United States v. Patterson

• Decision Date: 17 January 1974
• Docket Number: No. 71-1791.,71-1791.
• Citation: 161 US App. DC 281,495 F.2d 107
• Parties: UNITED STATES of America v. Henry PATTERSON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

161 US App. DC 281, 495 F.2d 107 (1974)

UNITED STATES of America v. Henry PATTERSON, Appellant.

No. 71-1791.

United States Court of Appeals, District of Columbia Circuit.

Argued January 8, 1973.

Decided January 17, 1974.

Rehearing Denied February 8, 1974.

Allan M. Palmer, Washington, D. C., for appellant.

Joseph E. di Genova, Asst. U. S. Atty. with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Kenneth Michael Robinson, Asst. U. S. Attys., were on the brief for appellee.

Before BAZELON, Chief Judge, and TAMM and LEVENTHAL, Circuit Judges.

LEVENTHAL, Circuit Judge:

Appellant was convicted on two counts of possession of a muffler and a silencer for a firearm in violation of the National Firearms Act, 26 U.S.C. § 5861(d), (i), (1970). He contests the admission into evidence of a silencer and certain weapons procured by a search of his car. He also claims prejudice from an assertedly improper question asked by the prosecutor. We affirm.

I. FACTS

Officers Ted J. Williams and Herbert Lopez testified that at 3:15 p. m. on June 17, 1970, while on routine patrol in an unmarked vehicle and in "casual clothes," they observed unusually large crowds on both sides of the 1900 block of 14th Street, N.W., in the District of Columbia. Williams turned his car around so that they could investigate further. Still in the car, they asked members of the crowd what had happened. One person told them that a man had been shot; after travelling a few more feet, they were told by another member of the crowd that not only had there been a shooting but that the assailant was across the street. Appellant was seen across the street in animated conversation with another man.¹ Ending his conversation, appellant went from the rear of his car, where he had been standing, to the front and began to start the car. At this point, Officer Williams, who had just heard a "mumbling" from the crowd that the gun was in the rear of the car, turned his car around again and cut off appellant's car before appellant was able to move more than two feet. They placed appellant under arrest for assault with a deadly weapon and transported him and his car to the Third District Headquarters. The car was placed in a locked police lot, and was searched by the police after obtaining a warrant upon an affidavit by Officer Williams. Its text is reprinted in the margin.²

II. SEARCH OF THE CAR

We hold that the search of appellant's car at the stationhouse upon receipt of a search warrant was valid, and that evidence secured thereby was properly admitted at trial. Having reason to believe that evidence of a crime was in appellant's car,³ the police immobilized the car until a search warrant could be obtained in much the same way as they may forcibly detain suspicious individuals for investigatory stops. Cf. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 23 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).⁴ Without delay, Officer Williams drew up an affidavit and applied for a warrant to search the car.

Appellant contends that the affidavit did not specify facts sufficient for a judicial officer to find probable cause that contraband or evidence of a crime was secreted in the place or thing sought to be searched. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Jones v. United States, 362 U. S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). In evaluating the sufficiency of affidavits, it should be recalled that they "are normally drafted by nonlawyers in the midst and haste of a criminal investigation. . . . A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting." United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965). Moreover, "in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall." Id. at 106, 85 S.Ct. at 744. Nevertheless, if there is to be even minimal judicial oversight, the magistrate must be presented with something other than the conclusions of the attesting officer. Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958).

