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05/08/91 MARVIN BROWN v. UNITED STATES

May 8, 1991

MARVIN BROWN, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Michael L. Rankin, Trial Judge

Ferren and Schwelb, Associate Judges, and Gallagher, Senior Judge. Opinion for the court by Associate Judge Schwelb. Dissenting opinion by Senior Judge Gallagher.

The opinion of the court was delivered by: Schwelb

On August 26, 1986, following the denial of his motion to suppress tangible evidence, appellant Marvin Brown entered a conditional plea of guilty to unlawful possession of PCP and of marijuana, in violation of D.C. Code § 33-541(d) (1988). He was placed on probation without judgment on each count for a period of six months, pursuant to the provisions of § 33-541(e). The Judge ordered that the two probationary terms run concurrently. On appeal, Brown contends that the trial Judge should have granted his motion to suppress because police lacked probable cause to arrest him or reasonable suspicion to stop him. We agree and reverse.

I

THE EVIDENCE

The government's evidence at the suppression hearing consisted exclusively of the testimony of Officer Wayne B. Walker of the Metropolitan Police Department. Officer Walker introduced himself by stating that he had been a police officer for two years and had made or participated in approximately seventy "drug arrests." He identified Brown and turned to the events that led to Brown's arrest.

On the evening of June 27, 1986, Officer Walker was alone in a marked police cruiser, patrolling his assigned area of northwest Washington. He was wearing his police uniform. Shortly after midnight, he monitored a police "radio run" for an individual who was said to be selling drugs at the corner of 17th and Euclid Streets, N.W. The radio run was based on an anonymous telephone tip to the police. According to Officer Walker, the seller was described in the lookout as a black male, approximately 5'6" in height, wearing a white shirt with dark writing on the front and blue jeans. The writing on the shirt was not further identified, nor was there any information provided in relation to the seller's age, build, facial hair, features, or other identifying detail.

Officer Walker testified that he was already in the immediate vicinity when he heard the report over the police radio. He said that at that time, he observed approximately fifty people in the area. He quickly ruled out as suspects all but two, however, because only two potentially matched the broadcast description. *fn1 Having so narrowed the field, the officer requested over the police radio that the description be rebroadcast. After hearing it for a second time, he eliminated one of the two remaining potential suspects because that individual was about 6'2" in height and was wearing a white shirt and white shorts. *fn2 There was only one person left who, according to Officer Walker, matched the description which had been broadcast over the radio. That man was Marvin Brown.

Officer Walker testified that he walked up to Brown and called out "sir!" Brown turned and began to walk away at a crisp pace. The officer called out to Brown twice more, and finally established eye contact with him. Brown still did not respond. Officer Walker then stopped Brown, told him that he fit the description of somebody who was alleged to be selling drugs, and requested him to produce some identification. Brown stated that he did not have any.

After having made the stop, Officer Walker noticed an object in Brown's right pocket. He stated that the object "looked to be about four inches ," and that it "just extruded from his pocket a little bit." He asked Brown twice what the object was, but Brown did not reply. Officer Walker then conducted a patdown, holding on to the extruding object over Brown's clothing. He testified that he asked Brown for a third time what the object was. When Brown again failed to respond, the officer seized it from Brown's pocket. It turned out to be a film canister.

Officer Walker testified that in fifty or sixty of the seventy drug arrests in which he had participated, *fn3 drugs had been discovered in a film canister. He stated that at one point, apparently while the canister was still in Brown's pocket, he had thought it was a knife. Elaborating, he explained that in the past he had discovered a number of knives in lipstick containers and that, since he was alone, he was concerned about his safety. Officer Walker testified that he then opened the film canister, explaining that he did so because he did not know what was in it. From the canister, the officer extracted four tin-foil packets which later proved to contain PCP and marijuana. He placed Brown under arrest.

