Carey v. United States

jury if the shortly be released would While insanity clearly her defense.

reject approach un and indicative of improper counsel, see government Berger worthy of States, 295 U.S. v. United the remarks could L.Ed. 1314 rise to the level substantial not be said reversal, particularly mandating prejudice mitigat of the error the effects where instruction. Smith ed 163,166-67, A.2d cert. denied D.C.App.,315 States, Jeffries v. United sub nom. 42 L.Ed.2d 139 896, 95 S.Ct. reasons, the foregoing conviction For from affirmed. appealed Affirmed. CAREY, Appellant, A.

Robert STATES, Appellee. UNITED 8816. No. of Appeals. of Columbia Court District 9, 1976. Argued March Aug. Decided

jury on the defense of innocent possession, (2) denying suppress motion to seized from gun him by police. We judgment affirm of conviction. I. p.

At 3:10 about m. on the day ques- tion, two men entered a laundry establish- ment and robbed two women. A man third they fled, remained outside. When of the offense made and an initial broadcast, police radio a “tentative lookout flash”, ensued. Police in vehicles came Among the scene. them was an Officer Galante, he but was not the first he scene because testified he two saw tac” “old clothes leaving he p. arrived at 3:20 m. Officer Galante was officer who responded to the scene testify at suppression hear- motion ing. got description

Officer Galante suspects women, one nei- his partner ther he nor broadcast it. It twenty took about fifteen or minutes—that is, p. until 3:35 3:40 get m.—for him to description “pretty women were It hysterical.” this description which forms the fulcrum for appellant’s challenge to the lawfulness of his arrest. con- He Davis, Kay Public Defender Linda Ser- motion, tended at the on the C., vice, D. Washington, appellant; appeal, does so on that it established that Weisberg, H. Frederick Publiс Defender earlier broadcast was suffi- Service, C.,D. Washington, also entered an ciently inaccurate to invalidate his arrest. appearance. He also contends that he his two com- Reardon, III, Timothy J. Asst. U. S. panions did not sufficiently de- match the C., Washington, D. Atty., with whom Earl scription received permit their arrest. Silbert, Atty., U. John A. J. S. given Officer Galante McMullin, Asst. Attys., F. U. S. James was: brief, Washington, C., were D. Subject male, number ‍​​‌​‌‌​‌‌‌​‌‌​​​‌‌‌​​‌​​​​​‌‌‌‌‌‌​‌‌​​​‌‌​​​​‌‌‌‍one was a appellee. thin, wearing medium complexion, jacket; ski green nylon subject number NEBEKER, YEAGLEY and Before Negro male, foot, six two was a medium MACK, Judges. Associate complexion, wearing dark brown three- quarter length coat. descrip- No further NEBEKER, Judge: Associate tion. jury convicted The woman unable to describe third carrying count of without a of one suspect. license, in violation D.C.Code 22- § Meanwhile, appeal, argues On that the trial other officers were cruis- (1) refusing ing to instruct tile in an a few court erred area blocks from the scene. approached men, m. received broadcast p. the three 3:23 At themselves, robbery. this Ac- identified them of the description respecting told broadcast,- reported robbery. Appellant had his hands transcription cording to pockets and he was told to remove description was for frisked, being them. As Negro male armed with a number right and it arm stiffened had to be forced jacket and in a . hand in for the aside order officer to continue the to 19 Negro male 18 5 foot Number officer felt thought frisk. The what he to dark troussers complexion brown light gun right a front pocket appel- in of shirt, male number three plaid [sic] lant’s coat. A search into re- pocket beige coat complected 3A mustach brown .22-caliber derringer. Ap- vealed а loaded towards East- seen from Sheriff last [sic] pellant explained just that he had found p. . . . . ern m.] [3:23 in gun recently burglarized his apartment began looking group for such a was going and that he to police station they fifteen minutes observed within and turn and report burglary. to it in companions walking away and his appellant transported were then three of to scene They reported scene. were about from robbery where the reported victims that address. blocks distance seven they were not the ones who committed the of only group three seen They were robbery. Appellant charged was then and fit they described carrying pistol (D.C. without a license broadcast. 1973, 22-3204). Code § green wearing army

