Mitchell v. United States

• Decision Date: 19 January 1977
• Docket Number: No. 10585.,10585.
• Citation: 368 A.2d 514
• Parties: James M. MITCHELL, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 514

368 A.2d 514

James M. MITCHELL, Appellant, v. UNITED STATES, Appellee.

No. 10585.

District of Columbia Court of Appeals.

Submitted September 15, 1976.

Decided January 19, 1977.

John J. Stanton, Washington, D. C., appointed by this court, for appellant.

Earl J. Silbert, U. S. Atty., John A. Terry and Robert Fabrikant, Asst. U. S. Attys., Washington, D. C., were on the brief for appellee.

Before KERN, YEAGLEY and HARRIS, Associate Judges.

PER CURIAM:

Appellant was convicted after a nonjury trial of possessing Preludin (phenmetrazine) in violation of D.C.Code 1973, § 33-702(2)(4). This appeal presents two issues: (1) did the arresting officer have probable cause to arrest appellant when her information was received from a police lieutenant who had received his information from a "realiable source" who was not identified to the arresting officer; and (2) did the trial court improperly base its denial of appellant's motion to suppress as hearsay evidence the arresting officer's testimony based upon a police department report of the incident completed by her partner.

On August 19, 1975, Lt. Sefton of the D.C. Third District Vice Unit instructed the arresting officer (Officer Scott) and her partner to meet him near a specific northwest address. Lt. Sefton told both officers that he had received information from a "reliable source"¹ that two men were sitting in front of the house at that address; one man named James, later identified as appellant, was reported by the source as "actually engaged in selling narcotics in that area, and that he had in his pants pocket some narcotics." The lieutenant further reported that his source said the other man (named Jimmy) had a revolver in his right, front pants pocket; this individual was reported to be appellant's bodyguard. Full, detailed descriptions of the two men were relayed by the lieutenant to the arresting officer and her partner.²

Officer Scott and her partner then went to the house at the northwest address where they saw two men who matched the descriptions relayed by the lieutenant. As she walked toward the men, Officer Scott noticed a "large bulge" in the bodyguard's right, pants pocket. She so informed her partner who ran over to the man and "recovered a pistol out of his right, pants pocket." Officer Scott then told appellant that she was a police officer, "asked him to stand [and] proceeded to pat his outside pants pocket." Although she did not feel any pills during the pat-down, she nevertheless reached into appellant's pocket and found two tablets which the lieutenant identified as Preludin. Appellant was arrested and subsequently convicted on the possession charge.

Appellant's first contention is that the arresting officer did not have probable cause to arrest him. The probable cause standard for determining the legality of a warrantless arrest [as in the instant case] is the same as the standard required to secure a warrant. Whiteley v. Warden, 401 U.S. 560, 566, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); Spinelli v. United States, 393 U.S. 410, 417 n. 5, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); United States v. Myers, 538 F.2d 424, 425 (D.C.Cir. 1976). When the information on which the arrest or warrant is based comes from an unidentified informant's tip, the probable cause standard to be applied is the two-pronged Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), test: (1) what were the underlying circumstances from which the informant concluded that criminal activity was underfoot and (2) what were the underlying circumstances from which the officer receiving the information concluded that his source was credible or the information reliable. Id. at 114,³ 84 S.Ct. 1509.

In the absence of a statement detailing how the informant gathered his information, the tip may, if sufficiently detailed, verify itself; that is, the information provided may convince a reviewing court or an issuing magistrate that the informant is relying on something much more substantial than a circulating rumor or an individual's general reputation. Spinelli v. United States, supra, 393 U.S. at 416, 89 S.Ct. 584. See also id. at 425, 89 S.Ct. 584 (White, J., concurring). The information provided by the informant in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), was cited with approval by the Spinelli court as sufficiently detailed to provide self-verification. 393 U.S. at 416-17, 79 S.Ct. 329. In addition, even if the information fails either prong of the Aguilar test, of if the information is not sufficiently detailed as to verify itself, it is still possible to find probable cause based on information gathered by the arresting officer. Whiteley v. Warden, supra, 401 U.S. at 567, 91 S.Ct. 1031. But that information acquired by the arresting officer must in some sense be corroborative of the informant's tip. Id.

