United States v. Terry L. Embry

OPINION OF THE COURT

PER CURIAM.

This appeal requires us to determine whether the District Court erred in refusing to suppress certain evidence admitted at the appellant Embry’s trial. Our determination depends upon the lawfulness of the police pursuit of Embry, and Embry’s arrest and subsequent “search” after he fled from the presence of the police who were conducting a street frisk (of another person). We agree with the District Court that, under the stipulated facts, the evidence (heroin) was properly admitted at trial.

I

All of the facts on which Embry was convicted and which give rise to this appeal were stipulated by Embry, his counsel and the government.¹ The stipulation, in pertinent part, follows:

2. If called to testify, Inspector William A. Moore, Officer in Charge of the Number Two Precinct for the City of Pittsburgh Police Department, would testify:

(a) That on Wednesday, October 1, 1975, at approximately 8:30 A.M. he received a telephone call from a personal friend who was the principle (sic) of a local elementary school. That during the course of this telephone call he was advised that a large crowd was gathered in the area of Jerry’s Bar, Centre and Roberts Streets, Pittsburgh, Pennsylvania, and the school children were having difficulty getting to the elementary school. That pursuant to this telephone call he personally ordered police vehicles to disperse a crowd in the area of Jerry’s Bar, Centre and Roberts Streets, Pittsburgh, Pennsylvania. That this area is known to him, based on his experience as a police officer, to be a high crime area.

3. If called to testify, Sergeant Harry Miller, Pittsburgh Police Department, Pittsburgh, Pennsylvania, would testify that:

(a) On Wednesday, October 1, 1975, at approximately 8:30 A.M. he was on duty with Officer James Diskin. That while in a police vehicle, he and Officer Diskin responded to a police dispatch instructing them to disperse a crowd at Jerry’s Bar, Centre and Roberts Streets, Pittsburgh, Pennsylvania. That at approximately 8:40 A.M. he and Officer Diskin arrived at the locale and observed three males crossing Centre and two males remaining outside the Bar.

(b) That at approximately 8:45 A.M. he exited the vehicle to question one of the two male adults, who he believed to be George Brooks, a robbery suspect. That he grabbed the individual he believed to be Brooks and said loudly “Lets see what you have”. That he began to “pat down” of Brooks’ person. That immediately the other male began to run from the scene. The other male was later identified as the defendant Terry L. Embry.

(c) That he, assisted by Officer Diskin, immediately pursued the defendant Embry on foot. That he chased Embry to a vacant lot at the rear of 86 Arthur Street, a total distance of several city blocks. That as he chased Embry into the aforementioned vacant lot he observed Embry bring his right hand toward a jacket that he was wearing, and throw with his right hand what appeared to be a rolled shaped ball of aluminum foil to the ground. That he observed the defendant Embry after discarding the aforedescribed object fall to the ground in heavy weeds and attempt to hide from he and Officer Diskin and that he went to retrieve the package while Officer Diskin handcuffed the defendant and he retrieved the object he had observed the defendant Embry had thrown to the ground and discovered that it was a plastic bag containing a large number of silver foil packets of suspected heroin. That he and Officer Diskin at approximately 8:50 A.M. arrested the defendant Embry. That he retrieved the plastic bag containing the silver foil packets of heroin approximately four feet from where the defendant Embry was hiding and apprehended. That he observed no other individuals in the location of defendant Embry’s arrest and seizure of the heroin. That the weather was clear during the early morning of October 1, 1975.

(d) That he, assisted by Officer Diskin, searched the defendant Embry incident to the arrest and found on his person, $160.00 in United States Federal Reserve Notes, most of it gathered in $22.00 folds. That he maintained custody of the evidence and assisted by Officer Diskin transported Embry to the Number Two Pittsburgh Police Precinct.

(e) That he, while at the Number Two Police Station, processed the evidence, witnessed by Officer Diskin. That he determined that the plastic bag contained 92 approximately Vi inch by IV2 inches square packets of heroin, a brown speckled powder. That he then placed and sealed the plastic bag of the 92 “half spoonful” quantity of heroin inside a Pittsburgh Police envelope and. identified it according to normal police procedures. That he maintained the $160.00 as evidence according to usual police procedures. That he surrendered custody of the evidence to Officer Diskin for the purpose of transporting the evidence to the Pittsburgh and Allegheny County Crime Laboratory.

