Banks v. United States
Banks v. United States
Opinion of the Court
Appellant was convicted after a non jury trial of one count of unlawful possession of heroin, D.C. Code 1967, § 33-402, and one count of possession of the implements of a crime, D.C. Code 1967, § 22-3601.
Appellant contends that it was error not to suppress the narcotics and implements which were seized from him at the time of his arrest in violation of his Fourth Amendment rights. He also argues that it was error not to suppress Officer Shuler’s testimony since he could not produce his rough notes. We disagree and affirm.
On November 29, 1971, Officer Shuler of the Metropolitan Police Department Vice Squad received a telephone call from an informant, who had on six previous occasions provided reliable information. He told the officer that an individual known as “Ricky” was on Georgia Avenue between Kenyon Street and Princeton Place, N. W., with “dope” on him. The informant described “Ricky” as being a Negro male of medium complexion, approximately 20 years old, skinny, about 5’6” tall, wearing a black knit cap with a tassel, a black fake fur coat with a brown collar, and blue trousers. Furthermore, the informant stated that he personally knew that this information was true.
Officer Shuler related the information he had received to Officer Dean, his partner, and recorded the description on a 3x5 note card. The officers proceeded immediately on foot to the area of Princeton Place and Georgia Avenue, N. W., arriving approximately 5 minutes later. Appellant, who matched the description “perfectly,” was observed in a carryout food store by Officer Dean. The officers entered the store, addressed appellant as “Ricky,” arrested and searched him. They discovered a brown coin purse which contained 11 tinfoil packets of what proved to be 2-percent heroin, and a wrapper which contained a needle and a syringe.
Conceding the reliability of the informant, appellant argues that the mere recitation by the informant that he “personally knew” that appellant had “dope” on him was constitutionally insufficient to establish probable cause under the Supreme Court decisions of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). The government, on the other hand, contends that probable cause existed based on Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), and its progeny.
There is no doubt that the tip, as related by the officers, must satisfy the requirement that circumstances must be shown upon which the informant based his conclusion that “Ricky” had “dope” on him. The government correctly points out that the Draper decision requires that we carefully examine the tip to determine if “[a] magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way.” Spinelli, supra at 417 of 393 U.S., at 589 of 89 S.Ct.
In the instant case a concededly reliable informer gave a tip based on personal knowledge,
Appellant attempts to distinguish Draper and, of course, the instant tip is distinguishable on its facts. But the simple truth of the matter is that the Supreme Court has never held that only the precise Draper syndrome is sufficient to establish probable cause.
During the motion to suppress, it developed that Officer Shuler had recorded the description of appellant on a 3x5 note card. When the defense moved for its production under the Jencks Act (18 U.S. C. § 3500 (1969)), the officer said that he did not keep these cards.
Appellant, while not alleging bad faith on the part of the officer, contends that the Circuit Court’s decision in United States v. Bryant,
Similarly here, we find that the error, if any, does not require reversal. The judgment of the trial court is
Affirmed.
. Source of the personal knowledge verified by in camera proceedings, the record of which is sealed.
. See United States v. Soyka, 394 F.2d 443 (2d Cir. 1968 en bane). See generally Annot., 6 A.L.R.Fed. 724 (1971).
. On May 26, 1972, tlie Metropolitan Police Department issued General Order Series 601, No. 2, which sets out procedures for preserving investigative notes of this type. This salutary order, however, was not in effect at the time of appellant’s arrest or trial.
.All citations to Bryant are to the decision before remand.
Concurring Opinion
(concurring) :
I believe that, on this record, the court pursued the source of the confidential informant’s knowledge to a degree reasonable under these particular circumstances. (See note 1 in majority opinion, supra.) As I read the record, appellant agreed specifically to the in camera proceedings conducted by the court to ascertain the source of informant’s knowledge.
Additonally, I take note that, in respect to the apparently unwitting destruction of the 3x5 card,
As we stated in United States v. Frye, D.C.App., 271 A.2d 788, 791 (1970), we are aware of the necessity sometimes for the police to react to anonymous information, especially in moving street scenes. But it is also a reality, as we have said, that later on, when in court, there are “troublesome factors” with “unknown and unidentified” informants. Frye, supra at 791. See also People v. Taggart, 20 N.Y.2d 335, 283 N.Y.S.2d 1, 9, 229 N.E.2d 581 (1967).
I concur in the decision because I believe that, all circumstances considered in this case, a reasonable approach was taken to this difficult problem at the trial.
. I do not view this particular occurrence as rising to the level of prejudicial error on this record.
. Metro Police Gen. Order Series 601, No. 2, effective May 26, 1972.
Reference
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- Ricardo BANKS, Appellant, v. UNITED STATES, Appellee
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