We need not decide whether the information possessed by the lieutenant was sufficient to give probable cause to arrest appellant because the requisite probable cause can be found in two other sources. First, the information provided was sufficiently detailed, unlike Aguilar, that it verified the tip as more than a casual rumor or as only an account of appellant's general reputation. The clothes appellant and his bodyguard were wearing were described by the informant, a particular stressed both in Draper and Spinelli. The exact house address was given as were the names and physical characteristics of the pair. The contraband [narcotics for appellant; gun for the bodyguard] was described as being concealed, a fact most probably known only to someone with firsthand knowledge.

Second, the arresting officer was able to corroborate the informant's foregoing information before appellant was arrested. In addition to finding two men on the steps at the northwest address as the informant related, both men appeared and were dressed in the manner described. But most importantly, the accuracy of the information was further established when the arresting officer noticed a bulge in the bodyguard's "right, pants pocket" and found there the pistol mentioned by the informant. The officers were clearly justified in making a Terry frisk, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), upon noticing the bulge, and in arresting both subjects upon finding the gun. We hold therefore that the arrest and the search incident to the arrest were valid. United States v. Robinson, 414 U.S. 218, 234-35, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).

A remaining point must be discussed: Was the government obligated at the suppression hearing to call as a witness the lieutenant who had firsthand knowledge of his informant's tip? In Galloway v. United States, D.C.App., 326 A.2d 803, 805 (1974), cert. denied, 421 U.S. 979, 95 S.Ct. 1981, 44 L.Ed.2d 471 (1975), we admonished that

the government, if at all possible, should present as a witness that particular officer to whom the citizen [informant] complains since his testimony is obviously relevant and material in establishing that the complainant was an eyewitness or victim.

See also United States v. Cousar, D.C. App., 349 A.2d 454, 456-58 (1975) (Kern, J., concurring). Failing to produce the lieutenant, however, in the instant case to testify about his informant's reliability was not reversible error in that probable cause was otherwise shown.

Appellant's second contention is that the details of the informant's information were presented to the judge in impermissible hearsay form, namely by the arresting officer reading her partner's report. Appellant's primary objection appears to be that the arresting officer did not personally prepare the report. Appellant is in error both in asserting that a document used for "past recollection recorded" purposes is inadmissible hearsay evidence, and in asserting that the report had to be prepared by the person whose past memory it records.⁴

Four elements must be met before a "past memory recorded" report is properly introduced [McCormick on Evidence § 299, at 712 (2d ed. 1972)]:

"(1) the witness must have had firsthand knowledge of the event" (in the instant case, the arresting officer testified that "at that time [just prior to the arrest], he [the lieutenant] described each of the subjects to [her]");

"(2) the written statement must be an original memorandum made at or near the time of the event and while the witness had a clear and accurate memory of it" (here, the arresting officer testified that the report was prepared the same day as the arrest and that she knew the details told her by the lieutenant on that day) "(3) the witness must lack a present recollection of the event" (here, the arresting officer testified "I really don't recall the description" and "I can give you a partial description, but I wouldn't be completely sure of everything that I said."); and

"(4) the witness must vouch for the accuracy of the written memorandum" (here, the arresting officer testified that at the time the report was prepared, she read the report and it was a "true" reflection of the events on the day of the arrest).

These same criteria were discussed in Cohen v. Berry, D.C.App., 188 A.2d 302, 304 (1963), where the court specifically noted that "it is immaterial that [the witness] was not the person who actually recorded the information in the original notebook" so long as he adopted the information as his own. Thus in the instant case, the arresting officer's prior adoption of her partner's report, a report satisfying all the "past memory recorded" criteria, made the use of the report proper.⁵

In any event, we note that the Supreme Court in United States v. Matlock, 415 U.S. 164, 172-77, 94 S.Ct. 988, 39 L. Ed.2d 242 (1974), held that because the rules of evidence normally applicable in criminal trials do not operate with full force in suppression hearings before a judge, "reliable" hearsay generally would be admissible.

Accordingly the...