pocket which might have been used as a weapon. He seized it and discovered it to be a potential instrument of the crime of burglary.” 392 U.S. at 67, 88 S.Ct. at 1905. The need to seize weapons and the potential instruments of crime, thus indicated as relevant to the scope of a search, does not limit its admissible fruit to weapons if conducted consistently with a proper search for weapons.⁴ Appellant did not contend in the District Court that the scope of the search exceeded what was permissible in a search for a weapon; and there is nothing in the record to indicate ex-cessiveness in this respect. Since the search was for a weapon the seizure of the narcotics, though not a weapon, was lawful and this contraband accordingly was usable as evidence. If in Peters the search had disclosed narcotics in Peters’ pocket, instead of burglary tools, the narcotics could have been used as evidence had Peters been charged with violating the narcotics laws. Or if the search in Sibron had been reasonable, the heroin which it yielded would have been admissible.⁵ Indeed, in Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782, the Court throughout the opinion places in the same category of admissible evidence seized in a search incident to a lawful arrest, “instrumentality, fruit, or contraband.” ⁶ And see the concurring opinion of Mr. Justice Fortas, with whom the Chief Justice joined: “The seizure of contraband has been justified on the ground that the suspect has not even a bare possessory right to contraband. See, e.g., Boyd v. United States, 116 U.S. 616, 623-624, 6 S.Ct. 524, 528-529, 29 L.Ed. 746 (1886); United States v. Kirschenblatt, 16 F.2d 202, 203, 51 A.L.R. 416 (C.A.2d Cir. 1926) (L. Hand, J.).” 387 U.S. at 311, 87 S.Ct. at 1652. This position apparently was approved, though the right to seize does not necessarily solve the problem of admissibility.

Sibron v. State of New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917, decided the same day as Terry and Peters, is not contrary to our position. Not only was the arrest there unlawful due to lack of probable cause but the seizure was not even in connection with a valid stop and frisk, as in Terry “The search was not reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception — the protection of the officer by disarming a potentially dangerous man.” 392 U.S. at 65, 88 S.Ct. 1904.

While the nature of an arrest for vagrancy no doubt precludes authority to search the arrestee for evidence of vagrancy, or for an instrumentality of vagrancy, this nature of the offense does not render the seized narcotics inadmissible as evidence in this case; for the search which led to their seizure had the lawful purpose of a search for a weapon, and the record does not show that it exceeded the scope permissible for that purpose.

Aside from the issue of probable cause appellant for the first time on appeal attacks the arrest because, as he contends, the vagrancy statutes are unconstitutional and, therefore, furnish no basis for a lawful arrest. The validity of the vagrancy statutes, however, was at no time an issue in the District Court. Objection to the use of the seized narcotics did not include this ground. While such omission does not necessarily bar our consideration of the matter, it leaves us free not to consider it. We refrain from passing upon the constitutionality of the vagrancy statutes in determining the validity of the arrest. The constitutional challenge to the statutes comes on this appeal only in connection with the admissibility of evidence for violation of the narcotic laws. A conviction under the vagrancy statutes is not involved. In this situation we confine ourselves to the issues as litigated in the District Court. In On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270, it is said:

Where, as in this case, the objection relies on collateral matter to show inadmissibility, and in addition the exclusionary rule to be relied on involves interpretation of the Constitution, the orthodox rule of evidence requiring specification of the objection is buttressed by the uniform policy requiring constitutional questions to be raised at the earliest possible stage in the litigation.

343 U.S. at 750, 72 S.Ct. at 970, footnote 3.⁷ And see United States v. Booker, 363 F.2d 856 (2d Cir.); cf. Scott v. United States, 129 U.S.App.D.C. 396, 395 F.2d 619, April 29, 1968.

Other contentions have been considered. They furnish no reason for reversal, and are thought not to require discussion in the opinion.

Affirmed.

1 . On the motion to suppress an officer said, we think mistakenly, this confinement was for six months.

2 . See reference to Mr. Justice Douglas’ opinion in Sibron, supra.

3 . The requirements of Beail v. District of Columbia, 91 U.S.App.D.C. 110, 201 F.2d 176, were fully met.

4 . The officer testified that after placing appellant under arrest for vagrancy, “I searched him for a weapon. In his right hand pocket I found a prescription type bottle contained [sic] 53 capsules.”

5 . Mr. Justice Black dissented in Sibron on the ground that he thought the search was proper. He said: “Since, therefore, this was a reasonable and justified search, the use of the heroin discovered by it was admissible in evidence.” 392 U.S. at 82, 88 S.Ct. at 1912.

6 . It is true the Court also states that, we have given recognition to the interest in privacy * * * by suppressing the very items which at common law couli] be seized with impunity: stolen goods, Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134; instrumentalities, Beck v. State of Ohio, 379 U.S, 89, 85 S.Ct. 223, 13 L.Ed.2d 142; McDonald v. United States [335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153]; and contraband, Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663; Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.

387 U.S. at 305-306, 87 S.Ct. at 1649; but in each of these cases the search was illegal.

7 . This is aside from the question whether the vagrancy statutes unless declared unconstitutional may be relied upon by an officer in determining probable cause for an arrest. Johnson v. United States, supra, 125 U.S.App.D.C. at 245, n. 2, 370 F.2d at 4911, n. 2. Compare United States v. Margeson, E.D.Pa., 259 F.Supp. 256, 268; cf. United States v. Nikrasch, 367 F.2d 740, 743 (7th Cir.).