APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. No. 76-1059).
Aldisert, Rosenn and Weis, Circuit Judges.
Petitioner Benjamin Wright was convicted by a Pennsylvania court of aggravated robbery and murder in the shooting death of a pedestrian in Philadelphia on July 11, 1972. After the state supreme court affirmed the convictions, Commonwealth v. Wright, 460 Pa. 247, 332 A.2d 809 (1975), Wright filed a petition for habeas corpus in the United States District Court. Finding that Wright's confession was the product of an illegal "dragnet" arrest, the district court granted the writ. After a review of the complete record, we find ourselves in disagreement with the district court and vacate its order.
At approximately 9:35 on the evening of July 11, 1972, two police officers were driving on patrol when two shots rang out. The officers immediately drove toward the sound, and as they approached the intersection of 56th and Ludlow Streets, they saw a man fall to the street and two black males running toward them. The men turned into Ludlow Street and continued their flight. After a brief, unsuccessful chase, the officers directed their attention to the victim and took him to a hospital. Other officers arrived on the scene within a few minutes and obtained a description of the assailants from an off-duty policeman and another witness who had seen the incident. The police radio broadcasted information about the shooting, its location, and the direction in which the assailants had run, and gave the following description: Two Negro males, 5 feet 7 inches to 5 feet 8 inches, medium to dark complexion, "wearing dark colored T shirts, like silk underwear" blue pants or dark pants, 17 to 18 years of age, "semi-bush" haircut, thin or medium build.
Approximately an hour later, Officer John Clinkscale, cruising one block away from the scene of the shooting and in the direction in which the assailants had run, saw the petitioner sitting on a stoop. He was wearing a black T shirt of a silk-like material and blue denim trousers, was 5 feet 9 inches tall and weighed 148 pounds. Petitioner was taken to the police station along with several companions. Before accosting petitioner, the officer had arrested four to six other suspects. He explained that he had taken anyone close to the description given by the broadcast.*fn1 The record contains no accurate count of the number of suspects taken into custody that night; estimates range from "eight to twelve" to as high as "fifteen to twenty."
Wright was questioned from about 3:30 A.M. to 5:00 A.M., during which he denied any involvement in the crime. At about 5:00 A.M. the interrogators were told that Jackson had confessed and implicated petitioner. The officers told petitioner about this development and took him to a nearby room where Jackson confirmed the fact. Wright then admitted his participation in the robbery and stated that Jackson had shot the victim.
At trial a witness named John Cochran testified that shortly after the shooting Wright told him "that him [petitioner] and Chris tried to rob somebody; that Chris had the gun. He didn't know the man had one. The man reached back and Chris emptied the gun into him, and that was it." Cochran further testified that he had told a detective about Wright's statement some time before midnight on the evening of the crime.*fn2 Cochran signed a formal statement some hours later.
At a suppression hearing held before the state court trial, petitioner alleged that his arrest had been illegal. The hearing judge found that the Philadelphia police had probable cause to arrest petitioner and, accordingly, denied suppression of the confession. A jury returned a guilty verdict in the trial before another judge who, in ruling on post-trial motions, disagreed with the finding of the suppression hearing. A trial judge concluded that the petitioner had been picked up as part of a mass arrest but held the confession was admissible because the taint of the illegal arrest had been dissipated. The testimony about the circumstances of the arrest at both the suppression hearing and the trial did not differ substantially.
On appeal, the Pennsylvania Supreme Court decided that petitioner's confession was admissible since it was prompted by the confrontation with his accomplice rather than by exploitation of an alleged illegal arrest, Commonwealth v. Wright, supra. The court found it unnecessary to determine whether the arrest was the result of a police dragnet, although in a companion case, Commonwealth v. Jackson, 459 Pa. 669, 331 A.2d 189 (1975), the conviction of petitioner's accomplice was reversed on that ground.
Petitioner then instituted habeas corpus proceedings in the district court. After argument, the district court granted the writ, holding that petitioner's confession was inadmissible because it was obtained as a direct result of an illegal arrest.
Both the district court and the Pennsylvania appellate court relied upon Davis v. Mississippi, 394 U.S. 721, 22 L. Ed. 2d 676, 89 S. Ct. 1394 (1969), and Commonwealth v. Fogan, 449 Pa. 552, 296 A.2d 755 (1972), and described the police action as a dragnet arrest. Neither court, however, noted the distinction between the facts in those cases and the one at bar. In Davis v. Mississippi, supra, a rape victim could give no better description of her assailant than that he was a Negro youth. Local police thereupon took at least 24 black young men to the police station for fingerprinting and interrogated 40 to 50 others. The state conceded that there was no probable cause for the detention of any of these young men. In Commonwealth v. Fogan, supra, the police rounded up all the members of two rival street gangs after a shooting incident. No probable cause existed for arresting the defendant in that case other than his membership in one of the gangs. It was not even known if he had been with the gang on the night the crime occurred. Clearly in both Davis and Fogan probable cause for arrest of anyone detained was lacking.
In the case at bar, however, whether probable cause for arrest existed is a matter which requires some analysis. The question is whether the description of the assailants, as well as the time and geographic factors, were sufficient for a prudent man to believe that petitioner had committed the offense. Beck v. Ohio, 379 U.S. 89, 13 L. Ed. 2d 142, 85 S. Ct. 223 (1964); Brinegar v. United States, 338 U.S. 160, 93 L. Ed. 1879, 69 S. Ct. 1302 (1949). The fact that others may also have met the same description is not in itself determinative. The inquiry must determine whether the information is adequate to narrow down the list of potential suspects so that probable cause for petitioner's arrest and not mere possibility is the criterion. It is obvious that race and age alone, as in Davis v. Mississippi, supra, do not furnish probable cause. But in United States ex rel. Hollman v. Rundle, 461 F.2d 758 (3d Cir. 1972), we agreed with the Pennsylvania courts in finding probable cause for arrest where the description included race, height, weight, color of hair, distinctive type of hair styling, precise color of clothing, and the suspects were apprehended near the scene of the crime one ...