James E. Smith v. United States

may be claim should disal- It

lowed, record. I I not on this think require case to

would reverse and Secretary for recon-

be remanded to the light foregoing,

sideration evidence if desired.

further SMITH, Appellant,

James E. America,

UNITED STATES of Appellee. 19186.

No. Appeals

United States Court of

District of Columbia Circuit.

Argued Sept. 1965.

Decided Feb. 1966. Rehearing

Petition En Banc denied April

Bazelon, Judge, Chief dissented. Smitty carrying

and that was ounce one of heroin and cocaine. He Ollie some described each the men in detail. recognized Lozowicki testified that he in- as that of an the voice the caller given in- who had him reliable formant Balti- or four times in formation three and whom had he talked telephone “at least dozen times.” two of- Lozowicki said the Baltimore on this had not made arrests based fice Graves, Mr. Glenn R. Washington, D. although information, he informant’s C., Karr, with whom Mr. John Wash- W. Europe” that “our was aware office ington, C.,D. brief, ap- on the was for After such arrests. had made several pellant. Lynn Washing- Allan, Miss D. ascertaining company that from bus ton, C., appearance D. also an entered express particular was indeed bus appellant. for Baltimore, stop in which would not one Garfiel, Atty., Miss Agent Carol telephoned Asst. U. Federal S. Lozowicki Agent with whom Mr. Acheson, Thompson in David C. U. John E. S. Narcotics Atty., filed, Washington relayed at the time in- him the brief was and to Q. Messrs. Frank Nebeker and William had from the in- formation he received Collins, Jr., H. Attys., Asst. did U. S. formant in New York. brief, reliability on appellee. for discuss the informant’s Thompson. Judge, Before Bazelon, Chief and Burger Judges. and Tamm, Circuit Agent had Thompson he testified re- information from received Judge: BURGER, Circuit transporta- suspected garding interstate appeal is an from a conviction This previous occasions. of narcotics tion a one-count narcotics indictment for vio- years’ Thompson, an officer of nine serv- 4704(a), lation of 26 U.S.C. Narcotics, § Bureau of testified ice in the felony “any pur- person it a makes for to recognized name at that he once chase, sell, dispense, nar- or distribute “as a York source Jones New Ollie drugs original except stamp- cotic in the C., Washington, for her- supply D. for original package stamped or from ed suspect- said several oin.” he “knew He package challenges Appellant Washington by name ed violators admission in of narcotics evidence Smitty,” whether but did not know following immediately seized from him Smitty them. particular one this arrest, ground first on the arrest get attempt Thompson a war- did not was without and second Smitty instead Jones or for Ollie rant request because denial of dis- his for gather proceeded once several at identity closure an go Trailways Sta- Bus agents upon whose information the arrest was in- the bus described tion. When based. m., a. 4:40 arrived about formant inform- met the suppression men who On the saw motion Smitty Ollie descriptions following ant’s facts were get m., July He testified off the bus. shown: at Jones about 12:30 a. being person recognized Smitty as Lozowicki, Nar- Vincent a Federal previ- pointed him out to Baltimore, cotics a who been received two long ously telephone seller. as a narcotics distance in- call arrest, placed promptly under formant who said in New were that he was pants Appellant his City, “Smitty” disclosed York “Ollie where search containing substance just package pocket Jones” 12:30 Trail- boarded the pre-trial ways No Express C., Washington, identified heroin. Bus D. later is where an arrest men ise. relevant of either of the two statement personal predicated on that officer’s in evidenc concerning observations Appellant on the makes two attacks correct test the criminal act. The validity First, his he contends sought could have whether a warrant if individually arresting that the officer agency by been obtained law enforcement be must have information which would application corporate which disclosed its warrant, sufficient to sustain and that a any par- information, one not whether Thompson requisite possess did the not ticular officer could obtained it on have Second, information. he claims individually pos- information what he of was insufficient the there evidence sessed. reliability that, of and the taking together Thompson’s and Lozo- by Appellant us do The cases cited to information, police the failed to wicki’s suggest Indeed, not a different solution. probable show cause for the arrest. California, v. State of 374 U.S. Ker (1963), 1623,10 essentials, Ap- Striped S.Ct. L.Ed.2d 726 83 down to its pellant’s (1) participated four officers the first contention is that the arresting pieces and of in- requires of- Each of them had bits Constitution the only gist personally, police of independent formation which he of his ficer colleagues, knowledge communicated to his fellows. The Su- of all facts have necessary preme inquire probable Court did not whether cause to constitute procured including any informants; reliability one of them could have a war- of (2) prior relationship of rant but rather found that the sum and Lozowicki’s knowledge informant, was suf- of all them from which he con- may reliable, ficient. cluded that he not be upon by Thompson to or attributed relied Brinegar In 338 U.S. United satisfying purpose L.Ed. S.Ct. requirements. cause (1949), Supreme said, Court ** * The short to this claim answer “The troublesome line is one already is that this has Court decided suspicion between mere evaluated to be