United States v. Davenport

Quinn, Chief Judge

(dissenting):

The principal opinion admits that if evidence of the informant’s reliability was conveyed to Major Henderson, there was probable cause for the search. No other conclusion is possible.

The Air Police knew the Rod and Gun Club was broken into and looted of twelve hunting knives. A few days after the crimes, they were informed the accused was the culprit, and that he still had possession of the stolen property. If the informant had testified at trial, his testimony and evidence of the forced entry into, and looting of, the Club would support accused’s conviction for housebreaking and larceny. See United States v Dammerich, 9 USCMA 439, 26 CMR 219. The total evidence available to the police, therefore, was more than enough to establish probable cause for the arrest of the accused and a search of his effects. Consequently, the issue is not the absence of facts showing probable cause, but whether there was a “substantial basis for crediting” the information that the accused was in possession of the stolen property. See Jones v United States, 362 US 257, 269, 4 L ed 2d 697, 707, 80 S Ct 725, 735 (1960).

To put the problem in its proper perspective, it is important to note at the outset that we are not dealing with the kind of evidence to credit the report which would satisfy “legal technicians,” but with that which would lead reasonable and prudent men to conclude the information was not false or a mere reckless tale. Brinegar v United States, 338 US 160, 175, 93 L ed 1879, 1890, 69 S Ct 1302, 1310 (1949). On what basis does a reasonable and prudent person act on information supplied by another? Two broad bases immediately suggest themselves: (1) The informant is considered reliable; and (2) available independent information corroborates that supplied by the informant. My brothers imply these are only bases. I disagree with the implication, but at this point I need not go beyond the comments in the footnote below.1 What is important here is the ruling that a policeman must disclose to the officer empowered to authorize a search “the source of his information or furnish . . . corroboration for his belief that this information might be accurate.” In the absence of an attack on the truthfulness of the policeman’s representation of facts reported to him, the necessity for disclosure of its *159source was expressly rejected by the United States Supreme Court in the Jones case, supra, which is so heavily relied upon as support for the majority’s ruling. The Supreme Court said:

“Petitioner argues that the warrant was defective because Didone’s informants were not produced, because his affidavit did not even state their names, and Didone did not undertake and swear to the results of his own independent investigation of the claims made by his informants. If the objections raised were that Didone had misrepresented to the Commissioner his basis for seeking a warrant, these matters might be relevant. Such a charge is not made. All we are here asked to decide is whether the Commissioner acted properly, not whether Didone did. We have decided that, as hearsay alone does not render an affidavit insufficient, the Commissioner need not have required the informants or their affidavits to be produced, or that Didone have personally made inquiries about the apartment, so long as there was a substantial basis for crediting the hearsay.” [Jones v United States, 362 US 257, 271, 272, 4 L ed 2d 697, 708, 80 S Ct 725, 736 (1960); see also United States v Walker, 307 F2d 250 (CA 4th Cir) (1962); cf. United States v Pearce, 275 F2d 318 (CA 7th Cir) (1960).]

Turning to the necessity for corroboration, I am afraid the majority misconstrue the cases. It is indeed true the Supreme Court said in the Jones case, as quoted in the principal opinion, that probable cause can be established by “information received through an informant ... so long as the informant’s statement is reasonably corroborated by other matters within the officer’s knowledge.” The comment does not, however, establish a new requirement for determining the reliability of hearsay showing probable cause for a search; it merely summarized the particular factual situation in Draper v United States, 358 US 307, 3 L ed 2d 327, 79 S Ct 329 (1959), in which the report was made by a paid informer whose trustworthiness would, in the first instance, be suspect. Cf. United States v Scoles, 14 USCMA 14, 33 CMR 226. In context, the remark implies no more than the common understanding that a prudent person would normally not act on information furnished by one whose known conduct tends to discredit his .credibility, without at least some verification of the reliability of the information. Similar caution would normally be expected as to information furnished by an “anonymous caller,” which is all that the Court of Appeals for the Ninth Circuit held in the Costello case, also cited by the majority.

The credibility of a known cheat, pervert, drug addict, and the like, is initially suspect. The layman as well as the lawyer recognizes the damaging effect on credibility of previous acts of moral turpitude, or the commission of serious crimes. See United States v Keleher, 14 USCMA 125, 33 CMR 337. Consequently, information supplied by such persons would not normally be believed by a reasonable and prudent man, without some independent basis for crediting the hearsay. Information received from informants not known to be engaged in conduct tending to undercut their credibility stands upon an entirely different footing.

Public responsibility generally, and Federal law specifically, encourage a person having knowledge of the commission of a felony to disclose his information to enforcement authorities. See 18 USC § 4. A policeman has the right to accept at face value the truthfulness of a citizen’s report, unless there are circumstances in the report itself or surrounding the informant which tend to discredit his information.

