# United States v. Angel Rosario > Court of Appeals for the Second Circuit · October 14, 1976 · 543 F.2d 6 URL: https://www.frixlaw.com/law-library/cases/9463159 ## Case - **Full name:** UNITED STATES of America, Appellant, v. Angel ROSARIO, Appellee - **Court:** Court of Appeals for the Second Circuit - **Decided:** October 14, 1976 - **Citations:** 543 F.2d 6; 1976 U.S. App. LEXIS 6677 - **Precedential status:** Published - **Opinion:** Dissent by Meskill - **Judges:** Smith, Oakes, Meskill - **Cited by:** 28 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9463159 ## How later opinions describe it (automated extraction) - holding that physical description of suspect as unknown male “m/w/28 yrs., 5'8 tall, 155 lbs, light complexion, wearing blue trousers, multi[-]colored shirt and sneakers” was not specific enough to support arrest because the description would fit “a very large group of ordinar… ## Opinion text MESKILL, Circuit Judge (dissenting): I respectfully dissent. While I agree with the majority and with Judge Bartels that this case is a close one, I cannot agree that the arrest of Rosario was illegal. Analysis of mistaken identity cases under Hill v. California, 401 U.S. 797 , 91 S.Ct. 1106 , 28 L.Ed.2d 484 (1971), is a two-step process. The first step is to determine whether there was probable cause to arrest the right person, and the second step is to determine whether the arrest of the wrong person was a “reasonable,” “understandable,” or “good faith” mistake. Id. at 802-04 , 91 S.Ct. 1106 . I have no doubt that there was probable cause to arrest the Angel who had, on two occasions, helped Gonzalez sell heroin to Officer Balmer, and I do not understand the opinion of the majority to hold otherwise. The question to be resolved on this appeal is whether the mistake made by Officer LeMoine was reasonable. I believe that it was. Rosario, like the suspect, was named “Angel,” he fit the suspect’s general description and he was found in the company of the suspect’s accomplice. Individually, these facts prove very little, but taken together, as they must be, United States ex rel. LaBelle v. LaVallee, 517 F.2d 750, 754 (2d Cir. 1975), cert. denied, 423 U.S. 1062 , 96 S.Ct. 803 , 46 L.Ed.2d 655 (1976), they reduce the possibility of error considerably. This was, after all, a street encounter, and the police had been looking for Gonzalez and his confederate for almost two months. Under the circumstances, I fail to see what reasonable alternative was open to Officer LeMoine. If he had let Rosario go, it might have turned out that Rosario was the right “Angel,” so that was hardly a viable choice. He might have questioned Rosario at the scene prior to the arrest, but even if Rosario had told him that he was the wrong man, LeMoine would probably have been justified in disbelieving such a statement. See Bill, supra, 401 U.S. at 803 , 91 S.Ct. 1106 . The mistaken arrest of Rosario was both “understandable” and “reasonable.” The majority quite properly affords considerable deference to the opinion of Judge Bartels because he was in the best position to weigh the testimony of the police officers given at the suppression hearing. A careful reading of his Memorandum of Decision, however, convinces me that Judge Bartels’ decision was influenced considerably by the fact that the “Angel” arrested was not in fact the same “Angel” described by Officer Balmer. Three times in the Memorandum Judge Bartels referred to Rosario as an “innocent” person. The last reference appears in the following passage: There is no question that this case is a close one; but the Court concludes that the arrest of an innocent person should be carefully scrutinized and that a more pre *10 cise and identifying description is required than here present. If by this statement Judge Bartels means that in determining probable cause the arrest of an innocent person should be more carefully scrutinized ■ than the arrest of a guilty person, he is in error.- Just as an arrest is not to be validated by what it produces, neither should an otherwise reasonable arrest be invalidated by what subsequently comes to light. I can only conclude that Rosario’s “innocence” was a persuasive factor with Judge Bartels and that he would have found probable cause if Rosario was in fact the guilty “Angel.” While it is understandable that the description of this arrestee might appear unsatisfactory for purposes of determining probable cause when viewed with the benefit of hindsight, it is irrelevant that he was not in fact Gonzalez’s confederate, see Hill, supra, at 803-05 , 91 S.Ct. 1106 . Judge Bartels agreed that “LeMoine had probable cause to believe that a felony had been committed by someone named ‘Angel,’ ” but he thought the description lacked particularity because “[t]he physical description as to weight, height, color and age would fit a very large group of ordinary young men.” I submit that the group would shrink considerably if each member had to be named “Angel.” The group would be further reduced in size where the “Angel” is found in the presence of the same heroin distributor, Gonzalez, whom the suspect “Angel” aided in heroin transactions with Officer Balmer. There was clearly probable cause to arrest the right “Angel,” and a reasonable mistake of identity should not invalidate Rosario’s arrest. We must not demand that police officers maintain the same standard for probable cause for an arrest that we require of the government for a criminal conviction. “[S]ufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment.” Hill, supra, at 804 , 91 S.Ct. at 1111 . I believe that there was probable cause to arrest Rosario. Because his arrest was legal, the search incident to the arrest was valid and the evidence seized should not have been suppressed. I would reverse the order of the district court. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9463159. Public record. Not legal advice.