“In cases such as this where probable cause for arrest is predicated in part on the personal observations of the arresting officer, the court may not rely on facts which were available to other officers at the scene unless that information was communicated to the arresting officer.”
How later courts described this case
- “In cases such as this where probable cause for arrest is predicated in part on the personal observations of the arresting officer, the court may not rely on facts which were available to other officers at the scene unless that information was communicated to the arresting officer.”
- no probable cause where one-way transfer of paper currency and “push off” followed by the two men walking in opposite directions as police approach in response to lookout for man distributing drugs
- “An arresting officer need not have firsthand knowledge of the facts giving rise to probable cause provided that he or she is acting at the suggestion of someone who does.” (emphasis in original)
- "the handing of money by one person to another person, standing alone, cannot give rise (in any neighborhood) to ... probable cause to arrest”
Written by the judges who cited it.
The opinion
BELSON, Associate Judge,
dissenting:
The majority overturns the trial court’s denial of appellant Haywood’s motion to suppress on two bases: 1) that the police lacked probable cause to arrest appellant without a warrant and, alternatively, 2) that the government’s evidence did not prove that observations made personally by the particular officer who arrested Haywood gave the officer probable cause to do so.
With respect to probable cause for arrest, the majority holds that this court’s recent 5 to 4 en banc decision in Smith v. United States, 558 A.2d 312 (D.C.1989) compels reversal here. Recognizing that this court is bound by Smith , I point out that there are important distinctions between the grounds for a Terry 1 stop disapproved by the court in Smith , and the grounds for probable cause presented by the facts in this case. 2
*558 It is true, of course, that there is a basic similarity between the fact patterns of the two cases. In each case, an unmarked police car proceeded to the intersection of 12th and U Streets, N.W. in response to a communication from another law enforcement officer describing yet another episode of narcotics trafficking activity at that drug-beleaguered location. But there are at least two important factual distinctions that gave the police a stronger basis for action in this case than they had in Smith . The first is that here the police observed more than a mere conversation between appellant Haywood and Tate, the narcotics dealer described in the police tip. Sergeant Miller testified that he personally saw Haywood give money to Tate before the officers got out of their car to detain appellant and Tate. The majority opinion in Smith relied in part on the fact that the officers involved in that case did not see Smith handle money or make any other movement or gesture that might have indicated that he played the role of the “money man” on a drug-dealing team. Smith, supra, 558 A.2d at 315 .
Second, while the majority in Smith declined to attribute to Smith any knowledge or belief on Smith’s part that the approaching police officers were indeed police officers, it is noteworthy that Smith was not the person who had been identified as dealing in drugs in the information the arresting officers had received. In contrast, in this case Tate was identified in the tip as being a narcotics trafficker. That gave added significance to the fact that, as the officers here approached and saw Haywood handing money to Tate, Tate saw them, and the two men then pulled their hands away, Haywood “pushed off” from Tate, the two did an about face, and they walked away in opposite directions. It is quite reasonable to believe that a person reported to be engaged in drug trafficking at the notorious 12th and U intersection (where the witness Sergeant Miller himself had made over 20 drug arrests) would be on the lookout for approaching police officers, and reasonably savvy at recognizing them. Remarkably, the majority here asserts that “on this record we cannot even infer that Tate knew that the unmarked car was a police cruiser.” The majority finds itself unwilling to acknowledge what the defense counsel himself freely conceded in this case during a colloquy concerning the arrival of the police at 12th and U, i.e., that unmarked cars such as the police used in this case do not deceive criminals, such as those who deal drugs in such drug-stricken locations as 12th and U, N.W. 3
The trial judge was undoubtedly correct when, in ruling at the conclusion of the hearing that there was probable cause to believe that appellant was engaged in a drug transaction, she said:
in a high narcotic area when one gives money to a person who is identified as a drug dealer and then when the police arrive walks away, I do not think it’s at all unreasonable to believe the totality, the totality of circumstances in that instance gives them probable cause to believe that someone has done something and committed a crime.
The totality of the circumstances at the time of the arrest combined with the information included in the tip received by the “jump out squad” included the following: that a man matching Tate's description was selling narcotics near this particular trash barrel according to the informant; that upon their arrival at an intersection notorious for drug trafficking the police saw Tate near the trash barrel; that the testifying officer saw Haywood hand over money in the form of bills to Tate; that as the police approached, the men pulled their hands away and there was a “push off” between Tate and Haywood who then, significantly, 4 walked away in opposite di *559 rections; and that the “push off” occurred just after Tate, described as a narcotics dealer, noted the arrival of the police officers.
