Nance v. United States

• Decision Date: 02 August 1977
• Docket Number: No. 10360.,10360.
• Parties: Joseph E. NANCE, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

377 A.2d 384

Joseph E. NANCE, Appellant, v. UNITED STATES, Appellee.

No. 10360.

District of Columbia Court of Appeals.

Submitted September 15, 1976.

Decided August 2, 1977.

Linda J. Ravdin, Arlington, Va., appointed by this court, for appellant.

Earl J. Silbert, U. S. Atty., John A. Terry, Barry L. Leibowitz, and Richard H. Saltsman, Asst. U. S. Attys., Washington, D.C., were on the brief, for appellee.

Before KERN, YEAGLEY and HARRIS, Associate Judges.

KERN, Associate Judge:

Appellant was convicted of carrying a pistol without a license¹ after a trial upon stipulated facts which were developed at the pretrial hearing on his motion to suppress the pistol. Appellant challenges the trial judge's denial of his suppression motion; he argues that the police lacked probable cause to arrest him, thereby invalidating the subsequent search which revealed the pistol concealed on his person.

At the suppression hearing the prosecution elicited the following testimony from Sergeant Ware, one of the arresting officers:

Q. Would you tell us the circumstapces that Mr. Nance first came to your attention that day and what procedure you or any other officers followed?

A. Myself and another officer was [sic] in the Vice Unit at [501] New York Avenue. We received information from a reliable source and this source stated that subject described — he described the subject, the car the subject was next to was selling barm² in front of Wings and Things in the 1900 block of 14th Street, Northwest.

. . . . .

Q. Would you tell us what description was given?

A. The subject stated — the subject was Negro male wearing a fake fur coat, two-tone grey blue pants and standing next to a white Lincoln Continental.

. . . . .

Q. What did you do after you received the information?

A. I responded to the vicinity of 1900 block of 14th Street, Northwest and when we approached the block we observed a white Continental on the west side of the 1900 block of 14th Street.

Q. Did you see anyone around the vehicle?

A. Yes, sir.

Q. Did any of those persons meet the description given to you?

A. Yes, sir.

Q. Could you tell us how they met the description?

A. Mr. Nance was wearing a fake fur coat, two-tone. He was wearing blue pants and he was a Negro male.

. . . . .

Q. And what, if anything, occurred at that point as the three of you arrived on the scene?

A. Detective Golf [sic] approached Mr. Nance, identified himself and stated to Mr. Nance that he had information that he was selling barn. Detective Goff reached into Mr. Nance's coat pocket and removed a vile [sic] containing pink pills. . . .

Q. After Mr. Nance was arrested what, if anything, did you or any of the other officers do with him?

A. He was placed in the back of the cruiser, handcuffed and transported to the Third District Vice Unit.

. . . . .

Q. Did anything occur while you were riding to the station? If so, tell us what happened?

A. Yes, In the 600 block of New York Avenue Mr. Nance asked me to look inside his coat. I asked him what for. He said just look inside my coat. I reached under neath [sic] his coat and from up an upside down shoulder holster I recovered the gun. [Record at 3-7; emphasis added.]

The prosecutor then examined his other witness, Detective Goff, who was another member of the arresting party, as follows:

Q. Could you tell us where you first saw Mr. Nance and what procedure you followed that led up to his arrest?

A. Yes, sir. The first time I ever saw Mr. Nance he was in the 1900 block of 14th Street on the west side of the street standing next to — along side a 1965 — if I am correct, it was a '65 white Lincoln Continental. This was on January 18, approximately 10:55 in the evening.

We received information that Mr. Nance was at that location with narcotics — selling narcotics. We were given a description. He fit the description. He was the only subject that really fit the description.

I approached him and identified myself and removed from his right coat pocket one vile [sic] containing thirteen preludent [sic] tablets in a vile [sic] with a prescription in his name.

