United States v. Karen R. Young and Nathaniel J. Pugh , 598 F.2d 296 ( 1979 )

ROBB, Circuit Judge:

The United States appeals from an order of the District Court suppressing evidence. 18 U.S.C. § 3731. We reverse.

The defendants Young and Pugh were indicted in two counts. The first count charged that on March 1, 1978 they had in their possession a check payable to Gertrude Jenkins which they knew had been stolen from the mail. 18 U.S.C. § 1708. The second count alleged that on March 1, 1978 they falsely personated Gertrude Jenkins in an endeavor to receive money which she was entitled to receive. 18 U.S.C. § 914.

Before trial both defendants filed motions to suppress evidence. Young moved to suppress the evidence seized as an incident to her arrest, consisting of a Treasury check payable to Gertrude Jenkins and a false identification card in the name of Gertrude Jenkins. She averred that there was no probable cause for her arrest. She also moved to suppress her written confession upon the ground that it was the product of the unlawful arrest, was involuntary and was made without an intelligent and knowing waiver of her rights. Pugh moved for suppression of his confession on the ground that it was the fruit of an illegal arrest. He did not contend that his confession was involuntary.

After a two-day hearing the district judge in an oral ruling denied the motion to suppress. He held that probable cause for the arrest of Young was established by information received from a reliable informant, together with “the sequence of events” leading up to the arrest, “the mosaic that was being developed.” (Tr. 247, 248) He also held that Young’s confession was voluntary and made with a full understanding of her rights. Subsequently however the district judge announced that he had reconsidered his ruling; and in a memorandum opinion and order he then held that there was no probable cause for the arrest of the defendants and that their confessions as well as the stolen Treasury check and false identification card seized from Young must be suppressed. We think the District Court’s original conclusions were correct.

The definition of probable cause is established and familiar: it exists when the facts and circumstances within the arresting officer’s knowledge and of which he has reasonably trustworthy information are sufficient to warrant a man of reasonable caution in the belief that an offense has been or is being committed. As the words “probable cause” imply the concept deals with probabilities, not with certainty; probable cause may exist although the evidence before the arresting officer is not sufficient to establish guilt. Brinegar v. United States, 338 U.S. 160, 172-73, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); United States v. Davis, 147 U.S.App.D.C. 400, 458 F.2d 819 (1972). As we have said in other cases, whether probable cause exists depends on the facts and circumstances of the particular case so that the decision in one case seldom furnishes a pat answer in another. A principle to be applied generally however is that in judging the reasonableness of the actions of the arresting officer the circumstances before him are not to be dissected and viewed singly; rather they must be considered as a whole. As the district judge here aptly put it in his oral opinion, the facts must be appraised as a “mosaic”. So considered they are to be viewed through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training. See United States v. Davis, 147 U.S.App.D.C. 400, 458 F.2d 819 (1972); United States v. Hall, 187 U.S.App.D.C. 215, 535 F.2d 857 (1976); United States v. Wylie, 186 U.S.App.D.C. 231, 569 F.2d 62 (1977), cert. denied, 435 U.S. 944, 98 S.Ct. 1527, 55 L.Ed.2d 542 (1978).

We turn now to a consideration of the facts and circumstances known to the officers when they arrested the defendants Young and Pugh.

At the hearing on the motion to suppress, the evidence disclosed that about 5 o’clock on the afternoon of March 1, 1978 an informant telephoned the Washington field office of the Secret Service from the Creative Photography Shop at 1749 Pennsylvania Avenue, N.W., in Washington, D.C. Although the informant was not identified at the hearing it is plain that he was either the proprietor or an employee of the photography shop. He reported that a black female, later identified as Karen Young, was then purchasing a photographic identification card in the name of Gertrude Jenkins, 3516-lOth Street, N.W. He described Young as a person approximately twenty-five years old, five feet four inches tall, weighing 125 pounds. He said a stolen United States Treasury check might be involved.

The informant had been providing information to the Secret Service for about five years. On many prior occasions he had given information which had proved to be correct' and which had led to arrests and convictions. Secret Service agents Flemister and Adams testified that they had participated in several investigations begun on the basis of information from the informant. Agent Flemister testified that she had participated in approximately fifty such investigations and that about twenty arrests were made as a result of the informant’s reports. Agent Adams testified that he had taken part in about twelve such investigations and that about one-half of these resulted in arrests and convictions.

The agents knew that Treasury checks were normally delivered in the first three days of the month and that false identification cards were frequently used to cash stolen Treasury checks. As Agent Adams, an agent of wide experience, testified, “[t]he modus operandi is about the same anywhere in the country.” (Tr. 215)

The information given by the informant was transmitted to agents who immediately went to the vicinity of the Creative Photography Shop, located only one block from the Washington field office of the Secret Service. Among these agents were Flemister and Adams and Agents West and Rasor. They set up a surveillance of the shop, Flemister and West being seated in an automobile parked on Pennsylvania Avenue directly across from the shop.

