Coleman v. United States

BAZELON, Chief Judge:

I concur in affirmance of these convictions, and in Part III of the majority opinion. Since my approach to the law of probable cause and impeachment of character witnesses differs from that of the majority, I am constrained to discuss these matters briefly.

I.

A police officer has probable cause to make an arrest “if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed” by the person to be arrested. Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959).1 The standard of probable cause is not altered by the fact that the person to be arrested is in a moving vehicle. Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960).2 In deciding whether or not there is probable cause for an arrest or search, a police officer may not act on subjective notions or generalized expertise: “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts,” provide probable cause. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968) (emphasis added).3 “The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in the light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard.” Id.4

*627On that basis, and contrary to Part I of the majority opinion, I do not believe the police had probable cause for arrest when they stopped the truck.5 Black men with moustaches are not uncommon in the District of Columbia, and I see neither reason nor purpose in subjecting every such man driving a common type of truck with a friend in the back to the indignities of an arrest, simply because he happened to be within several miles of a holdup.6 Compare Henry v. United States, supra. Nor can the majority opinion stand on its characterization of appellants’ conduct as “flight.” The Supreme Court has already made it clear that “flight” for probable cause purposes means something more than simply motion in a particular direction. See Brinegar v. United States, 338 U.S. 160, 166 n. 7, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).

II.

Nevertheless, I do not disagree with the majority’s conclusion that the police action disclosed by this record was not only proper, but commendable. For although I do not believe that the officers had probable cause to arrest appellants at the time they stopped the truck, I do believe that the officers rightly eonclud-ed that the circumstances “warranted further investigation.” Terry v. Ohio, supra, 392 U.S. at 22, 88 S.Ct. 1868. The officers, then, had at least the right to stop appellants long enough to ask to talk to them,7 and I do not think they were required to make this request through the window of a moving vehicle. Compare Rios v. United States, supra, 364 U.S. at 262, 80 S.Ct. 1431. Terry, under such circumstances, allows a search of an individual so far as is “necessary for the discovery of weapons which might be used to harm the officer or others nearby.”8 Since the danger from a concealed person (who may be carrying a weapon) is no less than the danger from a concealed weapon, it seems to me inescapable that the officers were entitled to open the rear of the truck to make sure that no potential attackers were hidden there.9 Once having done so, they saw three men sitting on mattresses and a torn sack of money. This gave them probable cause for the arrests.

My disagreement with the majority here is more than a semantic one. We should not discourage commendable police behavior, and we should not encourage improper behavior. The majority opinion could be read to do both. On *628the one hand, an officer faced with a similar situation in the future could reasonably conclude that he did not have probable cause for an arrest, and let the truck speed by. On the other hand, if the van after being stopped had proved to be full not of booty but of furniture, the majority’s holding that the police had probable cause for arrest when they stopped the truck10 could nevertheless justify a complete body search of the driver, as well as his forcible removal to the police station and detention at least until he could be brought before a magistrate.11 That such harassment may be unlikely is no reason we should suggest that it would be proper.

III.

My disagreement with Part II of the majority opinion is primarily a matter of approach. Michelson v. United States, 835 U.S. 469, 69 S.Ct. 213, 93 L. Ed. 168 (1948) holds only that trial judges have discretion to allow impeachment of character witnesses by questions regarding prior convictions of the defendant. See id. at 487-488, 69 S.Ct. 213 (Frankfurter, J., concurring).12 Our prior cases make it clear that the trial judge has discretion to exclude any such questions,13 and that the standards for the exercise of that discretion are similar to those set down in Luck v. United States 14 and its progeny.15 The majority opinion implies that trial courts have no such discretion; if this view were accepted by a trial judge, unless we could find that the defendant was not prejudiced we might be compelled to reverse.16 In the instant case, however, discretion was exercised and I find no abuse.

. Accord, e. g., Beck v. Ohio, 379 U.S. 89, 96-97, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964) ; Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) ; Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 69 L.Ed. 543, (1925).

