Haywood v. United States

I.

MACK, Senior Judge.

Appellant challenges his conviction, after a stipulated bench trial, for possession with intent to distribute dilaudid in violation of D.C.Code § 33-541(a)(l) (1988 Repl.). He contends that the trial court erred in denying his motion to suppress based upon allegations that the police lacked probable cause to effect his warrantless arrest. Finding that his position is supported by, and that our holding is compelled by our en banc decision in Smith v. United States, 558 A.2d 312 (D.C.1989), we reverse.1

Briefly, evidence developed at the hearing on the motion to suppress shows that appellant Haywood was arrested on January 23, 1984, (at approximately the same location that the appellant in Smith, supra, 558 A.2d at 313, was arrested on March 22, 1984) when a “jump-out” squad of four undercover agents appeared on the scene. Sergeant Miller, the only officer to testify at the hearing, described the circumstances thusly: in response to a lookout flashed by Officer Romano of the Narcotics Task Force that a black male dressed in a tan and brown hat, a tan jacket and black pants, was holding narcotics for distribution near a trash barrel at 12th and U Streets, N.W., he (Miller), Sergeant Szewczyk, and Officers Franck and Marko-vich arrived at the scene in an unmarked police cruiser at 1:50 p.m. Miller saw the described individual, later identified as Irving Tate, standing some twenty-five feet south of the trash barrel. Tate had his hands in front of him and appellant Haywood was standing within reaching distance of Tate. There were three other people in the area.

Sergeant Miller testified that from a distance of twenty-two feet, he saw appellant hand green folding money but no coins to Tate; he did not see Tate hand anything to appellant. He and the other officers exited the vehicle. Tate observed the police approach, and thereafter appellant “kind of pushed-off” from Tate and began to walk in the direction of the trash barrel. Tate walked in the opposite direction.

Miller approached Tate, and in searching him, found no narcotics, only an undetermined amount of money in his pockets and coins clenched in his hand.2 Simultaneously Officer Franck stopped appellant, searched him and discovered the sixty-six dilaudid tablets which became the subject matter of the motion to suppress.

Sergeant Miller further testified that he had been a police officer for thirteen years, during which he had made a “couple of *554thousand arrests,” three to four hundred of those being drug arrests. He had made twenty such arrests in the area where appellant was arrested and was familiar with the trash barrel where drug sellers congregated during the winter months. He had learned, subsequent to appellant’s arrest, that Officer Romano, who broadcast the lookout for Tate, had personal knowledge that the informant was very reliable, was responsible for the seizure of $7,000 worth of narcotics and two motor vehicles, and had provided information leading to twenty narcotics arrests and the capture of two fugitives. Miller further testified that Officer Romano had informed him that the informant had personally observed the man bearing the description of Tate distributing narcotics in the area of the trash barrel on the day in question.

The trial court rejected appellant’s claims that the officers lacked probable cause to arrest him under the total circumstances and that in particular they lacked knowledge of the informant’s reliability. Relying upon the informant’s past history culled subsequent to appellant’s arrest, the court found that the informant was reliable and that the arresting officer was entitled to rely upon the information relayed in the broadcast. The court indicated that there would be a different situation if the information were “bad.” It also reasoned that it might agree with the defense that there would be no probable cause if two people in a high narcotics area had been seen exchanging money, but that when a person in a high narcotics area gives money to an identified drug dealer, and then walks away when the police arrive, the totality of circumstances gives the police probable cause to arrest.

Subsequent to the trial court’s denial of the motion to suppress, appellant gave up his right to a jury trial in return for an agreement by the government not to file “life papers” with respect to prior convictions. The facts as to the arrest and seizure were stipulated to by the parties, and the trial court denied a motion for judgment of acquittal. Appellant, who was sixty-six years old at the time of trial, testified that he was enrolled in an alcoholic drug abuse program at St. Elizabeth’s Hospital, that at the time of his arrest he possessed the dilaudid for his own use to alleviate a painful and debilitating foot condition, and that he did not know Tate. Conviction followed.

