Goldston v. United States , 562 A.2d 96 ( 1989 )

GALLAGHER, Senior Judge:

Appellant was arrested and searched on a Northwest street comer, resulting in the police recovering six plastic bags of cocaine from his jacket. The trial court denied appellant’s pretrial motion to suppress the drugs, whereupon appellant entered a conditional plea of guilty¹ to one count of possession of cocaine in violation of D.C. Code § 33-541(d) (1988 Repl.). Appellant now challenges the trial court’s ruling, arguing that the police lacked probable cause to arrest him. We disagree and affirm.

I

On the evening of October 28, 1986, a police officer received a telephone call from an informant who, over the previous eighteen months, had provided him with accurate and reliable information on eleven occasions. The source, who had never supplied the police with inaccurate information over this lengthy period, stated that a slender, six-foot tall black male named “Jamie” regularly sold cocaine at the comer of Fuller and Mozart Streets, Northwest. The source further specified the color, make, and license tag number of a gray² BMW he had seen Jamie drive, and added that Jamie lived in the 400 block of Columbia Road. The informant also stated that he had purchased cocaine from Jamie at the Fuller and Mozart Street location within the previous seventy-two hours.

The next morning, a vehicle registration check of the tag number supplied by the informant showed that the BMW was registered to a person residing at 423 Columbia Road,³ which coincided with the information related by the informant. The police consequently established a look-out post at that address where they remained for most of the day. No one fitting Jamie’s description left the Columbia Road address until late in the afternoon when appellant emerged from the house. The informant, who had joined the police at the lookout, immediately identified appellant as the person from whom he had recently purchased cocaine.

Appellant entered a white Audi — not a BMW — and drove off. The police followed him as he drove directly to the intersection of Fuller and Mozart Streets, the same corner where the informant stated Jamie sold drugs daily, and parked his car. There were several people on the comer. The informant stated to the officer that they were customers waiting for appellant. When the latter finally alighted from the car he was placed under arrest and the packets of cocaine were recovered from his jacket pocket.⁴

Appellant filed a pretrial motion to suppress, arguing that the informant’s information did not give the police probable cause to arrest him. The trial court denied the motion, noting that even though it was required to scrutinize the informant’s veracity closely because of the latter’s status as a paid police informant, any deficiency in this area was “outweighed ... by the long and significant history of productive tips and the absence of unproductive tips....” In a rather lengthy and careful ruling in which the court analyzed the material evidence, the trial judge concluded that “taking into account all of the surrounding circumstances ... as well as [the informant’s] veracity and basis of knowledge” coupled with independent police corroboration of the details related to them by the informant, the information “was sufficient under the law to provide the necessary probable cause.” This appeal followed.

II

Our role in reviewing a trial court’s decision not to suppress evidence seized as a result of information supplied by a confidential source is to ensure that the trial court had a substantial basis for concluding probable cause existed. See United States v. Johnson, 540 A.2d 1090, 1091 n. 2 (D.C.1988) (citing Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332-33, 76 L.Ed.2d 527 (1983)); Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1980). In doing so, we must accept the inferences drawn by the trial court from the facts adduced at the motions hearing if they are supported under any reasonable view of the evidence. United States v. Rorie, 518 A.2d 409, 410 (D.C.1986).

At the outset, we note that the concept of probable cause is “not readily, or even usefully, reduced to a neat set of legal rules.” Gates, supra, 462 U.S. at 232, 103 S.Ct. at 2329. As the Supreme Court has recently reiterated,

“[t]he process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as fact-finders are permitted to do the same— and so are law enforcement officials.”

United States v. Sokolow, — U.S. —, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981)).

Prior to 1983, cases involving informant tips were analyzed under a somewhat rigid and mechanical two-pronged analysis — the Aguilar-Spinelli test. See 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). The test required, inter alia, that the reviewing judge examine both the veracity or reliability of the informant and the informant’s “basis of knowledge” for the information. See Rutledge v. United States, 392 A.2d 1062, 1065 & n. 4 (D.C.1978). An inadequate showing as to one prong was usually fatal to a finding of probable cause.

This analytical framework has been rejected, however, as overly formalistic and cumbersome. In its place, the Supreme Court — and subsequently this court— adopted the more pragmatic Gates “totality of the circumstances” test.⁵ Gates did not completely reject the Aguilar-Spinelli criteria; rather, the Court observed that while

“veracity,” “reliability,” and “basis of knowledge” are all highly relevant in determining the value of [an informant’s] reportf, w]e do not agree ... that these elements should be understood as entirely separate and independent requirements to be rigidly exacted in every case_ Rather ... they should be understood simply as closely intertwined issues that may usefully illuminate the common-sense, practical question whether there is “probable cause”....