. Accord, e. g., Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1948) ; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

. “This demand for specificity in the information upon which police action is predicated is the central teaching of this Court’s Fourth Amendment jurispru-deuce.” Id. n. 18. Although the majority opinion praises the trained eye of the policeman, it is unable to point to any “specific and articulable facts” upon which that special training operated.

. The Supreme Court has several times held that review of probable cause determinations is to be stricter when a search or arrest is without a warrant. United States v. Ventresca, 380 U.S. 102, 105-109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) ; Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed. 436 (1948). The rationale of this rule may indicate that an exception should be made when the circumstances make resort to a *627magistrate impossible, see Jones v. United States, 362 U.S. 257, 269-271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), but in sucli circumstances the standard is still at least as high as that used in testing the sufficiency of a warrant. See Chimel v. California, 395 U.S. 752, 761, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), quoting MacDonald v. United States, 335 U.S. 451, 455, 69 S.Ct. 191, 93 L.Ed. 153 (1948) ; Wong Sun v. United States, supra note 1, 371 U.S. at 479, 83 S.Ct. 407; Johnson v. United States, supra. See also cases cited supra note 2.

. Likewise, I do not believe that in the circumstances of this case the mere stopping of the truck constituted an arrest. See note 7 infra.

. Although the police had a description of some of the offenders’ clothing, there is no indication that they recognized any clothing before they stopped the truck.

. In Terry, the Court warned that “[w]e thus decide nothing today concerning the constitutional propriety of an investigative ‘seizure’ upon less than probable cause for the purposes of ‘detention’ and/or interrogation.” 392 U.S. at 19 n. 16, 88 S.Ct. at 1879. But even if Terry does not sanction the restriction of an individual’s movement in order to ask permission to ask further questions, it at least permits detention on loss than probable cause long enough to search for weapons. Either rationale would support stopping the truck in this case. See 392 U.S. at 27-28, 88 S.Ct. 1868.

. 392 U.S. at 26, 88 S.Ct. at 18S2.

. This does not mean that officers would be justified in searching, for example, the locked trunk of a car. But here, the officers knew that the back of the truck was occupied; equally important, they had reason to believe that if the driver was implicated in the robbery, three other men were probably nearby.

. Despite the majority’s reliance on police expertise, its conclusion is contrary to that of at least one of the arresting officers, who testified that "we became suspicious” only after the truck was stopped. Transcript, Motion to Suppress, at p. 23.

. See United States v. Di Re, 332 U.S. 581, 595, 68 S.Ct. 222, 92 L.Ed. 210 (1948) ; Bailey v. United States, 128 U.S.App.D.C. 354, 361, 389 F.2d 305, 312 (1967) (Leventhal, J.. concurring). The stigma of an arrest record is, unfortunately, not something easily erased.

. Of course, to the extent that Michelson relied on the efficacy of limiting instructions, see 335 U.S. at 485, 69 S.Ct. 213, it has been undercut by Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Appellants do not, however, challenge the constitutionality of the procedure.

. This conclusion is inescapable, since both Shimon v. United States, 122 U.S. App.D.C. 152, 352 F.2d 449 (1965), and Awkard v. United States, 122 U.S.App. D.C. 165, 352 F.2d 641 (1965), reversed for abuse of that discretion.

. 121 U.S.App.D.C. 151, 348 F.2d 763 (1965).

. See United States v. Coleman, 137 U.S. App.D.C. -, 420 F.2d 1313 (decided July 11, 1969) ; Weaver v. United States, 133 U.S.App.D.C. 66, 71-73, 408 F.2d 1269, 1274-1276 (1969). Of course, in exercising his discretion in the case of character testimony it is not inappropriate for a judge to consider the importance to the. defendant of the proposed testimony. See United States v. Wooden, 137 U.S.App.D.C. -, 420 F.2d 251, decided this day (per Robb, J.) ; Luck v. United States, supra note 14 at 157, 348 F.2d at 769.

. United States v. Coleman, supra note 15 and cases cited.