Appellant was Appellant argued in a suppress motion to was closed. One of his jacket which field that the search evidence was incidеnt either field companions army also wore cause, made without probable to revealing a open, which multicol- jacket was frisk police when the shirt; wore a “me- corduroy the third grounds ored had no reasonable for be- tan three-quarter lieving to dark” brown or was appellant engaged dium in criminal activity. three men wore dark length coat. All The motion by was denied order, One officer tes- the trial mustaches. court found that pants they men appeared substantially to be “20 to the three matched the tified robbery given years they suspects 22” old. When asked if on possibly run, older that a limited appear to be “much [18 weapons justified search for was on responded, much, too to me based 19],”he “Not that one of suspects was was ques- . .” The officer other jury trial, three, appellant armed. After of apparent ages about the tioned guilty illegally of Brief, carrying pistol found contrary to 4 & 31. Appellant’s subsequently and was sentenced to two-to- Rather, questions put the thrust of the years’ imprisonment. ten The sentence ages. age, was as to actual As to their him suspended appellant pro- placed on with, topic was “Isn’t it in fact ended years. five This appeal bation for followed. older they substantially than that true responded, “I’d That officer or 20]?” [19 II. 24.” As they would be about say (at 7), he request in his brief n. was then Appellant’s an instruction ajar. lights He had turned off the the gun apartment found in his and not on leaving apart- locked door when street, and because he thereafter inten- Appellant immediately could not as- ment. tionally gun carried the on the street. The any possessions whether certain miss- might trial court said that there be instanc- ing, apartment disarray since thе was in a special es where instruction should be was not certain what and he about had but ruled this given, such a case. already moved. He did notice that the We note at the that outset D.C.Code component television and the stereo set 1973, 22-3204, is a general § statute of apartment. were not in the He his called intent, proof and that of intent to use a (from public pay phone) wife outside for an weapon purpose unlawful is not an that ascertained she had the TV but not the element of the crime. Mitchell v. Searching United among stereo set. boxes for States, D.C.App., (1973). 302 set, A.2d 217 component upon he came brown exceptions We note further bag on to this paper top of one of the boxes. In- construction are limited. One bag pistol exception side the was a loaded he which recognized possession which hаs been to his friends. showed His friends left the apartment night appellant slept for the self-defense. Id. See also Wilson v. United States, m., 91 approximately U.S.App.D.C. It was then 2 there. a. 198 F.2d (1952). November 27th. 300 appellant’s defense, to Upon returning apartment would assert another 27th, some time before noon on the innocent possession. possibility that of appellant lant’s found that still acknowledged friends had of such a defense was by this gun yet reported States, had not the bur- in Mitchell v. court United supra at gun glary police. Appellant to the length and discussed at some in Hines considering States, testified that he was keeping v. D.C.App., United 326 247 A.2d After gun. (1974).2 a discussion which his Hines held that the defendant was probationary him jury friends reminded of his to a not entitled instruction as to the it was to illegal status and him of innocent or momentary posses- defense gun, give to appellant have а decided where his purpose carrying sion admitted police. gun allegedly to He and his pistol newfound was to it show apartment girlfriend. left implied testified to his court it p. m. and were enroute the might about 3 to have reached a different result had words, pistol. you purpose taking In other if do not find it to the station beyond burglary you doubt that the defend- reasonable then must find him pistol guilty. not have this as the result ant did of its apartment by person being left in his who States, Blango D.C.App., 2. See also United burglarized apartment his and that had merely (1975). 335 A.2d person on his for the tion, been civic trial purpose asserted court found that the descrip- aid en- with an intent law tion of the robbers as broadcast on the minded was substantially forcement, g., “pistol picked where a the same as e. the appearance motive altruistic either and his com- out of an up addition, harm, panions. the order stated the finder others protect radio run one of police, or to otherwise since described it over to turn armed, being suspects The court cited it.” Id. secure justified in LaPella, conducting limited People v. N.Y. approval weapons pursuant search for Terry (1936), in the defendant’s N.E.2d 943 Ohio, S.Ct. 20 L.Ed.2d that he had found the showed evidence (1968). The order express made no toilet, put it in his public weapon in accuracy to the reference the radio run. then, appointment, kept an pocket, However, permissible inference of a find- discovering gun, twenty minutes ing of sufficient accuracy is fairly embraced to the police. surrendered holding made, reasonable and circum- vein, In this asserts accuracy being stantial necessary to lawful sole proof demonstrates since police action the broаdcast. Daniels v. weapon was to possessing purpose U.S.App.D.C. 250, aims of law enforcement further F.2d 359 police, to the he was turning it over entitled aspect not reach that We do order We proffered instruction. do not court which held that a in a agree. Appellant not find justified was frisk we because conclude that the in place, as did defendant LaPel- public particular the circumstance this of case he, la, upon finding apart it in his nor did gave probable the officers cause arrest ment, the or take it “as either call appellant. Galloway and search See directly en possible and as law as soon States, D.C.App., United 326 A.2d 804 Hines v. officers.” United forcement (1974). Accordingly, pis- the seizure of States, knowledge at 249. full supra With appellant proper tol was and pistol illegal, was possession that to supрress motion lant’s evidence was it nonetheless retained for more appellant properly denied. hours, it, and then carried still twelve than This court recently has reiterated loaded, the street. these circum Under the area inquiry that in of constitutional we stances, properly not deem his claim we do unavoidable, deal with as an flexibility if cognizable policy as an excuse under desirable, ingredient not of reasonable- hold that under 22-3204. We therefore § determinations; probability ness and and defense, in appellant’s he facts tendered we not hold impermis- do reasonable action law the not entitled as matter of because, simply retrospect, sible an alter- posses innocent requested instruction on preferred. native Crawford v. United sion. States, D.C.App., 369 A.2d 595 We appellant’s analyze light III. contentions in principles. these argument two-fold the tri- Appellant’s outset, (a) at the suppress response court to that We note al dissent, although government de- that police broadcast was an inaccurate robbers, making police prove ac- not which of the other scription of the officers was description initiating to such unconsti- pursuant responsible radio broad- who, tutional, (b) victims, there was such variance between the and cast or description it, the broadcast furnished information contained in between proof no made of this appearance point lack of It probable suppression hearing. neither cause to that there was is clear all justification nor for a that one of the victims arrest them assumed furnished denying mo- which were Like- written order the details broadcast. its frisk. wise, point pressed here. While Mitchell States, v. United D.C.App., 368 suppression contended at (1977) A.2d 514 (majority and concurring radio run opinions); States, Lawson v. United D.C. garbled, suggested he inaccurate never App., 38 (1976). 360 A.2d descriptive in it origi- information As a general rule, if nated other with one the victims. the information in a radio given the to do so run is obtained opportunity He was from a victim of a suggested crime, following hy- the trial court the bulletin provide will probable hearing: arrest, pothetical at cause for an and the police are enti tled strength to act on the holdup occurred bulletin. offi- [T]he Whiteley v. Warden of give Wyoming cers from the old ladies State Penitentiary, in the shop, that are then U.S. S.Ct. they got piece (1971); some reason another L.Ed.2d 306 Galloway v. paper States, from another holdup supra there and United at 805. That in they wrong air, over send out formation comes from a victim with whom your that, they pick up individuals the arresting officers have no direct you’re saying and as a result it’s a dealings prior to the arrest does under mistake, they put clear the wrong mine the constitutionality of out, saying call you’re such instance seizure on basis of such information. be a violation their would constitu- States, Brown v. U.S.App.D.C. case; That’s rights. tional the clearest 46, 365 F.2d 979 (1966). A victim’s where a clear there’s mistake and demonstrably which is per based on put call that’s out a erroneous. sonal observation is a factor stressed in this, appellant’s answered, Texas, To Aguilar counsel S.Ct. Honor, “Your I think that’s somewhat dis- L.Ed.2d Lawson tinct from situation we have in supra weighing Moreover, point case.” at an earlier heavily in the equation. constitutional proceedings, counsel conceded Appellant does not contest these possibility that other “taс’ officers” Rather, general principles. argues obtained from the victims the information pursuant the run radio to which he was ultimately which was broadcast and which inaccurately arrested reflected the informa served as the basis for arrest. police, tion to the that fairly inaccuracy this That inference embraced in the negated probable cause to ruling Appel on the motion. arrest. inaccuracy lant his claim of bases court in Daniels v. United fact radio run on the that the broadcast supra, U.S.App.D.C. at description differed from description the was prob F.2d also faced with the given by victim after the broadcast oc lem that proved “the Government neither reasoned, falsely, curred. It is thus responsible which officer was for initiating description the earlier forming the basis of nor gave the lookout who the him informa the brоadcast must also have been different again tion in it. point contained But no broadcast, thereby making from the it inac proof was made of this ‍​​‌​‌‌​‌‌‌​‌‌​​​‌‌‌​​‌​​​​​‌‌‌‌‌‌​‌‌​​​‌‌​​​​‌‌‌‍lack of in the Dis curate, giving rise to constitutional de However, trict Court”. the court held that Appellant’s argument ficiencies. hinges on of proof the absence direct the source of premise the unsupportable descrip that the a ground lookout information is not for forming tion the basis of the broadcast was suppression and that may such source essentially the same descrip as the second proved inferentially. We are satisfied that given police. tion the the radio lookout was does neces description shown to sarily may follow it originated have with the have one of victims. been the Thus, apparent descriptions given it is officers in two this same acting eyewitness seрarate case information victim on occasions or that each within a few moments of the offense. gave description See victim at a different was If Then, too, anything, greater of the victims each detail the radio

