Nixon v. United States
402 A.2d 816
D.C.
1979
Check Treatment

*1 original is an proceeding Since this objections to cally, respondent sustained relief, questions inap the informant had deem it extraordinary for before, ever been arrested or convicted any propriate undertake evalua for us to paid by for whether he had been first instance whether reliabil tion in the concerning peti- providing the information despite respon ity was demonstrated tioner, charges had been and whether question was irrele ruling dent’s provid- dropped against the informant one for resolu The issue is vant. police. Respondent ing information to the hearing after full preliminary tion at permit further refused to detective facts. Petitioner into relevant inquiry proved testify whether the informant hearing re preliminary entitled to have his past unreliable in the and whether proper cross-exam opened in order to allow the informant’s any corroboration for Aguilar/Spinelli with the ination consistent argued tip. Defense counsel these doctrine. determine the questions were relevant respondent, on are confident that under the test reliability of the informant regard, in this views being apprised Aguilar by Court in set forth relief without the petitioner will afford Respon- Spinelli, progeny. and their issuing formally a writ. necessity of our Agulilar/Spinelli doc- dent ruled that thereof, will, transmit in lieu The clerk preliminary applicable was not trine respondent. opinion copy certified of this hearings, allow that line of and refused to inquiry. So ordered. major contention is

Petitioner’s applying erred in not the trial court prelimi in the Aguilar/Spinelli doctrine To

nary hearing context. find issue or arrest warrant

cause to a search tip, a solely upon an informant’s

based findings: 1)

court must make two distinct knowledge of

that the had direct informant conveyed to the the information which he NIXON, Appellant, Lee Luther authorities; 2) information requirement This second was reliable. STATES, Appellee. UNITED (a) the showing satisfied that either giving accurate history informant had a No. 13446. information, (b) gave the information Appeals. special had a particular on this occasion District of Columbia v. Da reliability. indicia of 25, 1979. Argued Jan. vis, 5, 1979. Texas, Decided June citing Aguilar concerned above cases are Although the search or arrest the issuance

warrant, by the to be used the standard on the determining probable

court in analogous tip

basis of an informant’s at bar. in the case applicable

the standard government con- previously,

As stated respon-

curs in this view when it concedes applicability erred as to the

dent

Aguilar/Spinelli standards. See Coleman

Burnett, n. 1204 n. 96 *2 O’Bryant, Defender T. Public

Constance C., Service, appellant. D. Washington, Monhait, Atty., Asst. U. S. Norman M. C., Washington, with whom Earl J. Sil- D. bert, Terry, Peter Atty., and John A. U. S. M. George, Cheryl Long, Asst. U. S. E. C., Washington, D. were on the Attys., brief, for appellee. GALLAGHER, KELLY,

Before Judges. HARRIS, Associate HARRIS, Judge: Associate jury trial convictedafter a 1973, 22-2202. petit larceny. D.C.Code § argues trial erred He court suppress small box denying his motion contents, charged with its he which was stealing, grounds: (1) was an on three inadequate original for his detention basis officers; (2) an inade- by police there was arrest; offi- quate for his basis to the opening of the box incident cers’ affirm. impermissible. arrest meantime, I In the Goulart walked to the front seat and seized the box. Gou- approximately At o’clock morn- 9:00 one opened lart testified that after arrest Metropolitan ing, Police Officers jewel- contain some the box and found it to patrolling un- and Goulart were in an coins, papers in the name of ry, another marked vehicle when first observed *3 papers promptly led the person. The looking appellant. intently He was into nearby a the owner of the box at address to parked cars he west walked on the Q Street, that it had on who stated been Q Street, of N.W. The did block stolen. they a appellant, not know nor had received testimony of lone defense witness The the crime, report of the commission of a but hearing taxi driv- at the suppression —the suspicions they were aroused and fol- their and significant, the nothing er —added lowed him in their car for some two and the substantially credited officers’ court During one-half blocks. this three-to-five- appellant’s motion testimony. denying In period, appellant peer to minute continued found suppress, the court that consider- to cars, parked into and the officers noticed totality the of circumstances there was ing he under newspaper that carried a folded arrest, that and the cause knew Trauger his arm. Officer valid opening seizure and box recently experienced sev- neighborhood had to arrest. search incident (including eral larcenies ones from automo- biles) burglaries. and II sight appellant The officers lost initially on the conclude block, circled they past drove him and suspicions indeed, if basis of articulable — they spotted some four minutes later but (1) in acted not more —the officers Q (in running him across the 3000 Street away from stopping appellant as rode block) to hail cab. At that time Officer ordering scene, him out Trauger protruding saw from the folded The officers did investigate cab to further. newspaper appellant’s a small under arm appellant’s liberty for Fourth upon intrude appellant apparently brown box which doing, so but the purposes in Amendment carrying they him been when observed clearly was warranted particular intrusion minutes before. facts . by “specific and articulable rational inferences together taken Their suspicions heightened, the officers Ohio, Terry from those facts.” pursued Q east cab as it drove on Street it away Georgetown, stopped from also Jones within a few Officer Goulart blocks. asked opened passenger the front door and appellant step identify out himself. as facts that The court found trial Appellant got out a valid and exhibited patrolling area on two officers had been driver’s Goulart could the box license. see response plainclothes specifically detail protruding newspaper the folded burglary high the recent incidence cab, it the front and noted that seat of training area, larceny in the “their resembled then jewelry box. [appel- actions led them to feel that the cab, Trauger was outside the and Officer him as looking cars in the marked lant] asked him When about the box. This evolved suspicious.” someone who it the Ad- responded that he had found offense had suspicion that an to articulable Mill later morning, ams Road area that minutes been committed when was a a cab to Trauger hurrying felt certain the catch spotted appellant lie, locale, which the because he had not seen the box in box leave the The not seen. Su- appellant’s possession only previously earlier. minutes Williams, 407 asking any questions, preme further Offi- in Adams Without placed appellant cer under arrest. hi type