Gates, supra, 462 U.S. at 230, 103 S.Ct. at 2328 (footnote omitted); see Allen v. United States, 496 A.2d 1046, 1048 (D.C.1985); Jefferson v. United States, 476 A.2d 685, 686 (D.C.1984), overruling in part Nance v. United States, 377 A.2d 384 (D.C.1977).

Consequently, because the test is one requiring a balancing of several factors, if one of the relevant indicia is deficient it is not fatal to a finding of probable cause if there is a strong showing as to another, or if there exist some other indicia of reliability. Gates, supra, 462 U.S. at 233, 103 S.Ct. at 2329. With these realistic considerations in mind, we turn to examine the facts in the case before us.

A.

While a paid police informant may generally be presumed to be less credible than a citizen informant, see Allen, supra, 496 A.2d at 1048-49 & n. 2, here, the informant had a long and rather extraordinary history of providing the police with productive tips which outweighs that presumption, see Jefferson, supra, 476 A.2d at 687. A police officer who had worked with the informant for over eighteen months testified at the suppression hearing that information supplied by the informant during that period had led to eleven arrests, the seizure of drugs and numerous weapons, and an unknown number of convictions. Not only that, the officer testified that he knew of no occasion where the informant had proven to be unreliable. This long record of past productive information would reasonably establish this informant’s reliability. See Smith v. United States, 348 A.2d 891, 892 (D.C.1975), cf. Jefferson, 476 A.2d at 687 (informant gave fruitful tips on nine prior occasions); District of Columbia v. M.E.K., 407 A.2d 655, 656 (D.C.1979) (informant had history of supplying reliable information on six occasions); Waldron v. United States, 370 A.2d 1372, 1373 (D.C.1977) (officer relied on knowledge that paid informant had performed well for other officers in past).

While an informant’s history of supplying prior productive information is a most important guide to establishing reliability and credibility, we have noted that other ancillary issues also come into play in that determination. These can include “employment, personal attributes favoring accuracy in observation and reporting, reputation with others, personal connection with the suspect, any circumstances suggesting probable lack of motivation to falsify, and association with known criminals.” Rutledge, supra, 392 A.2d at 1066 n. 7. During the suppression hearing, the police officer testified that the informant was employed, that his motivation for supplying accurate information to the police was monetary remuneration, and that he was not a drug addict. These factors, on balance, lent some additional support to the informant’s credibility, though not as important as the informant’s reliability which had been established over a long period of time.⁶

Finally, we note one striking fact in the record which is supportive of the informant’s credibility. After the police established their surveillance post on Columbia Road, they were joined by the informant who stayed with them until appellant was seen exiting the house. He then accompanied the police as they followed appellant to the comer of Fuller and Mozart Streets. Had the information the informant supplied to the police been false, it is unlikely that he would have participated in the surveillance or waited with the police for them to discover that fact.⁷

B.

In addition to establishing that the informant was very reliable, the government presented evidence showing that the police corroborated a number of otherwise “innocent details” he provided thus bolstering both the reliability of the information and the credibility of the informant. The Supreme Court has “consistently recognized the value of corroboration of details of an informant’s tip by independent police work,” Gates, supra, 462 U.S. at 241, 103 S.Ct. at 2333; see, e.g., Aguilar, supra, 378 U.S. at 109 n. 1, 84 S.Ct. at 1511 n. 1; Jones, supra, 362 U.S. at 269, 80 S.Ct. at 735; accord, Jefferson, supra, 476 A.2d at 686, because “[c]orroboration through other sources of information reduce[s] the chances of a reckless or prevaricating tale,” thus providing “a substantial basis for crediting [the informant’s statement.]” Jones, supra, 362 U.S. at 269, 80 S.Ct. at 735; see Gates, supra, 462 U.S. at 244, 103 S.Ct. at 2335 (quoting Spinelli, supra, 393 U.S. at 427, 89 S.Ct. at 594 (White, J., concurring)).

Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), is “the classic case on the value of corroborative efforts of police officials.” Gates, supra, 462 U.S. at 242, 103 S.Ct. at 2334. In Draper, a paid informant reported that an individual would arrive in Denver on a train from Chicago on one of two dates, and would be in possession of a quantity of heroin. The informant also gave a description of the individual, but gave no indication as to the basis for his information. Draper, supra, 358 U.S. at 309, 79 S.Ct. at 331.

On one of the stated dates police officers observed a man [ — Draper—] matching [the informant’s] description exit a train arriving from Chicago; his attire and luggage matched [the informant’s] report and he was walking rapidly.... [B]y this point in his investigation, the arresting officer “had personally verified every facet of the information given him ... except whether [Draper] had accomplished his mission and had ... heroin on his person....”

Gates, supra, 462 U.S. at 242-43, 103 S.Ct. at 2334 (citation omitted).