time. suggest run would that was agitated state based on understandably in an complete description. more much post-offense the immediate throughout totally accurate powers their Necessarily underlying events the conclusion of may details have that the repetition justi- court intrusion was or trial recall fact is the that the broadcast related to adequately sup- fied Such factors optimal. other, no offense and description probabilities port description sufficiently broadcast re- differed the basis of broadcast forming descriptive flected details furnished descrip- second in minor fashion so as to the victims have avoided constitu- tion, equally well have been accu- may and, greater deficiency. signifi- tional rate. nondiscrepant run cantly, detail of the broadcast de- We look whether with number details in combination descrip- the second scription conflicts with it agrees descrip- with second on which tion, it differs from second not whether outweighs significance of the one appellant urges. This difference one as they disagree. fact on which descriptive to a is critical determination approach Accordingly, support there is sufficient description forming the the earlier whether court, we conclusion of the trial in all probability the broadcast basis of reject appellant’s contention that the radio accurately reflected in broadcast. The be so run shown to inaccu- pursuant to make action rate as differ from each other descriptions illegal. thereto three-quarter length coat to whether (As to the num- beige dark brown. why As to reason appellant’s second suggested perpetrators, one victim ber suppressed, have been we should probability of three individuals even in agree judge cannot erred However, description.) the nonbroadcast physical appearance ap that the ruling agree as the facts that descriptions sufficiently pellant and his probably per- males and a third the broadcast as to have close to police probable cause offense; given the son committed first to We look all of circum them. three-quarter length brown wore a them to determine whether stances coat; jacket. wore a that another companions reasonаbly matched the de between the two other difference Every received. See Brown scription fact that explained by descriptions States, supra, which the court considered description, being without inconsistent each significant of numerous fac the coalescence other, contains some details which with the case, tors, in common some instant not, being the radio run far does the other a like decision. and his to make description. the second more detailed apprehended companions were within suggests merely that greater detail Such robbery minutes of the and about 15 min the second run was not based on the radio receipt They of the broadcast. utes and not that the radio run was walking away in a direction from and were earlier de- transmission of an an inaccurate scene, seven crime within blocks fact, greater scription. In detail of elapsed consistent with the time. distance disprove coun- run serves defense Moreover, arresting officers noted that hearing: suppression at the argument sel’s companions only persons they saw in the group of three was in fact either a [Sjecondly, there during cruising. their minutes vicinity between the wit- garbled communication it; who took initial officers nesses makes much of the fact it, taking too hurried they were in a group acting suspicious taking it and plain sloppy in just suspicious While actions will con- manner. absence, cause, were in probable fact their they got descriptions tribute circumstances, . is at most neutral inaccurate. under portion identification, not detract therefrom. certainly does which was attempted absence of Additionally, enough itself probable constitute cause ap- flight apprehension States, . v. .” Brown supra, United explained by can be fact that U.S.App.D.C. 45, proached F.2d policemen clothes” officers were “old We do not find in States, Gatlin v. United recognized as were not officers. thus U.S.App.D.C. 326 F.2d 666 specific physical char- the similarity As to whether with this case which appel- urges. and his lant There acteristics was in Gatlin a single reasonably descrip- person matched the broadcast observed after a three-person look- tion, arresting with but one detail, we note that out clothing a trench The time between age three males within the coat. offense and observed (the hour and forty minutes, radio run described was one group described and the years of the individuals as 18-19 distance offense to arrest locale was mile and one-half. age not state the old and did other two), green jacket, length a three-quarter Moreover, had the in this case coat, shirt, tan/beige and a multi-colored waited for even more detailed information all suspects, trousers on three dark arrests, making before suspects’ ofAll these characteristics mustaches. identity might never have been ascertained. were enumerated radio run. exigencies of the situation made the imperative. course of action “The emer-