envisioned the circumstances stating: presented by this case (if dispute as to the any) is little There hear- require developed suppression The Amendment does not at the Fourth facts as appeal this are mindful that on ing, but we precise who lacks the level of policeman there- and reasonable inferences the facts necessary information light most be viewed in the from are to simply shrug his shoulders to arrest See, government. g., e. to the favorable criminal and allow a crime to occur or a States, D.C.App., 367 A.2d Brooks v. United contrary, Terry recog- escape. On the light we conclude good nizes that be the essence of supported by arrest was adopt work an intermediate re- probable cause. suspi- sponse. stop ... A brief of a individual, suspicions sup in order to determine Strong articulable *4 consequence of quo as a identity ported stop, or to maintain the status the initial necessary more was great not a deal momentarily obtaining more infor- which while Probable justify appellant’s arrest. mation, may be the most reasonable in course, concept cause, a flexible con is light of the facts known to the officer at probabilities as eval reasonable cerned with [Id., the time. 92 at police cautious offi by prudent uated a 1923.] States, D.C.App., v. United cer. Crawford Dockery States, D.C.App., See v. 385 United 595, (1) (1977). Given 369 A.2d 600 States, (1978); A.2d 767 Harris v. United Trauger’s high incidence awareness D.C.App., (1978); Cooper 382 A.2d 1016 area, (2) burglary larceny and States, D.C.App., 368 A.2d 554 suspicious ac his observations (1977); States, Wray D.C.App., v. United implau stop, appellant’s tivities before the (1974); Stephenson 315 A.2d 843 v. United gotten the where he had reply sible as to States, D.C.App., (1972); 606 296 A.2d officer, guided by the whole of gave box States, D.C.App., Smith v. United cause to believe experience, reasonable (1972); States, 64 Jenkins v. United D.C. Ibid.; crime. committed a (1971). App., 284 A.2d 460 1018; States, supra, at Harris v. United States, D.C.App., We are not dissuaded from this conclu 301 v. United Patterson 67, by appellant’s holding (1973); sion citation to cases 69 Jackson v. United A.2d 260, 262, States, vague 112 suspicion, perhaps justifying 194, also United States 196 questioning, automatically some not does Childs, (1977); D.C.App., 379 A.2d justify Terry -type weapons a frisk or for States, supra, at 845. Wray v. United detention. full-blown See Whitten v. States, D.C.App., 396 A.2d 208 recognized that in evaluat We have States, (1978); supra; Jones v. United Cole determinations, we are ing probable cause States, A.2d D.C.App., man v. United 337 not and are guided by to be reasonableness (1975); States, Tyler v. United D.C. microscopi entangled attempts to be App., (1973); Gray v. United A.2d 748 of the case at bar cally align the facts States, D.C.App., 292 A.2d 153 inevitably dif having cases prior those of decisions, reflecting the Those Craw circumstances.1 See fering factual 600; teaching Terry companion, and its Sibron Ar States, supra, at ford v. United York, 40, 63-64, States, D.C.App., 88 S.Ct. v. New rington v. United finding (1973). The inapposite are L.Ed.2d A.2d 839-40 prior supported by particu solidly given scope probable the context and of this concluding there this court stop. lar decisions of Chadwick, succinctly: States [United circumstances. 1. The stated 433 U.S. considering inquiry in Our fundamental omitted).] (citation whether or not Fourth Amendment issues is a under all the search or seizure is reasonable for person simply a to be a cause when suspicious activity, were confronted with a set on household item such as television implausible explana- by patently followed a high give the street in a crime rise tion for activity. States arrest —absent a cause for Childs, B., D.C.App., In re F. supra; E. meaningful of additional basis States, (1974); Wray v. United has been committed. ficer believe crime States, supra; Wright D.C.App., v. United general principle We reaffirmed States, (1968); 242 A.2d 833 Lee v. United Pannell, recently in United D.C. States (1968).2 App., 383 A.2d thorough While in some situations a more