Prettyman, Senior Circuit Judge, and Danaher and Leventhal, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
of America, Appellee 1967.CDC.89
Petitions for Rehearing En Banc in Nos. 20243 and 20245 Denied June 14, 1967. Petition for Rehearing before the Division in No. 20245 Denied June 14, 1967.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DANAHER
These appellants were charged as principals with housebreaking and grand larceny, and after a four-day trial the jury brought in a guilty verdict. We deem it unnecessary to detail specifically the numerous allegations of error. Our careful examination of the entire record has satisfied us that the convictions were just, based upon adequate evidence, and free of error involving substantial rights.
About 2 P.M. on December 8, 1965, a Chevrolet car owned by the appellant Norman ran through a stop sign about two blocks from 4605 North Capitol Street *fn1 in the District of Columbia. Two uniformed police officers in a marked police scout car drew up, practically alongside of the Norman car and sounded the police siren. Driving the Chevrolet was O'Bery. Also in the front seat were Norman in the center and Washington on the right. The three men turned and looked at the officers, but instead of bringing the Chevrolet to a halt, the driver accelerated its speed, traveling at times up to 70 miles per hour, with the police car in close pursuit.
After covering approximately 7 city blocks, the Chevrolet turned abruptly at a driveway, failed to negotiate the corner and collided with a tree. O'Bery and Washington jumped out and fled only to be picked up and brought back to the car within some five minutes. The pursuing officers apprehended Norman as he appeared to be trying to get out of the practically demolished Chevrolet.
On the back seat of that car was a hi fi set. In the trunk but with the trunk door raised was a television set. Also plainly visible in the back seat of the car were hi fi records some of which had fallen to the ground behind the Chevrolet. Utilizing the name and address found on the envelope containing a record which was on the ground, the officers communicated with Johnson who verified the fact that his house had unlawfully been entered and who identified the furniture and the records as his property.
The facts thus summarized all but exactly parallel those noted in Hiet v. United States, 125 U.S.App.D.C. 338, 372 F.2d 911 (1967). There was no unreasonable search, if indeed, we were to assume that police perceiving the articles in plain sight can be said to have made a search. And by any standard, there was nothing unreasonable about the police conduct. *fn2
And certainly there can be no question as to probable cause for the arrest of the appellants, for as we made clear in Dixon v. United States, 111 U.S. App.D.C. 305, 296 F.2d 427 (1961), the totality of circumstances gave rise to the steps taken by the officers. That their prudent actions were correct and lawful *fn3 appear to us to be beyond peradventure.
O'Bery did not testify but his counsel asked the jury to accept the testimony of appellant Norman that the latter did not know O'Bery and Washington. Rather, Norman said, although he was in the car at all pertinent times, he had rented out use of his car to two men known to him only as John and Pete -- not O'Bery and Washington; he had no agreement as to what amount or when he was to be paid by the strangers whom he had occasionally seen in a restaurant; he had assisted "John" and "Pete" in loading the furniture into the car, he had held the car door open for them as the two men placed the stereo onto the back seat; he had no knowledge as to where the furniture was to be taken; it had been picked up while he remained with the car near an alley adjacent to the Johnson residence; when with the car in flight he heard the police siren, he suspected that there might be "something wrong" about the furniture in his car. Asked what he then did, he said he reached to turn off the ignition in the speeding vehicle only to be prevented from doing so when one of the co-riders held his hand. After the collision, John and Pete ran away; he never saw them again and made no search for them as he heard they had left town.
That the jury might well have thought Norman's testimony to be inherently incredible is apparent from our reading of the transcript, and it certainly afforded scant comfort to O'Bery, the driver of the car. The officers identified both O'Bery and Washington as Norman's companions throughout the period of their observation of events.
Washington did not take the stand; rather, he chose to argue through counsel that this must have been a case of mistaken ...