James E. Smith v. United States ( 1966 )

BURGER, Circuit Judge:

This is an appeal from a conviction on a one-count narcotics indictment for violation of 26 U.S.C. § 4704(a), which makes it a felony for “any person to purchase, sell, dispense, or distribute narcotic drugs except in the original stamped package or from the original stamped package * * Appellant challenges the admission in evidence of narcotics seized from him immediately following arrest, first on the ground the arrest was without probable cause and second because of denial of his request for disclosure of the identity of an informant upon whose information the arrest was based.

On the motion for suppression of the narcotics the following facts were shown: at about 12:30 a. m., July 31, 1964, Vincent Lozowicki, a Federal Narcotics Agent in Baltimore, received a long distance telephone call from an informant who said that he was in New York City, where “Smitty” and “Ollie Jones” had just boarded the 12:30 Trailways Express Bus to Washington, D. C., and that Smitty was carrying one ounce of heroin and Ollie some cocaine. He described each of the men in detail.

Lozowicki testified that he recognized the voice of the caller as that of an informant who had given him reliable information three or four times in Baltimore and with whom he had talked by telephone “at least two dozen times.” Lozowicki said that the Baltimore office had not made arrests based on this informant’s information, although he was aware that “our office in Europe” had made several such arrests. After ascertaining from the bus company that the particular express bus was indeed one which would not stop in Baltimore, Agent Lozowicki telephoned Federal Narcotics Agent John E. Thompson in Washington and relayed to him the information he had received from the informant in New York. Lozowicki did not discuss the informant’s reliability with Thompson.

Agent Thompson testified that he had received information from Lozowicki regarding suspected interstate transportation of narcotics on previous occasions. Thompson, an officer of nine years’ service in the Bureau of Narcotics, testified that he at once recognized the name of Ollie Jones “as a New York source of supply for Washington, D. C., for heroin.” He said he “knew several suspected violators in Washington by the name of Smitty,” but did not know whether this particular Smitty was one of them. Thompson did not attempt to get a warrant for Ollie Jones or Smitty but instead proceeded at once to gather several agents to go to the Trailways Bus Station. When the bus described by the informant arrived at about 4:40 a. m., Thompson saw men who met the informant’s descriptions of Smitty and Ollie Jones get off the bus. He testified that he recognized Smitty as being a person who had been pointed out to him previously as a narcotics seller. The two were promptly placed under arrest, and a search of Appellant disclosed in his pants pocket a package containing a substance later identified as heroin. No pre-trial statement of either of the two men is in evidence.

Appellant makes two attacks on the validity of his arrest. First, he contends that the arresting officer individually must have information which would be sufficient to sustain a warrant, and that Thompson did not possess the requisite information. Second, he claims that there was insufficient evidence of the reliability of the informant and that, taking together Thompson’s and Lozo-wicki’s information, the police failed to show probable cause for the arrest.

Striped down to its essentials, Appellant’s first contention is that (1) the Constitution requires the arresting officer personally, independent of his police colleagues, to have knowledge of all facts necessary to constitute probable cause including reliability of any informants; and (2) Lozowicki’s prior relationship with the informant, from which he concluded that he was reliable, may not be attributed to or relied upon by Thompson for the purpose of satisfying probable cause requirements.

The short answer to this claim is that this Court has already decided that probable cause is to be evaluated by the courts on the basis of the collective information of the police rather than that of only the officer who performs the act of arresting. Samuel J. D. Williams v. United States, 113 U.S. App.D.C. 371, 308 F.2d 326 (1962); Anderson Jones v. United States, 106 U.S.App.D.C. 228, 271 F.2d 494 (1959), cert. denied, 362 U.S. 944, 80 S.Ct. 809, 4 L.Ed.2d 771 (1960). Accord, United States v. Bianco, 189 F.2d 716 (3d Cir. 1951). Appellant fails in his efforts to distinguish these cases. Moreover, Appellant’s reasoning suffers from a more basic fallacy than adverse precedent. Certainly two or three government agents together could go before a Commissioner to procure a warrant on the sum of their information and, once that warrant is issued, none of them need participate in the actual arrest.

The knowledge or information of the arresting officer at the time of arrest is relevant only where an arrest is predicated on that officer’s personal observations and information concerning the criminal act. The correct test is whether a warrant if sought could have been obtained by law enforcement agency application which disclosed its corporate information, not whether any one particular officer could have obtained it on what information he individually possessed.