Problems arise when the affidavit is based, in whole or in significant part, on information supplied by informants. In Aguilar v. Texas, supra, the Supreme Court found constitutionally deficient an affidavit alleging that "reliable information" had been received from an unnamed and undescribed informant. Instead, the Court required that an affiant basing his assertions upon information supplied by an informant state some of the "underlying circumstances" that impelled the informant to his conclusions as well as some of the "underlying circumstances" that led the officer to believe that the informant was reliable and his information credible. 378 U.S. at 114, 84 S.Ct. 1509. These requirements have been interpreted in light of the facts peculiar to each case. In Pendergrast v. United States, 135 U.S.App.D.C. 20, 416 F.2d 776, cert. denied, 395 U.S. 926, 89 S.Ct. 1782, 23 L.Ed.2d 243 (1969), for example, a bruised and bloodied robbery victim pointed out his assailant from a group of spectators gathered at the scene. Not only did he identify his assailant, but he "supplied the salient details, and his bloody face gave credence to what he said. He pointed appellant out as one of the robbers, reiterating this identification several times and, in response to the officer's query, reaffirmed his staunch belief that he was not mistaken." Id. at 28, 416 F.2d at 784. This court held that this informant had supplied enough of the underlying circumstances of his reliability and the reliability of his information so as to supply the probable cause needed for arrest. See also Daniels v. United States, 129 U.S.App.D.C. 250, 393 F.2d 359 (1968).

No simple formula for evaluating the veracity of the information given to the police has emerged other than the general admonition that

Informants\' tips, like all other clues and evidence coming to a policeman on the scene, may vary greatly in their value and reliability. One simple rule will not cover every situation. Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forceable stop of a suspect would be authorized. But in some situations — for example, when the victim of a street crime seeks immediate police aid and gives a description of his assailant, or when a credible informant warns of a specific impending crime — the subtleties of the hearsay rule should not thwart an appropriate police response.

Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972).

Officer Williams' affidavit related that a shooting had taken place and that the victim thereof had been hospitalized.⁵ The magistrate was advised that unnamed members of the crowd had independently advised Officer Williams of the fact of a crime and had pointed out the alleged perpetrator. These were the kind of exclamations, hard on the heels of an excited situation, that provide the indicators of reliability, although not necessarily guarantees of trustworthiness, underlying the res gestae exception to the hearsay rule. McCormick, Evidence § 297 (2d ed. 1972). Moreover, Officer Williams added the corroborative fact that appellant was first seen standing near the trunk of the car, where he allegedly had just deposited the gun, then moved to the driver's seat and started off. Attempted flight is a factor to be taken into account in assessing probable cause. United States v. Davis, 147 U.S.App.D.C. 400, 403, 458 F.2d 819, 822 (1972); Green v. United States, 104 U.S.App.D.C. 23, 25, 259 F. 2d 180, 182 (1958).

Probable cause is "a plastic concept whose existence depends on the facts and circumstances of the particular case." Bailey v. United States, 128 U. S.App.D.C. 354, 357, 389 F.2d 305, 308 (1967). Although any one factor taken alone may be insufficient to provide probable cause, "when viewed in unison the puzzle may fit." United States v. Davis, 147 U.S.App.D.C. at 402, 458 F. 2d at 821. We are not here to second-guess the determination of the magistrate, but only to determine whether Officer Williams' affidavit supplied him with sufficient information upon which to base a determination of probable cause. We hold that it did.

III. PROSECUTION IMPROPRIETY

Defense witness Anthony Crowner testified that he and appellant had been together inside a store until just before appellant's arrest. The prosecutor asked Crowner whether he knew that "the man had been shot right down there." His purpose apparently was impeachment, since he understood Crowner's testimony to say that when Crowner left the store, and saw the arrest, all was calm on the street. But the court had ruled that the prosecutor would be prohibited from informing the jury that appellant was arrested for assault with a deadly weapon or that a man had been shot where appellant was arrested. Defense counsel strenuously objected to the prosecutor's question particularly since the court had grudgingly agreed, in an earlier and lengthier colloquy, that it would permit only a narrower, more hypothetical, version of the question. When his request for a mistrial was denied, defense counsel alternatively requested a curative instruction advising the jury that there was no factual connection between appellant's case and any shooting. That request was granted,⁶ and the court instructed the jury that "anyone shot down the street except as crowds may have gathered, has nothing to do with this case. . . ."

Appellant now claims error in denial of a mistrial, arguing that the prosecutor's question placed before the jury highly prejudicial information with little materiality to any permissible issue at trial. The Government...