II.

The trial court, at the time it wrestled with and denied appellant’s motion to suppress, did not have the benefit of this court’s reasoning in Smith v. United States, supra, 558 A.2d at 312 (en banc). As appellant’s counsel here suggests, the factual scenario present in Smith is strikingly similar to that in the instant case, and we can conclude from the government’s attempt to distinguish Smith, that as to this claim, there is hardly room for dispute. However, the government’s focus upon other factual scenarios purportedly in accord with its position (scenarios garnered from cases decided prior to our en banc decision in Smith)3 does not convince us that Smith is not controlling here.

*555In Smith the en banc majority held that the totality of circumstances (similar to those present here) did not give the police a sufficient basis to conduct a Terry4 stop. Smith, supra, 558 A.2d at 313. The government in the instant case is met at the outset, therefore, with the proposition that its burden to justify probable cause to arrest is greater than it would be under the Terry standard. See id. at 315 n. 5; see also Alabama v. White, — U.S.-, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990). In this regard, the parroting of phrases, such as “high crime area,” that conjure up inferences of proper police conduct without regard to the reasonableness of police actions given the circumstances of an individual case, may do violence to the rationale of Smith. In Smith, we served notice that, despite the crisis we face as a result of the illicit drug market, we would not subvert Fourth Amendment rights by lending approval to street police actions that were not based upon rational and reasonable beliefs. Thus, we specifically reiterated our rejection of articulable suspicion arguments based upon guilt by association. Smith, supra, 558 A.2d at 314-15. We held that the knowledge of trained investigators that drug sales are often conducted in teams was not without limitations. Id. at 315. We held that the character of the neighborhood will not, without more, justify an inference of criminal conduct. Id. at 316. We held that these factors, taken collectively with rational inferences to be drawn therefrom, fell short of warranting a Fourth Amendment intrusion. Id. Finally we held that flight from authority, leaving a scene hastily, or avoidance of police, without circumstances indicating a consciousness of guilt, would not justify detention. Id. In this regard, for reasons similar to those causing us to reject associational taint, we rejected the notion of locational taint “whereby an individual’s behavior is explained by reference to what others in that area or neighborhood may know about the arrest procedures of the police department.” Id. at 317.

Measured by these considerations, even if we assumed that the government met its burden of showing that the “tip” which the officers received came from a reliable source,5 we are nevertheless required to reverse appellant’s conviction. Appellant was not the subject of the tip. There was absolutely no evidence that the officers had seen him before. Although there was evidence that Tate observed the police officers approach, there was no evidence that appellant recognized the officers, or even saw them, and the trial court made no finding to that effect.

The government, in asking us to imply “consciousness of guilt” in this case from the evidence of the arrival of the police and the unremarkable conduct of the men thereafter, is requesting more than we can legitimately give. We cannot infer that appellant saw the arriving car, and even if he did, we could not infer that he recognized it as a police cruiser. See Smith, supra, 558 A.2d at 317. Indeed, on this record we cannot even infer that Tate knew that the unmarked car was a police cruiser. Id. Certainly we cannot infer that a colloquy between a trial judge, a witness and a counsel represents a finding by the court that appellant recognized the police.6 In *556this regard, the trash barrel which appellant walked toward loses any sinister connotations where, in the light of an early January afternoon, there may be a need for warmth and companionship. We are not sure what the “push-off” between the two men means in this context, and nothing in the record provides clarification, but, unquestionably, the “push-off,” even coupled with appellant’s movement towards the trash can, does not amount to such flight as would give rise to an inference of guilt. See Smith, supra, 558 A.2d at 316-17 (fast walk did not constitute “flight” in absence of police announcement of identity); Waters v. United States, 311 A.2d 835, 836-37 (D.C.1973) (stuffing money into envelope while a known drug addict approaches and turning away after seeing officer did not give rise to probable cause); cf. Bennett, supra, 514 A.2d at 416-17 (running away at officer’s approach while attempting to remove suspected narcotics from pants constituted “flight”).

