Goldston v. United States

post they that address where remained BELSON, Before NEWMAN and day. fitting for most of the No one Ja- Judges, GALLAGHER, Associate and description left the mie’s Columbia Road Judge. Senior in address until late the afternoon when emerged appellant from the house. The GALLAGHER, Judge: Senior informant, joined had police at the Appellant was arrested and searched on lookout, immediately appellant identified as comer, resulting a in Northwest street person recently from whom he had police recovering plastic bags six of cocaine purchased cocaine. jacket. from his The trial court denied Appellant entered a white Audi—not a appellant’s pretrial suppress motion to police BMW—and drove off. The followed drugs, whereupon appellant entered a con- directly him as he drove to the intersection plea guilty1 ditional to one count of Streets, of Fuller and Mozart the same possession of cocaine in violation D.C. corner where the informant stated Jamie 33-541(d) (1988 Repl.). Code Appellant § drugs daily, parked sold and his car. challenges ruling, now the trial court’s ar- people There were several on the comer. guing police that the lacked The informant stated to the officer that disagree to arrest him. We and affirm. waiting appellant. were customers alighted finally When the latter from the I placed car he was under arrest and the evening theOn of October a packets of cocaine were recovered from his telephone officer received call from jacket pocket.4 who, previous eigh- an informant over the Appellant pretrial sup- filed a motion to months, provided teen him with accu- press, arguing that the informant’s infor- rate reliable information on eleven oc- give police probable mation did not source, sup- casions. The who had never cause to arrest him. The trial denied plied court with inaccurate information motion, noting though that even lengthy period, over this stated that a slen- required der, to scrutinize the informant’s ve- six-foot tall black male named “Jamie” racity closely because of the regularly latter’s status sold cocaine at the comer of Full- paid Streets, any deficiency as a in er and Mozart Northwest. The color, “outweighed long specified make, this area was ... source further tag significant history productive gray2 tips and license number of BMW drive, unproductive tips....” he had seen Jamie and added that and the absence of ruling lengthy Jamie lived the 400 block of In a rather and careful Columbia analyzed Road. informant also stated that he which the court the material evi- 11(a)(2). Super.Ct.Crim.R. reg- 1. could not recall whom the vehicle was istered. 2. References the record describe the car al- ternatively gray or silver. 8,552 bags mg powder 4.The contained of white 2,292 mg, percent, pretrial suppression hearing, of which or 26.8 was cocaine At the the officer charge investigation testified that he HCI. dence, involving judge concluded that “tak- Prior to cases the trial analyzed rigid surrounding tips under a somewhat into account all of the two-pronged analysis mechanical infor- circumstances ... as well as [the —the Spinelli Aguilar-Spinelli test. See v. knowledge” veracity basis of mant’s] coupled independent corrobora- (1969); Texas, Aguilar 21 L.Ed.2d 637 by the tion of the details related to them 1509, 108, 84 S.Ct. 12 L.Ed.2d 723 378 U.S. informant, the information “was sufficient alia, (1964). required, The test inter that necessary provide under the law to reviewing judge examine both the ve probable appeal This followed. cause.” racity or of the informant and knowledge” the informant’s “basis II Rutledge the information. See v. United States, 1062, (D.C. reviewing a trial court’s 4 Our role in 392 A.2d 1065 & n. 1978). inadequate showing seized as An as to suppress decision not to evidence one finding supplied by prong usually a confi fatal to a a result of information probable is ensure that the trial cause. dential source concluding court had a substantial basis for analytical This framework has been probable cause existed. See United States however, rejected, overly formalistic 1090, (D.C. Johnson, n. 2 540 A.2d 1091 v. place, Supreme In cumbersome. its Gates, 213, 1988)(citing Illinois v. 462 U.S. subsequently court— Court—and 2317, 2332-33, 238-39, 103 S.Ct. 76 L.Ed.2d adopted pragmatic “totality the more Gates States, (1983)); 527 v. 362 Jones did not of the circumstances” test.5 Gates 736, 257, 271, 725, 4 80 L.Ed.2d U.S. reject completely Aguilar-Spinelli cri (1980). so, doing accept must 697 we teria; rather, the Court observed that while court the inferences drawn the trial “veracity,” “reliability,” and “basis of from the facts adduced at the motions knowledge” highly are all relevant de- any hearing they supported if are under termining the value of [an informant’s] of the evidence. United reasonable view agree reportf, do not ... these w]e Rorie, (D.C. 410 v. 518 A.2d States should understood as entire- elements be 1986). require- separate independent ly outset, concept At the we note that the rigidly every exacted in ments to be case_ probable readily, cause is “not or even un- Rather ... should be legal usefully, reduced to a neat set of closely simply as intertwined derstood supra, 462 103 rules.” may usefully illuminate the issues that Supreme has S.Ct. at 2329. As the Court common-sense, practical question wheth- reiterated, recently “probable there cause”.... er is hard process does not deal with Gates, supra, “[t]he 462 U.S. at 103 S.Ct. at certainties, Long probabilities. but with (footnote omitted); 2328 see Allen v. Unit- probabilities the law of was artic- before States, (D.C.1985); 496 A.2d ed such, people formulat- practical ulated as States, A.2d v. United Jefferson common-sense conclusions ed certain (D.C.1984),overruling part Nance behavior; jurors as fact- human (D.C.1977). about 377 A.2d 384 permitted to do the same— finders are Consequently, because the test is one officials.” and so are law enforcement factors, balancing several if requiring a — U.S. —, Sokolow, one of the relevant indicia is deficient it is United States v. (1989) finding 1581, 1585, probable cause if 104 L.Ed.2d not fatal to another, Cortez, strong showing there is a as to (quoting v. United States 411, 417, 101 if 66 L.Ed.2d 621 there exist some other indicia reliabili- (1981)). ty. U.S. at Davis, probable cause 5. While Gates dealt with the and United States v. warrant, (D.C. 1978), probable same required we noted in n. 2 that the to issue a search Hannon, (D.C.1979) apply arrest. Stanley A.2d standards to warrantless history supply- S.Ct. at 2329. With these realistic consid While productive mind, ing prior a most erations in we turn to examine guide establishing reliability important facts the case before us. credibility, have noted that other we ancillary play issues also come into A. “employ- determination. These can include favoring ment, personal attributes accura- paid While a reputation cy reporting, in observation and presumed generally be to be less credible others, personal with the with connection Allen, supra, than a citizen see suggesting suspect, any circumstances 2, here, 496 A.2d at 1048-49 infor & n. falsify, lack of motivation to long extraordinary mant had a and rather known criminals.” Rut- association with history providing produc supra, 7. Dur- ledge, A.2d n. tips outweighs presump tive hearing, ing suppression police the offi- the tion, Jefferson, supra, see 476 A.2d at 687. was em- cer testified that the informant police A officer who worked the had with ployed, supplying that his motivation for eighteen informant for over months testi police the accurate information to was mon- suppression hearing fied at the that infor remuneration, etary and that he was not a supplied by during mation the informant factors, balance, drug addict. These on period arrests, that had led to eleven support lent some additional to the infor- seizure weapons, and numerous though important credibility, mant’s not as and an unknown of convictions. number reliability as the informant’s had that, only Not the officer testified he that long period been established over a knew of no occasion where informant time.6 proven long had to be unreliable. This Finally, striking we note one in the fact past productive record of information supportive record which is of the infor- reasonably would establish informant’s credibility. police After the estab- States, reliability. See Smith v. United post their lished surveillance on Columbia 891, (D.C.1975), 892 A.2d Jefferson, cf. Road, they joined were (informant gave 476 A.2d at 687 fruitful stayed until appellant them was tips prior occasions); on nine District of exiting accompa- seen the house. He then M.E.K., 655, v. Columbia 407 A.2d police they appellant nied the as followed (informant (D.C.1979) history sup had to the comer of Fuller and Streets. Mozart plying on reliable information six occa supplied Had informant sions); States, 370 Waldron v. United false, unlikely to the been it is that 1372, 1373(D.C.1977)(officer A.2d on relied participated he would have in the surveil- paid per knowledge that had lance or waited with the for them to for in past). formed well other officers that fact.7 discover States, 186, 196 (D.C.1986), Although attempted defense counsel to elicit 516 A.2d seewe here further no substantial information about issue. government’s objec- trial court sustained the hearing, appellant aFor con- questions grounds tions to some of the on the quite lengthy, searching, sophis- a ducted or, impor- either were irrelevant more noted, was, ticated cross-examination. He tantly, compromise tend to would confiden- occasions, upon restricted a few but not to an identity tial informant. Given deprived him in extent a fundamental government’s pro- strong legitimate interest in sense. informants, tecting identity McCray of its see slight 300, 1061, support Illinois, 308, 1056, 7. Some additional is lent to a U.S. reliability by (1967), determination of the informant’s 18 L.Ed.2d the fact that defense coun- purchased his admission to the that he adequately why proffer sel failed to the court against appellant bias, cocaine admission questions probative see DeNeal —an 33-541(d) penal States, his interest. See D.C.Code (D.C.1988), § v. United (1988 Repl.). and the trial court’s broad discretion in deter- cross-examination, mining daily extent of Al- important see affairs Common sense in the prudent v. United U.S. would to life induce and disinterest- ford (1931); 75 L.Ed. 624 Bush ]. ed observer to credit Peo- [this] statement description exit a