One of the principal issues which arose during the suppression hearing was whether, and to what extent, Brown matched the broadcast description of the seller. Officer Walker was questioned on the subject by both counsel, but the results were inconclusive. The officer testified that, so far as he knew, there was no photograph taken of Brown in connection with his arrest. He said he could not recall what writing or design, if any, appeared on Brown's shirt. He had written on his police report that Brown was wearing maroon pants; he explained the discrepancy from the blue jeans reported in the lookout by indicating that the pants might have looked blue from a distance. Officer Walker could not initially recall whether the trousers which Brown was wearing were long pants or shorts. He testified on redirect examination, however, that if they had been shorts, he would have so noted in his report.

Brown also testified briefly at the suppression hearing. He stated that he was 5'8" to 5'9" tall. He testified that he was wearing a tan shirt which he described as "just like an Ocean Pacific shirt" *fn4 and that there was nothing at all written on it. *fn5 According to Brown's account, he did not match the broadcast description at all -- his height, shirt, and shorts all differed from the alleged seller's, and no other information had been provided in the tip.

II

THE TRIAL COURT'S DECISION

The trial Judge explicitly disbelieved Officer Walker's testimony that he suspected that Brown had a knife. *fn6 The Judge was also troubled by the officer's inability to recollect what Brown was wearing on the night in question. Observing that in determining whether a citizen's tip is trustworthy, the court "has to look how detailed the information is. . . . that the tip contains," the Judge expressed concern that the description of the seller was "somewhat lacking in specificity." Nevertheless, he denied Brown's motion to suppress because

the officer's testimony that he observed two people who seemed to fit the description, but singled out this defendant due to his height more closely approximating the radio run than any other possible suspect, as well as his individual recollection that the other suspect wore white shorts, is a reason, in my mind, to credit his testimony, and find that he, in fact, arrested Marvin Brown with probable cause. . . to believe that he was the person described in the radio run.

The Judge ruled against the government on its alternative theory, namely, that Officer Walker's actions could be viewed as a proper investigatory stop pursuant to Terry v. Ohio, 392 U.S. 1 (1968), and that articulable suspicion ripened into probable cause as events subsequently unfolded. The Judge based this ruling on his belief that

articulable suspicion has to come from the officer's observations. And this officer said that he was there in the area, but had paid no attention at all to this man up until the time he got the radio run. And after that, all he saw was that the man somewhat fit the description, and walked away from him when he called him.

The somewhat paradoxical result of this analysis was that the Judge found probable cause to arrest Brown but no articulable suspicion to stop him.

III

PROBABLE CAUSE, ARTICULABLE SUSPICION, AND TOTALITY OF THE CIRCUMSTANCES

An officer has probable cause to arrest an individual when he or she has reasonably trustworthy information at the moment of arrest "sufficient to warrant a reasonably prudent in believing that the [suspect has] committed or committing an offense." Beck v. Ohio, 379 U.S. 89, 91, 96 (1979); see also Gerstein v. Pugh, 420 U.S. 103, 111 (1975). "This standard . . . represents a necessary accommodation between the individual's right to liberty and the State's duty to control crime." Gerstein, supra, 420 U.S. at 112. As the Supreme Court stated in Brinegar v. United States, 338 U.S. 160, 176 (1949),

the rule of probable cause is a practical, non-technical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers' whim or caprice.

