U.S. v. Myers

• Decision Date: 19 August 1976
• Docket Number: No. 75-2014,75-2014
• Citation: 538 F.2d 424,176 U.S. App. D.C. 76
• Parties: UNITED STATES of America v. Clyde W. MYERS, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 424

538 F.2d 424

176 U.S.App.D.C. 76

UNITED STATES of America v. Clyde W. MYERS, Appellant.

No. 75-2014.

United States Court of Appeals District of Columbia Circuit.

Argued April 1, 1976.

Decided June 18, 1976.

Rehearing Denied Aug. 19, 1976.

John Perazich, Washington, D. C. (appointed by this court), for appellant.

William J. O'Malley, Jr., Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Carolyn R. Kleiman, Asst. U. S. Attys., Washington, D. C., were on the brief for appellee.

Before TAMM and LEVENTHAL, Circuit Judges and CHRISTENSEN, ^* United States Senior District Judge for the District of Utah.

Opinion for the Court filed by Circuit Judge TAMM.

Dissenting opinion filed by Circuit Judge LEVENTHAL.

TAMM, Circuit Judge:

In this action, defendant-appellant Clyde W. Myers challenges the trial court's denial of his motion to suppress evidence derived from an informer's tip to the police. The issue presented on appeal is whether the police had probable cause, based on the unidentified informer's tip, and their own independent investigation, to arrest the defendant without procuring a warrant. If the warrantless arrest was valid, the search was also valid as a search incident to a lawful arrest. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).

I. THE FACTUAL BACKGROUND

At approximately 9:30 on the morning of June 9, 1975, Detective Charles J. Marcum, an officer with five years experience in the Narcotics Branch of the Metropolitan Police Department, received a telephone call from a confidential source with whom he had had numerous contacts over the previous two years. In the past the informant's information always had been independently corroborated either by surveillance or arrest. The informant's reliability is thus conceded by both parties.

The information relayed by the June 9 telephone call was that Clyde Myers was presently at his girlfriend's residence, 455 Massachusetts Avenue, N.W., and would be leaving within one hour with six "spoons" of heroin. ¹ He would drive to 14th and Fairmount Streets, N.W., where the heroin was to be cut and packaged for distribution on the street. The informant gave the officer a description of Myers and his car, including the model, year, color, license plate number, and where it was parked.

Detective Marcum and another officer immediately proceeded to this area. They found Myers' car parked where the informant had said it would be. Shortly before 10:30 Marcum saw Myers leave 455 Massachusetts Avenue, N.W., and walk to his car. Marcum recognized Myers, as he had been investigating him for several months. In addition, the informant's description of Myers matched the defendant. Myers was arrested as he attempted to unlock his car door. A subsequent search revealed that he was carrying six spoons of heroin and $900 in currency. It is this evidence which the trial court refused to suppress. Defendant was found guilty of violating 21 U.S.C. § 841(a) (possession with intent to distribute a controlled substance) and 33 D.C.Code § 402(a) (possession of a narcotic drug). He was sentenced to serve three to ten years with a special parole term of six years since this was his third violation of 21 U.S.C. § 841(a). This appeal followed.

II. THE Aguilar/Spinelli/Harris STANDARDS

In order to determine whether there was probable cause for this warrantless arrest we must first determine whether Detective Marcum's personal knowledge, added to the informer's tip, was sufficient to warrant a prudent person in believing that the defendant was committing an offense against the United States. United States v. Davis, 461 F.2d 1026, 1032 (3d Cir. 1972). See also Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

The Supreme Court has long sought to clarify the standards by which lower courts are to weigh the credibility of informants' tips in determining whether there was probable cause either to arrest or to issue a warrant, the same probable cause standards being applicable to each. See Whiteley v. Warden, 401 U.S. 560, 566, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). This subject has evoked considerable thought but not much clarity or unanimity in the high Court's opinions. See, e. g., Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) (three Justices dissented from opinion establishing that the court must find that the informer was reliable and that the underlying circumstances for the informant's conclusion were stated); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) (four Justices agreed that if the tip were found insufficient under Aguilar, other corroborating information could buttress the tip; three Justices dissented); United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) (four Justices dissented and four others concurred with reservations in the Chief Justice's opinion which stated, contrary to Spinelli, that a policeman's knowledge of a suspect's reputation can serve as support for an informant's tip). This trilogy of cases has thus established that either the informer must be reliable and his conclusions supported by underlying circumstances or there must be sufficient independent corroboration (which may include knowledge of the defendant's criminal reputation) to meet the Fourth Amendment's probable cause requirement.

