Carey v. United States

MACK, Associate Judge,

dissenting in part:

I concur in Part II of the majority opinion. However, I cannot agree with my colleagues’ treatment of the Fourth Amendment issue, and accordingly, I dissent. Before turning to a discussion of that issue, I shall review the pertinent facts.

I.

Two men robbed Ms. Betty Jackson and another woman inside a laundry in North *48 east Washington on the afternoon of November 27, 1973. Officer Michael A. Ga-lante responded to a radio run calling all police vehicles to the scene. He heard Ms. Jackson describe the robbers as two Negro males, one of whom was thin, with a medium complexion, and wearing a green nylon ski jacket; the second was six feet tall, with a medium complexion and wearing a dark brown three-quarter length coat. Ms. Jackson thought a third person might have been outside, but she was unsure, and was unable to describe the person, even as to sex or race. Officer Galante did not personally broadcast a radio report based on this description. To his knowledge, his partner did not transmit the description nor did he know if any officer on the scene did so.

Meanwhile, police officers Mendez and Leadman, patrolling in plainclothes in their unmarked car, monitored a citywide police radio lookout for a “robbery-holdup-gun” at the laundry. Officer Mendez testified that the radio run described three Negro males of approximately eighteen to nineteen years of age, one armed with a handgun and wearing a green jacket, another wearing dark pants and plaid shirt, and the third a beige three-quarter length coat and a mous-tache.

Approximately fifteen minutes after hearing the radio run, Officers Leadman and Mendez spotted appellant and two companions walking west on Sheriff Road, approximately seven blocks from the site of the alleged robbery. Appellant was wearing a green army field jacket that was closed; one of his companions also wore a green army field jacket, open; the third was in a corduroy brown or tan three-quarter length coat. They appeared to be 20 to 24 years of age.

The officers continued past the three men, made a U-turn, and approached from the rear. They identified themselves and told the three men of the reported robbery. Officer Mendez asked appellant to take his hands from his pockets. While frisking appellant, he noticed the right arm stiffen, and he had to force the arm from appellant’s side in order to continue the frisk. After feeling what he thought was a gun in appellant’s right front coat pocket, he reached into the pocket and retrieved a small .22 caliber derringer with a white handle. Appellant said he had just found it in his apartment and was enroute to the police station to turn in the pistol and report a burglary. The gun was loaded.

The three men were then taken to the scene of the alleged robbery. The victims told Officer Mendez that the three were not the men who committed the robbery. Appellant was subsequently arraigned on the charge of carrying a pistol without a license.

II.

At the hearing on appellant’s pretrial motion to suppress the pistol, his counsel argued that the radio run which prompted the police officers to stop appellant and his companions did not provide sufficient information for the officers either to arrest and search or stop and frisk appellant. Counsel argued further that assuming arguendo that the radio run provided sufficient grounds for an arrest or stop, the police action was nonetheless illegal since the radio run bore no relationship to the actual description Ms. Jackson gave of her assailants. In its written order denying the suppression motion, the trial court found that the description of the robbers broadcast on the police radio was substantially the same as the actual appearance of appellant and his companions and that based on the assertion in the radio run that one of the suspects was armed, the police officers were justified in conducting a limited search for weapons, pursuant to Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). The order made no reference to the effect of the radio run on the legality of the seizure of the gun, although the issue was discussed at length at the hearing. In my opinion, the motion to suppress should have been granted.

A.

It is not disputed that the police officers stopped appellant and his two companions *49 solely because of a police radio run which they monitored. 1 Both police officers conceded in testimony on the suppression motion that the three men were not running, looking back over their shoulders, or engaging in any suspicious conduct, but were merely walking down the street. The men were stopped because they “fit generally” the broadcast description of alleged robbers and, prior to seeing appellant with his friends, the officers had seen no other group of three persons on the street.

Nowhere in the record does the source of this radio run appear. It is not even apparent whether the lookout was broadcast from the scene or through the central dispatcher. 2 What the record does contain is a description of the assailants, given by Ms. Jackson to Officer Galante 3 moments after the robbery: two 4 Negro males, one of whom was thin, with a medium complexion, and wearing a green ski jacket, the second of whom was six feet tall, with a medium complexion and wearing a dark brown three-quarter length coat. No evidence was ever introduced by the government to explain the discrepancies between the victim’s description — the only one in the record — and the radio run. The officer who initiated the radio communication has never been identified, nor has any factual basis for the description ever been suggested.

B.

Thus, in my opinion, a rather narrow question is at issue: In a prosecution based on evidence seized during a stop and frisk 5 by police officers investigating a crime other than the one with which the defendant is charged, should a motion to suppress be denied where the police action is based solely on a radio run containing a general description of three suspects; where the implication that the radio run was based on a report by a victim or eyewitness is negated by (a) record evidence that a victim gave police a substantially different description, and (b) the fact that the victims did not identify the defendant as one of their assailants; and where the source of the radio run is never identified nor any factual basis suggested for the description it contained.