The requirement of probable cause has roots that are deep in our history, for arrest on mere suspicion collides violently with the basic human right of liberty. Henry v. United States, 361 U.S. 98, 100, 101 (1959). Thirteen years before the Declaration of Independence, Lord Chief Justice Pratt termed arrests on suspicion "totally subversive of the liberty of the subject." Wilkes v. Wood, 19 How. St. Trials 1153, 1167, 98 Eng. Rep. 489, (K.B. 1763). The "forefathers" who wrote our Bill of Rights agreed; searches and seizures without probable cause "are the embryo of tyranny, and they well knew it." Wrightson v. United States, 95 U.S. App. D.C. 390, 393, 222 F.2d 556, 559 (1955). The concept of probable cause is recognized as central to the protection of "the right to be left alone -- the most comprehensive of rights and the most valued by civilized ." 1 W. LAFAVE, SEARCH AND SEIZURE, § 3.1, at 540 (2d ed. 1987), quoting Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., Dissenting). It is the chief bulwark against investigative arrests proscribed by the Fourth Amendment. United States v. Short, 187 U.S. App. D.C. 142, 145, 570 F.2d 1051, 1054 (1978). Good faith on the part of the arresting officer is not enough, Henry, supra, 361 U.S. at 102, nor may probable cause be predicated on a hunch. Lathers v. United States, 396 F.2d 524, 531 (5th Cir. 1968). A search is not to be made legal by what it turns up; it is good or bad when it starts and does not change character from its success, United States v. Di Re, 332 U.S. 581, 595 (1948), or from evidence discovered subsequent to the arrest. Smith v. United States, 122 U.S. App. D.C. 300, 302 n.1, 353 F.2d 838, 840 n.1 (1965), cert. denied, 384 U.S. 910 and cert. denied, 384 U.S. 974 (1966). In sum, the probable cause requirement protects fundamental liberty interests which must be jealously guarded, lest their erosion bring a tear to the eye of the lady who stands guard in New York Harbor.

These considerations apply with particular force where, as here, the arrest was made without a warrant. "The informed and deliberate determinations of magistrates empowered to issue warrants as to what searches and seizures are permissible under the Constitution are to be preferred over the hurried action of officers and others who may happen to make arrests." United States v. Lefkowitz, 285 U.S. 452, 464 (1932). Absent a warrant, the burden of establishing probable cause is on the prosecution, for otherwise there would be little incentive for law enforcement agencies to bother with the formality of a warrant; moreover, the evidence comprising probable cause is peculiarly within the knowledge and control of the police. Malcolm v. United States, 332 A.2d 917, 918 (D.C. 1975).

The Constitution, however, proscribes unreasonable searches and seizures. The italicized adjective imports a command of proportionality to Fourth Amendment jurisprudence. An arrest constitutes a substantial intrusion upon an individual's liberty, and may not be lawfully effected unless the police can meet the comparatively exacting standard of probable cause. A lesser intrusion, on the other hand, requires a correspondingly lesser showing. At least since Terry, supra, it has been settled law that police may briefly detain or "stop" an individual and, if circumstances warrant, frisk him or her, even in the absence of probable cause, provided that they have an "articulable suspicion" of criminal conduct on the part of the individual sought to be detained. As the Court remarked in Adams v. Williams, 407 U.S. 143, 145 (1972), "the Fourth Amendment does not require a [police officer] who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape."

Although the term eludes precise definition, "articulable suspicion is and was intended to be substantially less than probable cause. As the Supreme Court recently reiterated in Alabama v. White, U.S. , 110 S. Ct. 2412, 2416 (1990), quoting United States v. Sokolow, 490 U.S. 1, 7 (1989):

the Fourth Amendment requires some minimal level of objective justification for making the stop . . . . That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence.

Id. at 2416. (Citations and internal quotation marks omitted). The predicate for the stop must be "objective," so that a "gut" feeling or "hunch" will not do. If objective justification exists, however, the threshold is not set unreasonably high.

In the present case, the prosecution predicated its claim of probable cause and articulable suspicion primarily on information provided to the police by an anonymous tipster. Since Illinois v. Gates, 462 U.S. 213, 230 (1983), the ordained methodology for determining probable cause in cases of this kind has been to assess the totality of the circumstances. More recently, in White, the Supreme Court, applying the approach which it adopted in Gates, stated that the existence of reasonable suspicion *fn7 in anonymous informant cases likewise depends on the quantity and quality of the information available to the officer, and that these circumstances must be considered in the "totality of the circumstances -- the whole picture." 110 S. Ct. at 2416.

