Mervin Green v. United States

DANAHER, Circuit Judge.

Appellant was convicted on two counts involving violations of the narcotics laws. He has appealed, urging as error the District Court’s denial of his motion for the suppression of 229 capsules containing heroin seized from his person as an incident to his arrest. The whole case turns on the circumstances under which the officers acted.

On August 26, 1957, about 11:15 A.M., two detectives in plain clothes assigned to the narcotics squad of the Metropolitan Police Department were engaged in the investigation of narcotic activities. Slowly cruising in an unmarked car in the vicinity of North Capitol and R Streets, N. W. in the District of Columbia, they overtook and drove abreast of two men, walking ahead of them on R Street. They thereupon immediately identified one as John Arthur “Jap” Palmer, a known narcotic addict, but did not know the other, the appellant here. The officers stopped the car, addressed Palmer by name, and called the two men over to them.

The courts in various opinions have said that officers in the course of an investigation may ask questions before making an arrest. The narcotics officers were entitled to ask “Jap” Palmer, the known addict, if he were still using narcotics, and then make an effort to induce him to inform them as to his source of supply. He could have declined to talk. He could have refused to halt. The officers certainly would have had no right whatever, then and there without more, either to seize him or to search him. Of course, this was true as to Green, as well, as of that moment.

Palmer heeded their call and started toward the car. Green, however, “took off,” as one witness put it, and ran into a nearby yard. He passed the occupant of a house as she sat on a bench near her front steps. He ran up the steps, across the landing at the top, and tried to open her front door. She called out “Fellow, what do you want? I live in there,” but received no answer. Officer Brewer started after the appellant.¹ The woman then said “You all take him in the street.”

Although appellant, in the absence of the jury, testified in support of his motion,² the District Judge was entitled to credit the officers’ testimony where it conflicted with that offered by the appellant. Moreover, his account of what happened on the steps at the time of his arrest omitted reference to his attempt to enter the house. He made no mention of the householder’s warning to him. He was placed under arrest for attempted unlawful entry. Thereafter one of the officers searched the appellant and found an envelope containing the capsules of narcotics. He would have us say the trial judge should have suppressed this evidence because the attempted unlawful entry was triggered by the police approach. But the officers testified that “Jap” responded when hailed while the appellant “just ran east and tried to get into premises 53 R St.” As he ran, the officers followed. Had he remained standing where he was first accosted, or had he merely refused to talk, the police would have lacked probable cause either to arrest or to search him. The officers would have had no justifiable reason to lay hands upon him. He argues from such considerations that his taking to flight was spurred by police action. In the circumstances we cannot say his flight was shown to be the result of personally menacing police action. Since he ran, his precipitate action constituted one more circumstance to be taken into account by the officer who followed him.

“It is to-day universally conceded that the fact of an accused’s flight, escape from custody, resistance to arrest * * * and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself.” 2 Wigmore, Evidence § 276 (3d ed. 1940).

Of course flight creates no legal presumption of guilt but it is “competent evidence against [an accused] as having a tendency to establish his guilt.”³ “[I]t has at no time been doubted that flight is a circumstance from which a court or an officer may infer what everyone in daily life inevitably would infer.”⁴ (Emphasis added.) The appellant, then, made his own decision, not because of threatened assault, for he proved none. His effort to escape impelled his attempted illegal course in the face of the householder’s protest, and before the very eyes of the officers. The arrest was proper.⁵

The District Judge, after hearing and seeing all witnesses,⁶ concluded that probable cause for the arrest existed, taking into account as narrated the combination of circumstances, with the householder protesting Green’s invasion of her property, his attempt to open her front door and her demand that “You all take him in the street.” He ruled that the search and recovery of 229 capsules of heroin were lawfully incidental to a lawful arrest. We agree.⁷

Affirmed.

1 . The householder testified that her door had been locked, and that appellant had taken hold of the knob of her door “just like he was going to walk in his own place.”

2 . “[T]his automobile rolled up and the two men shouted in the car. They did say, ‘Hey,’ and at the same time they jumped out of the car and started running toward me. So, I backed up on the lady’s step and I did go up on the lady’s step trying to get out of the way of them. So when they came up there, he told me to come off the step and I asked him what did he want. So, he said, ‘Gome on off the step.’

“And by this time he showed me a badge and grabbed me by my arm and took me back to the ear.”

We might assume Green concluded the plain-clothesmen were about to rob him of several hundred dollars worth of narcotics and therefore ran. It equally may be inferred that he immediately suspected the two men were indeed officers, and he ran to seek a place to discard the narcotics. One officer testified that as Green mounted the steps, he glimpsed a brown envelope which Green partially pulled from his right trousers pocket but as rapidly replaced.

3 . Allen v. United States, 1896, 164 U.S. 492, 499, 17 S.Ct. 154, 157, 41 L.Ed. 528.

4 . L. Hand, C. J., in United States v. Heitner, 2 Cir., 1945, 149 F.2d 105, 107; cf. Vick v. United States, 5 Cir., 1954, 216 F.2d 228, 232.

5 . We must treat the situation as it confronted the trained narcotics officer at the time, and view his problem “through his eyes.” Bell v. United States, 1958, 102 U.S.App.D.C. 383, 388, 254 F.2d 82, 87, rehearing denied, 1958.

6 . The appellant at the hearing on his motion denied possession of the 229 capsules which had been removed from his trousers pocket. He admitted two prior felony convictions.

7 . Ellison v. United States, .1954, 93 U.S. App.D.C. 1, 4, 206 F.2d 476, 479; cf. Lee v. United States, 1954, 95 U.S.App.D.C. 156, 221 F.2d 29.