*1 jury. Accordingly, submitted to the I re-
spectfully from the dissent affirmance of
the directed verdict the defendants’ fa-
vor. HAYWOOD, Jr., Appellant,
Robert STATES, Appellee.
UNITED
No. 88-1033. Appeals.
District Columbia Court
Argued Dec. Nov.
Decided
аppellant Haywood was arrested on Janu- 23, 1984, (at ary approximately the same appellant Smith, supra, location that the in A.2d at was arrested on March 1984) when a “jump-out” squad of four agents appeared undercover on the scene. Miller, Sergeant only testify officer to hearing, at the described the circumstances in thusly: response to a lookout flashed Officer Romano of Narcotics Task Force that a black male dressed in tan hat, jacket and brown a tan black and pants, holding narcotics for distribu- tion near trash barrel at 12th and U Streets, N.W., (Miller), Sergeant he Szewczyk, and Officers Franck Marko- and Steiker, Service, Carol Public Defender vich arrived at the in scene an unmarked Klein, Hill, with whom James Henderson p.m. cruiser at 1:50 Miller and Sonenberg, Santha Public Defender individual, later identified Irv- Service, brief, were on the appellant. for Tate, ing standing twenty-five some feet Mary Murphy, B. Atty., Asst. U.S. with south of the trash barrel. Tate had his Jay whom B. Stephens, Atty., U.S. and in appellant Hay- hands front of him and Broderick, John R. Fisher and Patriciа A. reaching wood was within dis- Attys., brief, Asst. for of tance Tate. There were other three appellee. in people the area. Sergeant Miller testified that from dis- ROGERS, Before Judge, Chief feet, twenty-two tance of he saw BELSON, Judge, MACK, Associate green folding money hand but no coins to Judge. Senior Tate; did not anything he see Tate hand appellant. He and the other officers exited I. police ap- the vehicle. Tate observed the MACK, Senior Judge. proach, thereafter “kind pushed-off” began from Tate аnd to walk Appellant conviction, challenges his in the direction of the trash barrel. Tate trial, stipulated possession bench with in opposite walked direction. intent to distribute in dilaudid violation (1988 33-541(a)(l) Tate, Repl.). approached searching D.C.Code He Miller and in § deny- him, narcotics, only contends that trial court erred in unde- found suppress his motion to alle- pockets termined amount of his gations lacked clenched in his hand.2 coins Simulta- stopped cause to effect his Officer neously appellant, warrantless arrest. Franck Finding position by, sixty-six supported is him and searched discovered holding compelled by subject and that en our our dilaudid tablets which became the suppress. banc decision Smith v. United matter of the motion to (D.C.1989), reverse.1 Sergeant Miller further testified that developed years, Briefly, evidence at the hear- officer for thirteen had been suppress “couple during on the motion to shows that which he had made a confusing 1. We hold that reversal is be- is somewhat as to what also warranted The record arrested, in his present who was not had clenched cause the evi- being only spoke Miller hand. at first “coins” regarding personal dence observations Tate; clenched hands later when allegedly gave him officer which many bills were court asked how clenched appellant. cause to arrest answered, hand, “It two or Tate’s Miller was like three.” arrests,” thousand gives police probable three to four hundred of being drug He arrests. had made cause to arrest. twenty ap- such in the areа arrests Subsequent to the trial court’s denial pellant was familiar arrested suppress, appellant gave up *3 motion congre- the trash barrel drug sellers right jury to a trial in return for an gated during the winter months. He had agreement by government the not to file learned, arrest, subsequent appellant’s to prior “life papers” respect with to convic- Romano, that Officer who broadcast the tions. The the sei- facts to arrest and personal knowledge lookout for had stipulated by parties, zure were to the and reliable, very the informant was judg- the trial court denied a motion for $7,000 responsible the worth seizure of acquittal. ment of six- Appellant, who was vehicles, of narcotics and and two motor years trial, ty-six the old at time of testified provided leading had twenty information to drug was enrolled in an alcoholic capture the narcotics arrests and two program Hospital, abuse at St. Elizabeth’s fugitives. Miller further testified that Of- possessed that at the time of his arrest he ficer had Romano informed him that the the dilaudid for his tо own use alleviate a personally the informant had observed man condition, painful debilitating foot and bearing description distributing the of Tate that he did not know Tate. Conviction narcotics in area of trash the the barrel on followed. day question. the in rejected appellant’s
The trial court
claims
probable
that the officers lacked
cause to
II.
