In re R.E.G.

NEWMAN, Senior Judge:

I dissent. On February 3, 1989, Willie Walker contacted the Washington D.C. Metropolitan Police Department (“MPD”) and reported his blue Nissan pickup truck stolen. He spoke with Officer Cortwright of the Fourth District Auto Theft Unit, who entered the information into the Washington Area Enforcement (“WALES”) computer system. Cortwright testified that he had doubts about Walker’s “story” when he took the stolen vehicle report from Walker. These doubts about the theft of the truck appear to have been well-founded. On February 4th, the day after reporting the truck stolen, Walker called the Fourth District Auto Theft Unit and reported the vehicle recovered.1 For reasons still *151unknown, (about which more later), the recovery report was not properly entered into the WALES computer.

Cortwright’s involvement with the Nissan truck was not at an end. At about 7:30 a.m. on February 7th, at Georgia Avenue and Morton Street, N.W., Cortwright saw the Nissan truck. He checked the “hot sheets”2 he had obtained from the WALES computer that morning, showing the Nissan truck as stolen. Cortwright then radioed the police department dispatcher to confirm the status of the truck.3 He was told the computer was down and to rely on the “hot sheet.” He did so and arrested R.E.G. for Unauthorized Use of a Motor Vehicle (UUV), D.C.Code § 22-3815 (1989 Repl.).4 During a search incident to the arrest, Cortwright found seven bags of cocaine in R.E.G.’s pocket. He was charged with possessing cocaine with intent to distribute. D.C.Code § 33-541(a) (1988). He was adjudicated delinquent after a stipulated trial.

R.E.G. moved to suppress the cocaine and a statement. The trial court conducted an evidentiary hearing. The government called two witnesses — Officer Cortwright *152and Officer Watkins.5 Cortwright testified about receiving the report on February 3rd, and his activities leading to the arrest on February 7th. The government then rested. After obtaining reassurance from the trial court that it accepted as true the proffered testimony of Willie Walker,6 R.E.G. called Joel S. Bristor, a civilian computer programmer employed by the MPD. Bristor testified about the WALES computer and the “hot sheets” printouts. He reviewed computer printouts regarding the Nissan truck entered into the computer as stolen at 11:02 p.m. on February 3rd (some two hours after Cortwright took the stolen vehicle report). The printouts further reflected that the truck was cleared from the system as recovered at 11:29 a.m. on February 7th (about four hours after R.E.G.’s arrest). In addition, the printouts showed that on February 4th, the WALES computer received several inquiries about this same Nissan truck; the computer responded to each such inquiry that it has no stolen report on such a truck. Bristor’s testimony on this anomaly was as follows:

THE COURT: How do you explain then when there were seven inquiries on the fourth as to whether the car was stolen that the answer came back “no”?
THE WITNESS: I’m sorry, in my expertise I don’t understand that unless it is a malfunction of the computer when they go through — I don’t have the experience level to understand why that would be indicated on the long scan.

The trial court, primarily relying on our opinion in Patterson v. United States, 301 A.2d 67 (D.C.1973), denied the motion to suppress. It is to this ruling I now turn.

The seminal authority in this area is Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).7 Under the Whiteley rule, sometimes called the fellow officer rule, police officers are entitled to act upon an official communication that an arrest is to be made. This is so even if the officer is personally unaware of the underlying facts and circumstances leading to the reason for the communication. Thus, if there was probable cause at the source of the communication, and the officer relied in good faith on the communication, the arrest and subsequent search will be valid.8

However, all subsequent activity is improper, regardless of the good faith reliance on the information by the officer, if there is not probable cause at the source. The Court explained that:

We do not, of course, question that Laramie [county] 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 other*153wise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest.

Whiteley, supra, 401 U.S. at 568, 91 S.Ct. at 1037. Thus, under Whiteley, there are two questions: first, whether the arresting officer acted reasonably in relying on the police records, and second, whether probable cause existed at the source of the communication.

A number of Supreme Court cases have held that if a valid warrant was issued or probable cause existed, a reasonable mistake by the officer in acting on the warrant or probable cause will not invalidate the arrest and ensuing search.9 In so holding the Court has said “[W]e must judge the constitutionality of [the police officers’] conduct in light of the information available to them at the time they acted.” Maryland v. Garrison, supra note 9, 480 U.S. at 85, 107 S.Ct. at 1017. “[B]ecause many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part.” Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949).

In Patterson, supra, 301 A.2d at 69, we held constitutionally valid the arrest of the driver of a car listed on a “hot sheet,” as confirmed by a check with police radio dispatcher and WALES, although the vehicle had been reported as recovered earlier that day. Interestingly, although Whiteley had been decided almost two years earlier, we did not cite it. Rather, we held that the officers’ reliance on the computer record was reasonable. Id. Subsequently, we decided Childress v. United States, 381 A.2d 614 (D.C.1977). Childress was arrested after a check of his car’s license tags showed four outstanding traffic warrants for him. In fact, Childress had posted collateral on these warrants four days earlier. We distinguished Whiteley because the warrant at issue in Whiteley was void ab initio unlike the traffic warrants at issue in Chil-dress which “enjoyed unassailable legal existence, at least until November 14, when appellant Childress posted collateral to satisfy them.” Id. at 617. We went on to point out that the collateral was posted on a Friday, the arrest was on the following Tuesday, an interval of four days, two of which we noted were weekend days. Id. at 617-18 n. 3.

