United States v. Mitchell

• Decision Date: 11 June 1969
• Docket Number: No. 22878.,22878.
• Parties: UNITED STATES of America, Plaintiff, v. James D. MITCHELL, Defendant.
• Court: U.S. District Court — Western District of Missouri

299 F. Supp. 1395

UNITED STATES of America, Plaintiff, v. James D. MITCHELL, Defendant.

No. 22878.

United States District Court W. D. Missouri, W. D.

June 11, 1969.

Calvin K. Hamilton, U. S. Atty., Anthony P. Nugent, Asst. U. S. Atty., Kansas City, Mo., for plaintiff.

Willard B. Bunch, Legal Aid and Defender Society of Greater Kansas City, Kansas City, Mo., for defendant.

MEMORANDUM AND ORDER

JOHN W. OLIVER, District Judge.

At long last the Congress has granted the United States a right of appeal in all criminal cases from an order granting a motion to suppress evidence. See Section 3731, Title 18, United States Code, as amended by Pub.L. 90-351 in 1968. It is therefore appropriate that the grounds upon which the grant of defendant's motion in this case is based be stated.

I.

Defendant's motion to suppress is directed (a) to a cardboard box containing shirts allegedly stolen from interstate commerce which were seized from the trunk of defendant's automobile immediately after his arrest, and (b) to certain oral statements elicited from him while still in custody pursuant to that arrest. Defendant is charged with the theft of the shirts in Count I of the indictment and with their illegal possession in Count II; both offenses are charged under Section 659, Title 18, United States Code.

The warrantless arrest upon which the United States relies to authorize the search and subsequent seizure was made by Lieutenant Hulett of the Kansas City Police Department. Whether that search and seizure is lawful is dependent upon the legality of the warrantless arrest. Whether that arrest was lawful is dependent upon whether it was based on probable cause. The factual situation is not in dispute.

Lieutenant Hulett was examined at the close of the pretrial Rule 41(e) hearing for the express purpose of establishing and agreed statement of facts. The United States concedes that the testimony which appears on the eighteen pages of that portion of the transcript appropriately "summarizes all the evidence favorable to probable cause" (Tr. 18). It is therefore undisputed that the only information Lieutenant Hulett had about the defendant or about the particular theft from interstate commerce involved in this case was received as a result of a telephone call to him from an unnamed informant made shortly before he arrested the defendant. He was not engaged in any investigation of the offense charged in the indictment because he had no knowledge that any theft from an interstate shipment had occurred.

Lieutenant Hulett testified that he was advised by his unnamed informant that the defendant would be at a named tavern between 8:30 and 9:00 a. m., on the day of the arrest; that the defendant would be driving a blue 1963 Chrysler; that the defendant was an employee of the D. C. Freight lines; that defendant was between 35 to 40 years old; that the defendant would have some shirts for sale which would be in the car that defendant would be driving; and that the shirts either had been or would have been stolen from the defendant's employer.

Lieutenant Hulett testified that he had no independent knowledge of the particular theft from interstate commerce here involved and that no official report of that particular theft had been made to the Kansas City Police Department. He did however, recall that about a month earlier he had passed on to his superiors another tip from the same unnamed informer that there had been other thefts from the same truck line. He testified, however, that the only information he had ever had about any thefts from the freight line came solely from his unnamed informer and that he never had corroborated any of this information.

Lieutenant Hulett testified that he did not verify whether defendant was in fact an employee of the Time — D. C. Truck Line. He testified that he did not ask nor did he know the source of his unnamed informant's information. And he testified that he did not ask nor did he know whether his informant's knowledge was personal or whether the person or persons who may have given information to his informant had in fact given his informant accurate information.

