
    James M. MATHIS, Appellant, v. UNITED STATES of America, Appellee.
    No. 1875.
    Municipal Court of Appeals for the District of Columbia.
    Argued Dec. 3, 1956.
    Decided Jan. 24, 1957.
    William B. Bryant, Washington, D. C., for appellant.
    Harold H. Greene, Asst. U. S. Atty., with whom Oliver Gasch, U. S. Atty., Lewis Carroll and David Kindleberger, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.
    Before ROVER, Chief Judge, and HOOD and QUINN, Associate Judges.
   QUINN, Associate Judge.

Appellant was convicted by the court, sitting without a jury, of violating the statute prohibiting the possession of tickets and other paraphernalia designed for the purpose of conducting a lottery.' On appeal his sole contention is that the trial judge erred in not granting a motion to suppress evidence obtained from his person and also from his locker as the result of a search incident to his arrest. Appellant challenges the legality of his arrest, claiming that it was made without probable cause; he argues that if it was illegal, any search incident thereto was also illegal, and the evidence thus acquired should have been suppressed.

The facts briefly are these: Defendant was employed as a junior cook in a cafeteria operated by General Services Incorporated. The G.S.I. security officer, who made the arrest, testified that the manager of the cafeteria told him

“ * * * she was suspicious of the defendant here taking those articles from the cafeteria. Said that she noticed that he had put up a brown tin can in a certain part of the cafeteria, she did not tell me where, and presumed that it had some kind of goods belonging to the G.S.I. in it.
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“She told me that this defendant comes out of the cafeteria, — it was about three o’clock — and she was under the impression that he would be carrying this can.”

He subsequently stationed himself outside the door, and when defendant emerged carrying the can, the officer arrested him although he did not know what was in the can at that time. He then discovered that it contained liver scraps and obtained a signed statement to the effect that defendant was taking them home to his dog. When informed of this, the cafeteria officials decided not to prosecute defendant for petit larceny. The officer then testified:

“So, I, then I asked him, requested him to see his wallet and everything he had in his pocket, and also wanted to get his passes, the building passes that he had in his wallet.
“He handed us his wallet and we went over his wallet and we, we examined the contents and we come across two cut card numbers that we have in evidence.”

Defendant was given the privilege of resigning or being dismissed and chose the former. A search was then made of his locker and numbers slips were found. The manager of the cafeteria did not testify, nor was there evidence introduced to establish any facts upon which she based her suspicion or impression that defendant was in fact removing food from the cafeteria.

It is elementary that a search incident to an arrest, and evidence obtained as a result of such search, cannot be justified if the arrest is illegal. The test of the legality of an arrest is probable cause. The rule relating to probable cause is by no means new; often stated,

“ * * * it has come to mean more than bare suspicion: [It] exists where ‘the facts and circumstances within their [the officers’] knowledge, and of which they had reasonably trustworthy information, [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed 543 [555], 39 A.L.R. 790.”

The question as to what circumstances constitute probable cause cannot be determined by any fixed formula, but must be resolved on the facts of each individual case.

We are therefore confronted with the question of whether the knowledge of the officer warranted a reasonable belief that an offense was being committed or whether he acted on mere suspicion. We think that the instant circumstances could create nothing more than suspicion. The informant is quoted as stating only that she was suspicious of defendant; no facts were adduced to show the basis for her suspicion. The government argues that her suspicion was generated by her observation that defendant had placed a tin can in a certain section of the cafeteria and she presumed it contained cafeteria goods. But the government has not indicated why a mere placing would necessarily be a step in a criminal act; indeed, without any other facts (which are certainly not in this record), the act of placing a tin can in the cafeteria seems quite ordinary. Again, no facts were in evidence to show the basis for the cafeteria manager’s suspicion that the can contained stolen goods.

The government claims to find considerably more than mere suspicion in the fact that the cafeteria manager told the officer that defendant would leave the cafeteria at a certain time, by a particular exit, and carrying the can; and that the officer observed defendant doing just that. Yet there is certainly nothing unusual in an employee leaving his place of employment at a certain hour and by a particular door. Nor could his possession of the described can lead to the conclusion that a criminal act was being committed, especially when the officer still did not have anything more than a suspicion or a presumption that the can contained stolen goods. The government cites Browner v. United States, 6 Cir., 1954, 215 F.2d 753, in support of its argument on this point. We have considered this case and regard it as distinguishable on its facts.

We hold therefore that the evidence in question should have been suppressed because it was seized in the course of a search pursuant to an arrest which was illegal because made without probable cause.

Reversed. 
      
      . Code 1951, 22-1502 (S-upp. IV).
     
      
      . Brinegar v. United States, 1949, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879. See also Green v. District of Columbia, D.C.Mun.App.1952, 91 A.2d 712.
     
      
      . United States v. Rabinowitz, 1950, 339 U.S. 56, 63, 70 S.Ct. 430, 94 L.Ed. 653.
     