United States v. Malcolm

• Decision Date: 27 January 1975
• Docket Number: No. 7081.,7081.
• Citation: 331 A.2d 329
• Parties: UNITED STATES, Appellant, v. Ronald D. MALCOLM, Appellee.
• Court: D.C. Court of Appeals

331 A.2d 329

UNITED STATES, Appellant, v. Ronald D. MALCOLM, Appellee.

No. 7081.

District of Columbia Court of Appeals.

Argued June 19, 1973.

Decided January 27, 1975.

Douglass J. McCollum, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Eugene M. Propper, Asst. U. S. Attys., were on the brief, for appellant.

William J. O'Malley, Jr., Washington, D. C., for appellee.

Before REILLY, Chief Judge, and KERN and HARRIS, Associate Judges.

REILLY, Chief Judge:

An appeal from a suppression order in the Superior Court predicated upon a refusal by the government to produce certain documents requested by the defendant tinder the second subsection of the Jencks Act, 18 U.S.C. § 3500(b), brings to this court another question of construction of that statute. The subsection provides:

After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness the court shall order it to be delivered directly to the defendant for his examination and use.

It is the contention of the government that the material it was ordered to produce did not contain a "statement . . . of the witness . . . which relates to the subject matter as to which the witness has testified."

The defendant in this case was arrested without a warrant while carrying marijuana on a public street and charged by information with a violation of D.C.Code 197.3, § 33-402. A motion to suppress as evidence a quantity of marijuana which a search of his person had yielded, was heard to determine whether there was probable cause for his arrest.

At the suppression hearing a police officer testified that on the day of the arrest he received a telephone call from an informant, personally known to him as a trustworthy source of information with respect to illegal narcotics transactions, telling him that a man named "Reds", whom he described in detail, was selling marijuana in the 2500 block of 14th Street, N.W. Not content, however, merely to have the officer assert the informant's reliability, the prosecutor continued his direct examination as follows:

Q. Officer, have you ever . . . rceived any information from this informant in the past?

A. Yes, I have.

Q. Could you tell this Court approximately how many times and what have been the results.

A. On at least seven times he has made controlled narcotics purchases under the supervision of myself and another officer in the narcotics branch which has resulted in the obtaining of a U.S. Magistrate's search warrant and the execution of same, each with seizures of narcotic drugs and arrests being made, which cases are now pending in the judicial system.

The officer also testified that after the telephone conversation, he and another policeman met the informant and were told that additional sales had transpired since the call was made. They instructed the informant to return to 14th Street and make further observations. Soon thereafter, he reported that a new transaction was in progress between "Reds" and a female. The officers thereupon went to the particular block specified by the informant, and saw a woman talking to a man who was standing in the very place the informant had said "Reds" would be. Perceiving that the man's physical appearance and clothing matched in every respect that of the individual — appellee Malcolm — described by the informant, they placed him under arrest and searched him. Three envelopes of marijuana were recovered from the arrestee's right front pocket, according to the officer's testimony.

Defense counsel, after putting a few questions on cross-examination, requested production of Form PD-163 — a report which officers are required to file immediately after an arrest. The court not only granted that request, but ordered sua sponte that "[a]ll Jencks material" be produced. With only the PD-163 available, the hearing was recessed to give the prosecution time to gather all other relevant documents, including the officer's pocket notebook. When the hearing resumed two days later, the government produced Forms PD-251 and 255, the "Report of Crimes Against Persons or Property" and the "Arrest Report", respectively, and reported that no notebook entries had been made.

The defendant then demanded production of the affidavits in the seven other cases (alluded to by the police witness) in which the informant had provided data on which applications for search warrants were based. Over objection, the court ordered these documents produced. `When the government declined to do so, all the officer's testimony was sticken and the motion to suppress was granted.¹

Before reaching the ultimate issue with respect to the correctness of the trial court's ruling, a preliminary question must be considered. Obviously the purpose of the defense in demanding production of the affidavits in the search warrant cases was to ascertain whether there was anything in such documents which would contradict the police witness and thus lay a basis for impeaching his testimony as to the informant's reliability. It is also obvious that such contradictions, if any, would bear only upon a small portion of the officer's direct testimony, viz., his reference to the informant's role in other cases which had nothing to do with the officer's testimony respecting what he had learned and observed immediately prior to arresting the defendant in the case now before us.

Where an officer relies upon information given him by a third person for making an arrest without a warrant, the test of the propriety of such action depends upon there being some substantial basis for crediting the informant's story. Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L.Ed.2d 697 (1960). Consequently a court confronted with a motion to suppress must be informed of the underlying circumstances from which the officer concluded that the informant was credible. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).² One such ground might be that the particular informant had previously given accurate information. Jones v. United States, supra, 362 U.S. at 271, 80 S.Ct. 725. Thus where the arresting officer believed in an informant primarily because of reliability demonstrated on prior occasions, it has been held in this jurisdiction that cross-examination directed at bringing out the trustworthiness of the informant on such occasions should have been permitted. Jackson v. United States, 118 U.S.App.D.C. 341-342, 336 F.2d 579-580 (1964). See also Perry v. United States, 118 U.S.App.D.C. 360, 336 F.2d 748 (1964).

In neither the Jackson nor Perry cases was any request for Jencks Act material made. In supporting the ruling of the court below, however, it is argued that these decisions prove that whenever the reliability of an informant is averred by the arresting officer on direct examination, the defense for the purpose of impeaching such testimony is entitled to the production of any documents bearing upon the experience of the police with such informant in other cases.

This argument overlooks the principle that the reasonableness of the officer in according credence to what he has been told, may be demonstrated on grounds wholly independent of whatever prior reliability his informant had exhibited. Hence corroboration by the officer of the facts furnished him in advance of the arrest is sufficient to justify such arrest, irrespective of the policeman's prior knowledge of the informant. Frequently arrests for a crime which has just occurred are based upon a description furnished by a victim or an eyewitness previously unknown to the police force. Such sources may be relied upon if "the information given is sufficiently accurate to lead the officers directly to the suspect." Wong Sun v. United States, 371 U.S. 471, 480, 83 S.Ct. 407, 413, 9 L. Ed.2d 441 (1963). Sec also cases cited in footnote 2, supra.

In the case before us, the arresting officer gave testimony regarding the detailed information supplied by the informant in precipitating the challenged arrest and how every aspect of it, including place, time, and physical appearance, was checked and verified by the officer before taking appellant into custody and searching him. Under similar circumstances, the Supreme Court has held that probable cause for arrest existed.

In Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), a

federal narcotics agent who had been tipped off concerning the expected arrival of a person reported to be a heroin smuggler at a particular railroad station, observed a man alighting from an incoming train, whose physical attributes, clothing, and briefcase conformed to the informant's description, arrested him and then discovered that he was carrying several ounces of heroin. The Court held that the agent, having personally verified every detail of the information previously furnished except the fact of actual carriage of narcotics, had reasonable grounds to arrest. See also McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967); Jones v. United States, 106 U.S.App.D.C. 228, 271 F.2d 494 (1959).

The only remaining question is whether the Jencks Act widened the scope of discovery beyond the ordinary canons of permissible impeachment of an adverse witness. In considering this matter, we assume, as did apparently the motions judge, that the affidavits sought to be produced were all made by the officer who took the stand, for if there is one thing which is crystal clear about the Jencks Act, it is that compulsory disclosure by the government of documents in its possession is limited to prior statements of a witness who has...