(f) That based on his experience as a police officer in the City of Pittsburgh and on October 1, 1975, the going street price for a packet or “half spoon” of heroin was twenty-two to twenty-seven dollars. That based on his experience as a police officer in the City of Pittsburgh and on October 1, 1975, the aforementioned 92 “half spoons” of heroin was packaged in the manner commonly utilized in the illegal street distribution of drugs.

Although Embry had been apprehended by the Pittsburgh (City) police and had initially been charged with a narcotics violation by the Commonwealth, that charge was dismissed and Embry was never prosecuted by the Commonwealth for other than the summary offense of traffic obstruction.² The dismissal of the Commonwealth charges occurred after Embry had been indicted on October 9,1975 by a federal grand jury for possessing “with intent to distribute approximately 27.051 grams of heroin in violation of § 841(a)(1) of Title 21, U.S. Code.” Thereafter, Embry moved before the District Court for the Western District of Pennsylvania to suppress “The items confiscated and set forth in the Criminal Complainti’³ (sic) (emphasis added), charging that those items had been confiscated without a valid search warrant, that they were not in possession of the defendant, and that they were seized pursuant to an illegal arrest.

After a hearing, the District Court Judge denied Embry’s motion to suppress the heroin which had been seized by the police. A memorandum opinion was filed. In that memorandum, the District Court properly held that the federal court was not bound by the Pennsylvania Supreme Court decision in Commonwealth of Pennsylvania v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973). The District Court also held that the heroin, having been discarded by Embry, was in “plain view” and was therefore subject to seizure by the police.

Embry, relying principally on Commonwealth v. Jeffries, supra, argues that “under all the circumstances known to the police officers at the time appellant began to flee from the scene, the police officers lacked sufficient justification, under prevailing constitutional standards, to pursue and undertake a search of appellant.” (Appellant’s Brief page 7).

Essentially Embry contends that the initial pursuit was unlawful and that, therefore, every action that followed (arrest, “search,” seizure of heroin) necessarily was also unlawful.⁴ We do not agree.

II

We believe that this is an appropriate case in which to note the Supreme Court’s observation:

. 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.

Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972).

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) the Supreme Court adopted an objective standard to determine the reasonableness of a stop and frisk. The Court stated:

. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger, (citations omitted). And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or “hunch,” but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.

Id. at 27, 88 S.Ct. at 1883.

Discussing terry in Adams v. Williams, supra, the Court said:

. 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.

407 U.S. at 146, 92 S.Ct. at 1923.

This Court, relying on Terry v. Ohio, supra and refering to Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1966), previously approved police pursuit where furtive actions and flight were involved. United States ex rel. Richardson v. Rundle, 461 F.2d 860 (3d Cir. 1972), cert. denied 410 U.S. 911, 93 S.Ct. 971, 35 L.Ed.2d 273 (1973). In Richardson, while on patrol in a high crime area, police observed four men running from the front of a drugstore near closing time. One of the four (Richardson) was pursued and apprehended. A holster and bullet were found when police conducted a pat down. Holding that the evidence obtained was admissible, this court noted that the area was a high crime district and that robberies often occurred at that hour. Comparing a search incident to an arrest with a Terry investigative stop, Judge Gibbons, writing for the court, said, “ . . . the significance of furtive actions and flight is equally applicable to both situations.” Id. at 864. The court concluded that there was ample reason for a Terry-type inquiry, “ . . . since there was reason to believe criminal activity was afoot. The criminal activity in question probably was robbery.” Id. at 863.

A similar rationale was recently expressed in Robinson v. United States, 355 A.2d 567 (D.C. Ct.App.1976). In Robinson, a police officer received a report of a man exposing himself. When the officer later saw an individual who generally fit the description of the suspect and who was in the area where the offense occurred, he pursued and forcibly stopped him. Affirming appellant’s conviction for unlawful possession of a gun, that court found that the pursuit and stop, although on less than probable cause, came within the parameters of Terry.

