Robert Williams v. Frederick E. Adams, Warden, Connecticut State Prison

436 F.2d 30

Opinions

DANAHER, Senior Circuit Judge:

Charged with carrying a pistol on his person without a permit, § 29-35 of the Connecticut General Statutes, with having narcotic drugs in his control, § 19-246, and having a weapon in a motor vehicle occupied by him, § 29-38, appellant was convicted in the Superior Court for Fairfield County, Connecticut, after a trial to the court. His conviction was affirmed on appeal. State v. Williams, 157 Conn. 114, 249 A.2d 245 (1968), cert. denied 395 U.S. 927, 89 S.Ct. 1783, 23 L.Ed.2d 2414 (1969). Thereupon he sought habeas corpus in the United States District Court for the District of Connecticut raising claims identical with those which had been considered theretofore in the state courts. His petition alleged that the evidence used against him in his state court trial was the product of an illegal search and seizure. Additionally he claimed he had been denied a speedy trial. District Judge Clarie denied relief, and appellant now has turned to us. We affirm.

I.

After a hearing, Judge Clarie found to have been substantiated the facts set forth in the Superior Court record and relied upon by the Supreme Court of Connecticut. Compendiously restated, we may note the following as here pertinent:

“At 2:15 on a Sunday morning, a sergeant of the Bridgeport police department was patrolling alone in a section of Bridgeport noted for its high incidence of crimes of various kinds. There he met a person known to him and considered by him to be trustworthy and reliable who pointed to an automobile parked on the other side of the street and told him that a person seated in the vehicle was armed with a pistol at his waist and had narcotics in his possession. The defendant was the occupant of this automobile and was seated on the passenger’s side of the front seat. The sergeant walked across the street, tapped on the window of the automobile and told the defendant to open the door. The defendant rolled down the window of the door, and the sergeant immediately reached directly to the defendant’s waistband and removed a fully loaded, .32-caliber revolver from the waistband of the defendant’s trousers. He thereupon arrested the defendant, and thereafter a search was made of the defendant and the automobile. The search disclosed * * ¡ * a machete under the front seat, tWenty-one cellophane packets containing a white substance in the defendant’s wallet and six similar packets in a jar in the defendant’s right-hand coat pocket. Later tests of ten of the cellophane packets established that they contained heroin.” State v. Williams, supra, 157 Conn. at 116, 117, 249 A.2d at 246.

The Supreme Court of Connecticut decided that under the circumstances shown, the conduct of the officer was justifiable under the applicable Connecticut statutes.¹ Thus the arrest which followed was fully sustainable quite aside from any authority given the officer by § 6-49; his action was reasonable for he had not conducted a general exploratory search, he had merely grabbed the loaded revolver from the place where his informant had said it would be. In reliance upon Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Court found that the course taken by the officer was far less extensive than that found reasonable in Terry.

II.

That the findings and conclusions of the Connecticut courts were not insulated from examination by Judge Clarie is obvious. Ker v. California, 374 U.S. 23, 34, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). Granting that the law of the state where the arrest without warrant took place determines its validity, United States v. Di Re, 332 U.S. 581, 589, 68 S.Ct. 222, 92 L.Ed. 210; United States v. Viale, 312 F.2d 595, 599 (2 Cir.1963), we take account of the federal constitutional standard in appraising the issue here. Williams was arrested for illegal possession of a revolver. If that arrest were lawful, evidence secured as an incident thereto might properly be received. Were the facts and circumstances within the knowledge of the officer and of which he had reasonably trustworthy information sufficient to warrant a man of reasonable caution in the belief that an offense was being committed? The answer to that question determines the present issue. Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); United States v. Traceski, 271 F.Supp. 883, 885 (D.Conn.1967); cf. United States v. Rosse, 418 F.2d 38, 39, n. 2 (2 Cir.1969), cert. denied, 397 U.S. 998, 90 S.Ct. 1143, 25 L.Ed.2d 408 (1970).

Inevitably, issues such as ours must be resolved upon the particular facts which vary from case to case. See, e.g., the discussion by Circuit Judge (now Justice) Blackmun in Rodgers v. United States, 362 F.2d 358, 362 (8 Cir. 1966), followed in Kayser v. United States, 394 F.2d 601, 605 (8 Cir.), cert. denied, 393 U.S. 919, 89 S.Ct. 250, 21 L.Ed.2d 206 (1968); Cf. Smith v. United States, 123 U.S.App.D.C. 202, 358 F.2d 833, 835 (1966) (Opinion by Circuit Judge, now Chief Justice, Burger).

