The opinion of the court was delivered by: NEWCOMER
NEWCOMER, District Judge.
This case is before us on defendant's Motion to Suppress Evidence. This is an interesting case in that both the arresting officer and the defendant testified as to the facts surrounding the arrest, and although there are material differences in their testimony, the requested suppression of the evidence seized at the scene of the arrest would not be in order on either version of the facts.
Certain facts were not disputed. At about 9:00 o'clock p.m., on May 24, 1971, the police radio broadcast a call to proceed to 58th and Chestnut Streets to investigate two white automobiles whose occupants were engaged in suspicious activity, possibly involving narcotics. A patrol car answered the call and pulled up behind the two autos. An Officer Robinson and his partner got out of their patrol car and approached the two parked vehicles from the rear. At the time of their arrival, the front vehicle had two persons in the front seat, two persons in the rear seat and one person standing next to the front passenger side window leaning into that window. On their approach two male occupants left the rear seat of the front automobile and together with the person who was previously leaning in the window started to walk away from the approaching officers. In the process of exiting the auto, one of the two dropped a gun. About this time another patrol car arrived on the scene and an Officer Davis got out and came toward the front door, curbside, of the front automobile. When the officers observed the weapon which had been dropped by one of the two occupants who had gotten out of the car, they arrested him and made the remaining occupants of the car get out so that all those involved could be searched for weapons. It is at this point that the versions of the story given by Officer Davis and the defendant Hill part company.
Defendant Hill's version of these facts is slightly different. He testified that when the officers drove up behind the two parked cars, a friend of his was leaning in the front window of the front car in which Mr. Hill was a passenger, holding the bag containing the counterfeit money. Upon seeing the approach of the officers the friend then abandoned the money in the gutter and started to walk away until he was ordered to halt by the officer. The officers then ordered everyone out of the cars and proceeded to search Mr. Hill. They went into his pockets and found the $900.00 in good U.S. currency which he had on his person, and then they gave it back to him. At that point, one of the officers noticed the brown paper bag in the gutter, picked it up and opened it. Finding it to contain counterfeit money, the officer then placed all the occupants of the car under arrest and proceeded to take back the $900.00 which he had originally found in Mr. Hill's pocket when searching for weapons.
The police were justified in approaching the car to investigate even without probable cause to believe a crime was being committed. No one is protected by the Constitution against the mere approach of police officers in a public place. This conduct was obviously reasonable, but the response of some of the persons in the front car was to attempt to flee. They must accept what subsequently flowed from this. The fumbled gun in this case furnished the police with the cause to arrest one person and justified a weapon search of all present. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). We cannot expect the police to run the risk that another in this group of persons obviously known to one another might also be armed. And, even if the police exceeded the scope of the weapon search in going in the defendant Hill's pocket, as he claims they did, the good currency they then found need not be excluded as evidence in the case.
Both the police version and Mr. Hill's version of the facts agree that the bag of counterfeit money had been voluntarily abandoned. This being so, when the police officer finally found the bag in the gutter next to the car, he could properly seize and examine it. Harris v. United States, 390 U.S. 234, 88 S. Ct. 992, 19 L. Ed. 2d 1067 (1968); Ker v. California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963). When it turned out to be counterfeit, the police had the right then to arrest Mr. Hill and his companions even if the police did not know which of them had abandoned the bag.
Let us examine the condition of the knowledge of the police officers on the scene at the time the bag of counterfeit money came to light, as it is this perspective which will determine if probable cause to arrest existed in fact.
Before arriving on the scene, the police received a call over their radio that indicated that someone had observed some activity which they thought suspicious and which possibly involved narcotics. When the police arrived on the scene they observed two cars parked one behind the other. The rear car was empty and the front car contained four occupants, the driver and a passenger in the front seat (which was Mr. Hill) and two passengers in the rear seat. In addition, a fifth person was leaning in the front passenger-side window. The persons involved were all adults. This activity all points toward some sort of transaction being carried out between the man leaning in the front passenger-side window, (who apparently was from the empty rear car) and at least some of those persons in the front car. The persons had all been there long enough for somebody to call the police, for the call to go out over the police radio, and for the officers to respond to the call. They appeared to be adults, and not adolescents using the automobile as a mobile clubhouse.
By this point, of course, all of the surrounding circumstances were very suggestive, and created grounds for reasonable suspicion. When the police approached the front car, three of the persons in question, the man leaning in the front window and the two occupants of the rear seat attempted to flee. This added one further suggestive circumstance not wholly dispositive, but tending to indicate some unlawful transaction. The fumbled gun provided probable cause to arrest one of the then former occupants of the rear seat, to perform a weapons search of all involved, and added still another indication that some transaction was taking place which was probably unlawful. At this juncture, however, we cannot say that the state of the officers' knowledge rose above mere suspicion. There was nothing which would indicate some specific form of illegal activity.
The discovery of the bag of counterfeit money in the gutter beside the front car provided what was missing. All the surrounding circumstances up to then indicated a transaction, some dealing or exchange between the man from the rear car and at least some of those from the front car. The discovery of the bag of counterfeit money next to the front car made it quite reasonable to conclude that some negotiation, exchange, transaction or dealing concerning that counterfeit money was taking place between the man on the outside, quite reasonably assumed to be from the rear car, and at least some of those on the inside. Such a transaction is of course a crime. Probable cause to believe that the man outside was partaking in the transaction is created by his position; obviously he had come from the rear car to the front car for a purpose, and the surrounding circumstances and the bag of counterfeit money clearly indicate that that purpose was some sort of transaction involving that counterfeit money. Any other conclusion would stretch the probability of coincidence to the limit, and must be held to establish probable cause to arrest. Second, it is important to note that he was leaning in Mr. Hill's window. Persons involved in transactions or exchanges would be expected to go to the window of the person with which they felt they were primarily dealing. The fact that the man from the rear car was leaning in Mr. Hill's window made it probable that he was dealing with Mr. Hill primarily, and established probable cause to arrest Mr. Hill.
We might stop here, as this is all that is really at issue in this case, but in the interests of completeness, the Court feels impelled to observe that, since the driver brought the car to the point of the apparent transaction, probable cause existed as to the driver. There might have been some problems as to the passengers in the rear seat, had they not attempted to flee, but this circumstance taken with the surrounding facts indicates enough guilty knowledge of the transaction to overcome any presumption that they were merely innocent passengers, and in the Court's opinion established probable cause for their arrest likewise.
We are not dealing with a crowded public place or a group of strangers or a piece of evidence like a weapon which was so small that it might have been carried by one person unbeknownst to the others, or was not likely to be the subject of the kind of transaction among the group which the surrounding circumstances suggest was probably taking place. We are dealing with a bag full of counterfeit money, some 570 counterfeit $20.00 bills. The facts were such as to warrant "a man of prudence and caution" to believe ...