UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
December 12, 1978
UNITED STATES OF AMERICA
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).
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 the jury conduct an experiment with the binoculars. *fn7 III
Appellant's last contentions center on the prosecutor's summation to the jury. Among other protests, *fn8 he complains that the prosecutor improperly referred to facts not in evidence, *fn9 and unfairly sought to arouse the passions of the jury by implying that the community was relying upon it to convict and thereby to help rid the streets of drug dealers. *fn10 As many times we have said, counsel are not free to go outside the evidence in arguments to the jury. *fn11 Nor is the prosecutor at liberty to substitute emotion for evidence by equating, directly or by innuendo, a verdict of guilty to a blow against the drug problem. *fn12
We need not decide, however, whether the challenged statements reach the level of error, *fn13 for we are satisfied that even if they do, reversal is not justified. We have frequently held similar missteps harmless in light of the relative strength of the case against the accused, *fn14 or because instructions given by the trial court sufficiently diluted any prejudice. *fn15 That, we think, was the net of the matter here.
The Government's case against appellant was strong indeed. Witnesses for the prosecution testified that during their surveillance, his activities indicated three drug transactions. With the aid of high-powered binoculars, police officers stated that they were able to ascertain the location of the drug cache, and even to make a tentative identification of the type of drug being sold. This information was accurate enough to guide them directly to the hidden drugs, and to other tangible proof of appellant's illicit trade nearly $400 in small bills seized from the trunk of the car. This is not a case in which the evidence is so paper-thin that even a slight error might raise doubt as to the integrity of the verdict. *fn16 Rather, the physical as well as the testimonial proof of the illegal operation was substantial and compelling.
Moreover, the trial judge's instructions to the jury provided at least some mitigation of any prejudice to the appellant which might have arisen from the prosecutor's closing remarks. The jurors were informed that final arguments of counsel were not evidence, and that only evidence admitted at the trial was to be considered in arriving at a verdict. *fn17 We do not suggest that judicial instructions are a cure-all for all errors, *fn18 but in the case at hand it seems clear that they were an ameliorative factor deserving of some consideration.
When we combine the limited force of appellant's challenge, the manifest strength of the case against him and the curative contribution of the judge's admonition to the jury, we feel able to say "with fair assurance" that the statements complained of were harmless and did not substantially sway the verdict. *fn19 This is not, then, an occasion on which reversal would be appropriate, and the judgment appealed from is accordingly
* Entered an appearance as Student Counsel pursuant to Rule 20 of the General Rules of this Court.