arrest him under the total circumstances
court,
The trial
at
time it wres
the
particular they
and that in
lacked knowl-
appellant’s
tled with
denied
motion to
edge
reliability. Rely-
of the informant’s
suppress, did not have the benefit of this
ing upon
past history
the informant’s
reasoning in
v.
court’s
Smith
United
subsequent
appellant’s
culled
to
the
(en banc).
supra,
someone who does. See Glass v. United States, 796, (1978); 395 A.2d 804 n. respect 18 prоbable With to for ar- cause States, rest, Smith v. United 123 U.S.App.D.C. majority the holds that this court’s 202, 203-04, 833, (1966). 358 F.2d to 4 recent 5 en decision in v. banc Smith probable cases such as this cause (D.C.1989) A.2d 312 predicated for is part per in compels on the Recognizing reversal here. that officer, sonal observations arresting Smith, of the by is bound I point court out may the court not rely facts important on which were that there are distinctions be- available other at un grounds officers the scene a Terry1 stop disap- tween the for less that prоved by Smith, information was in communicated the court and the arresting the Id. grounds probable There is no for presented by officer. evidence of communication here.8 the in facts this case.2 1, sanctioning Ohio, 8. The Terry of an “inference” that offi- v. U.S. 88 S.Ct. cer a man on the street a (1968). without knowledge jus- warrant had tify facts that would arrest, would, (carried extreme) the Although Terry stop a Smith involved rather hearing. probable eliminate the need for a cause, than an arrest on the dissenting colleague’s Our reliance оn Illinois satisfy facts before us the test either here for Andreas, 463 U.S. n. 103 S.Ct. action law officials. facts enforcement (1983), misplaced. 77 L.Ed.2d 3324 n. is 1003 knowledge” particularized here a afforded more than “presumption there was so objective suspecting [appellant] basis for to be obvious as question a fact. There would be Cortez, activity.” criminal United States v. Drug Agents, posing that Enforcement 411, 417-18, 690, 695, U.S. 66 L.Ed.2d 101 S.Ct. men, delivery knew that container that ‘"a were that circumstances brought (a they respondent's con- residence officеr, reasonably considering prudent police they previously lawfully tainer had en- which confronting him and total circumstances airport) tered at the sub- contained controlled drawing experience,' war would be his Court, Supreme ruling stance. The in that no or ranted in the an offense has been belief that required reopen warrant was the container being is v. United committed.” Peterkin respondent’s plain noted that it was denied, (D.C.1971), cert. error for Illinois court to hold that one (1972) agent's at the had absence time container (quoting Lucas v. United been resealed somehow made less than certain (D.C.1969)). of the contents. true, course, It Sergeant that there is basic Miller himself had witness similarity patterns arrests) between the fact of the drug over 20 be made would case, two cases. In each an unmarked police officers, approaching lookout police proceeded to car the intersection of reasonably recognizing savvy at them. Re- Streets, response 12th N.W. and U in to a markably, the that majority here asserts communication from another law enforce- “on this cannot even infer that record we describing yet episode ment officer another car Tate knew that the unmarked was trafficking activity of narcotics at that police majority cruiser.” The finds itself drug-beleaguered But location. there are unwilling acknowledge what defense important at two least factual distinctions in freely himself conceded this case counsel gave stronger that police basis for during concerning colloquy arrival they in this than in action case had Smith. U, i.e., at 12th and that un- The first is here the observed cars as the used in this marked such more than mere conversation between criminals, not deceive such as those case do appellant Haywood and the narcotics drugs drug-stricken in such loca- who deal police tip. Sergeant dealer U, 12th tions as N.W.3 personally Hay- Miller testified that he undoubtedly trial judge correct give money wood to Tate before the offi- when, ruling in conclusion of car got cers оut their to detain probable cause to hearing that there was in majority opinion Tate. The Smith engaged in a believe that part fact relied on the transaction, drug she said: case see involved Smith one high gives area when in a narcotic money handle or make other movement person to a who is identified as a might gesture have indicated that dealer and then when played “money of the man” on a role away, I not think it’s at arrive walks do Smith, supra, 558 drug-dealing team. totality, to believe the all unreasonable A.2d at 315. totality that in- Second, while the in Smith de- gives them cause to be- stance any knowledge clined to attribute to Smith *7 something that has done lieve someone approach- part or on Smith’s that the belief a crime. and committed ing police offi- police officers were indeed totality at the of the circumstances