In light of White, we cannot agree with the trial Judge's apparent conception that, in deciding the question of articulable suspicion, he was restricted to a consideration of those of Brown's activities which Officer Walker had personally observed, to the exclusion of the information contained in the radio communication which he had monitored. In Adams, supra, 407 U.S. at 147, the Court expressly "rejected respondent's contention that reasonable cause for a stop and frisk can only be based on the officer's personal observation, rather than on information supplied by another person." This court has previously upheld stops and frisks on the basis of informants' tips, without requiring, as the Judge evidently did here, that the arresting officer personally observe suspicious conduct. Allen v. United States, 496 A.2d 1046, 1048 (D.C. 1985) (citing cases); see also United States v. Johnson, 540 A.2d 1090, 1092 (D.C. 1988). Accordingly, we look to the same "totality of the circumstances" in assessing both the government's claim that Officer Walker had probable cause to arrest Brown and its alternative contention that the facts before the officer warranted an articulable suspicion of unlawful conduct which justified an initial detention, and which ripened into probable cause as a result of events occurring after the stop.

IV

THE ANONYMOUS INFORMANT - HOW RELIABLE IS HIS REPORT?

In abandoning the "two-pronged test" of Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v. United States, 393 U.S. 410 (1969), to which it had subscribed for fifteen years, the Court made it clear in Gates that the factors that had been considered critical under Aguilar and Spinnelli -- an informant's veracity or reliability, and the basis of his or her knowledge -- remain "highly relevant" in determining the value of the informant's report. Gates, supra, 462 U.S. at 230; see also White, supra, 110 S. Ct. 2415. In evaluating the totality of the circumstances in this case, we must therefore consider the informant's credibility and reliability and the basis for his or her knowledge. In the light of the particular facts before us, we must also address issues raised by Brown as to the sufficiency of the informant's description and the degree to which Brown matched it, as well as Brown's conduct on the scene and any inferences that may fairly be drawn from that. We deal with each of these topics in turn.

A. Credibility and Reliability.

In the present case, it is difficult to assess credibility or reliabitity because we know virtually nothing about the informant. As the Court observed in White, supra, 110 S. Ct. at 2415,

the opinion in Gates recognized that an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity inasmuch as ordinary citizens generally do not provide extensive recitations of the basis of their everyday observations and given that the veracity of persons supplying anonymous tips is "by hypothesis largely unknown, and unknowable." *fn8

The government contends that the tipster was a "citizen" volunteering information rather than a "paid" informant, and that "a citizen is prima facie a more credible source than a paid police informant." Allen, supra, 496 A.2d at 1048, quoting Rushing v. United States, 381 A.2d 252, 255 (D.C. 1977). Although, technically, the government is right -- Brown's counsel conceded in the trial court, after listening to the radio run, that the report was made by such a "citizen" -- the tipster's anonymity precludes any productive exploration of his or her arguably enhanced credibility. *fn9

"The presumption in favor of the credibility of citizen informants is based on the assumed absence of ulterior motives." Rushing, supra, 381 A.2d at 255 n.3. The testimony presented by the government in the present case, however, revealed absolutely nothing about the tipster's motivation. He or she may have been a public-spirited individual. Alternatively, the call might have come from somebody's mendacious and mortal enemy. "Indeed, for all that this record tells us, the tipster may well have been another police officer Who had a 'hunch'. . . ., White, supra, 110 S. Ct. at 2418 (Stevens, J. Dissenting). Paid informants are supposed to be less reliable than ordinary citizens because they are generally drawn from the criminal milieu. Rushing, supra, 381 A.2d at 255 n.3. We have no idea, however, whether the informant here was or Was not a criminal (e.g., a drug dealer seeking to protect his terrain).

