Perry v. United States, No. 17846.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: BAZELON, , EDGERTON, Senior Circuit , and FAHY, Circuit
• Citation: 118 US App. DC 360,336 F.2d 748
• Parties: Freddie L. PERRY, Appellant, v. UNITED STATES of America, Appellee.
• Docket Number: No. 17846.
• Decision Date: 31 July 1964

118 US App. DC 360, 336 F.2d 748 (1964)

Freddie L. PERRY, Appellant,
v.
UNITED STATES of America, Appellee.

No. 17846.

United States Court of Appeals District of Columbia Circuit.

Argued February 4, 1964.

Decided July 31, 1964.

Mr. Russell Morton Brown (appointed by the District Court), Washington, D. C., for appellant.

Mr. Maurice C. Goodpasture (appointed by the District Court), Washington, D. C., also entered an appearance for appellant.

Mr. David Epstein, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker, Asst. U. S. Atty., and Frederick G. Smithson, Asst. U. S. Atty. at the time the brief was filed, were on the brief, for appellee.

Messrs. Gerald A. Messerman and Lawrence A. Schaffner, Asst. U. S. Attys., also entered appearances for appellee.

Before BAZELON, Chief Judge, EDGERTON, Senior Circuit Judge, and FAHY, Circuit Judge.

EDGERTON, Senior Circuit Judge.

Freddie Lee Perry appeals from a conviction of possessing contraband narcotics. 21 U.S.C. § 174, 26 U.S.C. § 4704 (a). On January 25, 1962 an informer telephoned police that Perry, his wife, and a cousin were selling narcotics near 14th and U Streets. The police went there and saw, across a crowded street, that in walking some twelve blocks the trio stopped several times to talk to people and that these included known addicts. Twice an officer saw an "exchange of something" with a known addict.¹

336 F.2d 749

The police arrested appellant and his companions. On the way to the police station an officer saw Perry drop a glassine bag on the floor of the wagon. It proved to contain heroin. At the station the arresting officer filled out an "addict form" which Perry signed. It contained admissions that he dropped the narcotics and that he had a 12 capsule a day habit. The form was introduced in evidence at his trial.

At appellant's trial, his counsel asked the police how the informer was paid, how he usually gave his tips, whether he was an addict, and what his relationship to the arresting officer was. The court sustained the prosecutor's objections. The defense was allowed to bring out, without further detail, that the police had received "about three" other tips in three months from this informer. On re-direct an officer testified that these previous tips had "proven reliable". But the defense was not allowed to inquire about the nature and circumstances of these previous tips, what the informer's compensation was, or whether he was an addict.²

I

Seeing Perry "exchange * * * something" with a known addict, though not "totally innocuous",³ was not probable cause for Perry's arrest. We must therefore consider the informer's role.

Aguilar v. Texas, 378 U.S. 108, 115-116, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723, 729 (1964), held that an affidavit on which a magistrate issued a search warrant "did not provide a sufficient basis for a finding of probable cause and that the evidence obtained as a result of the search warrant was inadmissible in petitioner's trial." The Court said that when an affidavit is "based on hearsay information * * * the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, * * * was `credible' or his information `reliable.'" 378 U.S. at 114, 84 S.Ct. at 1514, 12 L.Ed.2d at 729. (Emphasis added.) Though those words are not directly applicable to this case, since this case turns on a police officer's determination of probable cause and not a magistrate's determination, the Court's words suggest that in such a case as this the trial court should permit inquiry into the two named sorts of "underlying circumstances". The Court said: "when a search is based upon a magistrate's, rather than a police officer's determination of probable cause, the reviewing courts will accept evidence of a less `judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant'"; citing Jones v. United States, supra, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697.

336 F.2d 750

At appellant's trial no questions were asked about the "underlying circumstances" from which the informant concluded that the Perrys were selling narcotics.⁴ If the record contained only the policemen's testimony to their own observations and their statements that the informer was reliable, a finding of probable cause might perhaps be sustained, but the record shows that the court prevented the defense from inquiring into the "underlying circumstances from which the officers concluded that the informant * * * was `credible'." The questions the defense sought to ask might have elicited information that would have affected the trial court's decision on the question of probable cause.⁵ And if the questions had been permitted, the defense might well have gone on to the other line of inquiry suggested in Aguilar, namely, the basis for the informer's belief. Where, as here, the informer's reliability is relevant to the exercise of the court's discretion, we think the court should permit inquiry into both kinds of "underlying circumstances" to which Aguilar refers.

II

When Perry was arrested he was taken directly to the narcotics squad office at police headquarters. The arresting officer testified that Perry asked to see a lawyer but that the line-up sheet, booking, and "addict form" had to be completed first. In addition to routine questions such as name, aliases, and parents, the addict form...