walked away. When the last stranger walked away the officers were able to observe in his hand several pills which appeared to be phenmetrazine. The officers had previously made nine arrests involving the same drug.
The defendant cited the above cases in support of her motion and the government has countered with two cases decided by the District of Columbia Court of Appeals. This Court has read those opinions and finds them anything but helpful to the government's argument. In Tobias v. United States 375 A.2d 491 (D.C.App.1977), two trained officers observed Tobias approach a stranger and remove from a shoulder bag a small object which he handed to the stranger in exchange for money. Tobias then walked away and approached a small group of men and took another small object from his shoulder bag. At that point one of the men, in a voice loud enough to be heard by the officer, warned Tobias that the police were behind him. He looked back at the officers, placed the object back into his shoulder bag and walked and then ran from the officers. The court in upholding the arrest and search noted that the officer had observed him exchange small items for currency, and that they saw him place one of those items back in his shoulder bag after he was warned that the police were nearby. Finally, the court took into consideration the fact that Tobias fled when the officers attempted to question him. In Vicks v. United States, 310 A.2d 247 (D.C.App.1973), the court remanded the case to the trial court to consider whether the evidence in question was voluntarily handed to the officers. While doing so, the court clearly indicated that absent voluntary action by the defendant, the evidence would have to be suppressed. In that case the officers observed Vicks and several other men, one of whom handed Vicks money. The officers approached the group whereupon Vicks began to walk away. When they stopped Vicks he handed a package of cigarettes in a white handkerchief to a friend. When asked what was in the package of cigarettes he stated he did not know. His friend was asked to hand the cigarette package over to the officers and she asked Vicks whether she should do so and he replied in the affirmative. The court noted that there was no "two-way exchange", that the drugs were not in "plain view" of the officers, and that therefore there existed no probable cause to arrest Vicks and search the handkerchief. Id. at 249.
In the view of this Court the facts in this case are distinguishable since in the above five cases, excepting Vicks, the officers either had a chance to observe several transactions of a suspicious nature in which they observed a two-way exchange, money for packages, or observed an exchange of money for a package which they could identify as being the type used in narcotics transactions, or observed the defendants as apparent users of narcotics from their actions or observed the defendants attempt to flee or exhibit nervous or furtive movements. Had any of those additional factors been involved in this case then the officers may well have had probable cause to make the arrest. Here the defendant and the two other persons involved in the incident did not exhibit furtive or nervous actions, did not appear to be "high" on drugs, and the officers were unable to observe what if anything had been transferred from the defendant in exchange for currency. Furthermore, the officers observed only one such incident before arresting the defendant and there is no evidence that they did so because they were afraid she was about to flee. When they approached her she did not attempt to flee to avoid arrest. Under the facts and circumstances of this case the Court concludes that the officers did not have probable cause to make the arrest and search incident thereto.
In view of the above, it is hereby
ORDERED that defendant's motion to suppress is granted, and it is further
ORDERED that the case is scheduled for a status hearing.
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