B. train informant’s] [the Chicago; arriving from his attire and establishing In addition to that the infor- luggage matched re- [the informant’s] reliable, very government mant walking rapidly.... port and he was presented showing evidence that the point investigation, [B]y this his “inno- corroborated number otherwise arresting personally officer “had verified provided bolstering thus cent details” given every of the information him facet both the of the information and credibility except [Draper] The had of the informant. Su- ... whether accom- preme “consistently recognized Court has plished his mission and had ... heroin on of details of an value corroboration person....” independent police 242-43, 103 supra, 462 work,” supra, 462 U.S. at (citation omitted). 2333; see, e.g., Aguilar, supra, S.Ct. at “ every ‘with Court concluded 1; U.S. at 109 n. 84 S.Ct. at 1511 n. tip] personally thus veri- other bit [the Jones, supra, 362 U.S. at 80 S.Ct. at fied, “reasonable [the officer] accord, 735; Jefferson, supra, 476 A.2d at grounds” remaining un- to believe that through oth- because “[c]orroboration bit of informa- verified [the informant’s] er sources of information reduce[s] Draper tion—that would have the heroin prevaricating chances of a reckless ” (quot- likewise with him—was true.’ Id. tale,” providing thus “a substantial basis Draper, 358 U.S. at crediting informant’s statement.]” [the 333). Thus, Court, at reasoned the S.Ct. 269, Jones, supra, 362 U.S. at 80 S.Ct. at support sufficient to a the information was 735; Gates, 244, 462 103 supra, see U.S. finding probable of cause. (quoting Spinelli, supra, at 2335 393 S.Ct. (White, J., 427, U.S. at 89 significant S.Ct. perceive We no distinction be- concurring)). Here, Draper and case. like in tween police Draper, corroborated several 307, Draper v. 358 U.S. details of the infor- otherwise innocent 329, (1959), 79 3 327 is “the S.Ct. L.Ed.2d mant’s information. The informant told classic case on the of value corroborative BMW, supplied a police that Jamie drove Gates, police supra, efforts of officials.” number, tag the license and stated that 242, 2334. In 462 U.S. at 103 S.Ct. at in the 400 of Columbia Jamie lived block Draper, paid reported a informant that an computer check of police Road. The ran a in individual would arrive Denver on a train tag and determined that it was dates, number Chicago on of one two person living at 423 registered to a Colum- possession in quantity would be of a of and, police incidentally, descrip- bia Road. gave heroin. The informant also a individual, then staked out that address gave tion of the but no indica- emerged from appellant tion as to the basis for his information. until the house— 309, Draper, supra, person matching 358 U.S. at 79 S.Ct. at only They description to do so. then followed directly appellant drove to the comer police On one of the stated dates officers Mozart, Draper—] matching of Fuller and the intersection observed a man [— (payment pie lightly place S.Ct. at 2082 admit a crime and id. at 91 or do not leniency promise "does not critical evidence in the hands of the eliminate opprobrium having residual risk and the form of their own admissions. Admis- admit conduct”); carry ted criminal nor the failure to sions of crime ... their own indicia of support charge drug pur credibility a him for similar uncontrolled at least to —sufficient chases, Davis, finding probable U.S.App. see United States v. cause.... 573, 583, 95, 111, Harris, (1979). D.C. over, 617 F.2d More United States v. 2075, 2082, (1971). colloquy appears from a brief between 29 L.Ed.2d 723 give prosecutor That did not show or and defense counsel the informant government insulating promises purchased drugs does not affect this had made no leniency Similarly, immunity regard determination. See id. such a deter or to the informant purchase forming mination is not affected the fact the cocaine the basis for “[t]hat ” “break,’ paid provided informant be a at issue here. regu- where the said that Jamie C. larly drugs, parked sold there.8 Final- examining While a court an informant’s ly, group people a observed veracity or seeks to determine standing on the approximately corner—at relayed in- whether truthful the informant p.m. 7:00 the informant identified formation, infor- an examination —whom appellant’s as customers.9 knowledge” into inquires mant’s “basis relaying. he what he was Our how knew activities, none While of these viewed recognize decisions this criterion alone, necessarily gives rise to a conclusion “ satisfied infor- adequately when ‘the appellant engaged illegal activi knowledge personal based on “ [is] ty, ‘in this just Draper, as seem ” acquired by first-hand See observation.’ ingly activity suspicious innocent became (citation M.E.K., supra, 407 A.2d at 657 ” light tip.’ supra, of the initial omitted). U.S. at 243 n. 103 S.Ct. at 2335 n. 13 Here, gener gave police a (quoting People 85 Ill.2d al description appellant and told 423 N.E.2d 53 Ill.Dec. his first name. He informed them that (1981) (Moran, J., rev’d, dissenting), appellant regularly partic sold cocaine at a 76 L.Ed.2d 527 “ city, ular intersection in described (1983)). frequently behavior ‘[I]nnocent tag the make license number of car provide showing will for a location, appellant had driven to that cause; probable require would otherwise addition, well as the block he on. In lived impose be to drastically sub silentio personally purchased stated that he co rigorous more definition appellant. caine from These circumstances security than the of our citizens de permit, least, very at the inference that ” Jefferson, 476 A.2d at mand[s].’ personal on information was based ob (quoting Gates, supra, atU.S. servation rather than “a casual rumor cir 13). n. 103 S.Ct. at 2335 n. culating in the or an underworld accusation summary, the informant here had a merely based on general an individual’s long significant history providing reputation.” Spinelli, supra, 393 U.S. at prior history reliable information. That is 416-17, 589; S.Ct. 89 at see Waldron supported by bolstering other indicia States, (D.C.1977); 1372, United 370 A.2d 1373 credibility. informant’s In Jefferson, supra, 476 A.2d cf . addition, police corroborated a substan- (that “informant in his revealed ... that tial number innocent details contained in he had the subject selling seen narcotics” report. This leads us to satisfy knowledge sufficient re that conclude the trial States, court was reason- quirement); Banks v. 305 able in determining that (D.C.1973) (informant the information A.2d 256 stated relayed police in this suspect drugs case was itself “personally knew” the had him).10 reliable. on confirmed, large fly