Perhaps the most pressing point of departure from Smith which the government urges upon us as a distinction is that appellant was seen by Officer Miller handing money to Tate — the subject described in the tip. As a theory justifying appellant’s arrest, however, this argument fails because of the facts, and thereby underscores the danger of permitting intrusions as a result of unwarranted assumptions and inferences. Thus, we agree with the trial court that the handing of money by one person to another person, standing alone, cannot give rise (in any neighborhood) to the implication that there is criminal activity afoot sufficient to give rise to probable cause to arrest.7 Furthermore, we cannot justify appellant’s seizure factually or legally on the ground that the arresting officer thought that appellant was a customer, a “juggler,” or otherwise connected to Tate. See Smith, supra, 558 A.2d at 315; see also Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979) (mere proximity to others suspected of criminal activity does not, without more, give rise to probable cause).

But even if the allegation in the tip that Tate (who eventually was allowed to walk away) was a narcotics distributor was sufficient to warrant a seizure of appellant, the government would be in no better position. This is so because Officer Franck, who arrested appellant, did not testify at the suppression hearing. According to Sergeant Miller, who did testify, Franck was confronting appellant simultaneously with Miller’s confrontation of Tate. The trial court made no findings regarding the facts within Officer Franck’s knowledge, however, and there was no evidence presented at the suppression hearing upon which the court could have based such a finding. On this record we do not know what Officer Franck observed that allegedly gave him probable cause to arrest appellant. We do not know the depth of his experience, whether he observed that Tate matched the description in the lookout, whether he saw appellant hand Tate money, or whether he even heard the broadcast. Sergeant Miller’s testimony throws no light on the matter, as he testified that he did not know exactly what was transpiring between appellant and Officer Franck. The trial court could not have inferred that Officer Franck observed the same things that Officer Miller observed, even though they were in the same general location. While the collective knowledge of the police can give rise to a valid arrest, this is so only if the arresting officer acts in response to a broadcast or other directive which is based on the collective information. See Gatlin v. United States, *557117 U.S.App.D.C. 123, 125 n. 5, 326 F.2d 666, 668 n. 5 (1963); Glass, supra, 395 A.2d at 804 n. 18.

Where, as here, an arrest is predicated in part on an officer’s personal observations concerning a criminal act, we must examine the information available to that officer. See Smith v. United States, 123 U.S.App.D.C. 202, 204, 358 F.2d 833 (1966), cert. denied, 386 U.S. 1008, 87 S.Ct. 1350, 18 L.Ed.2d 448 (1967); accord Rucker v. United States, 455 A.2d 889, 891 (D.C.1983). We cannot justify the arrest of an otherwise unidentified citizen in a fast moving street scene where that justification is not based on information which the arresting officer himself -possesses. See Gatlin, supra, 117 U.S.App.D.C. 123, 125 n. 5, 326, F.2d at 668 n. 5. An arresting officer need not have firsthand knowledge of the facts giving rise to probable cause provided that he or she is acting at the suggestion of someone who does. See Glass v. United States, 395 A.2d 796, 804 n. 18 (1978); Smith v. United States, 123 U.S.App.D.C. 202, 203-04, 358 F.2d 833, 834-35 (1966). In cases such as this where probable cause for arrest is predicated in part on the personal observations of the arresting officer, the court may not rely on facts which were available to other officers at the scene unless that information was communicated to the arresting officer. Id. There is no evidence of communication here.8

On this record, therefore, which may signal “an indifferent presentation of evidence in a suppression hearing,” Rushing v. United States, 381 A.2d 252, 258 (D.C.1977) (Gallagher, J., dissenting), we cannot say that the arresting officer witnessed conduct on the part of appellant which would place him beyond the protection of Smith.

Reversed.

. We also hold that reversal is warranted because the government did not present any evidence regarding the personal observations of the arresting officer which allegedly gave him probable cause to arrest appellant.

. The record is somewhat confusing as to what Tate, who was not arrested, had clenched in his hand. Miller at first spoke of only “coins” being clenched in the hands of Tate; later when the court asked how many bills were clenched in Tate’s hand, Miller answered, “It was like two or three.”

