# Mitchell v. United States > District of Columbia Court of Appeals · January 19, 1977 · 368 A.2d 514 URL: https://www.frixlaw.com/law-library/cases/9747720 ## Case - **Full name:** James M. MITCHELL, Appellant, v. UNITED STATES, Appellee - **Court:** District of Columbia Court of Appeals - **Decided:** January 19, 1977 - **Citations:** 368 A.2d 514; 1977 D.C. App. LEXIS 407 - **Precedential status:** Published - **Opinion:** Concurrence by Kern - **Judges:** Per-, Kern, Yeagley, Harris - **Cited by:** 19 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/9747720 ## How later opinions describe it (automated extraction) - applying Illinois v. Gates, “totality of the circumstances" test, to a warrantless search ## Opinion text KERN, Associate Judge, concurring: I agree with the result reached by the court and the general principles cited in support. It is undisputed that when an informant’s tip is a necessary element in a finding that probable cause existed to arrest a suspect, the tip’s proper weight is determined by measuring it against the standards articulated in Aguilar v. Texas, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 (1964). If the tip .is to be credited, the judge at the pretrial suppression hearing must be informed of (1) some of the underlying circumstances from which the informant concluded that appellant was selling narcotics, and (2) some of the underlying circumstances from which the police officer concluded that the informant was credible or his information reliable. Aguilar v. Texas, supra at 114, 84 S.Ct. 1509 . This is the “two-pronged test” of Aguilar. Spinelli v. United States, 393 U.S. 410, 413 , 89 S.Ct. 584 , 21 L.Ed.2d 637 (1969). It is agreed we must apply this test to the facts of this case. It is also agreed the informant’s tip here initially failed to satisfy either prong of Aguilar's test. I feel that there may be some ambiguity in the majority opinion, however, as to the manner in which the deficiency in each prong was remedied. In an attempt to advance clarity in an area of the law which I feel has suffered from imprecision in expression and analysis, I would like to set forth briefly the approach which I believe follows from the principles of Aguilar-Spinelli. 1 Since the government’s sole witness at the hearing, Officer Scott, was unable to relate the manner in which the informant *519 had obtained his information that appellant was “actually engaged in selling narcotics,” the government initially failed to satisfy Aguilar’s basis of knowledge prong. However, this deficiency may be remedied if the tip itself describes “the accused’s criminal activity in sufficient detail that the . . [court] may know that he [the informant] is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s, general reputation.” Spinelli v. United States, supra at 416-17, 89 S.Ct. at 589 . As Mr. Justice White put it in his concurring opinion in Spinelli at 425, 89 S.Ct. at 593 : “Detailed information may sometimes imply that the informant himself has observed the facts” (emphasis added). The tip was in such detail here as to the two men’s physical characteristics, dress, location, activity, and the location of the contraband, that I am satisfied that it could be implied the informant himself observed the criminal activity thus satisfying Aguilar’s first prong. The government attempted to satisfy the veracity prong by showing that the informant had passed on accurate information to the police in the past. Officer Scott, however, was not familiar with the informant and could not testify concerning his “track record” with the police. And Lieutenant Sefton’s statement, testified to by Officer Scott at the hearing, that the informant “had proved reliable in five cases previously,” is the kind of conclusory assertion which the Supreme Court expressly rejected in Aguilar v. Texas, supra, 378 U.S. at 114-15 , 84 S.Ct. 1509 . There was, therefore, an initial failure by the government to meet Aguilar’s veracity prong. This deficiency may be remedied, however, by a showing that the informant’s tip was corroborated in significant respects prior to the arrest. Spinelli v. United States, supra; Whiteley v. Warden, 401 U.S. 560, 567 , 91 S.Ct. 1031 , 28 L.Ed.2d 306 (1971). Here, Officer Scott testified that prior to appellant’s arrest she observed the two men positioned in front of the specific house as the informant had said. But even more important, however, was the officer’s discovery of a gun on the person of appellant’s companion, described as appellant’s “bodyguard,” precisely where the informant’s report said it was. Thus, before arresting appellant, the tip had been corroborated to an extent that it was reasonable to conclude that the informant was telling the truth in alleging that appellant was committing a crime. The initial deficiency with respect to the veracity prong was remedied thereby. I agree therefore with the majority that Aguilar’s standards for crediting the hearsay declaration of an informant were met. Accordingly, the trial judge could properly conclude that there was probable cause to arrest appellant. 2 . My approach is largely that of Charles E. Moylan, Associate Judge of the Maryland Court of Special Appeals, in his article Hearsay and Probable Cause: An Aguilar and Spinelli Primer, 25 Mercer R.Rev. 741 (1974). I also adopt Judge Moylan’s terminology and will refer to Aguilar’s prongs as the “basis of knowledge” prong and the “veracity” prong respectively. Id. at 747. . As the majority points out, this case presents a problem which has confronted us before, namely, whether the government can establish probable cause at a suppression hearing without the testimony of the police officer who has firsthand knowledge of the tip relied on in making the arrest. See Galloway v. United States, D.C.App., 326 A.2d 803 (1974), cert, denied, 421 U.S. 979 , 95 S.Ct. 1981 , 44 L.Ed.2d 471 (1975) ; United States v. Oousar, D.C.App., 349 A.2d 454, 456 (1975) (Kern, J., concurring). More specifically, the government attempted to prove probable cause through testimony by Officer Scott as to what Lieutenant Sefton had told her the informant had said to him. This amounted to “double” hearsay. As indicated above, I conclude that the out-of-court declaration of the informant passes the Aguilar-Spinelli test and could be credited by the judge at the suppression hearing. And although appellant does not specifically argue this point, I am inclined to believe that the Aguilar-Spinelli approach should similarly govern the question whether the out-of-court declaration of Lieutenant Sefton can be credited. Given the facts (a) that he personally conversed with the informant and (b) that he is a police officer, I would hold that his statement to Officer Scott as to what the informant said also would satisfy both prongs of Aguilar. See Moylan, Hearsay and Proto-tie Cause: An Aguilar and Spinelli Primer, supra at 750 n. 47. Compare United States v. King, 335 P.Supp. 523 (S.D.Cal.1971), modified, 478 E.2d 494 (9,th Cir.), cert, denied, 414 U.S. 846 , 94 S.Ct. Ill, 38 L.Ed. 2d 94 (1973) and 417 U.S. 920 , 94 S.Ct. 2628 , 41 L.Ed.2d 226 (1974); and cases cited therein. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9747720. Public record. Not legal advice.