MEMORANDUM AND ORDER
This case is before the Court on motions of the defendant to suppress evidence and to dismiss the indictment. The motions raise two questions: (1) whether there was probable cause for the warrantless arrest of defendant on narcotics charges; and (2) whether the arrest was effected by such extreme official brutality that the indictment should be dismissed.
At a hearing on the motions relevant testimony was given by the two arresting police officers, the defendant and a bystander witness.
On July 20, 1976, Officer Vance L. Beard, a police investigator assigned to the Fifth District Vice Unit, Narcotics Section, of the Washington, D.C. Metropolitan Police Department, arranged a meeting with an unidentified informant for the purpose of developing the informant's reliability so that the informant might be used for search warrant purposes in the future.
At approximately 9:30 p.m. that evening, Officer Beard and his partner, Officer Anthony J. Zgainer, also assigned to the Fifth District, while on duty, met with the informant on Martin Luther King Avenue, Southeast. Officer Beard was seeking information about drug activities within the Fifth District which is geographically located largely in Northeast Washington.
However, the informant took the officers to the Third District which is geographically located in Northwest Washington. The informant did not reside in the Third District.
Although the Third District was outside his area of geographic responsibility, Officer Beard, accompanied by Officer Zgainer, transported the informant into the Third District in his privately-owned, unmarked vehicle, to the vicinity of 14th and Swann Streets, Northwest,
arriving at approximately 10:00 p.m. Neither Officer Beard nor Officer Zgainer notified their superiors in the Fifth District that they were leaving their District for operations in the Third District, nor did they notify anyone in the Third District that they were operating undercover in that District.
Upon their arrival in the vicinity of 14th and Swann Streets, Northwest, the informant left the officers. The informant returned about thirty minutes later and related to them the information that they relied upon for the arrest of Stanley Lawrence, the defendant in this case. According to Officer Beard's testimony, the informant told them that a man, known to the source as "Stan" or "Stanley", a Negro male of heavy build, wearing maroon pants, a striped sport coat and sunglasses, was selling narcotics from his pocket at 14th and T Streets, Northwest, and that a narcotics sale had been observed.
Officer Zgainer testified that the informant described the suspect as ". . . a Negro male, approximately 6-foot, very heavy, possibly even . . .. fat." Further, that "he had on maroon pants with a matching maroon checkered, or striped coat and that he, also, was wearing shades."
Immediately upon receipt of the above information the officers left 14th and Swann Streets, Northwest, and proceeded up 14th Street toward T Street, Northwest, with Officer Beard at the wheel of his vehicle. Both officers were dressed in casual street clothes. The informant did not accompany them and no arrangement was made to have the informant signal the officers to further identify the suspect at the scene.
At the intersection of 14th and T Streets, Northwest, Officer Zgainer, from about 60 feet away,
observed an individual matching the suspect's description standing on the north side of the 1300 block of T Street, Northwest, approximately 10 yards east of the intersection of 14th Street, Northwest.
Officer Beard testified that the suspect was walking towards 14th Street.
Approximately 30 to 50 people were gathered and mingling in the general vicinity.
The suspect was standing slightly apart from the crowd, although there were several other individuals near him. There were people on all four corners of 14th and T Streets, Northwest.
Officer Beard proceeded northward across T Street, then executed a U-turn on 14th Street, proceeded southward and turned left onto T Street, headed in an easterly direction. Because of the large crowd in the area, Officer Zgainer notified the radio dispatcher they were going to make an arrest and requested backup assistance. They did not, however, wait for the backup to arrive.
Officer Beard stopped his vehicle on the south side of T Street. Officer Zgainer immediately jumped out, moved around the rear of the car and hastened directly toward the suspect. Upon seeing Officer Zgainer heading toward him, the defendant began walking away. Officer Zgainer ran after the suspect and attempted to place him under arrest. A struggle ensued. Officer Zgainer testified that as he approached the defendant he yelled "Freeze, Police."
The defendant denied this testimony and stated that the officers never indicated verbally or in any other manner that they were policemen.
Officer Beard also alighted from his vehicle and, upon reaching the location of the scuffle, grabbed the suspect's right arm. Officer Zgainer, who was behind and to the left of the suspect, was holding the suspect's left arm. The testimony indicates that the suspect's right hand was either in the front waistband of his pants or in his right jacket pocket. Both officers testified that they believed the suspect was trying to conceal narcotics.
During the struggle Officer Zgainer shot the defendant in the back, using his service gun loaded with unauthorized hollow-point ammunition rather than the standard required 158 grain labeled ammunition.
Also, during the struggle, it was discovered that the defendant possessed a gun. Both officers testified that the defendant had his weapon in his right hand. However, their statements and demonstrations at the hearing relating to the defendant's right arm position and the direction in which the gun was pointed are entirely inconsistent.
The defendant testified that the gun was in his right pants' pocket; that he never removed it from that pocket; that an officer removed it from that pocket while patting him down and "placed it on the ground in front of me, then he said, 'He's got a gun.'" The defendant testified that it was at that time the officer shot him.
He further testified that he had some five or six bags of narcotics in his right coat pocket; that he never took his hand out of his right coat pocket; and never held the gun in his hand.
A search of the defendant's person produced seven packets of a substance identified as heroin, recovered from his right front sport coat pocket. The accused was taken by ambulance to a nearby hospital where an additional two packets of drugs were allegedly found on his person. As a result of the shooting, Stanley Lawrence is permanently paralyzed in the lower two-thirds of his body. The nine packets of drugs, together with the gun, are the subject of his motion to suppress.
Probable Cause for Arrest
When the validity of a warrantless arrest is challenged, the Court must determine whether the facts and circumstances within the knowledge of the arresting officers, and of which they had reasonably trustworthy information, were "sufficient in themselves to warrant a man of reasonable caution in the belief" that a crime has been committed by the person arrested. Carroll v. United States, 267 U.S. 132, 162, 69 L. Ed. 543, 45 S. Ct. 280 (1925).
Where information leading to the arrest has been supplied by an unidentified informant, the Court must apply a two prong test to determine whether the Constitutional demands for probable cause have been met. First, the Court must determine if the arresting officer was sufficiently informed of some of the underlying circumstances from which the informant's conclusion [that narcotics were where he claimed they were] was reached. Second, the Court must inquire into the underlying circumstances from which the arresting officer concluded the informant was credible or the information was reliable. Aguilar v. Texas, 378 U.S. 108, 114, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964). The probable cause standards developed in Aquilar and other search and seizure cases are fully applicable to a warrantless arrest inquiry. McCray v. Illinois, 386 U.S. 300, 18 L. Ed. 2d 62, 87 S. Ct. 1056 (1967); Whiteley v. Warden, 401 U.S. 560, 28 L. Ed. 2d 306, 91 S. Ct. 1031 (1971).
Or, as the Court of Appeals for this Circuit stated in United States v. Carter, 162 U.S. App. D.C. 132, 498 F.2d 83 (1974):
An evaluation of the trustworthiness of an informant's tip requires two inquiries -- one focusing upon the credibility of the informant himself and one focusing upon the validity of his conclusion that the arrestee has committed a crime. 498 F.2d at 85.