Howard Donald S. Washington v. United States

DANAHER, Circuit Judge:

Convicted of violations of the narcotics laws, this appellant contends that the District Court erred in denying his motion to suppress the use in evidence against him of some 15 capsules containing heroin. He argues that when he discarded an envelope containing the heroin capsules, he acted in apprehension of an impending arrest' for which, at least up to that moment, the police lacked probable cause.

Before the District Court was evidence that on July 11, 1966 about 3:30 P.M., two police officers, specially trained and experienced in investigations of narcotics violators, were dressed in old clothes. While on investigative duty, they observed the appellant who was known to them as a narcotics addict mingling with and talking to yet other known narcotics users in an area much frequented by such people. While maintaining such surveillance, one of the officers saw the appellant receive money from and pass something to one of the group whereupon the officers approached.

The appellant commenced to walk away. The officers walked after him. He then began to hasten his steps and so did the officers. As he crossed the street at a run, he discarded an envelope from which a few capsules were then spilled onto the street. One officer picked up the capsules, identified them as of the type usually found in the possession of narcotics violators and called to the other officer “Stop him— I’ve got the stuff,” or words to that effect. The appellant was then placed under arrest, as the District Judge found.

In Dorsey v. United States1 it was contended that there had been an illegal search where narcotics had been seized by two narcotics squad officers who were engaged in a similar preventative patrolling mission. We observed:

“If policemen are to serve any purpose of detecting and preventing crime by being out on the streets at all, they must be able to take a closer look at challenging situations as they encounter them. All we hold here is that this was one of those situations, and that the police response to it was a justifiable one which did not project their law-enforcement responsibilities beyond permissible constitutional limits.”2

Earlier in Green v. United States,3 we remarked that officers in the course of an investigation may ask questions before making an arrest. Under the circumstances there disclosed, we concluded that the narcotics officers were entitled to ask a known addict if he were still using narcotics and, if so, to make an effort to induce him to inform them as to the sources of his supply. One of two men under observation responded to the police call but the other took flight. His precipitous action, we observed, consti*707tuted one more circumstance to be taken into account by the officer who followed him. It was then concluded that, all circumstances considered, the trained, experienced narcotics officers acted reasonably as they moved toward the appellant. We observed:

“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.”4

This appellant would have us say that he was unlawfully compelled to give evidence against himself when he discarded the contraband for he knew that he possessed the heroin and feared that it would be discovered if he were placed under arrest.5

There had been no arrest. There had been no search. Washington himself threw down the envelope containing the narcotics. After the evidence had thus come to light, the District Court assuredly was free to reach a conclusion of reasonableness respecting the conduct of the officers. The ensuing arrest was not unlawful.

We find no error.6

Affirmed.

. 125 U.S.App.D.C. 355, 372 F.2d 928 (1967).

. Id. at 358, 372 F.2d at 931.

. 104 U.S.App.D.C. 23, 259 F.2d 180 (1958), cert, denied, 359 U.S. 917, 79 S.Ct. 594, 3 L.Ed.2d 578 (1959).

. Id. at 24, 259 F.2d at 181.

. But in the circumstances shown the police certainly were privileged to question him if for no other reason than that he give a good account of himself. Freeman v. United States, 116 U.S.App.D.C. 213, 214, 322 F.2d 426, 427 (1963); cf. Brown v. United States, 125 U.S.App. D.C. 43, 46 n. 4, 365 F.2d 976, 979 n. 4 (1966); Lee v. United States, 95 U.S. App.D.C. 156, 221 F.2d 29 (1954).

. Cf. Jackson v. United States, 112 U.S. App.D.C. 191, 301 F.2d 515, cert. denied, 369 U.S. 859, 82 S.Ct. 947, 8 L.Ed.2d 17 (1962).