So it is that our appellant relies upon Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) even as he would discount the companion case involving Peters, and would reject the reasoning of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Court itself spelled out a distinction in Chimel v. California, 395 U.S. 752, 762, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Where Terry had held that the scope of the search must be strictly tied to and justified by the circumstances involving a protective search for weapons, in Sibron the policeman had not been motivated by or his action limited to the objective of protection. On the contrary, Chimel explained, the officer had put his hand into the suspect’s pocket with the purpose of finding narcotics which indeed were found.

In our case, the officer testified that he reached for the gun in concern for his own protection, and “I didn’t want him to use the pistol on me, sir.”

Chimel made clear that

“When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must; of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arres-tee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” 395 U.S. 752, 762-763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685.

So, we turn back, once again, to the circumstances under which the arrest occurred.

Here the officer received a complaint from an informant who was known to him, considered by the officer to be trustworthy and reliable, and one who in the past, as Judge Clarie found, had supplied valuable information regarding criminal activities. Cf. United States v. Gazard Colon, 419 F.2d 120, 122 (2 Cir. 1969). At once let it be noted additionally, that this was not the usual “informant” detailing aspects of some earlier action. He described current circumstances there and then constituting a felony under Connecticut law.

This was an eye-witness, invested with “built-in credibility.” McCreary v. Sigler, 406 F.2d 1264, 1269 (8 Cir.), cert. denied, 395 U.S. 984, 89 S.Ct. 2149, 23 L.Ed.2d 773 (1969); cf. United States v. Acarino, 408 F.2d 512, 514 (2 Cir.), cert. denied, 395 U.S. 961, 89 S.Ct. 2101, 23 L.Ed.2d 746 (1969). He pointed out to the officer that there was at that very time a car parked across the street; there was a person seated in that vehicle; that person was armed; that he had a pistol at his waist and had narcotics in his possession.

Since this was a Bridgeport police sergeant, it is not unreasonable to infer he was experienced. Patrolling alone in an area noted for its high incidence of crimes of various kinds, he received the complaint that a crime was then in progress. Guided by Connecticut law, he was bound to act on the speedy information then at hand. Supra, note 1, and compare Jackson v. United States, 408 F.2d 1165, 1169 (8 Cir.), cert. denied, 396 U.S. 862, 90 S.Ct. 135, 24 L.Ed.2d 114 (1969). He crossed the street, saw the appellant in the car, and could readily check personally on the facts made available to him. Then he told that person to open the car door. Instead, the latter rolled down the window. The gun was at the appellant’s waist just as the witness had described, and the officer seized a fully-loaded pistol. He thereupon arrested Williams.

That Williams, unlike Terry, was seated in a car is immaterial under the circumstances here. In determining whether the officer as a reasonably prudent man in the circumstances acted reasonably in the belief that his safety might be in danger, we can not fail to give due weight to the specific reasonable inferences which he was entitled to draw from the facts in light of his experience. Swift measures were required that the exact facts might be determined and that the threat of harm be neutralized. The protection of the police officer required no less.²

Consequent upon the arrest, immediate search disclosed that Williams had a machete at his feet under the seat of the car. The intrusion, in short, was “reasonably designed” to discover, not only the pistol, but “other hidden instruments for the assault of the police officer.” Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968).

We may properly conclude here with Chief Justice Warren that:

“* •* * We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him.” Terry v. Ohio, supra, at 23, 88 S.Ct. at 1881.

We agree with the Connecticut Supreme Court and with the District Judge that here the arrest of Williams was valid.³ The search incident to the arrest accordingly was lawful and the weapons and the narcotics were correctly received in evidence against Williams.

III.

Appellant contends that he had been denied a speedy trial. Following appellant’s arrest on October 30, 1966, there were various pre-trial motions after which the appellant was bound over from the lower court to the Superior Court. On March 20, 1967 appellant’s counsel, for the first time, made an oral motion for early trial. The case was at once assigned for trial on April 4, 1967, and following trial, the judgment appealed from was rendered on April 28, 1967. We find no merit in this contention.⁴

IV.