We find from above factors gency character of weighs these arrests enough particularized information for the heavily determining their reasonable- judge probable to have found cause to Bailey States, supra, ness.” United justify an arrest. We note that a crime U.S.App.D.C. 389 F.2d at 309. may faulty victim’s observation in some respects but the mistakes are irrelevant if Finally, we note that the fact that particularized is sufficient there informa the victims ultimately did not identify the and circumstances to constitute proba apprehended individuals the perpetrators identity. cause as to Brown v. ble United question is irrelevant to the of a valid ar States, supra; States, Bailey v. United 128 rest. The warrantless arrest must be U.S.App.D.C. (1967). 389 F.2d 305 as of the judged time it was made. Terrell must be allowed for mistakes “[R]oom States, D.C.App., 294 A.2d 860 acting reasonable officers when on facts (1972); Von Sleichter v. United which lead to probability.” conclusions of U.S.App.D.C. 472 F.2d cert. de States, supra Crawford at 600. nied, 409 U.S. 34 L.Ed.2d may The same be said of mistakes emanat ing from holdup victims. In Brown v. Unit judgment of conviction is States, supra, ed the initial radio run de Affirmed. perpetrator Negro male, ‍​​‌​‌‌​‌‌‌​‌‌​​​‌‌‌​​‌​​​​​‌‌‌‌‌‌​‌‌​​​‌‌​​​​‌‌‌‍scribed the as a build, heavy driving a maroon 1954 Ford. MACK, Judge, dissenting in Associate adequate by was found part: light court fact that the car model majority opin- Part I concur in II relatively unusual and that the arrest However, agree I ion. cannot with my m., occurred at 4 a. few ears were on treatment colleagues’ Fourth the street. A more detailed second broad issue, accordingly, and I Amendment dis- 5'5", perpetrator cast described the to a turning sent. Before discussion that wearing jacket brown and cream-colored issue, I pertinent shall review the facts. arrested, suspect straw hat. When had car, blue, wearing a felt hat his was and I. court, According was 5'11" tall. to the such discrepancies destroy Betty “did not Ms. Jackson ascertain men robbed and Two laundry ment made basis of the accurate woman inside a in North- another the afternoon of No- lant’s side in Washington on order to continue the east frisk. feeling A. Officer Michael Ga- After thought what he gun vember was a coat calling right pocket, a radio all frоnt he responded appellant’s run lante into reached pocket scene. heard Ms. and vehicles to the He retrieved police derringer .22 caliber white Negro small with a the robbers as two describe Jackson Appellant said he had just handle. found it males, thin, was a medi- whom with one of apartment and was enroute to the in his nylon complexion, wearing green and um pistol station to turn in the police and re- tall, feet jacket; the second was six ski port burglary. was loaded. complexion wearing a a medium and Ms. three-quarter length brown coat. dark The three men were then taken to person might third have thought a Jackson alleged robbery. scene of The victims outside, unsure, but she was and was been Mendez Officer three were not told person, as to even unable describe who men the robbery. Ap- committed per- Galante did nоt or race. Officer sex pellant subsequently arraigned on the a radio based on sonally broadcast charge of carrying without knowledge, his description. To license. nor did not transmit partner II. did he know if officer on the scene

