358 F.2d 833 (D.C. Cir. 1966), 19186, Smith v. United States

Docket Nº:19186.
Citation:358 F.2d 833
Party Name:James E. SMITH, Appellant, v. UNITED STATES of America, Appellee.
Case Date:February 18, 1966
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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358 F.2d 833 (D.C. Cir. 1966)

James E. SMITH, Appellant,


UNITED STATES of America, Appellee.

No. 19186.

United States Court of Appeals, District of Columbia Circuit.

February 18, 1966

Argued Sept. 8, 1965.

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Mr. Glenn R. Graves, Washington, D.C., with whom Mr. John W. Karr, Washington, D.C., was on the brief, for appellant. Miss Lynn D. Allan, Washington, D.C., also entered an appearance for appellant.

Miss Carol Garfiel, Asst. U.S. Atty., with whom Mr. David C. Acheson, U.S. Atty., at the time the brief was filed, Messrs. Frank Q. Nebeker and William H. Collins, Jr., Asst. U.S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, and BURGER and TAMM, Circuit Judges.

BURGER, Circuit Judge:

This is an appeal from a conviction on a one-count narcotics indictment for violation of 26 U.S.C. 4704(a), which makes it a felony for 'any person to purchase, sell, dispense, or distribute narcotic drugs except in the original stamped package or from the original stamped package * * *.' Appellant challenges the admission in evidence of narcotics seized from him immediately following arrest, first on the ground the arrest was without probable cause and second because of denial of his request for disclosure of the identity of an informant upon whose information the arrest was based.

On the motion for suppression of the narcotics the following facts were shown: at about 12:30 a.m., July 31, 1964, Vincent Lozowicki, a Federal Narcotics Agent in Baltimore, received a long distance telephone call from an informant who said that he was in New York City, where 'Smitty' and 'Ollie Jones' had just boarded the 12:30 Trailways Express Bus to Washington, D.C., and that Smitty was carrying one ounce of heroin and Ollie some cocaine. He described each of the men in detail.

Lozowicki testified that he recognized the voice of the caller as that of an informant who had given him reliable information three or four times in Baltimore and with whom he had talked by telephone 'at least two dozen times.' Lozowicki said that the Baltimore office had not made arrests based on this informant's information, although he was aware that 'our office in Europe' had made several such arrests. After ascertaining from the bus company that the particular express bus was indeed one which would not stop in Baltimore, Agent Lozowicki telephoned Federal Narcotics Agent John E. Thompson in Washington and relayed to him the information he had received from the informant in New York. Lozowicki did not discuss the informant's reliability with Thompson.

Agent Thompson testified that he had received information from Lozowicki regarding suspected interstate transportation of narcotics on previous occasions. Thompson, an officer of nine years' service in the Bureau of Narcotics, testified that he at once recognized the name of Ollie Jones 'as a New York source of supply for Washington, D.C., for heroin.' He said he 'knew several suspected violators in Washington by the name of Smitty, ' but did not know whether this particular Smitty was one of them. Thompson did not attempt to get a warrant for Ollie Jones or Smitty but instead proceeded at once to gather several agents to go to the Trailways Bus Station. When the bus described by the informant arrived at about 4:40 a.m., Thompson saw men who met the informant's descriptions of Smitty and Ollie Jones get off the bus. He testified that he recognized Smitty as being a person who had been pointed out to him previously as a narcotics seller. The two were promptly placed under arrest, and a search of Appellant disclosed in his pants pocket a package containing a substance later identified as heroin. No pre-trial

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statement of either of the two men is in evidence.

Appellant makes two attacks on the validity of his arrest. First, he contends that the arresting officer individually must have information which would be sufficient to sustain a warrant, and that Thompson did not possess the requisite information. Second, he claims that there was insufficient evidence of the reliability of the informant and that, taking together Thompson's and Lozowicki's information, the police failed to show probable cause for the arrest.

Striped down to its essentials, Appellant's first contention is that (1) the Constitution requires the arresting officer personally, independent of his police colleagues, to have knowledge of all facts necessary to constitute probable cause including reliability of any informants; and (2) Lozowicki's prior relationship with the informant, from which he concluded that he was reliable, may not be attributed to or relied upon by Thompson for the purpose of satisfying probable cause requirements.

The short answer to this claim is that this Court has already decided that probable cause is to be evaluated by the courts on the basis of the collective information of the police rather than that of only the officer who performs the act of arresting. Samuel J. D. Williams v. United States, 113 U.S.App.D.C. 371, 308 F.2d 326 (1962); Anderson Jones v. United States, 106 U.S.App.D.C. 228, 271 F.2d 494 (1959), cert. denied, 362 U.S, 944, 80 S.Ct. 809, 4 L.Ed.2d 771 (1960). Accord, United States v. Bianco, 189 F.2d 716 (3d Cir. 1951). Appellant fails in his efforts to distinguish these cases. Moreover, Appellant's reasoning suffers from a more basic fallacy than adverse precedent. Certainly two or three government agents together could go before a Commissioner to procure a warrant on the sum of their information and, once that warrant is issued, none of them need participate in the actual arrest.

The knowledge or information of the arresting officer at the time of arrest is relevant only where an arrest is predicated on that officer's personal observations and information concerning the criminal act. The correct test is whether a warrant if sought could have been obtained by law enforcement agency application which disclosed its corporate information, not whether any one particular officer could have obtained it on what information he individually possessed.

The cases cited to us by Appellant do not suggest a different solution. Indeed, in Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), four officers participated in the arrest. Each of them had bits and pieces of information only the gist of which he had communicated to his fellows. The Supreme Court did not inquire whether one of them could have procured a warrant but rather found that the sum of the knowledge of all of them was sufficient.

In Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949), the Supreme Court said, 'The troublesome line * * * is one between mere suspicion and probable cause. That line necessarily must be drawn by an act of judgment formed in light of the particular situation and with account taken of all the circumstances.' To sustain Appellant's sweeping claims we would be required to strike hard at police incentive to perform this 'act of judgment'...

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