UNITED STATES of America, Plaintiff-Appellee, v. Terrance A. WILLIAMS, Defendant-Appellant, 949 F.2d 220

RALPH B. GUY, JR., Circuit Judge. After defendant’s conviction was affirmed by this court, he sought review by certiorari in the United States Supreme Court. The Supreme Court, in an order filed April 29, 1991, vacated our judgment and ordered the case remanded “for further consideration in light of the position presently asserted by the Solicitor General in his brief for the United States____” — U.S. -, 111 S.Ct. 1572, 114 L.Ed.2d 74.

The brief submitted by the Solicitor General argued in favor of affirmance of our decision, but did state that it agreed with petitioner that district court probable cause determinations should be reviewed under a de novo standard. The rule in the Sixth Circuit, followed originally in this case, is that such review is under a “clearly erroneous” standard. See United States v. Sangineto-Miranda, 859 F.2d 1501, 1508 (6th Cir.1988), and United States v. Pepple, 707 F.2d 261, 263 (6th Cir.1983).

The Solicitor General went on to argue that “review is not warranted because, in our view, the result in this case would be the same under the de novo standard.” (Solicitor General’s Brief at 8). Although one panel of this court is bound by the on-point published decision of an earlier panel, we can nonetheless indicate what our result would be if we examined the probable cause determination de novo.

Like the Solicitor General, we conclude that the result does not change: By the time petitioner was apprehended, the officers not only knew the facts that gave rise to their reasonable suspicion, but also had observed petitioner and his companion flee and refuse to halt in response to the officers’ command. Moreover, the officers saw petitioner’s companion tear a plastic bag open while he was fleeing and attempt to discard a substance that appeared to be crack cocaine.

Petitioner states that “[m]erely being in the presence of one who commits a crime, even knowing that it is being committed, is not sufficient to charge the observer as a principal.” Pet. 7. But petitioner was more than a mere observer, and there was probable cause to arrest him as well as the other man. The police had watched the two men get off the bus together, walk to the car together, walk down the street together, and then flee from the officers at the same time.

When one of the two tried to rid himself, while he was fleeing, of a substance that appeared to be crack cocaine, the officers had an adequate basis to believe that both petitioner and his companion were acting in concert to transport and distribute cocaine. See United States v. Patrick, supra, 899 F.2d at 171-72. Thus, under any standard of review the lower courts’ conclusion that petitioner’s arrest was justified by probable cause was correct. (Solicitor General’s Brief at 8-9).

We also note in passing that our analysis of the issue of whether a seizure occurred when the officers began to chase the defendant and shouted, “Halt,” was totally consistent with the result reached by the Supreme Court in the subsequent case of California v. Hodari D, — U.S. -, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). Therefore, we reiterate that no seizure occurred under the facts here until the actual arrest took place, by which time the officers had probable cause for the arrest. Defendant’s conviction is AFFIRMED. .

The Solicitor General’s brief points out that there is a split in the circuits on this issue, but that the majority view is that review of probable cause determinations is de novo. See, e.g., United States v. Patrick, 899 F.2d 169, 171 (2d Cir.1990). As this Court has observed, probable cause deals not with certainties, but with probabilities judged according to practical and common sense standards and based on the totality of the circumstances. See United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989); Illinois v.

Gates, 462 U.S. 213, 231-232, 103 S.Ct. 2317, 2328-29, 76 L.Ed.2d 527 (1983).