necessarily cause. That line must be by the courts on the basis of collec by judgment drawn formed act police tive information rather light particular situation and per than that of officer who with account taken of all the circum- arresting. J. forms the act of Samuel Appellant’s sweep- stances.” To sustain States, 113 U.S. D. Williams v. United ing required claims we would to strike App.D.C. 371, 308 F.2d 326 perform hard at this incentive States, 106 Anderson Jones v. United judgment” them to “act and reduce U.S.App.D.C. 228, 271 F.2d 494 automatons. Here denied, 944, 80 cert. S.Ct. judgment informant’s made (1960). Accord, grounds reliability based reasonable (3d Bianco, F.2d Cir. States growing relationship prior out of his 1951). Appellant fails in his efforts informant, and on that with the he acted distinguish Moreover, Ap cases. these judgment by Thompson, his call to who pellant’s reasoning suffers from a reasonably properly turn could fallacy precedent. basic than adverse him what told infer government Certainly two or three judgment, latter had this whether made agents together go could a Com before many say he or did this in did so procure missioner a warrant on the hardly words. can think that We and, sum of their information once that Thomp- ritualistic recital Lozowicki to par issued, need warrant none of them to be son that he knew his ticipate in the actual arrest. anything the lat- reliable would add knowledge appraisal should or ter’s course he what arresting officer at the time follow. Williams, supra, hour, precise public place whole We said in “The cise complex precise persons modern communication the would be found swift who carrying narcotics; large police department illicit in a would be moreover the futility authority if an individ information was to an offi- transmitted prior who ual officer circumscribed cer information concern- was to be alleged per- scope first one of the carriers and of his hand alleged concerning acquaintance sonal ing Us- facts crime the other. U.S.App.D.C. crime.” his common sense trained holding judgment, synthesized F.2d what at 327. In so we antici pre- pated Supreme in he had been told and what had been what the Court held personally Ventresca, dicted with what observed United States v. Ill, knew. Thus have an 13 L.Ed. 684 and what he simply (1965): on in- arrest based not what the “Observations of fellow offi engaged to formant in New York communicated cers of in the Government investigation plainly in the sum of re Lozowicki Baltimore but common are by and applied all information known Thompson for liable basis by warrant for applica time of actual ar- before the one of their number.” The arresting by bility holding what of our not rest reinforced the Williams is de arriving something showing at the pendent observed after resem officers on Depot. bling agency relationship Bus a common law involved; the officers nor would between 89, 85 of Beck v. State U.S. the involvement of from differ officers (1964), S.Ct. 13 L.Ed.2d police or ent cities or even different ganizations way result un- indicates a different applicability of diminish the passage we are assume that the less to Williams. Much of the for federal basis way years six has in undermined of some relating illicit enforcement of statutes to Draper States, 358 U.S. v. United destroyed if narcotics traffic would (1959), even 3 L.Ed.2d 327 S.Ct. Appellant’s to law as we were fashion the to Supreme continues the Court while view would have it. g., approval. E. United cite it with Ventresca, 380 U.S. States v. said, haa As we have 741, 13 L.Ed.2d 684 concluding ample the In basis for that Wong Ohio, supra; Sun v. Beck State additionally, reliable; formant was U.S. Thompson’s observations before arrest Aguilar ing Appellant gave con him substantial holding in Ander- our no more “erodes” reliability in firmation of the the Jones, supra, than erodes the son Ap and of information. formant pellant’s his Draper holding, fac- with a which dealt Aguilar on reliance State remarkably that now like tual situation Texas, us. before ignores signifi the Draper reliability of Here as the two cant factual distinctions the between police was basic information the the situations; the was there warrant by their demonstrated before the dwelling and warrant the search the narcotics couriers of the observations application conclusions recited naked matching physical sartorial de- the and “underlying circumstanc than rather given informant, by scriptions ar- the hand, Here, are es.” other we the convey- riving public particular on the dealing that, a street arrest based predicted; added to one ance as pre- present case was the in the reliable information which fixed the couriers Aguilar by language language preme the the in terms of relied on The Court’s specific mag- formula facts before the Court: dissent was not intended to be a ap the in- some of of law to be must be told tion of a fixed rule istrate concluding though plied literally, “the stat reasons for as it were a formant’s they cases, ute, he claimed as narcoties were where to all cause added.) (Emphasis emphasized by of the Su- were the narrowness Draper. arresting months in More- known to the than six officer Draper over, was informant, name received from the information in going go recognized by sight. suspect to Chi- that cago the officer the other remaining narcotics, would which he The unverified to obtain element Denver; by contrast, presence carry here, before the arrest was the back York, narcotics; course, rely do we the informant called from New narcotics, say that on what though the search revealed. Even the source already had not and