The Court concluded that “ ‘with every other bit of [the tip] thus personally verified, [the officer] had “reasonable grounds” to believe that the remaining unverified bit of [the informant’s] information — that Draper would have the heroin with him — was likewise true.’ ” Id. (quoting Draper, supra, 358 U.S. at 313, 79 S.Ct. at 333). Thus, reasoned the Court, the information was sufficient to support a finding of probable cause.

We perceive no significant distinction between Draper and this case. Here, like in Draper, the police corroborated several otherwise innocent details of the informant’s information. The informant told police that Jamie drove a BMW, supplied the license tag number, and stated that Jamie lived in the 400 block of Columbia Road. The police ran a computer check of the tag number and determined that it was registered to a person living at 423 Columbia Road. The police and, not incidentally, the informant, then staked out that address until appellant emerged from the house— the only person matching the informant’s description to do so. They then followed appellant who drove directly to the comer of Fuller and Mozart, the intersection where the informant said that Jamie regularly sold drugs, and parked there.⁸ Finally, the police observed a group of people standing on the corner — at approximately 7:00 p.m. — whom the informant identified as appellant’s customers.⁹

While none of these activities, viewed alone, necessarily gives rise to a conclusion that appellant was engaged in illegal activity, “ ‘in this case, just as in Draper, seemingly innocent activity became suspicious in light of the initial tip.’ ” Gates, supra, 462 U.S. at 243 n. 13, 103 S.Ct. at 2335 n. 13 (quoting People v. Gates, 85 Ill.2d 376, 390, 423 N.E.2d 887, 893, 53 Ill.Dec. 218, 224 (1981) (Moran, J., dissenting), rev’d, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). “ ‘[I]nnocent behavior frequently will provide the basis for a showing of probable cause; to require otherwise would be to sub silentio impose a drastically more rigorous definition of probable cause than the security of our citizens demand[s].’ ” Jefferson, supra, 476 A.2d at 686 (quoting Gates, supra, 462 U.S. at 243 n. 13, 103 S.Ct. at 2335 n. 13).

In summary, the informant here had a long and significant history of providing prior reliable information. That history is supported by other indicia bolstering the informant’s reliability and credibility. In addition, the police corroborated a substantial number of innocent details contained in the informant’s report. This leads us to conclude that the trial court was reasonable in determining that the information relayed to the police in this case was itself reliable.

C.

While a court examining an informant’s veracity or reliability seeks to determine whether the informant relayed truthful information, an examination of the informant’s “basis of knowledge” inquires into how he knew what he was relaying. Our decisions recognize that this criterion is adequately satisfied when “ ‘the informant’s tip [is] based on personal knowledge acquired by first-hand observation.’ ” See M.E.K., supra, 407 A.2d at 657 (citation omitted).

Here, the informant gave police a general description of appellant and told police his first name. He informed them that appellant regularly sold cocaine at a particular intersection in the city, and described the make and license tag number of a car appellant had driven to that location, as well as the block he lived on. In addition, he stated that he personally purchased cocaine from appellant. These circumstances permit, at the very least, an inference that the information was based on personal observation rather than “a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.” Spinelli, supra, 393 U.S. at 416-17, 89 S.Ct. at 589; see Waldron v. United States, 370 A.2d 1372, 1373 (D.C.1977); cf. Jefferson, supra, 476 A.2d at 687 (that “informant revealed in his tip ... that he had seen the subject selling narcotics” sufficient to satisfy basis of knowledge requirement); Banks v. United States, 305 A.2d 256 (D.C.1973) (informant stated he “personally knew” the suspect had drugs on him).¹⁰

III

In concluding that they had probable cause to arrest appellant, the police relied on their corroboration of details of the information, coupled with the informant’s unusually well-established record of supplying productive and reliable information as well as his personal basis of knowledge. We think that this information, on the whole, “suffic[ed] for the practical, common-sense judgment called for in making a probable cause determination.” Gates, supra, 462 U.S. at 244, 103 S.Ct. at 2335; see D.C.Code § 23-581(a)(1) (1981 & 1988 Supp.).¹¹ Accordingly, the trial court properly denied appellant’s motion to suppress and the judgment is

Affirmed.

1 . Super.Ct.Crim.R. 11(a)(2).

2 . References in the record describe the car alternatively as gray or silver.

3 . At the pretrial suppression hearing, the officer in charge of the investigation testified that he could not recall to whom the vehicle was registered.

4 .The bags contained 8,552 mg of white powder of which 2,292 mg, or 26.8 percent, was cocaine HCI.

5 . While Gates dealt with the probable cause required to issue a search warrant, we noted in Stanley v. Hannon, 402 A.2d 814, 816 (D.C.1979) and United States v. Davis, 387 A.2d 1091, 1092 n. 2 (D.C.1978), that the same probable cause standards apply to a warrantless arrest.

