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12/12/78 United States of America v. Albert Lee Hawkins

December 12, 1978

UNITED STATES OF AMERICA

v.

ALBERT LEE HAWKINS, APPELLANT 1978.CDC.227 DATE DECIDED: DECEMBER 12, 1978



Before ROBINSON, MacKINNON and ROBB, Circuit Judges.

UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT

Rehearing Denied January 3, 1979. Certiorari Denied April 16, 1979.

Appeal from the United States District Court for the District of Columbia (D.C. Criminal No. 77-00208).

APPELLATE PANEL:

Opinion PER CURIAM.

PER CURIAM DECISION

See 441 U.S. 910, 99 S. Ct. 2005, 60 L. Ed. 2d 380.

Police officers using binoculars observed appellant Hawkins participating in a series of what appeared to be drug transactions. Maintaining their surveillance, they radioed details of his activities to their supervisor, who was stationed some blocks away. The supervisor later arrived on the scene and arrested appellant. He was indicted for narcotic violations, and tried by a jury and found guilty. *fn1 Now appealing, he cites three evidentiary rulings. We conclude that none warrants reversal. I

Initially, appellant challenges the denial of his motion to suppress $393 discovered by the officers in the trunk of his automobile immediately following his arrest. He argues that the officers lacked probable cause to believe that incriminating evidence would be found in the trunk and that, even assuming the existence of probable cause, a search warrant should first have been obtained. We disagree on both counts.

During most of the period that appellant was under observation, he was stationed alongside the car, which was parked on a public street. From that point he was seen engaging in activity reasonably indicating drug peddling. After one apparent sale, appellant carried currency obtained thereby to the trunk of the car, and when he moved away the bills were no longer in his hand. Upon his arrest, officers removed from his person $73 in bills, keys to the car, and a bag of what seemed to be marijuana, and retrieved narcotics cached by an adjacent log. These circumstances, and the inferences naturally arising from them, readily suggested that incriminating evidence would be found in the trunk. *fn2

We are similarly unpersuaded by the related argument that the officers were required to secure a warrant prior to conducting the trunk-search. To be sure, we have said that a warrantless search of an automobile parked on a public thoroughfare requires both probable cause justifying the intrusion and exigent circumstances justifying the absence of a warrant. *fn3 Here the conditions were exigent, for only a search of the trunk could more tangibly have vindicated the officers' belief that appellant had been peddling drugs. Since only by detaining the vehicle for some period *fn4 could a warrant have been procured beforehand, we take our instruction from the Supreme Court:

Arguably, because of the preference for a magistrate's judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the "lesser" intrusion is permissible until the magistrate authorizes the "greater." But which is the "greater" and which the "lesser" intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment. *fn5 II

Appellant further claims that his right to a fair trial was jeopardized when the District Court permitted the jury to experiment with the police binoculars in the jury room during its deliberations. The binoculars had been received in evidence, and the experiment served to gauge the validity of the Government's position that the officers were able to discern the details of the pre-arrest drug transactions from their observation post.

As a test of the strength of the binoculars, the exercise was permissible; it was only an evaluation of evidence properly before the jury. *fn6 Moreover, appellant is hardly in position to complain, for he too suggested that ...


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