was told Lozo- Smith Washington. Smitty know dissent wicki' how he came to The enroute carrying narcotics, history Dra- points his would be “the informant [in out that reliability, gave per] on the fulfillment Thompson’s his other information predictions, criminal activities of whereabouts Smitty days gave suspect of both and Ollie Jones before informa- four agents ground mi- reasonable to believe tion led to the arrest.” prediction description present as to the narcotics case would nute fulfilled, Jones, cause travel- also be hence Smith and Ollie who observed, bus, arrest. As have often had both and who on the same layers previously the sum total of others been identified synthesis illegal supplies narcotics, of what and the connected know, heard, they probability have what informant’s that the far more single they and what as trained offi- the observe correct than did information is weigh layers the previous report not individual cers. We on the activities often suspect Draper. total. It has but the “laminated” in repetition, repeated, it bears been but says Finally, that the dissent cause, dealing “In that with necessarily the “Draper to modified * very implies, as name we the the is inconsistent extent that probabilities. not' These are deal with ‘probable specific requirements for technical; they prac- factual and the are Aguilar.” This later in cause’ down laid everyday considerations of life tical weight hardly much bear truism can men, prudent not which reasonable legal Supreme Court that the when observe Brinegar technicians, v. Unit- act.” Draper intimat without continues to cite States, supra at ed light ing In modified. it has been that (Emphasis add- at 93 L.Ed. 1879. Agui that can conclude this we ed.) “specific” rules not intended lar’s using ways possible to exhaust all the dissenting opinion The undertakes hearsay part of the basis distinguish Draper present from the case not and indeed were for by emphasizing that there the informant Draper in aimed situations like those “spe- had been one of the Government’s present case.2 the employees” cial for the narcotics bureau. always Finally, Appellant There are factual differ- some that contends cases, refusing compel ences in but the differences factual in the trial court erred present Draper the between case and af- inform disclosure of the Government’s grounds hearing sup ford firmer that for belief ant at the the motion carrying was narcotics than press. Smith was of this Under circumstances Draper. case, true as to here officers where before supplied tending had information to the Bureau made first hand observations longer period strongly support of Narcotics for a much relia- the informant’s Perry States, U.S.App. Perry merely v. United beld that (1964), “underlying D.C. 336 F.2d cited from circumstances dissent, point; is not in there rever which the concluded that they sal was based on court’s the trial undue where narcotics were he claimed questioning question restriction on defense relevant seek were” requisite. probable cause, to undermine conclusion not that it was Thus, their that informant was reliable. bility, thereon; clearly previous correspond- the claim for disclosure is made that showed, however, in files ence that precluded. States, Walker v. United Europe had made in arrests been on in- U.S.App.D.C. 151, 153 n. 327 F.2d given by formation the informant seven denied, 599 n. 4 cert. eight years ago. There is no evidence 12 L.Ed.2d 500 any under- knew supra, Jones, U.S. lying Anderson led in- circumstances which “Smitty” formant to believe that carried App.D.C. at 230 n. 271 F.2d at 496 narcotics. Lozowicki testified that he 3; Rugendorf States, n. cf. v. United “was idea what the informant doing in New York.” See also Buford ascertaining bus com- After from the (5th 1962). 308 F.2d 804 Cir. question pany not in would bus reaching Washington, stop Affirmed. before Agent Thompson telephoned telling just Washington, re- him BAZELON, Judge (dissenting): Chief of his” “an informant a call from ceived appellant’s I think conviction for un- relaying to him York New possession lawful must ¥e had received. information he reversed because the trial court erred Lozowicki, testified, knew that “he like admitting Washing- evidence narcotics seized suspected violators several to an incident unlawful ‘Smitty’,” did name of ton agree majority I suspect was one this whether know validity of an arrest making attempt should be evalu- any them. Without ated information of collective “Smit- the arrest of obtain warrants agents, the narcotics I think but the com- Thompson proceeded to ty” Jones, or knowledge agents Washing- bined of both narcotics Trailways terminal bus is insufficient for a valid arrest. agents. 4:40 At about several ton with meeting descriptions m., a. two men Agent July that on testified got given by the New off informant 1964, 31, telephone a received call in them One of bus. York from an inform- Baltimore unidentified “Smitty.” Smith, alias ant in New York. The informant told recognized appellant that he then Smitty” stated him that “Alias and Ollie Jones pointed just Trailways person had once been boarded a bus en as a who Washington, by suspect route from New York to an narcotics him as a out to “Smitty” possessed and that one ounce reliability. Ap- unspecified informant heroin, and Jones some cocaine. The promptly arrested pellant and Jones “Smitty” as a Ne- described searched, and narcotics recovered gro, approximately tall, feet about six' pocket. appellant’s pants from thirty years wearing old, a checkered government has burden The sports eyeglasses. maroon Lo- shirt and showing zowicki knew several