William Von Sleichter v. United States

LEVENTHAL, Circuit Judge:

This case comes before us following allowance of appeal from the District of Columbia Court of Appeals (DCCA). See 267 A.2d 336 (1970). Appellant appeals his conviction for possession of *1246heroin. The facts are these: one evening, appellant was standing in the shadows of a building in Georgetown in the company of two other young men. A police officer observed the three from across the street and noticed that their hands were “passing and changing” among them. Since this area is considered by the police to be “high in narcotic traffic,” the officer decided to investigate. Crossing the street, he approached the three men. Appellant began to walk rapidly away. The officer called out to him, “I would like to talk with you a minute.” Appellant then shouted “fuck you” and ran. There were pedestrians within earshot at the time. The officer gave chase and apprehended appellant one and one-half blocks away, with the assistance of pedestrians, when appellant attempted to crawl underneath a Volkswagen parked at curbside. The officer informed appellant that he was under arrest for disorderly conduct and ordered him to place his hands in view. Appellant ignored this command. After appellant ignored a second such command, the officer told him to “bring his hands out” from under his stomach, or the officer would help him bring them out. Appellant then obeyed. On the ground where he had been lying was a bag of heroin, in plain view.

There was no opinion for the DCCA, since Judge Gallagher dissented, and the-votes of Judges Nebeker and Kern for affirmance were based on distinctly different legal premises.1

While disorderly conduct is a crime without physical evidence or fruits,2 a policeman apprehending the possibility of danger may conduct a search incident to a lawful arrest for disorderly conduct for the purpose of dis-

covering and removing weapons, and may command the person arrested to place his hands where they could be seen. When such a command was given to appellant, it constituted a search of his hands, but a valid search. Once that lawful command was obeyed, the heroin was in plain view. See Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). The central question is whether the arrest was lawful. We hold that it was, and that the search for weapons, incident to a valid arrest, was likewise lawful.

Appellant maintains that the arrest which was the predicate for the search cannot be sustained as valid. While the four-letter expletive may at one time have warranted arrests, it has now, he says, become so commonplace that it has been drained of offensiveness — that time and contemporary usage have leached the word both of meaning and shock value. He relies on the precedents of Williams v. District of Columbia, 136 U.S.App.D.C. 56, 419 F.2d 638 (en banc 1969), and Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971).

This contention reads Williams too narrowly. The court interpreted the statute (22 D.C.Code § 1107) prohibiting, as disorderly conduct, the utterance on a street of “indecent or obscene words,” as requiring as an element of the offense either (a) that these words be spoken in circumstances which create a threat of violence, or (b) that the language “is, under ‘contemporary community standards,’ so grossly offensive to members of the public who actually overhear it as to amount to a nuisance.” 136 U.S.App.D.C. at 64, 419 F.2d at 646 (footnotes omitted). There is a state interest “in protecting the sensibilities of passers-by” *1247against shock, see Street v. New York, 394 U.S. 576, 591, 89 S.Ct. 1354, 1365, 22 L.Ed.2d 572 (1960), and this does not depend on a showing of any tendency to result in violence.3 Williams notes, with reference to the ALI’s Model Penal Code, that the statute is directed to a public annoyance, and is not applicable merely because a policeman’s peace and quiet are disturbed. This narrowing construction avoids the constitutional infirmity of facial invalidity, cf. Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972).4

Appellant’s words were in a context that is pertinent. We are not to be taken as suggesting that these words would suffice for an arrest if uttered, to take the hypothetical case put in Williams, by a “hapless stonemason” who accidentally stubs his toe, and whose spontaneous profanity is patently devoid of any possible offense. But appellant’s words were in response to an officer’s civil inquiry, a request for cooperation that may lawfully and reasonably be directed to citizens at large without any charge of crime. It is one thing to say that a citizen’s cooperation is a moral duty rather than a legal duty that can be compelled.5 It is quite another to contend that the Constitution provides an immunity from arrest for a person who chooses to manifest his unwillingness to cooperate with the shout of a four-letter expletive on a public street, within earshot of passers-by. His primary verbal target may have been the officer; but he cannot stake out a constitutional right to disregard shock on the passers-by.

