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03/29/91 CLARENCE J. TURNER v. UNITED STATES

DISTRICT OF COLUMBIA COURT OF APPEALS


March 29, 1991

CLARENCE J. TURNER, APPELLANT
v.
UNITED STATES, APPELLEE

Appeal from the Superior Court of the District of Columbia; Hon. Curtis E. von Kann, Trial Judge

Steadman and Schwelb, Associate Judges, and Kern, Senior Judge.

The opinion of the court was delivered by: Steadman

Appellant was charged and convicted of possession with intent to distribute cocaine, D.C. Code § 33-541(a)(1) (1988), and possession of marijuana, id. § 33-541(d). On appeal, his sole challenge is to the denial of his suppression motion based upon an alleged unlawful arrest following information from an informant. We affirm.

The government's evidence showed that on August 12, 1987, Officer Paul Swope received a call from a paid police informant who stated that "a black male, wearing a burgundy sweatshirt jacket, burgundy sweatpants, and a black Coca-Cola cap turned backwards, was holding and selling cocaine in front of 1424 Chapin Street, N.W." The informant had previously provided reliable tips on approximately ten occasions which resulted in three "good" search warrants and several arrests. Officer Swope then radioed the description to a police cruiser. The informant called again a few minutes later to report that the subject had removed his jacket, but was in the same location. An officer proceeded to the location and found an individual matching the description. He was carrying a burgundy jacket. More police arrived at the scene, arrested appellant, and upon searching him found the narcotics.

I

Appellant's principal argument is that the record here shows a "complete absence of evidence" as to the "basis of knowledge" of the informant. *fn1 Appellant argues that even though the two-prong test established by Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), requiring a showing of both an informer's "basis of knowledge" and "veracity" to establish probable cause, was replaced by a "totality of the circumstances" test in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), *fn2 Gates did not eliminate the requirement for some evidence of the informant's basis of knowledge.

Assuming the correctness of appellant's assertion, we think he misreads the record here. It has been established that, with other indicia of veracity no stronger than here, a basis of knowledge element would be satisfied for probable cause if the informant had explicitly stated that he or she "saw" the appellant selling drugs. Jefferson v. United States, supra note 2, 476 A.2d at 687 ("There was testimony in the record that the informant revealed in his tip to the detective the basis of knowledge: that he had seen the subject selling narcotics."). *fn3 But the basis of knowledge of an informant need not be established by the direct assertions of informant; it may also be fairly inferred, as here. *fn4 Groves v. United States, 504 A.2d 602, 605 (D.C. 1986) (Where informer called a second time to report the changed location of the suspect, "it was apparent that he was personally observing the occurrence he was then describing."); United States v. Walker, 294 A.2d 376, 378 (D.C. 1972) ("While the citizen here did not specifically say he had seen the pistol . . ., such was the clear inference from his report."). *fn5

In addition to Jefferson, see note 3 (supra) , this case bears a marked similarity in its basis of knowledge element to Rutledge v. United States, 392 A.2d 1062 (D.C. 1978). In Rutledge, an informer told the police that

a Negro male [who was] wearing a tan leather waist-length jacket, black pants, [had a] short bush, dark complected, and had soft walking shoes on . . . like Hush Puppies . . . was carrying a newspaper in his hand . . . was selling BAM *fn6 was standing right in front of the Pig and Pit, on the west side of the street, 1900 block of 14th Street.

Although the informer happened to have stated that he saw the appellant selling drugs, we noted, under the old Aguilar-Spinelli test, that "if an informant's report contains detailed, current information, it is probably based on first-hand perception," and thus enough to satisfy the basis of knowledge prong. Rutledge v. United States, supra, 392 A.2d at 1065. *fn7

Here, the informant made two telephone calls. The first one was a flat assertion that defendant was engaging in drug sales, and provided a detailed description of appellant. The second call reported that appellant had taken off his jacket. However one might view the first call standing alone, we think it plain that a fair inference following the second call was that the informant was himself witnessing the defendant's actions, including the drug sales alleged in the first call. *fn8 The Supreme Court has held that an informant's failure "to thoroughly set forth the basis of his knowledge surely should not serve as an absolute bar to a finding of probable cause," Illinois v. Gates, supra, 462 U.S. at 233, where, as here, an informant has proven the reliability of his tips.

The trial court correctly denied the motion to suppress, and accordingly the judgment appealed from is

Affirmed.


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