UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Edgerton, Senior Circuit Judge, and Washington and McGowan, Circuit Judges. Washington, Circuit Judge (concurring in the result). McGowan, Circuit Judge (dissenting).
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE EDGERTON
Appellant was convicted of robbing a Truxton Esso Service Station in the District of Columbia on February 26, 1963. A revolver which the prosecution obtained from Virginia police was admitted in evidence at the trial.
A few hours after the Truxton robbery Virginia police stopped a car in which appellant and two other men were riding, on suspicion that one or more of them had robbed a Heischman Service Station in Virginia. Immediate search produced two revolvers, but these were not put in evidence at the trial. The revolver that was put in evidence was found in the car after the police had taken the car and its occupants to the Heischman Service Station, some miles away, and renewed the search there.
The government does not contend that the police had probable cause, when they stopped the car, to believe that anyone in it had committed a felony. But the government contends that "momentary detention for the purpose of examining a driver's license and registration, pursuant to state law, is not an arrest." A Virginia statute purports to require the operator of any car to stop on a policeman's signal and, on request, show his registration card and driver's permit and identify himself by signing his name. Rios v. United States, 364 U.S. 253, 262, 80 S. Ct. 1431, 1437, 4 L. Ed. 2d 1688 (1960), implies that if the police approached a standing car "only for the purpose of routine interrogation, and . . . had no intent to detain the petitioner beyond the momentary requirements of such a mission", it would not be an arrest.
But no such question is involved here. The police stopped a moving car, and did so not for the purpose of "routine" interrogation but for the purpose of investigating a suspected connection between occupants of the car and a felony. This was an unlawful "arrest for investigation." Cf. Gatlin v. United States, 117 U.S.App.D.C. 123, 127-28, 326 F.2d 666, 670-71 (1963). In Henry v. United States, the prosecution conceded and the Supreme Court held that "the arrest took place when the federal agents stopped the car. . . . When the officers interrupted the two men and restricted their liberty of movement, the arrest, for purposes of this case, was complete." 361 U.S. 98, 103, 80 S. Ct. 168, 171, 4 L. Ed. 2d 134 (1959). It is "sufficient if the party arrested is within the power of the officer and submits to arrest . . .." Coleman v. United States, 111 U.S.App.D.C. 210, 218, 295 F.2d 555, 563 (1961) (In banc. Emphasis in original.).
The government mistakenly relies on 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). There this court held a pedestrian's behavior when "confronted" by the police, together with what the police already knew, "justified his apprehension", i.e. gave probable cause for his arrest. The court thought the man's "apprehension", his restraint, did not occur until the police had probable cause to arrest him. *fn1
Since the arrest which led to the search and the government's possession of Bowling's revolver was made without either probable cause or a warrant, the search was illegal. Therefore the revolver should not have been admitted in evidence.
It should not have been admitted in evidence for an additional and independent reason. "Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest. Agnello v. United States (supra) 269 U.S.,
WASHINGTON, Circuit Judge (concurring in ...