While the agents maintained their surveillance at the photographic shop Secret Service Agent Whicher went to the home of Gertrude Jenkins at 3516-lOth Street, N.W. Mrs. Jenkins was not at home but a neighbor told Agent Whicher that Gertrude Jenkins was a 75-year old black woman with gray hair. The neighbor also informed Agent Whicher that earlier in the day her husband had seen an unknown black male walking away from Mrs. Jenkins’ porch with a brown envelope that, looked like the kind of envelope that would contain a check. The neighbor told Agent Whicher that her husband had seen the man from his house across the street but that when he went' downstairs to get a better look the man was gone. The man was described as a black male approximately six feet tall, weighing 200 pounds, wearing a knit hat, brown pants and a coat. This information was transmitted by radio to the agents on the scene at the photography shop. Agent Whicher testified that he did not recall whether the neighbor had mentioned a mail box, but Agent Flemister testified that the radio transmission relayed by the dispatcher at the field office stated that the unknown man had been near the mail box on Mrs. Jenkins’ porch.

The agents watching the photography shop saw the defendant Pugh standing on the sidewalk outside the shop. With him was a second man — a heavy-set black male wearing a knit hat and brown pants. The agents judged that he weighed between 200 and 220 pounds and was between 5'10" and 6' tall; and they concluded that he matched the description of the unknown man seen earlier in the day walking away from Mrs. Jenkins’ porch with a brown envelope. Pugh and the second man were “looking around” and appeared to the agents to be acting as lookouts. Presently they crossed Pennsylvania Avenue and stood on the sidewalk, looking across the street in the direction of the photography shop. In a few minutes the defendant Young came out of the shop, crossed Pennsylvania Avenue and joined Pugh and the second man. Followed’ by the agents the three then walked several blocks to 14th Street where they boarded a bus and went to 14th and Clifton Streets, N.W., where they got off the bus. After a short talk with the two men Young went across the street to a liquor store. The two men waited on the opposite side of the street.

Agent Flemister followed Young into the liquor store where Young joined a line of people waiting to cash checks. Flemister stood in the line, separated from Young by one person. In her hand Young had a brown envelope with a cellophane face and Flemister “could see the original color of the check inside”. Young frequently turned her head to look out the front window of the store as if looking for somebody. When she reached the counter Young took the check out of the envelope and put it down on the counter. Agent Flemister recognized the check as a United States Treasury check. The clerk picked up the check and handed it back to Young saying “I can’t cash this” or “I can’t take this”. Young then stepped out of the line and Flemister joined her and placed her under arrest. At the time of the arrest Agent Flemister took from Young a photographic identification card in the name of Gertrude Jenkins and a Treasury check payable to Gertrude Jenkins.

While Young and Agent Flemister were in the liquor store Agents Adams and Resor, in their car parked close by, kept Pugh and the second man under observation. Based on their “past investigative experience” the agents believed that the two men were “in a lookout posture”. Specifically, they “were looking around and observing” and “appeared to be looking into the liquor store.” The second man was holding up a newspaper as if reading it, but was looking over the newspaper towards the liquor store. After some ten minutes had passed the agents heard on their car radio that Young had attempted to negotiate the check and they then got out of their car and identified themselves to Pugh and the second man as Secret Service Agents. Pugh and the other man immediately fled. Adams was able to apprehend Pugh but the other man escaped.

After she was arrested Young was taken to the agents’ car at the scene, where Agent Flemister advised her of her rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Young was taken to the Washington field office of the Secret Service where she was again advised of her rights. On both occasions she indicated that she understood. She agreed to answer questions but refused to sign a printed warning and “waiver of rights” form. However she freely answered questions and subsequently wrote out and signed a confession. At no time did she indicate that she was unwilling to answer questions or that she wanted to talk with a lawyer. Pugh was also advised of his rights and later made a written statement concerning his involvement in the case.

On this appeal the appellees contend that their arrests were unlawful, because made without probable cause; accordingly, they say the evidence seized from Young must be suppressed. They argue also that their post-arrest statements must be suppressed as “the fruit of the poisonous tree”.¹ We think their arguments must be rejected.

In his memorandum opinion the district judge concluded that the arresting officers acted on mere suspicion as distinguished from probable cause. In reaching this decision he dissected the information in the possession of the arresting officers, considering each item individually, and concluding that it did not generate more than a mere suspicion.² As we have said however all the facts and circumstances must be considered as a whole, and when so viewed we think they plainly amounted to probable cause. The actions of the defendants conformed to a pattern familiar to the officers, a modus operandi generally used by those seeking to cash stolen Treasury checks. Those activities began at 5 o’clock in the afternoon and continued without a break until the defendants were arrested at 6 o’clock. As the district judge correctly stated in his oral ruling, they constituted a “sequence of events” which justified a reasonable belief that the defendants were jointly engaged in a criminal enterprise directed to the cashing of a stolen check. The officers would have been naive indeed had they entertained any other belief. Accordingly we hold that there was probable cause for the arrest of both defendants. The motions to suppress should have been denied.

The judgment of the District Court is

Reversed.

1 . The appellees do not contend that their statements were involuntary under the rule of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Having read the record we think the statements were clearly voluntary.

2 . The district judge in his opinion referred to United States v. Johnson, 483 F.2d 444 (5th Cir. 1973), and United States v. McMillian, 438 F.2d 980 (4th Cir. 1971). In each of these cases the court considered the sufficiency of evidence to support a conviction. However evidence may establish probable cause although it is not sufficient to establish guilt.