so. hearing mo- pretrial At suppress pistol, tion his counsel ar- Meanwhile, officers Mendez and police that the run which gued prompted radio Leadman, patrolling plainclothes in their stop appellant officers to and his police car, citywide police monitored a unmarked provide companions did not sufficient infor- “robbery-holdup-gun” lookout for either for the officers to arrest and mation laundry. Officer Mendez testified that appellant. and frisk Counsel search males radio run described three arguendo argued assuming further years approximately eighteen to nineteen prоvided the radio run sufficient age, handgun armed with a or stop, police for an arrest grounds jacket, wearing wearing green another illegal the ra- action nonetheless since shirt, the third a pants plaid dark relationship actual run bore no dio three-quarter length and a mous- beige coat gave her assail- description Ms. Jackson tache. denying sup- In its order ants. written fifteen minutes Approximately motion, the trial court found pression run, Leadman the radio Officers description of the robbers broadcast on appellant and two com- spotted and Mendez substantially radio was the same Road, ap- walking west on Sheriff panions appearance appellant actual blocks the site of proximately seven from that based on the asser- companions and alleged robbery. Appellant was wear- the sus- in the rаdio run one of jacket green army field that was ing a armed, pects closed; companions wore a one of his also conducting a limited search for justified army jacket, the third open; field Ohio, pursuant weapons, corduroy three-quar- in a brown or tan L.Ed.2d 889 They appeared to be 20 to length ter coat. no reference to the effect order made years age. the legality radio run on of the of the although gun, the issue was the three seizure past