In light of these considerations, courts are properly wary of sustaining seizures on the basis of anonymous tips, and require a substantial measure of corroboration of information anonymously provided. An uncorroborated tip by an informer whose identity and reliability are both unknown does not constitute probable cause to make an arrest. Contee v. United States, 94 U.S. App. D.C. 297, 299, 215 F.2d 324, 326 (1954); see also Wrightson, supra, 95 U.S. App. D.C. at 392, 222 F.2d at 558. " citizen who prefers to remain anonymous would seem less reliable than a citizen willing to accept personal responsibility for his accusations." Rushing, supra, 381 A.2d at 255. Where its informant is known to the police, the government has "a stronger case than obtains in the case of an anonymous telephone tip." Adams, supra, 407 U.S. at 146; accord, Groves v. United States, 504 A.2d 602, 605 (D.C. 1986) (informant's credibility enhanced where he was willing to identify himself). "A named and identified person is not a 'faceless informer' whose inarticulated self-interest would render his information automatically suspect." Commonwealth v. Atchue, 393 Mass. 343, , 471 N.E.2d 91, 94 (1984). A person who does not hide behind the cloak of anonymity, but who voluntarily comes forward and identifies himself or herself, is more likely to be telling the truth because he or she is presumably aware of the possibility of being arrested for making a false report. State v. Lindquist, 295 Minn. 398, , 205 N.W.2d 333, 335 (1973). See generally W. LAFAVE, (supra) , § 3.4(a), at 722-725.

In the present case, the tip was communicated to the police by telephone, rather than in person. "Anonymity takes on even greater significance where there has not even been a face-to-face confrontation between the person giving the information and the police." LAFAVE, (supra) , § 3.4(a) at 723. A tipster establishes his credibility as an interested citizen "by identifying himself and otherwise cooperating with law enforcement officials in a manner consistent with the best interest of society." Rohrig v. State, 148 Ga. App. 869, , 253 S.E.2d 253, 255 (1979). By contrast, an anonymous telephone tip is of the "weakest reliability," People v. Crea, 126 A.D.2d 556, , 510 N.Y.S.2d 876, 880 (2d Dept. 1987), and an unverified one "does not support or contribute to a probable cause determination." Burks v. State, 293 Ark. 374, , 738 S.W.2d 399, 402 (1987).

This is not to say, of course, that information from a person not known to police may never be taken into account. LAFAVE, supra, § 3.4(a), at 724. Gates and White demonstrate the contrary; if the information has been substantially corroborated, the tip may be sufficient. Where the informant not only provides information as to facts or events observable by anyone (e.g., that a man in a white T-shirt and blue jeans is standing at a given corner) but also successfully predicts events that have not yet occurred at the time of the tip but which are thereafter verified by police, this may provide sufficient indicia of the informant's credibility (as well as his or her basis of knowledge) to justify a stop. White, supra, 110 S. Ct. at 2415, see Gates, supra, 402 U.S. at 245. There is no such evidence in the present record, however, and to the still substantial extent that the informant's credibility plays a role in the assessment of the totality of the circumstances, the anonymous telephone caller remains near the less reliable end of the spectrum. *fn10

B. Basis of Knowledge.

An anonymous tip seldom demonstrates the informant's basis of knowledge. White, supra, 110 S. Ct. at 2415. Here, as in Rushing, "there was no evidence indicating how the caller obtained [his or] her information or on what grounds [he or] she concluded that [the person described in the tip was] selling narcotics. Nor did the tip describe the criminal activity in sufficient detail to remedy this defect." Rushing, supra, 381 A.2d at 256-57.

If a citizen "claims or appears to be a victim of a crime or an eyewitness to a crime, the reliability of his or her information is greatly enhanced." Allen, supra, 496 A.2d at 1048. No such claim was made by the tipster here, *fn11 and appearances are altogether ambiguous. The tip could have been based on first-hand information but, absent even a claim that it was, it is also possible that the tipster's purported knowledge was second-hand or third-hand or supposition or rumor or the product of a grudge against a rival or vengeance against an enemy. "Basis of knowledge" might arguably be inferred from an accurate prediction of future events, White, supra, 110 S. Ct. at 2415, but there is no prediction, accurate or otherwise, in the present record.

