Rogers, Chief Judge, Belson, Associate Judge, and Mack, Senior Judge. Opinion for the court by Senior Judge Mack. Dissenting opinion by Associate Judge Belson.
The opinion of the court was delivered by: Mack
Appellant challenges his conviction, after a stipulated bench trial, for possession with intent to distribute dilaudid in violation of D.C. Code § 33-541 (a)(1) (1988 Repl.). He contends that the trial court erred in denying his motion to suppress based upon allegations that the police lacked probable cause to effect his warrantless arrest. Finding that his position is supported by, and that our holding is compelled by our en banc decision in Smith v. United States, 558 A.2d 312 (D.C. 1989), we reverse. *fn1
Briefly, evidence developed at the hearing on the motion to suppress shows that appellant Haywood was arrested on January 23, 1984, (at approximately the same location that the appellant in Smith, supra, 558 A.2d at 313, was arrested on March 22, 1984) when a "jump-out" squad of four undercover agents appeared on the scene. Sergeant Miller, the only officer to testify at the hearing, described the circumstances thusly: in response to a lookout flashed by Officer Romano of the Narcotics Task Force that a black male dressed in a tan and brown hat, a tan jacket and black pants, was holding narcotics for distribution near a trash barrel at 12th and U Streets, N.W., he (Miller), Sergeant Szewczyk, and Officers Franck and Markovich arrived at the scene in an unmarked police cruiser at 1:50 p.m. Miller saw the described individual, later identified as Irving Tate, standing some twenty-five feet south of the trash barrel. Tate had his hands in front of him and appellant Haywood was standing within reaching distance of Tate. There were three other people in the area.
Sergeant Miller testified that from a distance of twenty-two feet, he saw appellant hand green folding money but no coins to Tate; he did not see Tate hand anything to appellant. He and the other officers exited the vehicle. Tate observed the police approach, and thereafter appellant "kind of pushed-off" from Tate and began to walk in the direction of the trash barrel. Tate walked in the opposite direction.
Miller approached Tate, and in searching him, found no narcotics, only an undetermined amount of money in his pockets and coins clenched in his hand. *fn2 Simultaneously Officer Franck stopped appellant, searched him and discovered the sixty-six dilaudid tablets which became the subject matter of the motion to suppress.
Sergeant Miller further testified that he had been a police officer for thirteen years, during which he had made a "couple of thousand arrests," three to four hundred of those being drug arrests. He had made twenty such arrests in the area where appellant was arrested and was familiar with the trash barrel where drug sellers congregated during the winter months. He had learned, subsequent to appellant's arrest, that Officer Romano, who broadcast the lookout for Tate, had personal knowledge that the informant was very reliable, was responsible for the seizure of $7,000 worth of narcotics and two motor vehicles, and had provided information leading to twenty narcotics arrests and the capture of two fugitives. Miller further testified that Officer Romano had informed him that the informant had personally observed the man bearing the description of Tate distributing narcotics in the area of the trash barrel on the day in question.
The trial court rejected appellant's claims that the officers lacked probable cause to arrest him under the total circumstances and that in particular they lacked knowledge of the informant's reliability. Relying upon the informant's past history culled subsequent to appellant's arrest, the court found that the informant was reliable and that the arresting officer was entitled to rely upon the information relayed in the broadcast. The court indicated that there would be a different situation if the information were "bad." It also reasoned that it might agree with the defense that there would be no probable cause if two people in a high narcotics area had been seen exchanging money, but that when a person in a high narcotics area gives money to an identified drug dealer, and then walks away when the police arrive, the totality of circumstances gives the police probable cause to arrest.
Subsequent to the trial court's denial of the motion to suppress, appellant gave up his right to a jury trial in return for an agreement by the government not to file "life papers" with respect to prior convictions. The facts as to the arrest and seizure were stipulated to by the parties, and the trial court denied a motion for judgment of acquittal. Appellant, who was sixty-six years old at the time of trial, testified that he was enrolled in an alcoholic drug abuse program at St. Elizabeth's Hospital, that at the time of his arrest he possessed the dilaudid for his own use to alleviate a painful and debilitating foot condition, and that he did not know Tate. Conviction followed.