8. That this "surveillance stated that one of the defendants would from measure, transaction, prediction part drug [appel- Florida to Illinois as of a [informant’s] Gates, conduct," supra, when in fact she drove. future lant’s] Offutt 225-27, (D.C.1987) majority at noted, (dissenting opin- 103 S.Ct. at 534 A.2d 2325-26. Gates, though, ion) (emphasis original) (citing that required 2360-61), We by that have never informants used atU.S. 103 S.Ct. at is also infallible, police be and can see no supportive of the conclusion that the had impose requirement reason to such a in this probable cause to him. arrest simply case. Probable cause ... does not necessary. require perfection the dissent finds 9. We note that while the informant told BMW, night that Jamie drove a he was Id. at 245 n. at This S.Ct. 2336 n. 14. arrested he drove a white Audi. The dissent reasoning equal applies to the dissent here with seeming inaccuracy suggests seizes on this force. probative tip. that it undermines the of the value However, Supreme rejected in Gates the Court 10.Even if we to assume a deficient show- area, argument. ing deficiency same In that in this that is overcome , III that one determination will seldom be a another.”). ‘precedent’ useful The ma- concluding proba had however, jority opinion, complexi- belies appellant, ble cause to arrest us, ty inquiry doing so, before relied on their corroboration of details of contrary reaches a result to the fundamen- information, coupled with the infor protections tal afforded the fourth unusually well-established record of probable requirement. amendment’s supplying productive and reliable informa I dissent. personal tion as well as his basis of knowl edge. information, think We that this on whole, practical, for the “suffic[ed] I. judgment common-sense called for mak First, we must revisit the facts. Officer probable cause determination.” evening Shields testified that on supra, 462 U.S. at 28, 1986, paid police October informant 2335; 23-581(a)(1)(1981 see D.C.Code & § past, with whom he had worked in the Supp.).11 Accordingly, the trial court telephoned him with information concern- properly appellant’s sup denied motion to slender, ing a six-foot black man named