Clearly appellant was “seized” and subjected to a “search” within the meaning of the Fourth Amendment. Terry v. Ohio, supra. Applying Terry standards, the trial court held that the frisk was reasonable in that the radio run suggested that at least one of the suspects was armed and dangerous. But if a “frisk is justified in order to protect the officer during an encounter with a citizen, the officer must first have constitutional grounds to insist on an en *50 counter, to make a forcible stop.” Terry, supra at 32 , 88 S.Ct. at 1885 (emphasis omitted) (Harlan, J., concurring).

To satisfy the reasonableness requirement of the Fourth Amendment and justify a stop for questioning, a police officer must be able to point to the “specific and articu-lable facts” which warranted the intrusion. Here, the only “facts” known to Officers Leadman and Mendez were the very general descriptions contained in the radio run. In such a case it is not enough to determine, as did the trial court, that appellant and his companions substantially fit the radioed descriptions, for there is nothing in this record to support even an inference as to the source and reliability of the radioed description. Regardless of the good faith of Officers Leadman and Mendez, their actions cannot be insulated from constitutional challenge solely because they acted on the basis of a radio run. Whiteley v. Warden, 401 U.S. 560, 568 , 91 S.Ct. 1031 , 28 L.Ed.2d 723 (1971); Galloway v. United States, D.C.App., 326 A.2d 803 , 805 n.l (1974).

Whiteley v. Warden, supra, involved a challenge to the constitutionality of the use at trial of evidence seized during a search incident to an assertedly illegal arrest. Whiteley and a companion were subjected to a warrantless arrest, and a subsequent search and seizure on the basis of a police radio run from another county, which contained the names and description of two men for whom an arrest warrant had just been issued. The Supreme Court held that the complaint pursuant to which the arrest warrant was issued failed to establish probable cause, and that the arrest and search of Whiteley — even though conducted by officers other than the one who obtained the constitutionally defective warrant — were illegal. One of the arguments pressed by the State in support of the legality of the arrest and search was that since the arresting officers had relied on the police radio run in making the arrest, and not on the unnamed informant, the arrest was legal because they had probable cause to believe that the men in the car were those described in the bulletin. To this argument, the Supreme Court replied:

We do not, of course, question that the Laramie police were entitled to act on the strength of the radio bulletin. Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause. Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest. [Whiteley v. Warden, supra at 568, 91 S.Ct. at 1037 .]

Therefore, it is the radio run itself to which the inquiry must be directed: was it based on “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion”? Terry v. Ohio, supra at 21 , 88 S.Ct. at 1880 . When a detention and search are based solely on information relayed by police transmission facilities of which the police officer himself had no personal knowledge, the government must, when challenged, show that the information on which the action was based had a reasonable foundation. 6

*51 I am acutely aware that it is necessary to effective law enforcement that police officers, faced with emergent circumstances, must “stop and frisk” and arrest on the basis of information conveyed to them by others. We have never held, however, nor should we, that (no more than in cases involving the obtaining of a warrant) the reliability of the information need not be established. Thus, a finding of probable cause based on information received from an unknown or unidentified informant requires some showing of the factual basis upon which the informant concluded that a crime had been committed, and of the informant’s veracity or the reliability of his information. Spinelli v. United States, 393 U.S. 410 , 89 S.Ct. 584 , 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 (1964); Mitchell v. United States, D.C.App., 368 A.2d 514 (1977). Similarly, a police officer may stop and frisk on the basis of a passerby’s report that a person is carrying a gun, but only after the officer has confirmed through personal observation various specifics which were given in the description. See, e. g., Lawson v. United States, D.C.App., 360 A.2d 38 (1976); Galloway v. United States, D.C.App., 326 A.2d 803, 805 (1974), cert. denied, 421 U.S. 979 , 95 S.Ct. 1981 , 44 L.Ed.2d 471 (1975); Davis v. United States, D.C.App., 284 A.2d 459 (1971); United States v. Dowling, D.C.App., 271 A.2d 406 (1970). The victim of or an eyewitness to a crime is generally considered a reliable informant. Galloway v. United States, supra at 805. None of these indicia of reliability exists on the record before us.

My colleagues in the majority do not dispute these general principles. Rather, they claim to be “satisfied that the radio lookout description was shown to have originated with one of the victims.” Had such a showing been made, I would not be dissenting. We cannot infer that the information received by the arresting officers came from a victim or eyewitness — cf. Galloway v. United States, supra — when the record contains a divergent description given by the victim to another officer. Absent identification of the source of this radio run, we do not know whether “the police officer initiating the chain of communication either had firsthand knowledge or received his information from some person — normally the putative victim or an eye witness — who it seems reasonable to believe is telling the truth.” Daniels v. United States, 129 U.S.App.D.C. 250, 252 , 393 F.2d 359, 361 (1968). Under such circumstances it is not “reasonable to conclude that such report resulted from an eyewitness observation.” Galloway, supra at 805 .