We are not here deciding that appellant was guilty of disorderly conduct, or even that the policeman’s account necessarily establishes appellant’s guilt if unrefuted. The trial of these cases may come to balance the interests of free speech and good order. The ultimate balancing of these interests, often delicate and difficult, must take place in court rather than on the beat. The Williams rationale is sufficient to establish probable cause for the arrest of appellant for disorderly conduct.

Cohen v. California is distinguishable. It involved a written, rather than a shouted, sentiment. Justice Harlan took note of this when he said that people who might be offended could avoid distress by modestly “averting their eyes.” 403 U.S. 15 at 21, 91 S.Ct. 1780. Even as a written word it was part of a political statement concerning the draft, and the kind of language that may be held protected by the First Amendment in that context, with its paramount “redeeming social value,” may not be protected in another context where its coarsely offensive nature is unrelieved.

In upholding the search on the basis of a valid arrest for disorderly conduct, we have fully in mind that such an arrest is dependent on a showing by the Government of probable cause to *1248make the arrest. See Wrightson v. United States, 95 D.C. 390, 222 F.2d 556 (1955). Nor do we shrug off appellant’s contention that his shouted response is today a bland and obsolete expletive, debased by overuse to non-meaning, and without the potential of being coarsely offensive. But the requirement on the Government to support the validity of the arrest is rooted in practical common sense and reasonableness, as was aptly noted by Judge Wright, for the court, in Bailey v. United States, 128 U.S.App.D.C. 354, 357-358, 389 F.2d 305, 308-309 (1967) (omitting citations) :

Probable cause is a plastic concept whose existence depends on the facts and circumstances of the particular case. It has been said that “‘[t]he substance of all the definitions’ of probable cause ‘is a reasonable ground for a belief of guilt.’ ” Much less evidence than is required to establish guilt is necessary. The standard is that of “a reasonable, cautious and prudent peace officer” and must be judged in the light of his experience and training. The police must have enough information “to warrant a man of reasonable caution in the belief” that a crime has been committed and that the person arrested has committed it. A finding of probable cause depends on the “practical considerations o.f everyday life on which reasonable and prudent men, not legal technicians, act.”

The essence of the requirement of a showing of probable cause in case of arrest without a warrant is that it requires the police officer involved to go beyond intuitive suspicion, and bring forward “a substantial objective basis for believing that the person to be arrested has committed a crime.”6 What the officer brought forth in the case at bar was not mere intuition but objective factors that sufficed, we think, to show probable cause to believe that a misdemeanor had been committed in the officer’s presence, by a man now running away, hence to show the validity o,f the arrest.

As to the case at hand, the officer had been on foot patrol on this beat— carney block 108 (from Wisconsin Avenue to 30th Street, and from N to R Streets) —-for approximately three months when this incident took place in front of 3146% O Street, Northwest, at approximately 8:15 p. m. on October 3, 1969. The reason why the officer wanted to talk to appellant was, coneededly, only a suspicion — a suspicion of drug traffic. And the officer was aware, he testified, that the appellant was not required to answer him and was free to depart. (Transcript, p. 12). But appellant did not merely depart. He also shouted what the officer referred to as these “profane words,” when there were five or six citizens within hearing range (transcript, p. 12), and began to run.

In the DCCA, Judge Gallagher dissented on the ground that the officer “said he did not know whether any had even heard the obscenity.” [267 A.2d 342] With all respect, this is too technical an approach to a problem that all concede must be looked at in terms of reasonableness and practicalities. Of course the policeman did not take time to canvass the passers-by to learn whether they had in fact been offended. The appellant was running away. The officer had to act immediately or not at all. Nor was he required, on apprehending defendant some blocks away, to return to the original scene for an interview with the spectators. The fact that they had in the meanwhile gone about their business would not undercut the arrest. The officer’s own experience — which included service in this area — led him to consider these words as “profanities.” He was required to bring forward the reason ,for his arrest, but once he had done this, the arrest is not to be upset as unlawful unless there is a judicial determination that it was without probable cause.

*1249We reiterate that we are not deciding that defendant was guilty of disorderly conduct, a decision that would require a determination concerning community standards. The standard that governs arrest does not require proof enough to convict. The police officer’s probable cause for arrest may stand even though the prosecutor needs additional evidence for the preliminary hearing or the trial.