press judgment and the “Jamie.” He stated that “usually” drugs, him told that Jamie sold Affirmed. “frequently” the comer of Mozart Streets, N.W., and Fuller and that he “does NEWMAN, Judge, Associate daily sell on a basis.”1 The infor- dissenting: purchased mant further stated that he had again question Once we confront the cocaine from Jamie’s vehicle at that loca- past seventy-two tion within the hours. whether an informant’s furnished the gave li- The informant Officer Shields the cause to make a war- tag cense number of the silver Jamie BMW begin rantless arrest. We would do well to driving purchased been when he inquiry by noting although there cocaine, and told him Jamie lived in analytical is an established framework for Road. block Columbia principled decision-making in this area of law, unique circumstances under “[t]he morning, The next Officer Shields ran a which each case arises ... makes the term tag check and found that the BMW was ‘binding precedent’ a misnomer.” United residing registered to someone at 423 Co- Mason, (D.C. States v. Road, thereafter, Shortly lumbia N.W.2 1982); see Illinois v. Officer Shields and three other officers be- 238 n. 2332 n. gan a stakeout of that address. At no time (1983) (“There many surveillance, L.Ed.2d 527 during are so day-long the probable-cause equation approximately variables the lasted from 9 a.m. until reliability right things, probably strong the indicia of of the infor- about some he is more tip, particular Gates, ... a informant is right supra, "[i]f about other facts." reliability predic- 244, 103 known for the unusual of his (quoting Spinelli, supra, S.Ct. at 2335 types tion of certain of criminal activities the J., (White, 393 U.S. at 89 S.Ct. at 594 con failure, locality, particular his in a to thor- curring)). noting passing, appears After it in it knowledge oughly set forth the basis of his surely should unimpressed by long the and accurate record of serve as an absolute bar to a not informant, particular this who also had never finding probable tip." cause based on his given before unreliable information over that Gates, supra, 462 U.S. at 103 S.Ct. at 2329. period. extended Police do not often have those reliability plus significant indicia of corrobora appears microscopic 11. The dissent to make a deciding tion when whether to make an arrest. "proba- search for “hard certainties” rather than law, required by existing bilities." This not is infra, 1. But see note 9. Gates, e.g., supra, nor should it be if we are not impede police attempt reasonably a to deal to with urban 2. Officer Shields testified that he could not re- crime. , registered. call to whom the BMW was accept The dissent also not to in this seems is case the truism that an informant "[b]ecause p.m., Nevertheless, presented tip. did the in the stakeout team see silver she expressing neighborhood. could not “refrain from BMW the At about 1 [her] it a little p.m., belief that officer cut close.” Officer left Shields the team and went pick up to he then II. brought back to the No stakeout location. point, ours, starting The court’s like description

