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UNITED STATES v. MCKETHAN

November 3, 1965

UNITED STATES of America, Plaintiff,
v.
Walter McKETHAN, Defendant



The opinion of the court was delivered by: YOUNGDAHL

 The defendant has moved under Federal Rule of Criminal Procedure 41(e) to suppress certain evidence - 1,352 milligrams of heroin and 9,620 milligrams of marihuana - which he alleges was illegally seized from his person.

 At about 8:30 a.m. on February 2, 1965, Detective Bush of the narcotics squad and six other police officers proceeded to 1924 8th Street, N.W., Washington, D.C., to execute a warrant to search those premises. Two officers went to the rear of the building and remained outside it. The others entered the building after announcing their authority and purpose; the validity of the manner in which this entry took place is not attacked in the motion.

 Upon entering the building, Detective Bush saw two men seated at a table in the dining room and another man, the defendant, sleeping in a chair in the corner of the room. Detective Bush approached the defendant, woke him, told him that he was a police officer and had a warrant to search the premises for narcotics, and asked him his name, which the defendant gave. He then "told him to stay there - to sit in the chair" - while the search was performed.

 Two of the officers went upstairs and shortly called to Detective Bush to join them. He left Detective Fogle in the room with the three men and went upstairs. The defendant asked Detective Fogle whether he was under arrest and was told that he was not, since the warrant authorized a search, not an arrest. The defendant asked whether he might go into the kitchen to get a drink of water, and Detective Fogle replied that in the light of what he had told him, he could see no objection to his going into the kitchen.

 When the defendant went into the kitchen he looked out the back door and apparently noticed the two officers who had gone to the rear of the building. He then closed the door, went to the sink, and turned on the water. A short time later Detective Bush returned to the first floor and went into the kitchen where he found the defendant standing near the sink with the water running. By the defendant's foot Detective Bush noticed a gelatin capsule which bore traces of a powder which, on the basis of his experience in the detection of violations of the narcotics laws, he concluded was heroin. On the basis of this judgment he informed the defendant that he was under arrest for violation of the Harrison Narcotics Act and conducted the search of his person, the fruits of which are sought to be suppressed on this motion.

 The defendant's contention that the evidence seized from his person must be suppressed is based on three alternative arguments, any one of which would be sufficient to justify suppression. He contends first that the search warrant was invalid and therefore the evidence involved here must be suppressed as fruit of the illegal search. Next he contends that even assuming the police were validly on the premises, there was never a time when Detective Bush had enough information to constitute probable cause for arrest and therefore the warrantless search of his person cannot be sustained as being incident to a lawful arrest. Finally he contends that, even if there might have been probable cause to arrest him in the kitchen, the arrest actually took place when he was told to stay in his chair after being awakened by Detective Bush and that at this time there certainly was no probable cause; since later events cannot be used to justify the arrest, all evidence seized is inadmissible.

 The Court is unconvinced by the defendant's first argument. There was probable cause for the issuance of the search warrant. The reliability of the informant had been verified by the timeworn procedure of searching him, finding him to be without money or drugs, supplying him with money, watching him enter the premises and leave it, and finally searching him to determine that the money had been spent and drugs obtained. In Irby v. United States, 114 U.S.App.D.C. 246, 314 F.2d 251 (1963), a case which approved the issuance of a search warrant even though this careful verification had not taken place, Judge Wright, in his dissent, conceded that the process of verification used here was a valid one. Id. at 251, 314 F.2d at 256.

 The Court also finds the defendant's second argument lacking in merit. An arrest without a warrant is justified in the District of Columbia if the arresting officer has probable cause to believe that a felony has been committed and probable cause to believe that the arrestee has committed the felony. Wrightson v. United States, 95 U.S.App.D.C. 390, 222 F.2d 556 (1955). Whether probable cause exists depends upon the facts of the particular case. In this case, the officers were on the premises under a warrant to search for narcotics and the defendant was found in the kitchen with water running and an empty capsule bearing powder traces lying at his feet. These circumstances suggested very strongly that the defendant was disposing of illegal drugs and therefore was violating and had violated the narcotics laws. Moreover, the arresting officer was an experienced member of the narcotics squad who had, among other things, performed field tests. Probable cause for arrest existed when this arresting officer knew all these facts. See Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959); Smith v. United States, 103 U.S.App.D.C. 48, 254 F.2d 751 (1958).

 The defendant's final contention is that the arrest took place before Detective Bush knew all these facts - that it took place when the defendant was instructed to stay in his chair during the search. At this time the defendant was not standing before a sink with the water running, nor was a capsule lying at his feet. Instead, he was merely on the premises.

 The law in the District of Columbia demonstrates this difficulty of definition clearly. In Kelley v. United States, 111 U.S.App.D.C. 396, 298 F.2d 310 (1961), the Court of Appeals for this circuit implicitly rejected the traditional definition of arrest - that it "is the taking of a person into custody in order that he may be forthcoming to answer for the commission of an offense." ALI Code of Criminal Procedure § 18 (1931). Instead, it held that an arrest occurs whenever a person "understands that he is in the power of the one arresting, and submits in consequence." Id. at 398, 298 F.2d at 312. Taken literally, this formulation of the test for determining when an arrest has taken place would seem to prohibit the police from ever detaining a person unless full probable cause for arrest could be shown. A simple amendment to the Kelley formulation might permit detention when criminal conduct is not involved, for example, in cases of traffic regulation. But even in the area of criminal conduct courts have in the past allowed detention of persons in vehicles and on foot when there was good reason for the detention, despite the lack of probable cause for arrest. See United States v. Bonanno, 180 F. Supp. 71 (S.D.N.Y.1960) (roadblock). In the District of Columbia, several cases justify questioning of suspects under circumstances where probable cause is lacking. Ellis v. United States, 105 U.S.App.D.C. 86, 264 F.2d 372, cert. denied 359 U.S. 998, 79 S. Ct. 1129, 3 L. Ed. 2d 986 (1959); Green v. United States, 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); Franklin v. United States, 204 A.2d 341 (D.C.App.1964); Fisher v. United States, 183 A.2d 553 (D.C.Mun.App.1962); Brooks v. United States, 159 A.2d 876 (D.C.Mun.App.1960). Yet it is obvious that when a police officer questions a person about his conduct, the person who answers the questions has sensed the power of the officer to detain him during the interrogation period and has submitted thereto. This Court must therefore determine not whether the police conduct in this case constituted an arrest according to the literal terms of some of our decisions, but rather whether it was reasonable conduct under the circumstances and in the light of what past decisions have held to be reasonable.

 The government would like to sustain the detention as being reasonable because under the circumstances of this case the officers reasonably feared that the premises which they had been commanded to search might be disturbed were the defendant's liberty to " roam around" not restricted. The defendant would argue that the circumstances of this case did not justify any detention at the time the officers first entered the house. In the alternative, he would contend that assuming, arguendo, some detention was justified, the detention here imposed was nevertheless unreasonable in the light of alternatives open to the officers. Finally he would argue that, although the police may have been detaining him for a limited purpose, their conduct unjustly led him to believe that he had been arrested and would eventually be searched. This belief, he would contend, prompted his activities in the kitchen which justified his arrest, and therefore the arrest and search were invalid.

 The broad issue raised by the government's asserted justification for the detention of the defendant is whether officers executing a search warrant may restrict the movement of persons found on the premises so as to preserve the premises for the search. I believe they may. In narcotics cases the danger of ...


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