Embry, however, relies on Commonwealth of Pennsylvania v. Jeffries, supra. In Jeffries, police observed defendant walking along the street. When Jeffries saw the officers, he quickened his pace and was pursued. As he ran, Jeffries threw a cigarette package under an automobile. He was stopped and subsequently arrested when the package was retrieved and found to contain heroin. Reversing his conviction, the Pennsylvania Supreme Court found that the defendant’s quickened pace and flight “absent some other factor which would give rise to suspicion of criminal conduct” was not enough to justify a Terry stop. 454 Pa. at 325, 311 A.2d at 917 (Emphasis added).

Even if we were to assume, arguendo, that Jeffries correctly interprets federal constitutional standards, Jeffries is not this case. Embry did not simply run at the sight of police officers as did Jeffries; he ran only after the police officer questioned and began to frisk the individual standing next to him, thus supplying the “other factor” to which Jeffries refers. It is this additional factor which constitutes a significant difference between Jeffries and Embry. We conclude that the police response to Embry’s flight was justified. Adams v. Williams, supra; Terry v. Ohio, supra; United States ex rel. Richardson v. Rundle, supra; see Edwards v. United States, 364 A.2d 1209 (D.C. Ct.App.1976).

Ill

Having concluded that the pursuit of Embry by Officers Miller and Diskin was permissible, we turn to the next event which took place — Embry’s arrest.

It should be recalled that, after a foot chase of some several city blocks, Officer Miller observed Embry “bring his right hand toward a jacket that he was wearing, and throw with his right hand what appeared to be a rolled shaped ball of aluminum foil to the ground.” (Stipulation 3(c), p. 553 supra) At the suppression hearing Officer Miller testified without contradiction that, based on his experience as a police officer, he had acquired familiarity with the method of packaging narcotics and that the usual packaging was in “folded aluminum foil.⁵

The validity of an arrest is determined by considering “whether, at the moment the arrest was made, the officer had probable cause to make it.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225,13 L.Ed.2d 142 (1964). Here, Embry’s flight was triggered by the street frisk of another person standing in close proximity to him. While fleeing, Embry discarded an aluminum foil package which Officer Miller recognized as the kind of packaging commonly employed in the narcotics trade. While, without more, the initial flight of Embry might not have afforded sufficient probable cause to justify his apprehension, Embry’s action in discarding a package recognized as one in which narcotics are frequently transported, see United States v. Martin, 386 F.2d 213 (3d Cir. 1967), cert. denied 393 U.S. 862, 89 5. Ct. 142, 21 L.Ed.2d 130 (1968), more than satisfies the probable cause requirement for Embry’s arrest. We conclude that the arrest was valid.

IV

Having arrived at the conclusion that the pursuit of Embry was justified and that the arrest was valid, we are satisfied that the District Court did not err in refusing to suppress the evidence (heroin) retrieved by the two police officers.⁶

“One who abandons personal property may not contest the constitutionality of its subsequent acquisition by the police.” United States v. DeLaRosa, 450 F.2d 1057 (3d Cir. 1971), cert. denied 405 U.S. 957, 92 S.Ct. 1188, 31 L.Ed.2d 235 (1972). Whether we regard the controlling principle to be that of “abandonment” or “plain view,” Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968), as the District Court held, in either event the evidence was properly admitted and should not have been suppressed. The police conduct which induced Embry to rid himself of the aluminum foil package was not unconstitutional but rather good police work. We find no basis for excluding that evidence from Embry’s trial.

V

The judgment of the District Court will be affirmed.

1 . In addition, we have examined the uncontradicted testimony of Officer Miller who testified at the suppression hearing.

2 . Embry also contends that the District Court erred in permitting the federal prosecution to proceed after the state charge for the same offense had been dismissed. We have considered this claim and find it to be without merit.

3 . The Criminal Complaint accused Embry of possessing with intent to deliver 92 half spoons of heroin and with obstructing traffic.

4 . See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d.441 (1963).

5 . Transcript of Motion to Suppress Hearing at 13-14.

6 . We observe that although Embry’s argument before us is framed in terms of a search of his person, at no time did Embry move to suppress any of the items which were discovered on him, see stipulation 3(d). Thus, as the issue was framed, we are left only with the question as to whether the heroin thrown away by Embry was properly admitted in evidence.