I abhor arbitrary and capricious action by the police, but I reject categorically the idea that they must initially treat information received from an ordinary citizen, about the criminal activity of another, as nothing but a “reckless or prevaricating tale.” See Jones v United States, supra, 362 US at page 271. I reject the assumption implicit in the majority opinion that such persons must initially be considered downright liars, or reckless with the truth, when they report information to the police. I refuse to read into the *160constitutional prohibition against unreasonable search and seizure, a rule requiring corroboration of the reliability of a report of crime by a person not himself suspected of crime or falsehood.

The Constitution is designed to protect the individual against autocratic and capricious intrusion by the Government. The invaluable right to individual privacy should not be perverted into an instrument of suspicion of those who enforce the law. A police officer, or an officer authorized to order a search, has the right, and should be expected as a reasonable person, to act on inherently credible information relating to a crime received from an identifiable person not known to be engaged in conduct tending to discredit his reliability. In other words, the report of crime by an ordinary person has built-in credibility. So much for my disagreement with the rule of corroboration subscribed to by the majority.

1 now turn to this case, and the hearsay information that the accused had possession of the fruits of the crime. It is worth repeating that the facts unmistakably show probable cause. The only question is whether Major Henderson had sufficient reason to believe the facts were reliable. What did he have before him to lead him to conclude that they were? There was at least one matter of obvious importance.2 He had before him a police officer asking for authority to search. It seems to me that a policeman who applies to the legally designated authority for permission to conduct a search is not bent on any arbitrary invasion of the suspect’s personal rights. On the contrary, the officer is patently trying to carry out his duties within the strict requirements of the law. Consequently, when Strodom-ski represented that he had information the accused was in possession of the stolen knives, Major Henderson could reasonably infer that Strodomski believed his information was reliable and true. Otherwise he would not have come. True, some police officers may lie; but the exception does not undermine the rule. In any event, if I go too far in according to the police the benefit of an inference of honesty of purpose which would be accorded another person under the same circumstances, then there is ample other evidence of reliability to support Major Henderson’s authorization to search.

Strodomski testified he knew Raymond had asked the Office of Special Investigations for the informant’s name, but they would not disclose it to him. He also testified that while he did not tell Major Henderson the informant had actually seen the accused with the stolen knives, he did tell the Major “practically the same thing” Raymond had earlier told him. This testimony supports the conclusion that Strodomski told the Major his information came from the Office of Special Investigations. Now what evidence did Major Henderson have to indicate that the Office of Special Investigations considered the informant reliable? I suggest that a conclusion of reliability is completely justified from the fact that the Office of Special Investigations passed on the information in positive terms to the Air Police. In Williams v United States, 308 F2d 326, 327 (CA DC Cir) (1962), the Court of Appeals for the District of Columbia Circuit pointed out that “in a large metropolitan police establishment the collective knowledge of the organization as a whole can be imputed to an individual officer when he is requested or authorized by superiors or associates to make an arrest.’’ (Emphasis supplied.)3 The same can be said of the military police organization. Consequently, since Major Henderson apparently knew the circumstances under which the agent of the Office of Special Investigations gave the information to Raymond, he could conclude the Office of Special In*161vestigations believed the report was reliable. And there is still other evidence of reliability.

Raymond testified that when he received the information from the Office of Special Investigations, “they seemed to think it was reliable.” Raymond passed on to Strodomski “exactly” the information he received. Strodomski in turn told Major Henderson “practically the same thing” he learned from Raymond. It is reasonable to infer, therefore, that the Major was advised of the attitude of the Office of Special Investigations toward the reliability of the information. I have already pointed out that in the absence of an attack on its truthfulness, a police officer’s representation that he believes the information received from an informant is reliable, is sufficient to justify issuance of authority to search. Jones v United States, supra, 362 US at page 271; see also United States v Walker, supra; page 252. The record, therefore, demonstrates that both the. Air Police and Major Henderson had a “substantial basis for crediting the hearsay” report that the accused had -possession of the fruits of the crime.

I would sustain the president’s ruling on the validity of the authority to search, and return the record of trial to the board of review for further consideration of the merits.

Suppose a person previously unknown to a police officer rushes up and informs the officer that he has just seen a man drag the bleeding body of a woman into an apartment in a nearby building. Must the officer first conduct a preliminary investigation into the informant’s reliability or obtain corroborating information before he acts on the report?

My brothers say the Government concedes that no evidence of reliability was 'presented to Major Henderson. I believe they misconstrue the Government’s brief; but even if they don’t, the Government, in fact, contends Major Henderson had good reason to believe probable cause existed for the search. In my opinion, that contention is correct.

It is significant that neither defense counsel at trial, nor my brothers, question the validity of the accused’s arrest.