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01/15/92 R.E.G.

January 15, 1992

IN RE: R.E.G., APPELLANT


Appeal from the Superior Court of the District of Columbia; (Hon. Susan Holmes Winfield, Trial Judge)

Before Wagner, Associate Judge, Gallagher and Newman,* Senior Judges. Opinion for the court by Senior Judge Gallagher. Dissenting opinion by Senior Judge Newman at p. 9.

The opinion of the court was delivered by: Gallagher

GALLAGHER, Senior Judge: This case presents for our determination whether there was error when a trial Judge in a suppression hearing refused to suppress evidence seized incident to appellant's arrest for unauthorized use of vehicle. Appellant was convicted of possession with intent to distribute cocaine. D.C. Code § 33-541(a) (1988 Repl.). He contends there was no probable cause for his arrest and the conviction should be reversed because the arresting officer relied on inaccurate computer information. Finding, as we do, that the information relied upon was not established as inaccurate and that probable cause existed independently of the information, we affirm.

I

Testifying at a suppression hearing, Officer Cortwright, the arresting officer, stated that on February 3, 1989, at 8:45 p.m., while assigned to the auto theft unit, he received a stolen vehicle report from Willie Walker, the owner of a blue Nissan truck. According to the report, the truck was stolen by a young man in the vicinity of Georgia Avenue and Park Road, N.W. Walker told the officer that he was giving a ride to a young man, whom he knew by first name only, and when he went into a store, leaving the keys in the ignition, the young man drove off. Although somewhat puzzled about those circumstances of the theft, Cortwright accepted that the truck was stolen and consequently filed a missing vehicle report. A computer printout, entered into evidence at the suppression hearing, showed the tag number of the truck entered as stolen at 11:02 p.m.

On February 7, 1989, at 7:35 a.m., while on duty, Cortwright observed appellant driving a truck corresponding to the description Walker had given him. A check revealed that the tag number matched a number on the officer's ten/ten sheet, which is a list of the license plate numbers of stolen vehicles, issued earlier that morning. To verify the accuracy of the ten/ten sheet, the officer called the police dispatcher for the latest computer information. The dispatcher, indicating that the computer was temporarily down, told Cortwright to rely on his "ten/ten." After calling for assistance, he pulled up behind the truck which was stopped and the responding police car pulled in front of appellant. Cortwright, who was in uniform, walked to the driver's side of the truck. When appellant saw the officer, he floored the gas pedal in an attempt to escape, however, the gear was in neutral so, although the engine revved, the truck did not move. The two passengers with appellant attempted to jump out. All three were arrested and, in a search incident to arrest, the police recovered seven bags of cocaine from appellant.

Appellant was initially arrested for unauthorized use of a vehicle (UUV), as well as possession of cocaine. However, he was not charged with UUV because the officer believed him when he later stated that Walker had rented the truck to him in exchange for "crack."

At the suppression hearing, appellant's counsel produced as an expert witness a computer programmer employed in the data processing division of the police department. In addition to testimony about the computer system and procedures attending its use, the expert interpreted data from the computer relating to the status of the truck. He testified that according to the computer printout, the truck was entered into the computer as stolen on February 3rd and remained listed as stolen until it was cleared from the computer on February 7th after appellant's arrest. A computer printout from February 4th revealed seven inquiries regarding the truck's tag number. To each inquiry, the computer reported no record that the truck was stolen. The witness could not determine the exact reason for this inconsistency. He opined that it could have been a computer malfunction or an improper formatting of the inquiry into the computer that would have failed to elicit the correct information.

Defense counsel proffered that a missing witness, Walker, would have testified that he reported the truck's recovery on February 4th. Counsel also proffered, based on inference, that an unidentified policeman checked the computer after receiving the phone call and, when the truck's tag number did not show up as stolen, did not attempt to enter the correct information. Appellant contended there was no probable cause for his arrest, because, if the missing witness had testified, *fn1 his testimony would, in effect, have shown that the ten/ten report was based on inaccurate computer information that was the result of police error. The court concluded that, even if the proffers were proven, the officer acted in good faith and that probable cause existed for an arrest.

II

In this court, appellant contends that because the arresting officer relied on erroneous information supplied by the police, there was no probable cause for his arrest. He argues that regardless of the good faith belief and reasonable actions of the arresting officer, if the information upon which he relies is faulty, the resulting arrest is invalid. See Whiteley v. Warden, 401 U.S. 560, 28 L. Ed. 2d 306, 91 S. Ct. 1031 (1971).

We note at the outset that there is no proof that the computer information was in fact inaccurate. The evidence does not establish that the owner of the truck, Walker, reported its recovery. A mere proffer is not evidence. The witness did not testify and there was no opportunity for the government to cross-examine the witness. There was no basis for the trial Judge to conclude that the witness was credible. It is error for the trial court, absent a stipulation, to accept as evidence an unsubstantiated proffer. See Jackson v. United States, 589 A.2d 1270 (D.C. 1991).

In this case, the trial court did not accept appellant's proffer as evidence. The court stated:

My point is if I accept your proffer it seems to me the case can be decided -- and unless you show me more it is not going to be decided in your favor, which is all the more reason why I will accept your proffer. If I thought your proffer was going to make a factual difference in the outcome of the case, I couldn't accept the proffer and move on. But what I'm saying is assuming the evidence in the light most favorable to you, which is not what I ordinarily do, if the law is still not in your favor, that ends the Discussion and we don't need to wait for your witness. It is only if your proffered evidence is critical to the outcome that I have to wait for the evidence to come In -- competently.

(Emphasis added.)

Later in ruling on the matter the court had ...


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