To the detriment of law enforcement and to the detriment of the community, including the drug-plagued neighborhood around 12th and U Streets, N.W., the majority has chosen to enter a holding that will make it more difficult for the police to arrest drug traffickers when the circumstances justify a reasonable belief that they are peddling drugs on the streets of Washington. The majority interprets the Constitution in a way that makes unduly burdensome the showing of probable cause required to support an arrest for narcotics trafficking.
Turning to the majority’s alternative ground for reversal, I think the majority errs in stating that a reversal is warranted on the ground that the government did not present any evidence regarding the personal knowledge and observations of the arresting officer that allegedly gave him probable cause to arrest appellant. The majority bases this conclusion primarily on the fact that the only witness at the suppression hearing, Sergeant Charles E. Miller, was the officer who arrested Tate, whereas a different officer, Robert Franck, arrested appellant Haywood. This fact, however, does not undermine the basis upon which Officer Franck arrested appellant. Both of those law enforcement officers were members of a squad that was responding as a unit to the scene of the arrest to pursue a tip conveyed to the squad by another officer, Officer Romano. Sergeant Miller received a communication from Officer Romano that the “source” had observed a described individual (Mr. Tate) distributing narcotics at the location in question. Sergeant Miller then proceeded to the intersection of 12th and U in an unmarked police car with three other officers including Officer Franck. Upon arriving there Sergeant Miller saw appellant Haywood handing the money to Mr. Tate. The officers then “proceeded to where the two gentlemen were standing and everybody got out of the car.” The inference that must be drawn, I submit, is that all the members of the squad were aware of the purpose for which they went to the intersection of 12th and U and shared the information about the exchange of money before they got out of the ear to stop appellant and Tate. 5
Finally, with respect to the reliability of the informer, it appears that the record does not indicate whether Officer Romano knew of the reliability of the informer before, or only after, he transmitted the tip to the arresting officers. Under the circumstances, it is not even necessary to rely, as one reasonably can, on the inference that members of the Metropolitan Police Department were necessarily aware of their source’s successful track record before Romano transmitted the information to the jump out squad. Such reliance is unnecessary because, as matters developed at the scene of the arrest, the tip was verified when the police saw a person precisely matching the distinctive description of Tate standing near the notorious 12th & U fire barrel and receiving money from appellant. Waldron v. United States, 370 A.2d 1372, 1373 (D.C.1977) (sufficiently detailed tip may “verify itself”); Mitchell v. United States, 368 A.2d 514, 518-19 (D.C.1977) (Kern, J. concurring) (even if one assumes that detailed tip did not “verify itself,” initial on-the-scene police investigation before arrest can corroborate tip to the extent that it was reasonable to conclude that informant was telling the truth); cf. Illinois v. Gates, 462 U.S. 213, 243-45 , 103 S.Ct. 2317, 2334-36 , 76 L.Ed.2d 527 (1983) (corroborating police investigation can provide basis for crediting anonymous tip).
For the foregoing reasons, I would affirm.
. Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968).
. Although Smith involved a Terry stop rather than an arrest based on probable cause, the facts before us here satisfy the test for either action by law enforcement officials. The facts here afforded more than a particularized and objective basis for suspecting [appellant] of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18 , 101 S.Ct. 690, 695 , 66 L.Ed.2d 621 (1981); the circumstances were that ‘"a reasonably prudent police officer, considering the total circumstances confronting him and drawing from his experience,' would be warranted in the belief that an offense has been or is being committed.” Peterkin v. United States, 281 A.2d 567, 568 (D.C.1971), cert. denied, 406 U.S. 922 , 92 S.Ct. 1788 , 32 L.Ed.2d 122 (1972) (quoting Lucas v. United States, 256 A.2d 574, 575 (D.C.1969)).
. In her findings, the trial judge stated:
In addition to that, when they got out of the cruiser, which I think we all agreed that this unmarked cruisers are just as visible to persons in those areas as they are, I mean they are obviously police cars. I don’t think anyone really, very few people would not recognize it as such.
The judge’s language indicates that she accepted counsel’s concession of the well-known.
. See United States v. Bennett, 514 A.2d 414, 416 (D.C.1986).
. See Illinois v. Andreas, 463 U.S. 765 , 771-72 n. 5, 103 S.Ct. 3319 , 3324 n. 5, 77 L.Ed.2d 1003 (1983) (“where law enforcement authorities are cooperating in an investigation, ... the knowledge of one is presumed shared by all.”).