We are aware that conventions and fashions in language change. But we do not think that it can be doubted that these words have at least some minimal shock quality — we would recognize that well enough if they were shouted in a courtroom, or even a court corridor — that is sufficient to allow a criminal proceeding to be begun. And that is what is involved in the validity of an arrest. Indeed, there is implicit recognition of such shock value in another of appellant’s arguments — that cursing is a useful safety-valve for pent-up hostility; that there is a cathartic charge in using words with a shock value, which justifies the use of such language in the service of a broader public interest. Whatever therapeutic claims may be made for this safety-valve in the context of language spoken solely to a policeman, or in private, we do not see it as establishing a license to shout shocking and offensive expressions on the public streets, without regard to public annoyance.

Anything is possible; it is possible that this policeman was an old-fashioned fuddy-duddy who was not aware that the shockers of yester-year are today’s common idiom on the residential streets of Georgetown. But as Bailey and many other cases7 reiterate — over and over *' again — the question is, not what would be held at a trial on the merits, but what it was reasonable for the policeman to do in the circumstances. We must give some credit to the policeman for ability to assess the ordinary impact of the sights and sounds he hears, at least for the purposes of an initial determination on his part to make an arrest, and subject to whatever might be brought out on cross-examination or rebuttal at a preliminary hearing or trial. We are not prepared to lay down a rule that there is such a constitutional privilege to shout four-letter words on a public street that a policeman who explains that he had made an arrest for the shouting of such language within hearing of citizens on the street must be held to have failed to show probable cause. We think the record before us does not permit us to vitiate the arrest for disorderly conduct.8 Affirmed.

. Judge Nebeker considered that the policeman’s order was sustainable under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), on the ground that the situation merited investigation, the policeman’s order was appropriate for his own protection and that it was irrelevant whether the policeman had already arrested his suspect or whether he had probable cause for such arrest. Judge Kern took the position that the drugs appeared as the result of a search that was valid because incident to a valid arrest for disorderly conduct. We affirm on the ground set forth in Judge Kern’s opinion.

. See United States v. Mills, 153 U.S.App. D.O. -, 472 F.2d 1231 (en banc 1972).

. “Coarse or indecent language is penalized . . . regardless of any actual or presumed tendency to evoke disorder among the hearers, since the interest we seek to protect is freedom from present nuisance rather than freedom from anticipated violence.” Model Penal Code § 250.1, Comment at 7 (Tent. Draft No. 13, 1961).

. Gooding considers the specificity required of a statute necessary to sustain a conviction for fighting words, because the language has a “direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.” It does not discuss in any way the separate problem of the use in public of words so grossly offensive as to amount to a nuisance. The Supreme Court held the state court decisions had not narrowed the construction of the overbroad statute. In this jurisdiction, Williams has provided that narrowing construction.

. As Judge Danaher noted, while an officer may ask questions, the person may decline to talk, see Green v. United States, 104 U.S.App.D.C. 23, 259 F.2d 180 (1958). While this fact, or even flight, is not ground for arrest, it may be taken into account along with other evidence in considering whether there is ground for a stop or probable cause for arrest. As already noted (supra, note 1) we do not determine in this case whether there was a basis for detention on a narcotics charge.

. American Law Institute Model Code of Pre-Arraignment (Tent.Draft No. 2, 1969) § 3.01.

. E. g., Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959) ; Lewis v. United States, 135 U.S.App.D.C. 187, 417 F.2d 755 (1969) ; Davis v. United States, 133 U.S.App.D.C. 172, 409 F.2d 453 (1969) ; United States v. Heit-ner, 149 F.2d 105 (2d Cir. 1945).

. We are certainly not precluded from sustaining an arrest on the ground set forth by the arresting officer, merely because the prosecutor — for reasons of his own, perhaps tactical — sought to uphold the search on a broader ground, that would not depend on the existence of a valid arrest.

We need not inquire as to the procedural problem that may be involved when an arrest made for one violation is defended on the basis of another. Here, the arrest was for disorderly conduct, and we hold that there was probable cause for disorderly conduct violation.

Neither Judge Gallagher dissenting in the DCOA, nor appellant before us — -who was spirited both in brief and oral argument in challenging the position taken by Judge Kern’s opinion — made any claim that Judge Kern’s opinion was objectionable as sustaining the validity of the arrest on a ground as to which appellant had counter-evidence that he had not fairly been given the opportunity to present.