men called “Smit- arrest was that a warrantless ty” Washington area, in the he did but a warrant based valid.1 To obtain search not know which one the informant had hearsay information: in mind. Lozowicki testified further magistrate informed must be given [T]he that, although the informant had in the him reliable information in Baltimore past, arrests had ever been cumstances ^[1] some from which underlying cir- inform- Ohio, approval upon 1. Beckv. State of U.S. 379 actions of the when 223, (1964); accused, challenged officers, by 13 L.Ed.2d 142 85 S.Ct. Wrightson States, compliance see v. 95 U.S. United demonstrate fail or refuse to 390, App.D.C. 556, 392, 222 F.2d with the rules which circumscribe their (1955) stamp put authority.” : “Courts cannot a were where he claimed ant concluded was “credible” concluded that cumstances “reliable.” ^[2] some of the [Aguilar or his information underlying v. the officer they were, State cir- mitted.7 lant as a “narcotics by Supreme Court Ohio, (1964): policeman’s recognition 379 U.S. Nor is stated 89, deficiency supplied suspect.” 97, in Beck v. State As the appel 223, Texas, doWe not hold that the officer’s 12 L.Ed.2d 723 physi- petitioner’s of the emphasis supplied.] appearance previous cal record proba standards constitutional The apply as well search cause to arrest entirely ble or was either inadmissible And cause must warrants.2 upon irrelevant issue of clearly appear when the determina * * * cause. But to hold that by policeman rather than tion is made a knowledge of either or both of these magistrate.3 Probable a detached facts constituted policeman’s “sus cause is not shown picion” anyone that nar conclusion” “mere to hold that would be possession.4 And cotics are in someone’s previous criminal record could conveyed to if such mere surmise arrested at will.8 rely upon policeman, another he cannot policeman first is a “credible majority primarily because the on Dra relies it, person.”5 rely can he Nor States, per United 79 S. 358 U.S. course, person” is not if the “credible (1959). Ct. But that policeman.6 distinguishable. There facts case is appear- description suspect’s A might reasonably known may support iden- ance or whereabouts in have indicated that the identified tification, support cannot belief formant had followed the course of being com- that a or is crime has been States, 6. Jones v. See, United g., 2. e. Beck v. (1959). Perry S.Ct. 725 S.Ct. 223 U.S.App.D.C. 360, constitution arrest was [the] “Whether F.2d whether, ally depends valid in turn bypasses 3. “An arrest without a warrant made, the moment the arrest was objective safeguards provided the predetermination an probable make it— cause to officers had cause, facts whether at that moment far reliable substitutes instead the less knowledge and circumstances within their justifica procedure of an after-the-event trustworthy reasonably they of which likely search, tion for arrest too information were sufficient to warrant a subtly familiar to be influenced prudent believing peti man shortcomings hindsight judgment.” committing or was tioner committed 96, Ohio, 89, Beck v. State of 379 U.S. Beck v. 379 State offense.” 223, (1964). 85 S.Ct. See also 91, 89, 223, 85 S.Ct. U.S. 257, States, Jones v. United 270, 362 U.S. emphasis supplied. 725, (1960); 80 S.Ct. 98, Henry States, See 102, v. United 361 U.S. States, Johnson v. United 333 U.S. (1959); 168, 4 L.Ed.2d 134 80 S.Ct. 367, (1948). 92 L.Ed. 436 Brinegar States, 160, v. United 338 U.S. Aguilar Texas, 108, 4. v. State 378 U.S. 175-176, 1302, L.Ed. 1879 (1964) ; 84 S.Ct. 1509 Jones v. United (1949). States, (1959); 80 S.Ct. 725 States, Giordenello v. United U.S. Recognition “suspect” 8. as a “pointed by an unidentified who was out” States, Nathanson v. United unspecified reliability even informant of 54 S.Ct 78 L.Ed. 159 than weaker evidence of Texas, supra Aguilar previous 5. v. State of note of a criminal record supra Beolc, at 378 114 n. U.S. 84 S.Ct. 1509. note 7. suspect’s For six months the activities. WASHINGTON PUBLIC POWER SUP employee” “special had been a SYSTEM, Petitioner, PLY Denver, the Narcotics Bureau v. alleged oc criminal activities where curred; gave police COMMISSION, and the FEDERAL POWER Respondent, the whereabouts Company, Pacific Northwest Power Idaho suspect four criminal activities of the Federation, Wildlife Idaho Public Utili days before the information which led Commission, ties Idaho Fish and Game Here Lozowicki testified Commission, Washington Sports State he had no idea what the informant was Council, Inc., al., men’s et State of Ore “doing York,” in New and the informant gon, al., et Intervenors. gave description appellant’s ac period tivities over time CONSERVATION, DEPARTMENT OF could infer a course sur WASHINGTON, STATE OF Moreover, Draper veillance. Petitioner, is neces sarily modified to the extent it v. specific require inconsistent with the COMMISSION, FEDERAL POWER “probable ments for cause” laid down Respondent, Aguilar. later in Company, Pacific Northwest Power Idaho Federation, Wildlife Idaho Public Utili distinguishes Agui- majority also Commission, ties Idaho Fish and Game present lar from case because Commission, Washington Sports State dwelling. involved the search of a But Council, Inc., al., men's et State of Ore Aguilar applied this court has re- gan, al., et Intervenors. quirements Perry to a street arrest. States, U.S.App.D.C. UNITED STATES of America on the re (1946). Although 336 F.2d 748 said we UDALL, lation of Stewart L. Secre tary Interior, Petitioner, of the in a later case that a warrant need arrest, be obtained for a street even COMMISSION, practicable, FEDERAL POWER

