White v. United States, 20726.

• Citation: 448 F.2d 250
• Decision Date: 16 September 1971
• Docket Number: No. 20726.,20726.
• Parties: Charles Herbert WHITE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

448 F.2d 250 (1971)

Charles Herbert WHITE, Appellant, v. UNITED STATES of America, Appellee.

No. 20726.

United States Court of Appeals, Eighth Circuit.

September 16, 1971.

Edward F. Fogarty, Omaha, Neb., for appellant.

Robert J. Becker, Asst. U. S. Atty., Richard A. Dier, U. S. Atty., D. Neb., Omaha, Neb., for appellee.

Before MATTHES, Chief Judge, GIBSON, Circuit Judge, and HENLEY, District Judge.^*

GIBSON, Circuit Judge.

The defendant was convicted in a jury trial in the District of Nebraska, the Honorable Richard E. Robinson presiding, of possession of counterfeit bills in violation of 18 U.S.C. § 472. The sole question on appeal is the validity of the arrest, the search of defendant's rented car and the seizure of counterfeit Federal Reserve notes.

At about 1:00 p. m., June 7, 1970, a special agent in the Omaha, Nebraska, office of the Secret Service received a phone call from an informant that a man using a false name, Homer L. Bennett, was in town with a number of counterfeit $20 bills. The informant thought the man's real name might be Charles White. He gave the agent a description of the man and of the rented car he was driving, a 1970 Dodge Charger. The informant had supplied reliable information in two or three prior cases. The informant's information in this case was not based on personal knowledge, but was hearsay from an unnamed third individual, who allegedly had personally observed defendant with the counterfeit money.

The Secret Service checked with various car rental agencies in town and ascertained that a Homer Bennett had rented a car matching the description given by the informant. Upon checking various motels in town, the Secret Service found out that Homer Bennett, driving the car in question, was staying at the Prom Town House. The agents then proceeded to that motel, located the car, and observed it pulling out of the parking lot. They thereupon followed the car, but lost it in traffic. The local police were then notified to look for the car and its occupant.

Later that same day, the police received notification that a car was parked on the street with its occupant slumped over the steering wheel. Two police cars went to investigate, and upon arriving at the scene, at about 5:30 p. m. discovered that the car matched the description given to them by the Secret Service. Four policemen got out, surrounded the car and ordered the occupant, the defendant, out of the car, as he was getting out, one of the policemen reached into the back seat of the car and pulled out a small plastic bag. The policeman looked into the plastic bag and it was discovered to contain a syringe. The defendant was frisked for weapons; he had none. He was ordered to produce his driver's license, which he did and which was obviously altered, bearing the name Homer L. Bennett and a Kansas City address.

The defendant was arrested and taken to the police station on charges of possessing an altered driver's license. He was there interviewed by the Secret Service and told them his real name was Charles White. Further investigation was undertaken and it was discovered that the defendant was a known narcotics addict with a history of prior convictions. On the basis of this information, coupled with the syringe which had been found, the local police obtained a warrant to search the car for narcotics. This search took place the same evening as defendant's arrest, and while it was apparently conducted by the local police, the Secret Service agents were present. No narcotics were found, but 39 counterfeit $20 bills were discovered under the carpet on the passenger's side of the front seat of the car. This prosecution and conviction followed.

I. THE VALIDITY OF THE INITIAL STOP

The defendant contends that when the local police initially stopped the defendant this constituted an arrest, and that at this time there was no probable cause for the arrest. He relies primarily on Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 91 S. Ct. 1031, 28 L.Ed.2d 306 (1971). The Government, on the other hand, seeks to justify the initial stop of the defendant as an "investigative stop" under the principles of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

The defendant seeks to distinguish Terry mainly on the grounds that in this case the officers had not personally observed any suspicious conduct on the part of the defendant, as of the time of the initial stop. It is true that most of the cases involving an "investigative stop" under the Terry case have involved personal observation of suspicious activity by the police officer. However, we do not believe that the justification for an investigative stop under the Fourth Amendment is necessarily predicated upon personal observation. It is rather predicated upon the "specificity of information" upon which the police act. Terry v. Ohio, 392 U.S. at 21 n. 18, 88 S.Ct. 1868, 20 L.Ed.2d 889. This specificity of information can of course be obtained through personal observation. But it can also be obtained from other sources. And one of these traditional sources has always been the informer's tip. In determining whether at the time of this stop, which was admittedly based in part on the informer's tip, the police had enough specific information to justify the intrusion, we must be guided by the standards of 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); and Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); see also United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).

We first analyze the tip which was given to the Secret Service. This consisted of eight specific pieces of information: 1. A description of the suspected man; 2. The man was from out of town; 3. The man was using the name Homer Bennett; 4. That was a false name; 5. The man's real name might be Charles White; 6. The man was driving a rented car; 7. The car was a 1970 Dodge Charger; 8. The man possessed counterfeit $20 bills. It is to be noted that this is a highly specific tip, containing considerably more detail than either that disapproved in Spinelli or the one approved in Draper. This in itself tends to give reliability to the tip and to take it out of the realm of idle bar chatter. Additionally, aside from the conclusion that the man possessed counterfeit bills, the tip contained one item of information that tended to cast suspicion on the suspected man, namely that he was using a false name. Clearly the Secret Service was entitled to conduct an investigation on the basis of this information, and to question the suspect.

Pursuing the investigation, the Secret Service discovered the following facts which corroborated in part the tip that a man named Homer Bennett, giving an out of town address, had rented a 1970 Dodge Charger. They had located the car and observed a man meeting the description of the suspect getting into it. Thus, prior to the stop of the defendant they had independently verified five of the eight pieces of information given in the tip, namely items 1, 2, 3, 6, and 7. Clearly they had reason to pursue the investigation further. At this point there appeared to be only two courses that could be pursued. They could keep the man under surveillance and see if he attempted to pass any counterfeit money, or they could stop him and see if he could give a satisfactory account of himself. They attempted the former course, and lost him in traffic. At this point they requested the local police to locate him, which they did and he was stopped.

We must now analyze whether at the time of the stop "the facts available to the officer at the moment of the seizure * * * `warrant a man of reasonable caution in the belief' that the action taken was appropriate." Terry, supra, 392 U.S. at 21-22, 88 S.Ct. at 1880. The facts available were that a tip had been received which was of great enough specificity to be indicative of reliability; five of the eight pieces of information in this tip had been independently verified; surveillance of the suspect had been attempted and failed; the man was from out of town and might soon disappear. Admittedly at this point there was not probable cause to arrest the man, because the independently verified pieces of information were not of themselves incriminating. However, we think a stop at this point was clearly justified to obtain identification of the suspect. If he was able to present proper identification, the police would then know that either they had the wrong man or that the tip was unreliable in one essential aspect, namely that the man was using a false name. On the other hand, if he did not have proper identification, the tip would then be corroborated in another essential aspect. Thus "the action taken was appropriate." Of course, after the stop, the officers discovered the altered driver's license. This corroborated the information that the man was using a false name, and in addition provided a significant additional piece of information, namely, that he was using an altered driver's license, in itself a crime.

Before proceeding to analyze the validity of the ensuing search upon which the defendant's conviction rests, we here compare the validity of the procedure used in apprehending the defendant with that disapproved by the Supreme Court in Whiteley v. Warden, supra. We think the instant case can be distinguished from Whiteley in at least four aspects. First of all, it was quite clear in Whiteley that the defendant was stopped...