supra, police officers were Daugherty, investigation questioning and/or be person carrying a televi- confronted with see, called e. Harris g., for — burglary-prone sion set on the street Cooper supra; su- him; They gave neighborhood. stopped pra scope questioning post-stop —the possession of the an for his dispositive long inherently television which was not sus- set cause for arrest. Crawford v. United not satisfied and picious. The officers were Here, the officers’ They found set. later seized the television pre-arrest investigation was buttressed stolen, and arrested the to have been strong bases conviction, hold- suspect. set aside the We stop. recognize presence ing that and circumstances since facts *5 reported absence crime is a factor to be of they the at time known to the officers considered, which may be crucial some to not amount seized television set did the However, contexts. we do deem the not arrest, the seizure had probable cause to report impor- absence such a to of of be been unconstitutional. here, good where tance the officers had States, was a just Campbell supra, they reason missed ob- to believe two serving actual of a crime. observed the commission closer case. Police officers States, D.C.App., 379 Edwards v. United the street —one walking together men 976, (1977); Cooper 978 the hold- carrying a television set States, n.3; supra, 556 Jenkins v. United ap- the officers ing a screwdriver. As States, Compare Campbell v. supra, at 463. dropped the proached, one of the men 252, States, 254- D.C.App., 273 A.2d having done and then denied screwdriver responded, to an so. The same man then they just pur- query, officer’s that Additionally, appellant’s argu- despite compan- from set chased the television sustaining the contrary, ment the our investigated, de- cousin. The officers ion’s finding here incon- probable cause is not untrue, and to be termined this holdings Daugher- prior sistent our that, The court held two men. States, arrested the ty v. although States, the facts known (1971), Campbell United su- strong sus- justified the time of the arrests cases pra. Basically, those stand suspi- did not amount proposition sufficiently picion, they it that activity, nor did Appellant’s Jenkins in neither Smith on Smith v. United reliance arresting the facts unfold before and Jenkins v. United e., they peering person car supra, misplaced, into particularly rec- did here—i. when it is area; high-larceny ognized in a we denials motions windows affirmed flight spotted suppress later in moments in both of those cases. In Smith carrying object Jenkins, police suspicions he was not seen initial were an officers’ before, they partially persons peering a folded under aroused when concealed observed patently implausible expla- newspaper; parked into car for an or more. windows hour got he was where the box To of those nation as to that extent note relevance Therefore, cases, carrying. recognize Jenkins bar Smith and the case at and we type suspicious analyses articulable courts’ suspicions and how the officers observed this when However, activity in those be- matured for about five minutes. yond suspi- inapposite. cases the identical of the initial are nature house, well after police at the station significance to the court’s hold- cause. Of the time of the at a train station ing was the fact that at had been seized (and stop at the time of arrest —the offi- arrested had been and the defendant —and Court, cers had no information on the commission The jail). Chadwick confined involving of a crime the theft of a television however, endorsed the contin specifically Id., Compare set. at 255.3 Clemm v. Unit- arrest incident to validity ued of the search ed D.C.App., 260 A.2d 687 California, in Chimel v. exception as refined 2034, 752, U.S. Here, suspicion the officers’ articulable progeny. and its observing just had in fact missed Chadwick, supra, 433 U.S. at S.Ct. certainly falls appellant’s theft of the box Foster, also United States 2476. See type within the of “factual circumstances” cert. Campbell recog- majority from which the denied, S.Ct. readily nized that cause “can be Appellant’s implied.” 273 A.2d at 254. colleague’s)