The officers continued my length hearing. men, U-turn, discussed approached made a to suppress the motion should have opinion, They rear. identified themselves granted. robbery. reported the three men of the told take his Officer Mendez asked A. frisking ap- pockets. from his While hands stiffen, right he arm that the pellant, disputed noticed It is and his stopped to force arm from solely рolice because of a radio run which B. monitored.1 Both officers con-

they Thus, my opinion, in a rather narrow testimony suppression in mo- ceded question is at prosecution issue: In a based running, that the three men were during on evidence seized a stop and frisk5 shoulders, looking over their or engag- back by police investigating a crime oth- conduct, any suspicious ing er than the one with which the defendant is merely walking down street. The men charged, should a motion to suppress be stopped generally” because “fit where the denied action is based sole- description alleged broadcast robbers run ly a radio containing general a de- and, prior seeing with scription of three suspects; where the im- friends, no other the officers seen plication that the radio run was persons of three on the street. based on a group reрort by eyewitness victim or is negated source of Nowhere in record does the by (a) record evidence that a victim gave appear. It even appar- radio run is not this substantially different description, the lookout was broadcast ent whether (b) the fact that the victims did not through the central dis- from scene identify the defendant as one of their as- the record does contain is patcher.2 What sailants; assailants, and where description Ms. the source given Jackson to Officer Galante3 moments after run never nor any identified factual basis males, Negro two4 robbery: one description suggested for it contained. thin, with complexion, whom was a medium Clearly appellant was “seized” and sub- jacket, wearing ski the second jected to a “search” within the meaning of tall, whom was six feet with a medium Ohio, Fourth Amendment. complexion wearing brown dark standards, supra. Applying Terry the trial length coat. evidence three-quarter No held court frisk was reasonable in ever government introduced that the radio run suggested that at least explain discrepancies between the vic- suspects one of the was armed and danger- description only one the rec- tim’s —the justified if a “frisk ous. But in order to ord—and the radio run. The officer who the officer protect during an encounter initiated the radio communication has never citizen, identified, with officer nor has factual basis must first have description suggested. grounds for the ever been constitutional to insist on an en- transcript transcript 1.A of the radio run was marked for of this radio run contents and stated government’s request hearing suppression identification contained hearing essentially the motion but was never introduced same information that he hеard transcript is, however, into evidence. con- over his radio. jacket in the trial as tained is also attached meaning “Disp.,” 2. The found at the start Appendix toA brief. The tran- transcript, supra. is unclear. See note script reads follows: Disp.: robbery holdup gun Units lookout for suppression 3. testified at Officer Galante Road, today’s date 1516 Sheriff North police report from the form on which Negro East number male armed with given as it he wrote the to him green jacket hand and in a by Ms. Jackson. Negro Number male 18 to 19 5 foot light complexion brown dark troussers [sic] previously, thought 4. As noted Ms. Jackson shirt, plaid number three male brown might person outside, have been third but she complected beige 3A coat mustach last [sic] certain, give was not could no seen from Sheriff towards Eastern 1523. whatsoever. transcript is for the radio run broadcast My analysis procеeds assumption Officer Mendez Zone Two. testified that he “stop the initial intrusion was a Officer Leadman received radio communi- frisk” arrest, transcript on Zone One. No of the run rather than an because the cations trial court so However, produced. reasoning applies Zone broadcast One Officer found. arrest, implied greater Mendez the same information is force to even which is what argued majority in all radio zones for serious broadcast offenses has decid- —and robbery. Officer such Mendez read the in this ed —occurred case. 50 Terry,