Appellant’s argument concerning nondisclosure of the “informant” must fall. He developed no compliance with criteria such as had been set forth in Roviaro v. United States, 353 U.S. 53, 61, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). There was no indication' of how the informant’s testimony could help establish this appellant’s innocence. Rugendorf v. United States, 376 U.S. 528, 535, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964). The Court has never “approached the formulation of a federal evidentiary rule of compulsory disclosure where the issue is the primary one of probable cause, and guilt or innocence is not at stake.” McCray v. Illinois, 386 U.S. 300, 311, 87 S.Ct. 1056, 1062, 18 L.Ed.2d 62 (1967). Surely there is no absolute rule in any event as to these situations, and under the circumstances of this case, no error has been made to appear.

Affirmed

*

1

. Title 6, § 49, Connecticut General Statutes Annotated, provides in pertinent part:

“ * * * [P]olice officers * * * in tlieir respective precincts, shall arrest, without previous complaint and warrant, any person for any offense in their jurisdiction, when such person is taken or apprehended in the act or on the speedy information of others, and members * * * of an organized local police department * * * shall arrest, without previous complaint and warrant, any person who such officer has reasonable grounds to believe has committed or is committing a felony. Any person so arrested shall be presented with reasonable promptness before proper authority.” (Emphasis added.)

The Connecticut courts have construed the statute to require that an officer “shall” arrest on the “speedy information of others,” and so as an Act passed primarily to guide officers in the performance of their duties. State v. Adinolfi, 157 Conn. 222, 226. 253 A.2d 34 (1968); Sims v. Smith, 115 Conn. 279, 161 A. 239 (1932); McKenna v. Whipple, 97 Conn. 695, 701, 118 A. 40 (1922); Price v. Tehan, 84 Conn. 164, 167, 79 A. 68 (1911); and see United States v. Tra-ceski, 271 F.Supp. 883, 885 (D.Conn. 1967).

Indeed, as bearing upon an officer’s reliance upon speedy information, § 53-168 provides punishment by fine or imprisonment or both for any person who knowingly makes to a police officer a false report or false complaint that a crime has been or is being committed.

2

. Mr. Justice Black has emphasized that the test in such situations, in last analysis, turns upon “reasonableness.” Preston v. United States, 376 U.S. 364, 367. 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). He is not alone in that view. Another noted jurist has observed:

It does not seem consistent with the objective of deterrence that the maximum penalty of exclusion should be enforced for an error of judgment by a policeman, necessarily formed on the spot and without a set of United States Reports in his hands, which is not apparent years later to several Justices of the Supreme Court. At least in cases of this sort, where, in contrast to confessions of dubious reliability, the evidence cannot impair any proper defense on the merits, the object of deterrence would be sufficiently achieved if the police were denied the fruit of activity intentionally or flagrantly illegal — where there was no reasonable cause to believe there was reasonable cause.

H. Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 California Law Review, 929, 952 (October, 1965).

3

. See, generally, United States v. Thompson, 420 F.2d 536. 540-541 (3 Cir. 1970); Klingler v. United States, 409 F.2d 299, 302-307 (8 Cir.), cert. denied, 396 U.S. 859, 90 S.Ct. 127, 24 L.Ed.2d 110 (1969); cf. Chambers v. Maroney, 399 U.S. 42, 51. 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) and United States v. Gorman, 355 F.2d 151, 154-155 (2 Cir. 1965).

4

. United States v. DeLeo, 422 F.2d 487, 493, 496 (1 Cir.), cert. denied. 397 U.S. 1037, 90 S.Ct. 1355, 25 L.Ed.2d 648 (1970); United States ex rel. Solomon v. Mancusi, 412 F.2d 88 (2 Cir.), cert. denied, 396 U.S. 936, 90 S.Ct. 269, 24 L.Ed.2d 236 (1969); United States v. Maxwell, 383 F.2d 437, 441 (2 Cir. 1967) and United States ex rel Von Cseh v. Fay, 313 F.2d 620, 623 (2 Cir. 1963).

The Court is indebted to Edward F. Hen-nessey, Esquire, of Hartford who without remuneration has so earnestly and diligently represented the appellant.