cers, noteworthy it is that Smith was not the the combined with infor- time of arrest as person the who had been identified deal- tip received the mation included the ing drugs in the information arrest- squad” following: the “jump out included contrast, in ing received. officers had description matching that a man Tate's tip Tate identified in the as this case particular selling near this trash narcotics gave That being a narcotics trafficker. informant; the that according to barrel that, the the significance to fact as added upon at an intersection notori- their arrival Haywood here and saw approached drug trafficking the saw ous for Tate, them, handing money to Tate barrel; testify- that the neаr the trash Tate pulled their hands and the two men then money over Haywood hand Tate, officer saw from Haywood “pushed off” away, Tate; that the form of to as face, the bills they and walked the two did about pulled their police approached, the men opposite quite It is away in directions. “push away off” hands and there was person report- that to reasonable believe then, sig- Haywood Tate who drug trafficking the engaged in ed to be (where away opposite di- nificantly,4 walked 12th and U intеrsection notorious recog- really, very people would judge few findings, trial stated: one the In her it as nize such. that, they got out of the to when In addition accept- judge’s language that she indicates cruiser, agreed that this I think all which well-known. the ed counsel’s concession just per- are visible to cruisers as unmarked 4. See United States v. are, Bennett, they A.2d they as I mean in those areas sons (D.C. 1986). any- obviously police cars. think I don’t are rections; “push that body got the off” occurred out car.” of the The inferenсe Tate, just drawn, submit, a narcotics I that be is that as must all dealer, noted arrival of the offi- squad members were aware of cers. the purpose they for to which went intersection of 12th and U shared the To the detriment of law enforcement and money exchange information about the detriment of the community, includ- they got stop before out of the ear to neighborhood the drug-plagued around appellant and Tate.5 Streets, N.W., 12th and U the majority has holding chosen to enter that will make it reliability Finally, respect to the more difficult for the to arrest informer, appears it the record traffickers justify when does not indicate whether Officer Romano belief they peddling reasonable are reliability of knew of the the informer be drugs on the Washington. streets of fore, only after, tip transmitted majority interprets in a Constitution officers. Under circum way unduly that makes burdensome the stances, necessary rely, it is not even showing required sup- can, reasonably one on the inference that port an trafficking. arrest for narcоtics Metropolitan members of the Police De Turning to the majority’s alternative partment necessarily of their aware ground reversal, majority I think the before source’s successful track record Ro in stating errs that a reversal is warranted mano transmitted the information to the ground did not jump squad. out Such reliance unneces present any regarding person- evidence because, sary developed as matters at the al the ar- observations of tip scene of the was verified resting allegedly gаve officer that him person precisely when the saw a appellant. arrest The matching description distinctive Tate primarily bases this conclusion on standing near the notorious 12th & U fire fact the only sup- at the witness appellant. receiving barrel and pression hearing, Sergeant E. Mil- Charles Waldron v. United ler, was the officer who arrested (D.C.1977) (sufficiently tip detailed officer, Franck, whereas a different Robert “verify itself”); may Mitchell fact, appellant Haywood. arrested This (D.C.1977) States, 368 A.2d however, does not undermine the basis (Kern, (even concurring) J. if one assumes appel- which Officer Franck arrested “verify itself,” tip that detailed lant. Both law enforcement offi- police investigation initial on-the-scene be squad cers were members aof that was fore can tip corroborate ex *8 responding a unit of the scene tent that it was reasonable to conclude pursue tip conveyed telling truth); informant was Illi cf. officer, squad by another Officer Romano. 243-45, Gates, nois v. 462 U.S. Sergeant Miller received a communication (1983) 2317, 2334-36, S.Ct. from Officer Romano that the “source” (corroborating police pro can investigation (Mr. had observed described individual tip). crediting anonymous vide basis Tate) distributing location narcotics reasons, af- foregoing For the I would question. Sergeant proceed- Miller then firm. to the intersection of 12th and U an ed unmarked car three other offi- including Upon Officer Franck. arriv-
cers Sergeant Miller there handing
Haywood to Mr. Tate. “proceeded officers then gentlemen every-
two Andreas, investigation, cooperating n. in an ... knowl- Illinois v. 463 U.S. See all.”). edge presumed 3324 n. shared of one (“where (1983) are law enforcement authorities