counter, stop.” constitutionally make forcible to defective warrant —were il- 32, (emphasis 88 at 1885 at S.Ct. supra legal. arguments pressed One by the omitted) (Harlan, J., concurring). support of the legality State of the arrest was that search arresting since the require satisfy reasonableness To had relied on police radio run in officers justify Fourth Amendment and ment of arrest, making and not on the unnamed police officer must stop questioning, for informant, legal arrest was because to and articu- point “specific to able they probable cause to believe that the the intrusion. which warranted facts” lable the car were those described in the men Here, known to Officers “facts” argument, Supreme To bulletin. gener very and Mendez were the Leadman replied: Court run. descriptions in the radio contained al not, determine, of course, We do enough question a case it to that the In such court, police Laramie entitled to act on the did the strength of the radioed de radio substantially Certainly fit bulletin. officers nothing police upon there in this record called to aid other for scriptions, executing arrest as to the support even an inference warrants are to to assume reliability descrip entitled re- of the radioed source aid offered the questing magistrate faith of Offi Regardless good tion. requisite Mendez, support their actions information an inde- Leadman cers judicial pendent probable be insulated from constitutional assessment of cannot Where, however, contrary cause. challenge solely because acted on true, Warden, out to be Whiteley illegal v. turns otherwise of a radio run. basis 1031, cannot be challenge L.Ed.2d insulated from 91 28 401 U.S. S.Ct. decision of Galloway by instigating officer (1971); D.C. 723 fellow 803, (1974). rely on officers to make the A.2d n.l 326 805 App., Warden, [Whiteley supra v. arrest. Warden, Whiteley supra, v. involved 568, 91 S.Ct. 1037.] constitutionality of the use challenge during Therefore, of evidence seized a search it is at trial the radio run itself to assertedly illegal arrest. inquiry must be was it incident which directed: subjected “specific Whiteley companion on facts based and articulable arrest, subsequent which, together warrantless taken infer- to a with rational facts, and seizure on the basis of from those reasonably search ences warrant county, Terry Ohio, 21, which con- supra run from another that intrusion”? v. of two the names and at 1880. When tained 88 S.Ct. a detention and just whom an arrest warrant had are based solely search on information re- men held that Supreme by police Court layed issued. transmission facilities of complaint pursuant to which the arrest per- officer himself had no prob- knowledge, must, issued government failed to establish warrant sonal cause, search challenged, and that the arrest and show able that the information Whiteley though conducted of- the action on which was based had a reason- —еven the one who obtained foundation.6 other able ficers Accord, Robinson, denied, (1976). v. 536 F.2d 535 F.2d 286 United States See also United 1142, 1976); Vasquez, (5th (9th Mun v. 534 1145 United States exrel. ‍​​‌​‌‌​‌‌‌​‌‌​​​‌‌‌​​‌​​​​​‌‌‌‌‌‌​‌‌​​​‌‌​​​​‌‌‌‍States F.2d 1298 Cir. denied, 978, 489, LaVallee, (2d 1975), Cir.) 429 U.S. 50 go cert. S.Ct. 522 F.2d 211 Cir. grounds, L.Ed.2d vacated and remanded on other 3215, (1976); Robinson, supra, 96 S.Ct. 49 L.Ed.2d 1213 United States v. (5th Impson, applicability 482 F.2d 197 States Ninth Circuit considered the denied, Cir.), Whiteley cert. 414 U.S. v. Warden to a nonarrest situation remand, probable suspicion, aff’d after that founded like 38 L.Ed.2d and held (per curiam), cause, (1975) solely receipt vacated “be F.2d 1055 cannot based grounds, dispatch stopping other 422 U.S. officer of a radio remanded vehicle, proof reversed and re L.Ed.2d the described without S.Ct. grounds, relayed F.2d reh. foundation on other factual mes- manded acutely My that it is necessary am aware colleagues I in the majority do not dis enforcement offi- law pute effective these general principles. Rather, they сircumstances, cers, emergent with faced claim to be “satisfied that the radio lookout and arrest “stop must frisk” on description was shown to originated have conveyed to by of information them basis one of the with victims.” Had such a show held, however, have never others. We nor made, been I ing would not dissenting. we, (no more than in should cases cannot infer We the information re involving obtaining warrant) of a arresting ceived officers came from reliability of the information need not be eyewitness or a victim Galloway v. —cf. Thus, finding probable a established. States, supra United the record —when on cause based information received from divergent a contains description given by an unknown unidentified informant re- victim to another officer. Absent iden quires showing some the factual basis tification of the run, source this radio we which the informant concluded upon do not know whether “the police officer committed, crime had been the infor- initiating the chain of communication either veracity reliability mant’s or the of his in- had firsthand knowledge or received his States, Spinelli v. United formation. 393 information from some person normally — 410, 584, 89 S.Ct. 21 L.Ed.2d 637 putative victim an eye witness —who Texas, (1969); Aguilar 108, 84 378 U.S. it seems reasonable to telling believe is (1964); 12 L.Ed.2d 723 Mitchell S.Ct. States, truth.” Daniels v. United 129 U.S. States, D.C.App., v. United 368 A.2d 514 App.D.C. (1968). 393 F.2d Similarly, stop officer may such circumstances it Under is not “reason frisk on the of a passerby’s report basis to conclude that such report able resulted person is carrying gun, an eyewitness from observation.” Gallo through per officer has confirmed way, supra at 805. specifics sonal observation various which quantum Although the of information re- See, given description. g., in the e. quired uphold an arrest may differ from States, D.C.App., v. United Lawson required legitimize frisk, stop (1976); States, Galloway A.2d v. United quality it does not follow that may be D.C.App., 326 A.2d cert. dissimilar. likewise The standard enunciat- denied, 421 U.S. is “specific ed and articulable (1975); States, Davis L.Ed.2d v. United facts.” standard not satisfied D.C.App., (1971); 284 A.2d 459 anonymous police radio run which conflicts Dowling, D.C.App., States 271 A.2d 406 victim’s and for which (1970). The victim of or an eyewitness government presents no explanation is generally crime in considered a reliable response challenge. to the defendant’s Galloway formant. supra said, at 805. None of reliability Supreme these indicia of As the Court has “This exists the record before us. specificity demand for in the information sage.” Mungo challenged by appellant’s F.2d at pre- v. LaVal lee, supra, suppress, prosecutor the court held where the source motion to had the report probable establishing which the officer cause. burden of That appellant’s met, based his of the vehicle was burden was where total facts with- identified, probable never arresting cause knowledge exist officer’s were those arrest, during for his and items bulletins, found reported in the radio and the source ‍​​‌​‌‌​‌‌‌​‌‌​​​‌‌‌​​‌​​​​​‌‌‌‌‌‌​‌‌​​​‌‌​​​​‌‌‌‍suppressed. ap search should have been pellant dy cerning remained unknown. information Id. arrested had been and taken into custo Similarly, Fifth Circuit in United 214-15. following police radio communication con supra, Impson, vacated the conviction States v. episode unrelated to the of of offenses for a further and remanded strength he was convicted on which suppress, appellant’s motion been evidence seized arrest. court's him and his car after the by the trial court without effort denied having rejected The circuit court the district made to show the nature or source assumption that the made prompted which had information crime, by a witness the scene where pickup Impson’s alert which resulted arrest. yielded record no such information. When predicated action is upon which Fourth teaching of this Court’s