Q. O.K. At that time did you place him under arrest?

A. Yes, sir. I did. [Record at 21; emphasis added.]

It may be seen that the arrest of appellant resulting in the seizure of the pistol, the possession of which is the basis for his conviction,³ rested solely upon an informant's tip. Sergeant Ware and Detective Goff, prior to arresting appellant, observed him do nothing even suspicious, much less criminal. Accordingly, we must determine whether the government complied with the Supreme Court's mandate in Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964), that when the police rely on an informant's tip as the factor to establish probable cause to make an arrest, the government must provide the judicial officer who subsequently passes upon the arrest's validity with "some of the underlying circumstances from which the informant concluded" a crime was being committed and "some of the underlying circumstances from which the officer concluded that the informant . . . was `credible' or his information `reliable.'" Aguilar, in sum, calls for the judicial officer to employ a two-pronged test in assessing the probative value of an informant's tip: first, he must evaluate the veracity of the informant to decide whether to credit the tip; and, second, he must determine the basis of the informant's knowledge to decide what weight to give the tip.

The reason, of course, the prosecutor must always present the circumstances surrounding the informant's tip is that the Supreme Court has declared that the judicial officer "must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause," Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503 (1958); that "recital of some of the underlying circumstances . . . is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police," Ventresca v. United States, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965); and, that these are "important safeguards [which] assure that the judgment of a disinterested judicial officer will interpose itself between the police and the citizenry," Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 591, 21 L.Ed.2d 637 (1969).

The government's direct testimony at the suppression hearing, as quoted above, failed to reveal to the court, however, any circumstances at all underlying either (1) the informant's conclusion, which he passed on in his tip, that appellant "was selling barn," or (2) Sergeant Ware's conclusion that the unidentified informant was generally "credible" or that his tip on this particular occasion was "reliable." Indeed, the government appeared not to realize the need for its evidence to meet Aguilar's two-pronged test. Thus, the prosecutor stated in his argument on the suppression motion (Record at 33):

I didn't realize she [defense counsel] was going to argue this point as to whether or not the informant indicated he had observed the transaction or had received the information secondhand which I didn't realize was going to be an issue. [Emphasis added.]

We turn first to determining whether Aguilar's basis of knowledge prong was met. We have noted Sergeant Ware testified only that the informant said appellant "was selling barn" and Detective Goff testified merely "we received information that Mr. Nance was at that location . . . selling narcotics." The government's case is quite inadequate when compared with its showing in prior informant cases before this court. See Smith v. United States, D.C. App., 348 A.2d 891 (1975) (informant stated in his telephone call to the police he had watched appellant selling tin foil packets from a cigarette package); United States v. Malcolm, D.C.App., 331 A.2d 329 (1975) (police instructed informant to make "further observations" after receiving his report that drug transactions had taken place at a certain location; informant returned and said a drug sale was "in progress"); and Banks v. United States, D.C.App., 305 A.2d 256 (1973) (informant stated to police that he "personally knew" his information was true; the source of the personal knowledge was verified by in camera proceedings). In all those cases the government's evidence directly established that the informant's allegation that the defendant was engaged in criminal activity was based on firsthand knowledge; hence the prosecution there, in contrast to the instant case, clearly satisfied Aguilar's basis of knowledge prong.

According to the Supreme Court in Spinelli, supra, however, failure to present such evidence will not preclude a trial judge from finding that the informant's basis of knowledge was adequate. The Court suggested that "Di the absence of a statement detailing the manner in which the information [contained in the tip] was gathered, it is especially important that the tip describe the accused's criminal activity in sufficient detail that the magistrate may know [the informant] is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation." Id. at 416, 89 S.Ct. at 589.

Mr. Justice White in his concurring opinion stated that "there are limited special circumstances in which an `honest' informant's report, if sufficiently detailed, will in effect verify itself — that is, the magistrate when confronted with such detail could reasonably infer that the informant had gained his information in a reliable way . . . Detailed information may sometimes imply that the informant himself has observed the facts." Id. at 425, 89 S.Ct. at 593.

Spinelli's supplementation of Aguilar's test poses the question then in the instant case whether the tip to Sergeant Ware so detailed the accused's criminal activity that it was reasonable for ...