C. The Adequacy of the Description of the Seller.

The trial Judge was troubled by the fact that the informant's description of the seller in this case was "somewhat lacking in specificity." So are we.

According to Officer Walker, the radio run which he monitored described the seller as a black male, approximately 5'6", white shirt, blue jeans, with dark writing on the front of the shirt. If the informant was close enough to be able to discern that the suspect was selling drugs, one might ordinarily expect him or her to be able to identify the lettering on the shirt. Nevertheless, no information was provided as to the one fact that would make the tip distinctive -- the words or letters on the suspect's clothing -- nor was anything said about the seller's facial features or about any other distinguishing characteristics.

"As a general proposition, it may be said that the greater the number of . . . identifying characteristics which are available, the more likely it is that there will be grounds to arrest a person found with all or most of these characteristics." *fn12 LAFAVE, supra, § 3.4(c), at 741. Descriptions applicable to large numbers of people will not support a finding of probable cause. Commonwealth v. Jackson, 459 Pa. 669, , 331 A.2d 189, 191 (1975).

The government argues that Officer Walker immediately ruled out all but two of the persons in the area as possible suspects, that one of those two was eliminated as soon as the lookout was rebroadcast, and that Brown was therefore the only person in the area who matched the description. But aside from the discrepancies between the lookout and Brown's appearance and the paucity of identifying characteristics, the prosecutor failed to establish that the seller would probably still have been in the area at the time of Brown's arrest. Although Officer Walker testified that he was more or less "on location" when he monitored the radio run, the government offered no evidence as to when the informant had called the police. We are therefore left to speculate as to how much time elapsed between the informant's call and the sighting of Brown. Logically, one would suppose that the police would move with dispatch upon receipt of a tip of this kind. Supposition, however, is no substitute for proof. *fn13 Street scenes of the kind before us change rapidly; the seller can be gone in a jiffy. *fn14

If the description in the radio transmission had been of a black male whose white shirt had O-C-E-A-N P-A-C-I-F-I-C printed on it in dark lettering, and if the officer had spotted a black male wearing such a shirt in the immediate area who otherwise fit the description, then one could reasonably conclude, in spite of the lacuna in the government's proof as to the time of the informant's call, that the suspect was probably the individual described in the lookout. Cf. White, supra, 110 S. Ct. at 2417. The government's inadequate showing could not be and was not cured, however, by "the police's independent verification of the fact that there was a person in the area indicated wearing a white T-shirt," Rushing, supra, 381 A.2d at 256, and, in this case, dark pants.

D. The Sufficiency of the Match.

"One question which causes the courts difficulties is whether probable cause is present when the police match up some but not all of the description with the person arrested." LAFAVE, supra, § 3.4(c), at 743. Although less precision is required for articulable suspicion, similar problems arise in that context.

Not every discrepancy is fatal; "mistakes are irrelevant if there is sufficient particularized information to constitute probable cause." Brown, supra, 125 U.S. App. D.C. at 46, 365 F.2d at 979. The fact that a part of the description does not fit is, however, obviously a negative factor. Mobley v. State, 270 Md. 76, , 310 A.2d 803, 807 (1973), cert. denied, 416 U.S. 975 (1974). "What must be taken into account is the strength of the points of comparison which do match up and also whether the nature of those which did not match such that an error could readily occur." LAFAVE, supra, § 3.4(c), at 743.

As we have noted, the description in the lookout to which Officer Walker testified was remarkably skimpy, especially since the alleged writing on the seller's shirt was not identified. The following chart summarizes the state of the record as to the match-up between the description of the black male who was alleged to be the seller and the actual appearance of Brown:

Lookout Officer Defendant Trial Judge

1. Height 5'6" - 5/8"-5'9" No finding

2. Shirt Color White White Tan No finding

No

3. Lettering on Yes recollection No No finding

Shirt

4. Pants Blue Jeans Maroon Jeans ...


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