The core of our holding in Childress on this issue is where there is a “combination of reasonable administrative delay and reasonable police reliance on misinformation produced by such a delay” there is no basis on which to suppress the evidence. Id. at 617-18.10 It is the issue of reasonableness of the administrative delay to which I now turn.

Since the government has the burden of proving the constitutional validity of the warrantless arrest and subsequent search, Malcolm v. United States, 332 A.2d 917, 918 (D.C.1975), it is the government’s burden to establish that the failure to correctly and promptly enter the data was reasonable. Here, the government makes no ef*154fort to do so. The only witness called by the government who gave testimony pertinent to the arrest was Officer Cortwright. He gave no testimony on the reasons for the administrative delay. When the government concluded its presentation, R.E.G. was entitled to have his motion granted. The government had presented nothing to satisfy its burden of showing that its failure to promptly and correctly enter the recovery report was reasonable. However, in addition to the proffered testimony that Walker had reported the vehicle recovered on February 4th (which the court stated it was taking as true), R.E.G. chose to call a witness — Joel Bristor. In making the ultimate determination on the motion to suppress, the trial court was entitled to consider his testimony as well. See, e.g., Franey v. United States, 382 A.2d 1019, 1022 (D.C.1978).

Thus we turn to Bristor’s testimony. Reading it in the light most favorable to the government, as we must, D.C.Code § 17-305 (1989 Repl.), it simply provides nothing to satisfy the government’s burden of proof. In essence, Bristor’s testimony was that the vehicle was entered into the WALES computer as stolen at 11:02 p.m. on February 3rd (some two hours after Cortwright took the stolen vehicle report from Walker) and was listed as recovered at 11:20 a.m. (some four hours after R.E.G. was arrested). On February 4th, seven inquiries were made about the vehicle; to each the computer reported that the vehicle was not stolen. As previously stated, the central part of his testimony was given as follows:

THE COURT: How do you explain then when there were seven inquiries made on the fourth as to whether the car was stolen that the answer came back “no”?
THE WITNESS: I’m sorry, in my expertise I don’t understand that unless it is a malfunction of the computer when they go through — I don’t have the experience level to understand why that would be indicated on the long scan.

In sum, there is insufficient evidence (if any at all) in the record to satisfy the government’s burden of showing that its failure to promptly and correctly enter the data was reasonable. Since the majority holds otherwise, I respectfully (but emphatically) dissent.

. For the purpose of the suppression hearing, the trial court accepted as true the proffered testimony of Willie Walker, who did not appear in spite of bench warrants in aid of subpoenas. The court did so, since in its view, this testimony would not make a difference. To the extent the majority takes a different view, it appears to me that they misread the record.

The government’s brief describes the proceedings as follows:

The court, without government objection, accepted the following proffer of what Mr. Walker's testimony would have been had he responded to the respondent’s subpoena ordering him to appear as a witness.9 Mr. Walker telephoned an unnamed police official on February 4, 1990 (the day after he reported the truck as stolen and three days before R.G.'s arrest), and reported that his truck had been recovered. Tr. 136, 138. However, the police official did not clear the tag number from the computer list because, in response to his inquiries, the computer indicated (erroneously) that the tag was not listed as stolen. Tr. 138.

As stated by the majority, R.E.G. moved to suppress the cocaine. At the suppression hearing on March 17, 1989 (conducted immediately prior to trial) defense counsel informed the court that she was not ready to proceed because the government had not provided discovery of a WALES report, ten-ten reports (hot sheets) and that the owner of the vehicle, Mr. Walker, although subpoenaed, had not appeared. R.E.G.’s *151brief recites what happened thereafter as follows:

The court decided to proceed with the motion hearing in order to assess how critical the "hot sheet” was to the defense case. (Tr. 117) Defense counsel also informed the court that she has subpoenaed Mr. Walker, who had not appeared (Tr. 116-17). The court then issued an attachment for Mr. Walker’s arrest, and continued the case for Monday, March 20, 1989 (Tr. I 17-19).

When the court reconvened, Mr. Walker still had not been located. Judge Winfield asked defense counsel for an ex parte proffer concerning Mr. Walker’s potential testimony in an effort to gauge its significance (Tr. II 6). At the bench defense counsel proffered that Mr. Walker would say that he reported his truck stolen on February 3, 1989. On February 4, 1989 he called the police station and reported it recovered. Id. Defense counsel reasoned that since the truck had been reported recovered on February 4, 1989 and because that information was within the collective knowledge of the police department, there was no probable cause three days later for the arrest of R.E.G. for UUV. Thus cocaine seized from his person should be suppressed (Tr. II 6-8). The judge replied that if the arresting officer relied in good faith on the "hot sheet" which listed the truck as stolen, she was going to find probable cause (Tr. II 9-10); {see also id. at 17-18). The court then continued the matter until March 21, 1989.

