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Porter v. United States

November 12, 2010

EUGENE J. PORTER, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia (CMD-15036-09) (Hon. Anthony C. Epstein, Trial Judge).

The opinion of the court was delivered by: Terry, Senior Judge

Submitted June 29, 2010

Before BLACKBURNE-RIGSBY, Associate Judge, and TERRY and FARRELL, Senior Judges.

Appellant Porter was convicted of possession of cocaine. On appeal from his conviction, he contends that his motion to suppress evidence should have been granted because a tip given by a known police informant was not sufficiently reliable to give the police probable cause to search him. In addition, he argues that the trial court erred in its handling of background information relating to the informant, asserting that his rights under Brady v. Maryland, 373 U.S. 83 (1963), and the Sixth Amendment were violated. We reject all of these contentions and affirm the conviction.

I.

At the hearing on appellant's motion to suppress, the evidence showed the following: On July 10, 2009, Metropolitan Police Officer Michael Newton was working with a paid police informant to identify persons "involved in narcotics activity." Over a period of ten years, the informant had never given Officer Newton false information; his tips had resulted in approximately 100 arrests, for each of which he was usually paid $100. To the officer's knowledge, the informant did not use drugs, but he had one conviction for a non-drug-related offense.

At about 6:00 p.m. on July 10, Officer Newton drove the informant to the 2000 block of Benning Road, Northeast, an "open air drug market" with which the informant was familiar. A few minutes later, the informant called Officer Newton on his cell phone and told him that in the 2000 block of Benning Road a man wearing blue jeans and a black T-shirt with a picture of Bob Marley on the front, walking with crutches, "was in possession of heroin." Within two minutes after Officer Newton received this call, he and other officers went to the designated location, and there they saw appellant, who matched the description perfectly. Another officer conducted a search of appellant's pockets and recovered a green ziplock bag containing a quantity of white powder, which turned out to be cocaine.*fn1

Appellant presented no evidence, but his counsel argued that the motion should be granted because the police lacked probable cause to search and arrest appellant. The government relied on its previously filed written opposition to the motion. The court then denied the motion to suppress, ruling that the informant's tip was sufficiently reliable to provide probable cause for the search. After a non-jury trial, the court found appellant guilty of possession of cocaine, as charged, but granted appellant's motion for judgment of acquittal on the additional charge of possession of heroin. See note 1, supra.

II.

In reviewing the trial court's ruling on a motion to suppress, this court "must view the evidence in the light most favorable to the prevailing party." Barrie v. United States, 887 A.2d 29, 31 (D.C. 2005) (citations omitted). "We defer 'to the motions court's findings of fact as to the circumstances surrounding the appellant's encounter with the police and [must] uphold them unless they are clearly erroneous.' " United States v. Boxley, 985 A.2d 1108, 1111 (D.C. 2009) (citation omitted). "The court's legal conclusions on Fourth Amendment issues, however, are 'subject to de novo review.' " Joseph v. United States, 926 A.2d 1156, 1160 (D.C. 2007) (citation omitted).

When probable cause is based on information gained from an informant's tip, we employ the "totality of the circumstances" test set forth in Illinois v. Gates, 462 U.S. 213 (1983). Under that test, we assess a variety of factors, including "the informant's 'veracity' or 'reliability' and his 'basis of knowledge.' " Id. at 233; see Boxley, 985 A.2d at 1112. "[A] deficiency in one [factor] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." Gates, 462 U.S. at 233 (citations omitted).

In this case the totality of the circumstances showed that the informant's tip was reliable. In the first place, he was a known police informant who had supplied accurate information many times in the past. See Goldston v. United States, 562 A.2d 96, 99 (D.C. 1989) ("an informant's history of supplying prior productive information is a most important guide to establishing reliability and credibility"); accord, e.g., Barrie, 887 A.2d at 32 ("the fact that the informant was well-known to the police, and thus could be held to account were his information found to be willfully false, gives his report added weight"). Officer Newton testified to the informant's history of providing accurate information. "Perhaps the most telling indicia of reliability can be a tipster's track record, i.e., the number, frequency, content, accuracy (in both innocent and non-innocent detail), and productivity of any past tips." Sanders v. United States, 751 A.2d 952, 955 (D.C. 2000) (citation omitted).

The tip's innocent details, which the officers were immediately able to corroborate, also bolstered the informant's reliability. See Boxley, 985 A.2d at 1110, 1113 (innocent details included suspect's location and distinctive clothing); Jefferson v. United States, 476 A.2d 685, 687 (D.C. 1984). Here, the tip described the suspect as a man walking with crutches, and wearing blue jeans and a black T-shirt with a picture of Bob Marley on the front. Within two minutes from receiving the tip, the officers saw a man precisely matching that description at the stated location on Benning Road; that man was appellant. See Hill v. United States, 627 A.2d 975, 979 (D.C. 1993) (holding that arrest team had probable cause for arrest after receiving two radio broadcasts from undercover officer, when the first broadcast "contained a particularized description of Hill's clothing, and the second gave a specific location on 57th Street where Hill was standing").

The fact that the informant did not state the basis of his knowledge did not render his information unreliable. First, the court could permissibly conclude that any deficiency in this respect was overcome by the informant's consistently reliable track record and the corroboration of innocent details. Second, "the basis of knowledge of an informant need not be established by the direct assertions of [the] informant; it may also be fairly inferred...." Turner v. United States, 588 A.2d 280, 281 (D.C. 1991) (citation omitted). This court has upheld an inference that "if an informant's report contains detailed, current information, it is probably based on first-hand perception...." Id. ...


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