Although the quantum of information required to uphold an arrest may differ from that required to legitimize a stop and frisk, it does not follow that the quality may be likewise dissimilar. The standard enunciated in Terry is “specific and articulable facts.” This standard is not satisfied by an anonymous police radio run which conflicts with the victim’s description and for which the government presents no explanation in response to the defendant’s challenge.

As the Supreme Court has said, “This demand for specificity in the information *52 upon which police action is predicated is the central teaching of this Court’s Fourth Amendment jurisprudence.” Terry v. Ohio, supra at 21, n. 18 , 88 S.Ct. at 1880 . Adhering to this principle, I cannot join the majority in affirming the denial of appellant’s motion to suppress.

I respectfully dissent.

.A transcript of the radio run was marked for identification at the government’s request at the motion hearing but was never introduced into evidence. The transcript is, however, contained in the trial jacket and is also attached as Appendix A to appellant’s brief. The transcript reads as follows:

Disp.: Units lookout for robbery holdup gun 1510 today’s date 1516 Sheriff Road, North East number one Negro male armed with a hand gun and in a green jacket Number two Negro male 18 to 19 5 foot 8 light brown complexion dark troussers [sic] plaid shirt, number three Negro male brown complected 3 A beige coat mustach [sic] last seen from Sheriff towards Eastern 1523.

This transcript is for the radio run broadcast in Zone Two. Officer Mendez testified that he and Officer Leadman received radio communications on Zone One. No transcript of the run broadcast in Zone One was produced. Officer Mendez implied that the same information is broadcast in all radio zones for serious offenses such as robbery. Officer Mendez did read the contents of this radio run transcript and stated at the suppression hearing that it contained essentially the same information that he heard over his radio.

. The meaning of “Disp.,” found at the start of the transcript, is unclear. See note 1, supra.

. As noted previously, Ms. Jackson thought a third person might have been outside, but she was not certain, and could give no description whatsoever.

. My analysis proceeds from the assumption that the initial intrusion was a “stop and frisk” rather than an arrest, because the trial court so found. However, this reasoning applies with even greater force to an arrest, which is what appellant argued — and the majority has decided — occurred in this case.

. Accord, United States v. Robinson, 536 F.2d 1298 (9th Cir. 1976); United States exrel. Mungo v. LaVallee, 522 F.2d 211 (2d Cir. 1975), vacated and remanded on other grounds, 428 U.S. 907 , 96 S.Ct. 3215 , 49 L.Ed.2d 1213 (1976); United States v. Impson, 482 F.2d 197 (5th Cir.), cert. denied, 414 U.S. 1009 , 94 S.Ct. 371 , 38 L.Ed.2d 246 (1973), aff’d after remand, 506 F.2d 1055 (1975) (per curiam), vacated and remanded on other grounds, 422 U.S. 1031 , 95 S.Ct. 2647 , 45 L.Ed.2d 688 , reversed and remanded on other grounds, 531 F.2d 274 , reh. denied, 535 F.2d 286 (1976). See also United States v. Vasquez, 534 F.2d 1142, 1145 (5th Cir.) cert. denied, 429 U.S. 978 , 97 S.Ct. 489 , 50 L.Ed.2d 586 (1976).

In United States v. Robinson, supra, the Ninth Circuit considered the applicability of Whiteley v. Warden to a nonarrest situation and held that founded suspicion, like probable cause, cannot “be based solely on the receipt by the stopping officer of a radio dispatch to stop the described vehicle, without any proof of the factual foundation for the relayed mes *51 sage.” 536 F.2d at 1299 . In Mungo v. LaVallee, supra, the court held that where the source of a police radio report on which the officer based his stop of the appellant’s vehicle was never identified, probable cause did not exist for his arrest, and items found during the search should have been suppressed. The appellant had been arrested and taken into custody following a police radio communication concerning an episode unrelated to the offenses of which he was convicted on the strength of evidence seized from him and his car after the arrest. The circuit court rejected the district court's assumption that the report was made by a witness at the scene of the crime, where the record yielded no such information. When the arrest was challenged by appellant’s pretrial motion to suppress, the prosecutor had the burden of establishing probable cause. That burden was not met, where the total facts within the arresting officer’s knowledge were those reported in the radio bulletins, and the source of that information remained unknown. Id. at 214-15. Similarly, the Fifth Circuit in United States v. Impson, supra, vacated the conviction and remanded for a further hearing on the appellant’s motion to suppress, which had been denied by the trial court without any effort having been made to show the nature or source of the information which had prompted the pickup alert which resulted in Impson’s arrest.