where did not relax Respondent, requirements “probable Ford cause.” Company, Pacific Northwest Power Idaho & Kimble v. United Federation, Wildlife Idaho Public Utili App.D.C. -, (era (1965) 352 F.2d 927 Commission, ties Idaho Fish Game banc). marginal “In a doubtful or case Commission, Washington Sports State Council, al., may Inc., men’s et State cause an Ore be sus- gon, al., et Intervenors. tainable a warrant where without Nos. 18731. Kimble, one it would fall.” Ford su- & pra 352 F.2d at 933. Appeals United States Court of District of Columbia Circuit. pres-

Since there is no evidence in the Argued Nov. 1965. any ent that the case knew Decided March underlying inform- circumstances carry- ant’s belief that the

ing narcotics,9 illegal. his arrest was It deny-

follows that the trial court erred in suppress the motion to the narcotics

seized incident to that arrest. possible prosecution “It that an informer did in to show with con- siderably specificity fact relate information of- shown than was prob- actually ficer in this case which constituted in this case what the informer petitioner’s able cause for the arrest. But said Beck v. State validity when the of that constitutional challenged, arrest was it was incumbent

Case Details

Case Name: James E. Smith v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Apr 4, 1966

Citation: 358 F.2d 833

Docket Number: 19186_1

Court Abbreviation: D.C. Cir.