one trial matching the informant’s “totality is the of circumstances” test set entering leaving was seen or the residence applied out in and approximately p.m., until the infor- when see, e.g., court leaving mant individual identified Jefferson (D.C.1984).5 States, 476 A.2d To house as en- Jamie Goldston [Goldston]. whether determine an informant’s con- Audi, tered a drove white several blocks to probable may stitutes cause consider we Streets, and comer of Mozart Fuller veracity knowledge, and basis and N.W., parked and then exited his car. reliability disposal, other indicia of at our Meanwhile, team, stakeout which con- including the corroborative efforts of the sisted of Officer Shields and the informant police. supra, 462 U.S. at in one car and other members 103 S.Ct. at 2333-34. car, following team in a second had been deficient, If one of relevant indicia arriving Upon Goldston. at the intersec- necessarily finding prob- is not fatal to a tion, the informant told Officer that Shields cause, showing strong for a able reliabil- persons standing around the area were ity in another area cure the defect. Jamie, waiting for a statement to which 233, 103 ap- Id. at S.Ct. at This the members of the in the stakeout team proach “permits a balanced assessment of apparently privy.3 second car Al- weights the various indi- relative all though the informant stated that had (and reliability unreliability) cia of at- purchased Jamie Jamie as ” tending tip.... an informant’s Id. at car, sat in his there is no evidence that the added). (emphasis 103 S.Ct. at 2330 Con- people allegedly waiting ap- for Jamie assertions, trary majority’s supra to proached car; testimony rather 11,& I notes 9 harbor no illusions that an shows that the officers from the car second informant should be infallible or that we arrested as he Goldston left his car. judges anything proba- deal with more than arrest, search incident to recov- in a case this. I bilities such as believe ered packets of five cocaine.4 are under Gates we bound make a judge The trial denied motion Goldston’s searching inquiry into each substantive suppress ground the evidence on every pertaining circumstance to the probable that the unreliability tip, only arrest cause to him proper then can we make a determination tip. based on the informant’s probable as to existed. judge whether found that there was indi- sufficient cia of reliability to conclude Veracity A. The Criterion cause existed based on the informant’s ve- racity and of knowledge, and the concluded, majori- and the The trial court independent “long ty agrees, corroboration of facts certain summing up leading 3. In the facts basis for to a denial of trial court had a substantial conclud- suppress, the motion to the trial court incorrect- ing” probable cause existed. United States v. ly testified, stated that the "officer all the he saw Johnson, (D.C.1988) n. 2 540 A.2d added.) people waving (Emphasis at [Jamie].” (citing 462 U.S. at 103 S.Ct. 2332-33). appellee Our afford review "must packets 4. Officer Shields testified that five were legitimate testimony inferences the and all from found; however, arresting the state- officer’s facts of the We uncontroverted record. must department ment on a form indicates accept the the also inferences drawn trial packets six cocaine were taken from presented they sup- the facts if court from are Goldston. any ported view of the evi- under reasonable recently reviewing 5. We have stated that in Rorie, United dence." States v. 518 A.2d suppress trial evi- court’s decision whether to Ward, (D.C.1986) (citing United States v. tip, dence seized as the result of an informant’s (D.C.1981)). A.2d 201 “appellate the role is to that the court’s ensure apparent significant productive tips falsify, to the motivation history of and tion information, pres- unproductive tips, supplying the at least the the absence evidence,” veracity prong satisfies the a criminal record or ence or absence of notwithstanding criminals, inquiry the fact and association with known unidentified, paid is an informant he the like. through an who obtained his information (quot- Nance, A.2d at 389 n. 5 supra, 377 uncontrolled, drug purchase unverifiable Harris, States v. United making up days to his call to three before 29 L.Ed.2d 723 police.6 dissenting)) (Harlan, J., (emphasis (1971) paid credibility or truthfulness of added); supra, 392 A.2d at Rutledge, see rig always subject been to informants has n. 7. typically scrutiny orous because are proper, questions Defense counsel’s have drawn from the criminal milieu and necessary to determine whether and indeed unascertainable, suspect for di motives informant could be trusted to tell vulging Rutledge v. their information. See truth, notwithstanding his track record. (D.C. by curtailing line judge erred this The trial 1978); States, 377 A.2d Nance v. United particularly was inquiry.7 This error (D.C.1977), part, overruled in Jef light damaging to of other indi Goldston (overruling

ferson, supra, 476 A.2d 686 unreliability present in the infor cia of extent” it held that corrobo Nance “to the tip. majority, I cannot Unlike signifi details ration innocent is not deprive did not say that error Goldston determining tip). veracity cant value in sense”; given the na “in a fundamental Moylan, Hearsay Prob generally See and ture of the error it seems that we are Aguilar Spinelli able Cause: An making such a de forever foreclosed Primer, 741, 765-73 25 Mercer L.Rev. termination. (1974). hearing, de suppression At the attempt probe to the credi fense counsel’s infor- persuaded Neither am I that the however, frustrated, bility when issue was vir- mant’s trustworthiness bolstered trial judge improperly sustained against his alleged declaration tue of government’s objections questions con to wit, interest, partici- he penal admitted cerning standing in the the informant’s illegal drug To pating transaction. community, his criminal record and wheth with, facially although against his begin This er he from the criminal milieu. came interest, clearly the admission was penal approved line consistently court has of this contrary penal to his interest because questioning to examine an previ- has never been identified and has he credibility: ously gathered through uncon- information being purchases drugs of his trolled without violating

