and stayed for a very short time -- not more than two minutes -- before leaving. He then walked over to 648 Lamont Street. He stayed there approximately five minutes and then got into his car and drove away. The police followed and, at the first stop light, asked him to pull over. He did so. They placed him under arrest, searched him, and found the prohibited drugs.
Defendant testified at the trial that the reason why he entered Bannisters' Delicatessen was to purchase cigarettes. However, no cigarettes were found on him ten minutes later when he was arrested and searched. The possibility that it was sheer coincidence that defendant fell into the pattern known by the police to be necessary in order to enter Davis' house, in view of the other evidence in the case, is almost impossible.
Defendant's counsel has argued that he was not arrested because of the belief that he had committed any crime, but solely to search him. The testimony on which defendant's argument is based is as follow:
Cross-examination of Agent Thompson.
'Q. Now, Agent Thompson, I ask you was it your purpose at the time you seized the automobile to arrest the defendant or to seize the automobile? A. My purpose was both, to seize the automobile and to arrest the defendant.
'Q. Now, what were you going to arrest the defendant for? A. I was going to arrest the defendant to find what he had been doing at 648 Lamont Street. Talk to him.
'Q. In other words, you arrested the defendant in order to search him, did you not? A. I did.
'Q. Now, could you say, Agent Thompson, that you would have arrested anybody who was driving that car that might at that time? A. No, sir, not anybody.
'Q. Well, was there a certain class of persons about whom you testified that you would have arrested if they had been operating that car that night? A. Only if they had done certain things which the defendant had done.
'Q. Anybody who had gone to Bannister's Delicatessen and who had gone in 648 Lamont Street and who was operating that car would have been arrested? A. Not anybody.
'Q. Well, if it had been McAbee, would you have arrested him? A. Yes, sir.
'Q. If it had been Streamy, would you have arrested him? A. Yes, sir.
'Q. If it had been Sammy, would you have arrested him? A. Sammy lives there. It would be a question.
'Q. Then, Agent Thompson, it is not the fact that the information you had previously with regards to this defendant which caused you to arrest him that night, is it?'
An objection was raised to this question and after some discussion the question was permitted and restated to the witness by the Court.
'The Court: He wants to know whether it is a fact that you made the arrest of this defendant based upon the information you had previously received.
'The Witness: Yes, sir.
'The Court: Plus, I assume, what you saw take place that night?
'The Witness: Yes, sir.'
These last answers rather clearly show that the arrest was based upon the observations and information gained as a result of some eight months of investigation and the events of that evening. Agent Thompson's statement that defendant was arrested in order to search him must be taken in context. It was undoubtedly true that if the search had uncovered nothing then the defendant would have been released. In this sense the arrest was in order to search. But the Court feels that what the officer meant was that the arrest was for a narcotics violation and preliminary to a search to determine with certainty the truth or falsity of the violation.
Probable cause is not a matter of verbal legerdemain or the careful coaching of police officers beforehand. The facts of probable cause are either present or not and verbal response does not change this at all.
The Court of Appeals for the District of Columbia had a similar situation in Bell v. United States.
Again there was an automobile involved and again artless testimony by the arresting officer. The Court said
'At the trial in the case at bar, in answer to the question, 'And for what offense were they being arrested at that time?', the officer testified, 'Investigation of housebreaking.' Of course there is no such crime as 'Investigation'. But this description given by the officer does not go to the question of probable cause. The question is not what name the officer attached to his action; it is whether, in the situation in which he found himself, he had reasonable ground to believe a felony had been committed and that the men in the car had committed it. The situation was a sudden unanticipated development. Suppose the officer had arrested these men upon belief that they had committed a housebreaking, but the legal lights in charge of preparing indictments had decided the offense was robbery; or suppose later information had disclosed a murder. Would the arrest have been invalid? Of course not. So to hold would make a mockery of the Supreme Court's admonition to us that probable cause is a matter of practicalities, not of technicalities.'
This language is particularly applicable here.
After a careful review of the evidence and the testimony of the case, the Court is of the opinion that the arresting officers had reasonable grounds upon which to make an arrest. Therefore the search incident to that arrest was valid.
The motion is denied.