Lieutenant Hulett testified that he did not know whether any of the information received from his informer was in fact accurate until after he had arrested the defendant and had thereafter made appropriate inquiry and identification. It is clear that he did not know that there were shirts in the box until after the arrest. And it is clear that he did not know at the time of the arrest that the shirts had in fact been stolen from an interstate shipment. Indeed, he testified that he could not even now so testify of his own personal knowledge and investigation. It is also clear that nothing Lieutenant Hulett saw after he went to the tavern and before he arrested defendant which could be said to support a finding that a prudent man of reasonable caution would have concluded that the defendant had committed or was in the process of committing an offense against the law.

II.

The testimony heard in this and in other cases involving warrantless arrests strongly suggests that the United States is under the impression that probable cause for a warrantless arrest and a valid subsequent search and seizure may be established by proof that the state or federal arresting officer relied solely upon a tip received from an unnamed informer, provided it is also established that such unnamed informer could be said to be "reliable" in the sense that he had in the past furnished tips against other citizens which turned out to be accurate.

The insistence that the name of the informer be kept secret, of course, makes it quite difficult to ascertain from anyone except the arresting officer himself what information was contained in the tip or the circumstances underlying how the information passed on in the tip had been acquired. Indeed, it is quite apparent that acceptance of the notion that probable cause for a warrantless arrest may be established by an uncorroborated and unsupported tip from an unnamed "reliable" informer would mean that the only protection afforded by the Fourth Amendment is the right to cross-examine the arresting officer in regard to when he received the tip, what was said by the unnamed informer, and whether the arresting officer believed his informer was "reliable." The fact that a particular police officer acted solely upon the word of an unnamed informer makes it unlikely that cross-examination of that police officer is likely to add much to the factual situation surrounding the arrest.

A judicial officer may not lawfully issue a warrant for an arrest or a search on the basis solely of the uncorroborated and unsupported assertion or belief of a police officer. It would seem obvious that neither may a judicial officer lawfully issue a warrant based solely on the testimony of a police officer which would reveal that the only information he had about an alleged crime and a particular defendant's alleged connection with that crime was received from an unnamed informer's tip which was uncorroborated and unsupported by any independent police investigation whatsoever.

We cannot believe that testimony which would not support the issuance of an arrest or a search warrant can nevertheless be said later to support a warrantless arrest. The testimony in this and other cases, however, indicates that particular arresting officers apparently believe that they do not need to obtain a warrant for the arrest or search of a particular citizen if they receive an uncorroborated and unsupported tip from a "reliable" unnamed informer.

In this case, the arresting officer, without even checking to find out whether any crime had even been committed, accepted and acted on the word of the unnamed informer.

Lieutenant Hulett testified that he had received at least three past tips from the same informer in connection with three earlier cases extending back as far as 1965. We stated at the hearing and assume for purposes of this motion that the unnamed informant may be classified as "reliable" within the meaning of the applicable cases. It is our judgment, however, that proof of the reliability of the unnamed informer under the undisputed factual circumstances of this case is not sufficient evidence upon which a finding of probable cause may be based.

The United States Attorney made a suggestion at the hearing that Lieutenant Hulett had more authority to act on the informer's tip in this case because he was so impressed by information he had received from the same informant in two other cases about a month earlier. Lieutenant Hulett put the same thought this way: "The only thing I can say is that if this individual tells you something, you better move, because he's accurate" (Tr. 9-10). We shall discuss the question of whether data of this sort constitutes probable cause after we state the facts concerning the oral statements.

III.

The factual situation in regard to the oral statements is also undisputed. Counsel agreed that the defendant gave those oral statements after appropriate Miranda warnings were given. It is also agreed, however, that "the statements that would be tendered were given and obtained as an incident of the original custody" (Tr. 15).

In the course of preparing this memorandum we noted in the transcript a colloquy between the First Assistant United States Attorney and Officer Fortner which raised a question in our mind whether, on the facts, there was a possibility that some other oral or written statement may have been made by the defendant under circumstances in which the connection between the arrest and the statement had "become so attenuated as to dissipate the taint," within the meaning of the Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939), as applied in Wong Sun v. United States, 371 U.S. 471, 491, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We therefore conferred further with counsel in...