Without the confidences addition, source, nei- agent prosecuted. describe surely could gave things as the ther showed nor magistrate for the such allegedly no employ- purchased, therefore general background, informer’s ment, prosecute personal him exists with which to enable evidence attributes that circumstances, there is accurately, posi- him. Under these to observe and relate no basis whatsoever conclude that community, reputation tion in the inculpatory others, informant believed his state- personal with connection sug- him to subject ment could criminal liabili- suspect, any circumstances Consequently, common sense and rea- gest any ty.8 motiva- absence of permitted to Counsel was ascertain that testified that he had used 6.Officer Shields drug employed and not a informant was was "approximately within informer times” eleven addict, but it unknown he was a whether half, year preceding one drug any lie user whether he respect motive to recovery had resulted in the with to Goldston. narcotics, weapons unspecified num- and and an of ber arrests and convictions. assertion, Contrary majority’s to I not the do supports believe the record the conclusion that defy any knowledge son characterization of his admis- 5. of the informant’s The basis when, here, tip unreliable the is against penal sion as a in- becomes declaration his detail, alleges are bereft of facts which whereby credibility terest his is enhanced. predicted, easily and and relates obtained Harris, See United States v. up seventy-two to hours events which are 2075, 2087-88, 91 S.Ct. 29 L.Ed.2d stale. (1971) (Harlan, J., dissenting). tip alleges In this the informant’s Furthermore, the of an admis timeliness transaction, illegal drug but contains no an also reflects on the trustworthiness of sion itself; transaction specific details of the for oppor statement because the lessened sale, example, day and time of the tunity for fabrication. Chambers v. Cf. logistics purchasing drugs from Ja- 284, 300-01, Mississippi, 410 U.S. 93 S.Ct. BMW, type drugs and amount of mie’s 1038, 1048-49, (1973)(trust L.Ed.2d 297 Rather, involved, and their cost. the infor- against penal worthiness declaration in provided entirely vague “descrip- mant by inquiring terest should be examined Jamie, address, tion” of Jamie’s block into, alia, inter the extent to which description of detailed a BMW that was against really declaration is the declarant’s Jamie, directly to never linked and informa- interest the time the declaration is daily Jamie sold on a tion that basis made); Laumer v. United A.2d frequently particular from a location.9 (D.C.1979) (en banc) 200-02 (setting little These “details” bear resemblance to determining admissibility standard complete tip upon by the detailed and relied Here, against interest). penal declaration Supreme in Court up seventy-two to waited Draper 103 S.Ct. relaying tip, casting hours before thus States, 358 U.S. doubt on the of the information. (1959), support tip’s L.Ed.2d to light considerations, begs of these Rather, reliability. generality suggest reason to the informant’s tip casts considerable doubt on tip’s reliability trustworthiness and the knowledge whether he had actual by enhanced virtue of his admission. alleged tip; equally facts it is if not likely picked more that he the information Knowledge B. The Basis Criterion up on the street. Under these circumstanc- es, knowledge say of an I that the informant’s Personal observation or cannot knowledge supports illegal an inference that transaction establishes the infor- tip is reliable. knowledge tip mant’s basis of when the detailed, contains current Criterion C. Corroboration supports an inference that the infor- troubling mation obtained a reliable fashion. fail- Equally is the informant’s his information Rutledge, supra, 392 A.2d at 1065 & n. ure to come forward with See government insulating prom- with D.C. had made no Columbia Rd. in a white Audi "the ises of regarding leniency immunity directly to the Informant Fuller & and drive to [sic] 959-578 purchase forming the cocaine the ba- stopped. Recovered Mozart where he was issue here.” sis for the at (6) packets of Defendant was white from positive for powder which was field tested following statement 9. The Record contains the cocaine Officer Michelle Jones. arresting made officer: added). (Emphasis obtained from On 10-28-86 information was arresting team officer was a stakeout The proved has reliable nu- a reliable source who who received information about member B/M, past. It said that a merous times arresting officer did from Officer Shields. The 6'O', slim, "Jamie", driving a silver called Hearing. testify Suppression Irving area colored BMW and contradictions between inconsistencies arresting Rd. and Warder NW to area Columbia Officer Shield's officer's statement and It also stated it to distribute cocaine. Mozart Suppression Hearing, particu- testimony at the purchased out of has cocaine from defendant past respect geographic larly references 72 hours. the vehicle spotting at the 400 block and the address, of the BMW pointed On 10-29-86 it out vehicle Officers troubling began surveillance in 400 blk. Columbia are indeed. leaving Rd. NW. The defendant was observed ” (footnote ly real fast.’ Id. omit- soon after the ‘walked within a reasonable time transaction, ted). tip in particularly supra, not As discussed since this was Waiting up days general buy. present a controlled to three case was and described impacted mundane, relay adversely easily predicted involving facts to his information tip not upon spanned of the because it of a citizen that the travel routine fabrication, only possibility city increased the all of several blocks. ability but also decreased the Nevertheless, majority contends that verify the information. to or corroborate purposes sufficient corroboration in experience judges as this Based on our identified Goldston com- the informant matter, testimony can sure that the we be residence, Road ing out of the Columbia the last the events occurred within directly he drove to the location and that seventy-two hours indicates that events previously identified. forty-eight hours old but were more than majority The supra, note 9. be- But see tip’s The seventy-two less then hours old. that such corroboration cures what- lieves po reliability is further undermined unreliability problems exist and ever inability to the link be lice’s corroborate supports the inference that the informant rare, Jamie, the BMW and one of tween trustworthy, and that obtained is provided by the informant. “true” details in I cannot information a reliable fashion. a connec only The able to make were agree. and the Columbia tion between BMW wholly “inno While the corroboration exited. Road address from which Goldston frequently provide the cent behavior will Thus, tip, Gold contrary to the cause,” showing for a While the ma ston did not drive a BMW. 13, 103 Gates, at 243-44 n. supra, U.S. “seem styles inconsistency as a

