Ricardo BANKS, Appellant, v. UNITED STATES, Appellee.
No. 6453.
District of Columbia Court of Appeals.
Argued Feb. 5, 1973. Decided June 1, 1973.
307 A.2d 256
Frederick C. Moss, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry, Roger C. Spaeder and Derek I. Meier, Asst. U. S. Attys., were on the brief, for appellee.
Before FICKLING, GALLAGHER and YEAGLEY, Associate Judges.
FICKLING, Associate Judge:
Appellant was convicted after a nonjury trial of one count of unlawful possession of heroin,
Appellant contends that it was error not to suppress the narcotics and implements which wеre seized from him at the time of his arrest in violation of his Fourth Amendment rights. He also argues that it was error not to suppress Officer Shuler‘s testimony since he could not producе his rough notes. We disagree and affirm.
On November 29, 1971, Officer Shuler of the Metropolitan Police Department Vice Squad received a telephone call from an informant, who had on six previous occasions provided reliable information. He told the officer that an individual known as “Ricky” was on Georgia Avenue between Kenyоn Street and Princeton Place, N. W., with “dope” on him. The informant described “Ricky” as being a Negro male of medium complexion, approximately 20 years old, skinny, about 5‘6” tall, wearing a black knit cap with a tassel, a black fake fur coat with a brown collar, and blue trousers. Furthermore, the informant stated that he personally knew that this information was true.
Officer Shuler related the information he had received to Officer Dean, his part
Conceding the reliability of the informant, appellant argues that the mere recitation by the informant that he “personally knew” that appellant had “dope” on him was constitutionally insufficient to establish probable cause under the Supreme Court decisions of Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969). The government, on the other hand, contends that probable cause existed based on Draper v. United States, 358 U.S. 307 (1959), and its progeny.
There is no doubt that the tip, as related by the officers, must satisfy the requirement that circumstances must be shown upon which the informant based his conclusion that “Ricky” had “dope” on him. The government correctly points out that the Draper decision requires that we carefully examine the tip to determine if “[a] magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way.” Spinelli, supra at 417.
In the instant сase a concededly reliable informant gave a tip based on personal knowledge,1 which described appellant in great detail; he also gave appellant‘s alias, and his present location. As in Draper, before arrest the officers were able to corroborate the informant‘s tip in every detail with the excеption of actual possession of narcotics. Comparing these facts with Draper, there is substantial similarity. In Draper the informer gave a description of the suspect which was only slightly more detailed than the instant one. The informer‘s information concerning Draper‘s location was that he was presently in Chicago (September 6, 1956), and that he would return by train on the morning of Septembеr 7 or 8.
During the motion to suppress, it developed that Officer Shuler had recorded the description of appellant on a 3x5 note card. When the defense moved for its production under the Jencks Act (
Appellant, while not alleging bad faith on the part of the officer, contends that the Circuit Court‘s decision in United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642, aff‘d after remand, 145 U.S.App.D.C. 259, 448 F.2d 1182 (1971), requires that the officer‘s testimony be suppressed because no procedures had been adopted for preserving investigative notes.4 That decision dealt with the failure to produce a tape recording of defendant‘s conversаtion. Therefore, assuming, without deciding, that Bryant may be controlling here because of its directive to establish procedures for preserving investigative notes, we find that the fаilure of Officer Shuler to preserve the 3x5 note card was harmless error. First, there is no doubt about appellant‘s guilt—he was found with narcotics on his person within minutes after the incident was reported. Second, the informant‘s tip was orally relayed to Officer Dean, who was present at the time Shuler received the telephone call. Third, and perhaps most important, Officer Dean was the first to spot appellant on Georgia Avenue from the description which had been given by Shuler. Fourth, Officer Dean did not rely on the questioned notes. Fifth, there was no bad faith suppression or destruction of the 3x5 card. Finally, the trial judge found that the description written on the 3x5 card was aсcurately recorded on the P.D. 163. This finding is supported by Officer Dean‘s testimony as to what Officer Shuler told him at the time he received the tip and by the fact that Dean, not Shuler, sрotted appellant in the carryout shop. Cf. United States v. Mechanic, 454 F.2d 849 (8th Cir. 1971), cert. denied, 406 U.S. 929 (1972); United States v. Lepiscopo, 429 F.2d 258 (5th Cir.), cert. denied, 400 U.S. 948 (1970).
Similarly here, we find thаt the error, if any, does not require reversal. The judgment of the trial court is
Affirmed.
GALLAGHER, Associate Judge (concurring):
I believe that, on this record, the court pursued the source of the confidential informant‘s knowlеdge to a degree reasonable under these particular circumstances. (See note 1 in majority opinion, supra.) As I read the record, appellant agreed specifically to the in camera proceedings conducted by the court to ascertain the source of informant‘s knowledge.
Additionally, I take note that, in respect to the apparently unwitting destructiоn of the 3x5 card,1 there is no risk of a repetition of this in the future as a result of police regulations on preservation of such documents,2 which flowed from United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642, aff‘d after remand, 145 U.S.App.D.C. 259, 448 F.2d 1182 (1971). In faсt, the government so represented to this court in this case.
As we stated in United States v. Frye, D.C.App., 271 A.2d 788, 791 (1970), we are aware of the necessity sometimes for the police to react to anonymous informаtion, especially in moving street scenes. But it is also a reality, as we have said, that later on, when in court, there are “troublesome factors” with “unknown and unidentified” informants. Frye, supra at 791. See also People v. Taggart, 20 N.Y.2d 335, 283 N.Y.S.2d 1, 229 N.E.2d 581 (1967).
I concur in the decision because I believe that, all circumstances considered in this case, a reasonable approach was taken to this difficult problem at the trial.