Before MADDEN, Judge, United States Court of Claims,* and BAZELON and BURGER, Circuit Judges.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT.
Petition for Rehearing In Banc Denied Sept. 24, 1958.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BURGER
Appellant was convicted of housebreaking, larceny and unlawful possession of dangerous drugs.*fn1 Unidentified informants described and identified appellant to police and told where he could be found selling the stolen drugs. Upon going to the place fixed by the "tip", a police plainclothesman found appellant going from place to place engaging persons in whispered conversation. Shortly thereafter appellant was seen to carry a small brown paper bag through the restaurant, and set it down while he put on his coat. This bag had been observed by the officer near appellant's feet as he sat at one table. He was arrested before he picked the bag up again, and when directed to take the bag he denied ownership, possession or any knowledge of the bag or its contents. The bag's contents were identified by a doctor as drugs stolen from his office. Before and on trial appellant claimed illegal search and seizure and moved to suppress and urges that point here. He also urges that there was no proof that the articles under dispute were in fact those stolen or that he had ever had possession of them.
The threshold question is whether there was probable cause to arrest appellant in these circumstances; if there was, his arrest and any seizure incident thereto were lawful. Cf. Smith v. United States, 103 U.S.App.D.C. 48, 254 F.2d 751. In determining whether there was probable cause for the arrest, we must view the situation as it appeared to "the eyes of a reasonable, cautious and prudent peace officer under the circumstances of the moment." Bell v. United States, 1958, 102 U.S.App.D.C. 383, 254 F.2d 82, 86. Taking into account the detailed description of appellant secured through the advance "tip" along with the detective's observations of appellant's appearance and conduct at the restaurant, *fn2 we hold that there was probable cause for the officer to make the arrest. We cannot view the advance "tip" information and the observations of the police detective in two separate, logictight compartments. Neither one standing alone would constitute probable cause, but together they composed a picture meaningful to a trained, experienced observer.
The property which the appellant claims was illegally seized from him was taken incident to this lawful arrest. *fn3 Hence there are only two issues remaining with respect to this property: (a) whether it was in fact the stolen property and (b) whether it was in fact in the possession of appellant. The jury resolved both these issues adversely to appellant, and its finding is conclusive here.
Urging that there was insufficient evidence to support the first of these two factual conclusions, appellant also claims that a three-week interval between a theft and his arrest in possession of the stolen goods is too long to support the inference that the possession is guilty possession. *fn4 We agree with Boehm v. United States *fn5 that while the passage of time weakens the inference of guilt, the question whether or not to make the inference was for the jury.
BAZELON, Circuit Judge (dissenting).
I would reverse the judgment and remand the case for a new trial because appellant's conviction was based on evidence obtained in violation of his constitutional right to be free from unreasonable search and seizure. A somewhat fuller statement of the facts is necessary to clarify the issues.
A police officer had received information from an undisclosed informer that two persons responsible for a housebreaking would be in a certain restaurant at a certain time "peddling" the loot. The informer described the persons and said that one of them would have a paper bag containing the stolen property. Some of the information reached the officer by telephone. How the rest of it was supplied - whether by the informer in person, through an intermediary, or in writing - the record does not show.
At the time specified by the informer, the officer went to the restaurant. When he entered he saw the appellant, who answered the description of one of the men referred to by the informer, sitting at the bar in conversation with two other men. After a while the two men left and appellant moved down to the end of the bar, sat down next to another man and conversed with him. The various conversations were in low tones and were not overheard by the officer. As appellant was rising to leave, the officer saw him lean down and take a paper bag from the floor at his feet and walk with it to the coat-rack. Then he saw appellant lay the bag on a radiator so he could put on his coat. Thereupon the officer arrested appellant and took possession of the bag. Under examination by the appellant, the officer testified:
"Q. When you arrested me did I have the bag on my person? A. Within your control.
"Q. On my person? Did I have it in my hand or anywhere on my body? A. I think when I first walked up to you ...