jority this 13; Jefferson, supra, n. at 2335 S.Ct. inability verify to this ing inaccuracy,” the “sig (such is of corroboration A.2d at operandi, as re aspect modus of Jamie’s value”), must the corroboration nificant informant, presents a situa ported by the suspicion illegality. raise a reasonable from what took significantly tion different Gates, supra, 462 U.S. at See the de Draper, supra, in where all place conjunc at 2334-36. When viewed verified. tails were presented in the other facts tion with the significant majority “perceive[s] The no illegality suspicion of tip, no reasonable the bench- Draper,” distinction between house, exiting the arose Goldston’s corroboration, on the mark case value driving to a location entering a car and comparison is I and this case. believe neighborhood. Compare with general Draper, mark. far wide 79 S.Ct. Draper, supra, 358 U.S. Gates, to corroborate able 243, 103 at supra, relating just range “a of details (corroboration innocent exist- conditions easily facts and obtained complex rather couple’s as the facts such tip, to future the time of the but at Florida, arrangements set of travel easily ordinarily not parties of third actions narcot as a source of is “well known at 462 U.S. predicted.” illegal drugs.”). other ics and added). Thus (emphasis 103 S.Ct. at 2335 distinguish present must also We the defen- Draper, revealed that case from the situation where Chicago to Denver travel from dant would through purchase. a controlled is obtained morning the 8th of “either the by train context, the in- purchase In the controlled morning of the 9th of or the September contemporaneous police obser- dependent, at September,” gener- of the informant’s activities vation em- paid “special to es- ally deemed sufficient corroboration at Den- Bureau of Narcotics ployee of the Berry v. Unit- probable cause. See tablish descrip- physical gave also a “detailed ver” (D.C.1987); States, 528 A.2d ed clothing he was Draper and of the tion of 5-6 v. United carry- Stewart he would be wearing, and said that States, 336 (D.C.1978); Jones that he habitual- zipper bag,’ and ing ‘a tan

107 535, (D.C.), denied, 537-38 423 on probable A.2d cert. of whether cause existed based 997, 427, tip tips, 96 S.Ct. 46 L.Ed.2d 372 an involved hot informant’s where (1975); States, tip given 298 Tyler v. it was clear was almost United cf. 224, (D.C.1972). contemporaneously 227-28 In a con in- A.2d with the events the purchase situation, police describing, police trolled take formant and was immediately respond measures the infor careful to ensure that were able to to and Thus, is reliable. check police mation accom out the information. See United Johnson, pany designated 1090, the informant to the loca States v. 540 A.2d 1090 tion, (D.C.1988) drugs, give (police search him for money and arrived on scene “within police purchase, receiving him the of of funds to make the fifteen seconds” broadcast premises, States, him phone tip); observe enter and exit the v. United 534 Offutt upon return, again 936, (D.C.1987)(police and him to A.2d 937 on search arrived Stewart, drugs. receiving supra, twenty retrieve scene of See within minutes 1; Jones, phone call); A.2d at supra, Berry, supra, 395 4-5 & n. 336 1210 528 A.2d at (police sought at 537. contemporaneous seventy-two A.2d obser search warrant illegal this activity observing buy); vation manner hours after a controlled States, 602, tip corroborates the and lends Groves informant’s v. United 504 A.2d support (D.C.1986) (police responded steadfast for further action. 602-03 imme- (issuance Berry, supra, 528 diately phone tip); A.2d at 1210 of to broadcast of v. Allen States, tip 1046, 1047, warrant search based on informant’s 496 A.2d United 1049 (D.C.1985) (immediate police and officer’s of con to response observation purchase upheld); Stewart, supra, circumstances, phone tip).10 trolled Under these (issuance 395 A.2d at 5-6 of search warrant of innocent corroboration details takes upheld tip heightened significance greater where informant’s corrobo was on and reli- by police rated controlled of ability observation of the short time frame because Jones, purchase); supra, illegal A.2d at 336 537 the observation of the between (issuance of search upheld warrant where event of its attendant de- and all innocent tip by police tails, was corroborated verification of those and the details Where, observation of purchase). by police. controlled This as in case, however, cold, allegation of tip involves an there must dead be other indicia illegal activity arising support finding reliability probable an uncontrolled unverified, purchase that was uncorrob cause to arrest someone.11 and orated carries with it too indicia of few Allen, Jefferson, and supra, supra, are reliability. useful cases where the circum- examples Furthermore, exceptions, finding few stances warranted presented tip cases to this the issue court on cause. involved a a concerned Allen Jefferson, supra, "practical, See also 10. A.2d at 685 cause is a 11. Probable nontechnical (police States, arrived on five minutes Brinegar scene "about conception,” v. United 338 U.S. receiving phone call”); after States, 160, Adams 93 L.Ed. 1879 (D.C.1983) (upon 466 A.2d re- (1949), proba- on the assessment of “turn[s] ceiving phone tip, police outstanding checked particular bilities in factual contexts—not readi- proceeded arrest warrant status and to the then usefully, ly, or even reduced to a neat set they where location described); 464, saw the car individual legal supra, 462 U.S. at rules." Mason, A.2d United States v. S.Ct. at "Probable cause exists where the (D.C.1982) (police responded within officers’] ‘facts and circumstances within [the run); receiving two minutes after Rut- radio reasonably knowledge, (detec- ledge, supra, 392 A.2d at 1065 n. 5 information, trustworthy sufficient [are] responded promptly Rushing tip); tive themselves to warrant a man of reasonable cau- States, (offi- (D.C.1977) United 381 A.2d response tion in the belief that’ [the upon hearing dispatch went to site cer radio Brinegar, supra, 338 reasonable].” officer was Nance, tip); (po- phone 377 A.2d (quoting U.S. at at 1310-11 received loca- lice went to the described States, Carroll v. United tion); Lawson v. (1925)). 69 L.Ed. run, (D.C.1976) ("after receiving 38-39 the radio investigating promptly” to the officers drove tip). location described in the detailed de- citizen who the officer knew “was indicia —the crime campaign ongoing community’s scription immediately in her active against drugs” previous calls whose and an infor- corroborated had resulted in the seizure of illicit mant with a record for trustworthiness— Allen, supra, on several occasions. outweigh unreliability indicia of in- —an sufficiently A.2d at 1047-48. Her inherently suspect and unver- formant with shirt, wearing pink detailed: “a man a blue motives, of il- and no verification ifiable selling jeans, and tennis shoes was Nike legal activity. present In the [drugs] of Fifth and 0 the comer tip unreliability. in of scales favor this man re- Streets. The caller had seen passenger from the side