Beginning with the Aguilar requirements then, the informer's reliability here is concededly established as mentioned above. We next must determine if the tip conveyed sufficient information concerning the underlying circumstances to support the conclusion that criminal activity was taking place. The Aguilar prong is satisfied if the tip contains sufficient factual detail to give rise to the inference that the informant came about the information in a reliable manner. Draper v. United States is a suitable benchmark to follow here. ² Spinelli, supra, 393 U.S. at 416-17, 89 S.Ct. 584. Although the informer in this instance supplied some factual detail, we do not find the information was sufficiently detailed to come within the shelter of the Draper rationale. Contrary to Draper, where the information gave rise to a strong inference of personal knowledge of the facts by the informer because of the minute particularity of the information given, here the informer relayed only common knowledge. For example, anyone in the neighborhood could probably have mentioned to the informer in a passing conversation that Myers was visiting his girlfriend and his car was parked behind her house. The only detail from which one might infer that the informer based his conclusions on personal knowledge here was the fact that Myers would be leaving within one hour. Standing alone, this detail did not indicate that the informer had gathered his information in a reliable manner.

Because the tip fails to satisfy the Aguilar requirements, we must next determine whether Detective Marcum's independent knowledge, when combined with the information relayed in the tip, established an independently valid basis for a finding of probable cause under Spinelli and Harris, supra. The lesson which we draw from these authorities is that

(w)hen a tip not meeting the Aguilar test has generated police investigation and this has developed significant corroboration or other "probative indications of criminal activity along the lines suggested by the informant," . . . the tip, even though not qualifying under Aguilar may be used to give such additional color as is needed to elevate the information acquired by police observation above the floor required for probable cause.

United States v. Canieso, 470 F.2d 1224, 1231 (2d Cir. 1972) (emphasis and citations omitted).

Detective Marcum was able to corroborate each of the facts contained in the tip, except the one relating to Myers' destination. In addition, Marcum had been receiving reports on the defendant's activities from other sources. Supplemental Record at 21. Myers had been convicted for prior narcotics violations while Marcum was working in the narcotics branch of the police department, and Marcum had "come in contact with Mr. Myers on several different occasions." Id. at 17. The defendant's reputation therefore is obvious.

This independent police corroboration of the informer's tip from surveillance and investigation of the suspect, other confidential sources, and from personal knowledge of the defendant's reputation, sustains a finding of probable cause for an arrest under the Spinelli-Harris standards, whereas the tip alone would fail to satisfy the Aguilar requirements. See Whiteley v. Warden, supra, 401 U.S. at 567, 91 S.Ct. 1031. Under the Spinelli rationale,

less detailed information from a reliable source may be used as grounds for a finding of probable cause if independent investigation by law enforcement agencies yields sufficient verification or corroboration of the informant's report to make it "apparent that the informant had not been fabricating his report out of whole cloth."

United States v. Squella-Avendano, 447 F.2d 575, 580 (5th Cir.), cert. denied, 404 U.S. 985, 92 S.Ct. 450, 30 L.Ed.2d 369 (1971).

As we find there was probable cause for the defendant's arrest and the search was incident thereto, the motion to suppress the evidence seized was properly denied by the district court.

Affirmed.

LEVENTHAL, Circuit Judge (dissenting):

I respectfully dissent. Under the Fourth Amendment, police cannot enter a private home or effect an arrest, and cannot lawfully be given a warrant to do so, merely upon the tip of an informer. This proposition stands even where the suspect has a bad reputation, as a known offender in the past. The Constitution requires, under the two-pronged analysis of Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1965), ¹ that the police, first, have reason to believe the informant is reliable, a test satisfied here,...