The next day, when Mr. Walker was still unavailable, the court offered to assume the truth of defense counsel’s proffer (Tr. Ill 40-41). The government did not expressly object. Id. In fact, the government apprised the court that it had a computer printout from the police department which corroborated the defense proffer that a call was made to the police station concerning the truck on February 4, 1989 (Tr. Ill 41-42). Defense counsel added that the radio run in the case also established that a call was made to the police station about the truck on February 4, 1989 (Tr. Ill 44).

On March 22, 1989 Mr. Walker had still not been found. The government reminded the court of its statement on the previous day that it would assume the truth and competence of defense counsel’s proffer for the purpose of the findings of fact, and the government urged the court to do so (Tr. IV 47-48). The court agreed and moved forward with the suppression hearing. Id.

I further note that in its brief on appeal, the District of Columbia never raises an issue of whether the accepted proffer constitutes evidence; indeed its brief proceeds on the basis that it does.

The record fully supports the position taken by both the government and the respondent on this point — the trial court accepted as true for the purpose of the suppression hearing the proffered testimony of Willie Walker, albeit based on the belief (erroneous in my view) that the testimony would not make a difference. Indeed, after R.E.G. was arrested, Walker acknowledged to the police that R.E.G. was using the car with permission in payment for drugs R.E.G. sold Walker. The record suggests the stolen vehicle report may have arisen out of a drug dispute as well. In other words, everyone involved in this case, except for the majority, has the same view of what the trial court did on this score.

Likewise, the majority's reliance of Jackson v. United States, 589 A.2d 1270 (1991) is misplaced. There, the court accepted the government’s proffer of testimony as true in face of a contradictory proffer of testimony by the defendant. In our case, it was the government which urged the court to accept the defendant’s proffer as true.

. A "hot sheet" or "ten-ten” lists stolen vehicles in a shorthand format.

. Cortwright was aware that the computer updates approximately hourly. He had obtained the hot sheets when he came on duty prior to 6:00 a.m. on the 7th.

. This charge was later dropped. See note 1 supra.

. R.E.G. contended that his statement was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Watkins’ testimony relates solely to that issue. R.E.G. does not challenge the trial court’s ruling refusing to suppress the statement.

. See note 1 supra.

. In Whiteley, supra, a county sheriff obtained an arrest warrant from a county magistrate for Whiteley, who was suspected of committing burglary. The sheriff then issued a bulletin for the arrest through the statewide law enforcement radio network. Relying on the bulletin, a police officer in another town stopped Whiteley and during the car search, discovered incriminating evidence. The Supreme Court reversed the Wyoming courts and held that Whiteley’s arrest was illegal and the evidence seized incident to it should be suppressed because the affidavit presented to the magistrate did not make out probable cause.

.The Supreme Court extended the rule further to apply in non-warrant cases in United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). In that case, a police officer issued a flyer advising police departments in the area that Hensley was wanted for robbery. Acting on the flyer, a police officer in another town stopped Hensley in his car, and a search of the car produced several guns. The Court held that the officer's reliance on the flyer was proper even if the flyer was supported only by articula-ble facts supporting a reasonable suspicion. However, the Court reiterated its warning of Whiteley that ”[i]f the flyer has been issued in the absence of a reasonable suspicion, then a stop in the objective reliance upon it violates the Fourth Amendment." Id. at 232, 105 S.Ct. at 682.

. See Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (police wrongly believed third party had common authority over defendant’s premises, thus could give consent to search); Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987) (mistaken belief that there was only one apartment on third floor of a building in asking for and executing a search warrant); Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971) (police had probable cause to arrest one man but mistakenly arrested someone else).

. Other courts have adopted a different analysis. See, e.g., Carter v. State, 18 Md.App. 150, 305 A.2d 856, 859 (1973) (failure of police to properly enter the fact of recovery of a stolen car vitiates a subsequent arrest for operating the "stolen” car, relying on Whiteley); People v. Jennings, 54 N.Y.2d 518, 523, 446 N.Y.S.2d 229, 232, 430 N.E.2d 1282, 1285 (N.Y.1981) ("good faith of the enforcement authorities cannot validate an arrest based upon a warrant which had been vacated four months before....”) 54 N.Y.2d at 523, 446 N.Y.S.2d at 232, 430 N.E.2d at 1285, relying on Whiteley); People v. Ramirez, 34 Cal.3d 541, 194 Cal.Rptr. 454, 458, 668 P.2d 761, 764 (1983) (“However, if we impute to the arresting officer the collective knowledge of law enforcement agencies for the purpose of establishing probable cause, we must also charge him with knowledge of information exonerating a suspect formerly wanted in connection with a crime.”) 194 Cal.Rptr. at 458, 668 P.2d at 764, relying on Whiteley.