6 . Although defense counsel attempted to elicit further information about the informant, the trial court sustained the government’s objections to some of the questions on the grounds that they were either irrelevant or, more importantly, would tend to compromise the confidential identity of the informant. Given the government’s strong legitimate interest in protecting the identity of its informants, see McCray v. Illinois, 386 U.S. 300, 308, 87 S.Ct. 1056, 1061, 18 L.Ed.2d 62 (1967), the fact that defense counsel failed adequately to proffer to the court why the questions were probative of bias, see DeNeal v. United States, 551 A.2d 1312, 1315 (D.C.1988), and the trial court’s broad discretion in determining the extent of cross-examination, see Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 220, 75 L.Ed. 624 (1931); Bush v. United States, 516 A.2d 186, 196 (D.C.1986), we see here no substantial issue.

For a probable cause hearing, appellant conducted quite a lengthy, searching, and sophisticated cross-examination. He was, as noted, restricted upon a few occasions, but not to an extent that deprived him in a fundamental sense.

7 . Some slight additional support is lent to a determination of the informant’s reliability by his admission to the police that he purchased cocaine from appellant — an admission against his penal interest. See D.C.Code § 33-541(d) (1988 Repl.).

Common sense in the important daily affairs to life would induce a prudent and disinterested observer to credit [this] statement ]. Peo-pie do not lightly admit a crime and place critical evidence in the hands of the police in the form of their own admissions. Admissions of crime ... carry their own indicia of credibility — sufficient at least to support a finding of probable cause....

United States v. Harris, 403 U.S. 573, 583, 91 S.Ct. 2075, 2082, 29 L.Ed.2d 723 (1971).

That the informant did not show or give the police the purchased drugs does not affect this determination. See id. Similarly, such a determination is not affected by the fact “[t]hat the informant may be paid or provided a “break,’ ” id. at 583-84, 91 S.Ct. at 2082 (payment or promise of leniency "does not eliminate the residual risk and opprobrium of having admitted criminal conduct”); nor by the failure to charge him for similar uncontrolled drug purchases, see United States v. Davis, 199 U.S.App.D.C. 95, 111, 617 F.2d 677, 692 (1979). Moreover, it appears from a brief colloquy between the prosecutor and defense counsel that the government had made no insulating promises of leniency or immunity to the informant regarding the cocaine purchase forming the basis for the tip at issue here.

8 . That this "surveillance confirmed, in large measure, the [informant’s] prediction of [appellant’s] future conduct," Offutt v. United States, 534 A.2d 936, 939 (D.C.1987) (dissenting opinion) (emphasis in original) (citing Gates, supra, 462 U.S. at 291-93, 103 S.Ct. at 2360-61), is also supportive of the conclusion that the police had probable cause to arrest him.

9 . We note that while the informant told police that Jamie drove a BMW, the night he was arrested he drove a white Audi. The dissent seizes on this seeming inaccuracy and suggests that it undermines the probative value of the tip.

However, in Gates the Supreme Court rejected the same argument. In that case, the informant stated that one of the defendants would fly from Florida to Illinois as part of a drug transaction, when in fact she drove. Gates, supra, 462 U.S. at 225-27, 103 S.Ct. at 2325-26. The majority noted, though, that

We have never required that informants used by the police be infallible, and can see no reason to impose such a requirement in this case. Probable cause ... simply does not require the perfection the dissent finds necessary.

Id. at 245 n. 14, 103 S.Ct. at 2336 n. 14. This reasoning applies to the dissent here with equal force.

10 .Even if we were to assume a deficient showing in this area, that deficiency is overcome by the strong indicia of reliability of the informant’s tip, for "[i]f ... a particular informant is known for the unusual reliability of his prediction of certain types of criminal activities in the locality, his failure, in a particular case, to thoroughly set forth the basis of his knowledge surely should not serve as an absolute bar to a finding of probable cause based on his tip." Gates, supra, 462 U.S. at 233, 103 S.Ct. at 2329.

11 . The dissent appears to make a microscopic search for “hard certainties” rather than "probabilities." This is not required by existing law, e.g., Gates, supra, nor should it be if we are not to impede a police attempt to deal reasonably with urban crime.

The dissent also seems not to accept in this case the truism that "[b]ecause an informant is right about some things, he is more probably right about other facts." Gates, supra, 462 U.S. at 244, 103 S.Ct. at 2335 (quoting Spinelli, supra, 393 U.S. at 427, 89 S.Ct. at 594 (White, J., concurring)). After noting it in passing, it appears unimpressed by the long and accurate record of this particular informant, who also had never before given unreliable information over that extended period. Police do not often have those indicia of reliability plus significant corroboration when deciding whether to make an arrest.