. United States v. Bennett, 514 A.2d 414 (D.C.1986), cited by the government, is distinguishable from the instant case. First, the actions of the police officers in Bennett were deemed to constitute a Terry stop, and thus were reviewed under a more lenient standard. Bennett, supra, 514 A.2d at 416; see also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In addition, the police in Bennett not only witnessed an exchange of money between two individuals standing by appellant, but also saw appellant reach into his waistband. Based on their experience in narcotics cases, these officers knew that appellant’s actions were consistent with those of a "holder," a person who holds drugs while his partner handles the money in a narcotics transaction. Id. at 415. Here, by contrast, the officers only saw appellant hand money to Mr. Tate. Similarly, in other cases cited by the government there were more factors giving rise to probable cause than are present here; either the police witnessed the appellant engaged in a two-way exchange which was characteristic of narcotics transactions, see United States v. Lucas, 250 U.S.App.D.C. 264, 265-66, 778 F.2d 885, 886-87 (1985); United States v. Green, 216 U.S.App.D.C. 329, 331, 670 F.2d 1148, 1150 (1981); United States v. White, 211 U.S.App.D.C. 72, 73, 655 F.2d 1302, 1303 (1981); Tobias v. United States, 375 A.2d 491, 492 (D.C.1977); Peterkin v. United States, 281 A.2d 567, 568 (D.C.1971), cert. denied, 406 U.S. 922, 92 *555S.Ct. 1788, 32 L.Ed.2d 122 (1972), or the officers saw the appellant actually handling what appeared to be narcotics, Munn v. United States, 283 A.2d 28, 29-30 (D.C.1971), or the appellant had been the subject of an informant’s identification prior to the arrest. Allen v. United States, 496 A.2d 1046, 1047 (D.C.1985).

. Terry v. Ohio, supra note 3, 392 U.S. at 1, 88 S.Ct. at 1868.

. Appellant is correct when he suggests that the reliability of the informant should have been known to Officer Romano, who flashed the lookout, at the time when he asked any other police officers to act upon the tip. See Alabama v. White, — U.S. -, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); Glass v. United States, 395 A.2d 796, 804 n. 18 (D.C.1978); Clarke v. United States, 256 A.2d 782, 785 (D.C.1969). The record does not indicate when Officer Romano learned the facts upon which he based the conclusion that the informant was reliable.

. The government relies on the following colloquy involving Sergeant Miller to support an inference that appellant was aware that police officers had arrived on the scene:

The Court: Let me interrupt for one second. Was it an unmarked cruiser or a private vehicle?
*556The Witness [Sergeant Miller]: It was an unmarked police cruiser.
The Court: Okay, with the antennas and the whole bit?
The Witness [Sergeant Miller]: Probably it didn’t have an antenna.
Mr. Bleeker [appellant's counsel]: One of those that fools only those of us who are law abiding.
The Court: That’s why I was asking. Go ahead. And not even some of us.

. The court, having no idea that it would try the case, speculated that the factual pattern would he consistent with a holder paying off his runner.

. The sanctioning of an “inference” that an officer arresting a man on the street without a warrant had knowledge of facts that would justify the arrest, would, (carried to the extreme) eliminate the need for a probable cause hearing. Our dissenting colleague’s reliance on Illinois v. Andreas, 463 U.S. 765, 771 n. 5, 103 S.Ct. 3319, 3324 n. 5, 77 L.Ed.2d 1003 (1983), is misplaced. The “presumption of knowledge” there was so obvious as to be a fact. There would be no question that Drug Enforcement Agents, posing as delivery men, knew that the container that they brought to respondent's residence (a container which they had previously lawfully entered at the airport) contained a controlled substance. The Supreme Court, in ruling that no warrant was required to reopen the container after respondent’s arrest, noted that it was plain error for the Illinois court to hold that one agent's absence at the time the container had been resealed somehow made less than certain his knowledge of the contents.