ceive III. parked on orange Pontiac that was tips, like all other clues and “Informants’ street, per- to other then distribute them coming policeman to a on the evidence sons on the sidewalk.” Id. at 1047. The scene, vary greatly in their value designated location police arrived at the simple rule not will [and] [o]ne call, receiving minutes of five within Gates, supra, every cover situation.” fitting tipster’s man where saw a (quoting U.S. at S.Ct. orange walking away from an description Williams, 143, 147, v. Adams facts, the scales Id. Under these Pontiac. (1972)). 1921, 1924, 32 L.Ed.2d 612 reliability: infor- tip heavily in favor totality Under Gates we must examine the trustworthy and unquestionably mant was surrounding infor- circumstances tip, corrobo- her detailed there is no tip, and in this case aspects in rated all of its innocent within unreliability question that the indicia call, receiving suggested minutes reliability. tip outweighs the indicia her information was reliable. scope; provid- in it and limited was skeletal Jefferson, received a facts; predictable easily ed obtained stated that he had from an informant who up three of a crime gave information coat, wearing a blue observed woman old; unable to corrob- days pants weighing between 140 and blue respect to the information with orate the selling drugs liquor inside a pounds, fact; BMW, exit a material Goldston’s Supra, store at 12th and U Streets. arriving designat- upon at the from the car police immediately A.2d at 687. The oper- the modus location conflicted with ed location, whereupon they responded to the informant, alleg- predicted by the andi as she exited identified woman car; drugs from the edly purchased his Although store. staleness, and, tip’s light tipster failed to innocent details corroboration of given on at least nine suspicion illegal give rise to a reasonable occasions, these occasions and on each of facts, I no find activity. On these to arrests and the the information led concluding for whatsoever narcotics; recovery of the detective who there- to arrest Goldston cause existed personal- in this case was received fore, I must dissent.12 nine cases with ly involved four informant; knew the detective [and] in his unit considered

that other officers reliable. be reliability for

Id. at 687. While the case strong in as it was Jefferson circumstances,

Allen, totality of given the 741, 744, (1965) (discussing least, L.Ed.2d 684 majority, very as did the trial 12. At the marginal judicial preference warrant present judge, that these facts must admit U.S.App. cases); "marginal” ab Dorman where the case "doubtful” (1970) 313, 323-24, F.2d 395-96 D.C. determinative. should be of a warrant sence (“In arrest Ventresca, a warrantless doubtful cases where States v. DAVIDSON, M.D., Laning R.

Petitioner,

DISTRICT OF COLUMBIA BOARD OF

MEDICINE, Respondent.

No. 87-1347. Appeals.

District of Columbia Court

Argued March 1989. July

Decided Feldman, Douglas C.

Cary M. with whom D.C., McAllister, Washington, was on the brief, petitioner. for Counsel, McDonald, Corp. Asst. Susan S. Cooke, Jr., Corp. with whom Frederick D. Reischel, Counsel, Deputy and Charles L. Counsel, D.C., Washington, on Corp. brief, respondent. magistrate provides weight finding of lack of additional be undermined arrest.”). intervening judgment may uphold cause the

Case Details

Case Name: Goldston v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Jul 6, 1989

Citation: 562 A.2d 96

Docket Number: 87-591

Court Abbreviation: D.C.