The trial court, at the time it wrestled with and denied appellant's motion to suppress, did not have the benefit of this court's reasoning in Smith v. United States, supra, 558 A.2d at 312 (en banc). As appellant's counsel here suggests, the factual scenario present in Smith is strikingly similar to that in the instant case, and we can conclude from the government's attempt to distinguish Smith, that as to this claim, there is hardly room for dispute. However, the government's focus upon other factual scenarios purportedly in accord with its position (scenarios garnered from cases decided prior to our en banc decision in Smith) *fn3 does not convince us that Smith is not controlling here.
In Smith the en banc majority held that the totality of circumstances (similar to those present here) did not give the police a sufficient basis to conduct a Terry *fn4 stop. Smith, supra, 558 A.2d at 313. The government in the instant case is met at the outset, therefore, with the proposition that its burden to justify probable cause to arrest is greater than it would be under the Terry standard. See id. at 315 n.5; see also Alabama v. White, 496 U.S. 325, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301 (1990). In this regard, the parroting of phrases, such as "high crime area," that conjure up inferences of proper police conduct without regard to the reasonableness of police actions given the circumstances of an individual case, may do violence to the rationale of Smith. In Smith, we served notice that, despite the crisis we face as a result of the illicit drug market, we would not subvert Fourth Amendment rights by lending approval to street police actions that were not based upon rational and reasonable beliefs. Thus, we specifically reiterated our rejection of articulable suspicion arguments based upon guilt by association. Smith, supra, 558 A.2d at 314-15. We held that the knowledge of trained investigators that drug sales are often conducted in teams was not without limitations. Id. at 315. We held that the character of the neighborhood will not, without more, justify an inference of criminal conduct. Id. at 316. We held that these factors, taken collectively with rational inferences to be drawn therefrom, fell short of warranting a Fourth Amendment intrusion. Id. Finally we held that flight from authority, leaving a scene hastily, or avoidance of police, without circumstances indicating a consciousness of guilt, would not justify detention. Id. In this regard, for reasons similar to those causing us to reject associational taint, we rejected the notion of locational taint "whereby an individual's behavior is explained by reference to what others in that area or neighborhood may know about the arrest procedures of the police department." Id. at 317.
Measured by these considerations, even if we assumed that the government met its burden of showing that the "tip" which the officers received came from a reliable source, *fn5 we are nevertheless required to reverse appellant's conviction. Appellant was not the subject of the tip. There was absolutely no evidence that the officers had seen him before. Although there was evidence that Tate observed the police officers approach, there was no evidence that appellant recognized the officers, or even saw them, and the trial court made no finding to that effect.
The government, in asking us to imply "consciousness of guilt" in this case from the evidence of the arrival of the police and the unremarkable conduct of the men thereafter, is requesting more than we can legitimately give. We cannot infer that appellant saw the arriving car, and even if he did, we could not infer that he recognized it as a police cruiser. See Smith, supra, 558 A.2d at 317. Indeed, on this record we cannot even infer that Tate knew that the unmarked car was a police cruiser. Id. Certainly we cannot infer that a colloquy between a trial Judge, a witness and a counsel represents a finding by the court that appellant recognized the police. *fn6 In this regard, the trash barrel which appellant walked toward loses any sinister connotations where, in the light of an early January afternoon, there may be a need for warmth and companionship. We are not sure what the "push-off" between the two men means in this context, and nothing in the record provides clarification, but, unquestionably, the "push-off," even coupled with appellant's movement towards the trash can, does not amount to such flight as would give rise to an inference of guilt. See Smith, supra, 558 A.2d at 316-17 (fast walk did not constitute "flight" in absence of police announcement of identity); Waters v. United States, 3 ...