central Ohio, Terry v. jurisprudence.” Amendment 1880. Adher- n. S.Ct. at supra join I the ma- principle, cannot ing to affirming denial jority in suppress. motion Karpoff, pro Julian se. dissent. respectfully I Buckley, D.C., Washington, W. David appellee. HARRIS,

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

REILLY, Judge, Chief Retired: appeal This case before us on an KARPOFF, Appellant,

Julian granting summary judgment order an in brought by defendant action CORPORATION, prospective here— HOLLADAY tenant — corporate Appellee. against apart- owners of an house. his complaint, ment No. 10390. that he alleged induced what he Appeals. of Columbia Court of District as a “bait newsрaper described and switch” 11,1975, on February advertisement to visit May Argued 1976. apartment house day read Aug. 8, 1977. Decided advertisement. This advertisement, such in appeared a local newspaper, of- “completely apartments” fered renovated Heights Commons, at Connecticut including apartments bedroom “from $265.” According to the complaint, the rental showed him agent units,. some one bedroom price none at rental but of less $285 month, and per apart- advised him that no of that would be ment available approximately later, until six weeks $265 April 1975. asked for the fol- lowing injunction against relief: defend- $1,000 advertising; “bait ant’s switch” damages; $1,000 punitive in attor- fees.1 ney’s defendant After moved to dismiss the Super.Ct.Civ.R. 12(b)(6), under claim opposition lant stated that his claim not lie the common law actions fraud, deceit, misrepresentation, such grounded rather in thе Federal Act, 15 Trade Commission U.S.C. 41§ et regulations seq., and enacted under practicing lawyer, complaint pro Plaintiff, apparently filed se. notes possession”1 upon “innocent was based his old. years pose by reporting proposed to the defense counsel offense 1. The instruction weapon turning police. over to the reads as follows: person are instructed that if a has You introduced which tends Evidence has been pistol possession circum- of a under certain acquired posses- defendant to show indicate stances which that he did not have after it was left in his sion apartment acts to do the which constitute the intent burglar surprised who was license, carrying pistol without a offense apart- returned to the defendant his when carrying guilty person not be would pur- carried it for the ment and that he sole testimony, substantially рrecinct corroborated to turn the gun and report the wife, his two and his burglary stopped by the late beginning evening events police. time, 1973. At November The trial court ruled that the defense of lant, friends, help began with the his two possession innocent was not available as a moving family the task and their upon of law matter the facts of this case. apartment from his to his fa- possessions ruling stemmed from the con- court’s Leaving appellant’s wife ther’s home. clusion even if jury completely home, the at his father’s three men children credited testimony of appellant apartment building returned witnesses, all of whom claimed appellant building, a. Approaching 1:30 m. about carrying on the street for the appellant heard a noise “like a door slam- purpose turning sole the nearest lights ming” and noticed in his station, the defense was not available apartment were and the first-floor door because admittedly he had

Case Details

Case Name: Carey v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Aug 1, 1977

Citation: 377 A.2d 40

Docket Number: 8816

Court Abbreviation: D.C.