(and dissenting reliance on accordingly affirm the trial distinguishable Daugher- cases of quite that Officer Goulart judge’s determination States, supra, Campbell ty v. United search incident to arrest. conducted a valid States, supra, unpersuasive. thus after properly are conducted searches Such possibility of prevent lawful arrests IV de reaching weapon an for a arrestee’s upon probable Given the arrest based scope The of such structible evidence. cause, we chal- find no merit in person of arrestee as search includes the lenge opening to Officer Goulart’s his immediate well as “the area ‘within jewelry box at the scene arrest. to mean construing phrase control’ — might gain which he from within the area relies on United States evi possession weapon of a or destructible Chadwick, 433 *6 California, supra, 395 v. dence.” Chimel support in of his asser- 2040. See U.S. at S.Ct. tion that the warrantless search of the box Chadwick, supra, at 14- 433 U.S. States v. was violative of the Fourth Amendment provided grounds suppression and thus 2476. S.Ct. misplaced.

of the contents. This reliance is standing just appellant Here Affirming suppression the trial court’s taxicab with Officer outside the marijuana in a which had been found dou- seized the box when Officer Goulart footlocker, Supreme ble-locked Court opened it.4 seat of the cab and the front incident Chadwick held that neither “search inspection Trauger’s immediate excep- any recognized to arrest” nor justified as scene was the box at the arrest requirement justified tion to the warrant arrest, and was being to the lawful breaking open searching the footlocker incident with the Court’s fully when it was in the exclusive control of consistent Cooper supra, man on the 3. cause to arrest the See also v. United possession police which of the officers observed a man street the basis of his on street, differing explanations in two television sets on the received from television sets and materially response police questioning. him two different stories as to how We as- sets, recognized question arguendo as the he obtained the person him would be sume this coming shortly negative, out of with our seen before consistent resolved nearby holdings Daugherty took him house. The officers further, investigate States, supra. Campbell them back to the house to In all house, shortly found murder victim in the had no information three cases the having thereafter arrested the man. been committed. related crimes’ only Cooper the after the In arrest occurred undisput- propriety seizure itself 4. The of the discovery murder, was not so the court ed. upon called to determine whether the rights, and the denial of the motion affirm See also United analysis Chadwick.5 suppress. (9th F.2d Finnegan, States v. Cir. French,

1977); United States Affirmed. Frick, 1977); (5th United States v. Cir. 1973), denied, (5th 490 F.2d 666 Cir. cert. KELLY, Judge, dissenting: Associate S.Ct. appellant’s arrest in my judgment probable cause. case was without States, D.C.App., recogni- is reinforced holding Campbell Our Daugherty privacy (1971); in- A.2d 252 the minimal interest tion of I D.C.App., 272 are not Initially, in this search. volved would the conviction. reverse dealing with an item such the Chadwick footlocker, which was Court’s double-locked securely police premises, on or even

resting suitcase attaché case.

with a latched importantly,

More just stolen believe well, course, (as as its con-

box itself then,

tents). question, (following arrest and the unchal- search LOGAN, Appellant, James E. box) any lenged implicated seizure interest legitimate privacy STATES, Appellee. part its This case UNITED in the box or contents. which, distinguishable from those in thus is No. what the regardless of have Appeals. District of Columbia container, cause to believe is inside applied protect Warrant Clause is 15, 1979. March Argued interest which a has in privacy 6, 1979. Decided June apparently contents of a sealed container belonging to him. United States v. Chad- n.10,

wick, supra, 433 at 15-16 & 2476; Simmons, Moreover, (7th 1977). Cir.

F.2d

assuredly it was reasonable for the officer given its open the box on scene — *7 appel- likely property stolen status as in it —in questionable privacy

lant’s interest investigation appar- of an expedite

order to Bailey v. United D.C.

ent theft. also

App., 279 States, D.C.App., 309

Johnson v. United (1973); Patterson Considering the cir- supra. all of impermissible

cumstances, find no intru- Fourth Amendment

sion within the “im- of items searches warrantless stated: The Chadwick Court re- reasonable without mediate control” may without Such searches be conducted quiring arresting to calculate officer warrant, may also be made weapons probability destructible evi- to believe or not there may dence be involved. [433 weapon isor arrested have a omitted).] (citations destroy potential evidence. The about lurking dangers in all arrests make custodial