The cases cited to us by Appellant do not suggest a different solution. Indeed, in Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623,10 L.Ed.2d 726 (1963), four officers participated in the arrest. Each of them had bits and pieces of information only the gist of which he had communicated to his fellows. The Supreme Court did not inquire whether one of them could have procured a warrant but rather found that the sum of the knowledge of all of them was sufficient.

In Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949), the Supreme Court said, “The troublesome line * * * is one between mere suspicion and probable cause. That line necessarily must be drawn by an act of judgment formed in light of the particular situation and with account taken of all the circumstances.” To sustain Appellant’s sweeping claims we would be required to strike hard at police incentive to perform this “act of judgment” and reduce them to automatons. Here Agent Lozowicki made a judgment of the informant’s reliability based upon reasonable grounds growing out of his prior relationship with the informant, and he acted on that judgment by his call to Thompson, who in turn could reasonably and properly infer what Lozowicki told him that the latter had made this judgment, whether he did or did not say this in so many words. We can hardly think that a ritualistic recital by Lozowicki to Thompson that he knew his informant to be reliable would add anything to the latter’s appraisal of what course he should follow.

We said in Williams, supra, “The whole complex of swift modern communication in a large police department would be a futility if the authority of an individual officer was to be circumscribed by the scope of his first hand knowledge of facts concerning a crime or alleged crime.” 113 U.S.App.D.C. at 372, 308 F.2d at 327. In so holding we anticipated what the Supreme Court held in United States v. Ventresca, 380 U.S. 102, Ill, 85 S.Ct. 741, 747, 13 L.Ed. 684 (1965): “Observations of fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number.” The applicability of our Williams holding is not dependent on showing something resembling a common law agency relationship between the officers involved; nor would the involvement of officers from different cities or even different police organizations diminish the applicability of Williams. Much of the basis for federal enforcement of statutes relating to illicit narcotics traffic would be destroyed if we were to fashion the law as Appellant’s view would have it.

As we have said, Lozowicki haa ample basis for concluding that the Informant was reliable; additionally, Thompson’s observations before arresting Appellant gave him substantial confirmation of the reliability of the informant and of his information. Appellant’s reliance on Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), ignores the significant factual distinctions between the two situations; there the warrant was for the search of a dwelling and the warrant application recited naked conclusions rather than “underlying circumstances.” ¹ Here, on the other hand, we are dealing with a street arrest based on reliable information which fixed the precise hour, the precise public place and the precise persons who would be found carrying illicit narcotics; moreover the information was transmitted to an officer who had prior information concerning one of the alleged carriers and personal acquaintance with the other. Using his common sense and trained police judgment, Thompson synthesized what he had been told and what had been predicted with what he personally observed and what he knew. Thus we have an arrest based not simply on what the informant in New York communicated to Lozowicki in Baltimore but the sum of all information known by Lozowicki and Thompson before the time of actual arrest reinforced by what the arresting officers observed after arriving at the Bus Depot.

Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964), in no way indicates a different result unless we are to assume that the passage of six years has in some way undermined Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), even while the Supreme Court continues to cite it with approval. E. g., United States v. Ventresca, 380 U.S. 102, 107, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Beck v. State of Ohio, supra; Wong Sun v. United States, 371 U.S. 471, 480, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Aguilar no more “erodes” our holding in Anderson Jones, supra, than it erodes the Draper holding, which dealt with a factual situation remarkably like that now before us.

Here as in Draper the reliability of the basic information of the police was demonstrated before the arrest by their observations of the narcotics couriers matching the physical and sartorial descriptions given by the informant, arriving on the particular public conveyance as predicted; added to that, one of the couriers in the present case was known to the arresting officer by the name received from the informant, and the officer recognized the other by sight. The only element remaining unverified before the arrest was the presence of the narcotics; of course, we do not rely on what the search revealed. Even though the informant had not told Lozo-wicki' how he came to know that Smitty would be carrying narcotics, his history of reliability, the fulfillment of his other predictions, and Thompson’s knowledge of both Smitty and Ollie Jones gave the agents reasonable ground to believe that the prediction as to the narcotics would also be fulfilled, and hence probable cause to arrest. As we have often observed, probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observe as trained officers. We weigh not individual layers but the “laminated” total. It has often been repeated, but it bears repetition, that “In dealing with probable cause, * * * as the very name implies, we deal with probabilities. These are not' technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Brinegar v. United States, supra 338 U.S. at 175, 69 S.Ct. at 1310, 93 L.Ed. 1879. (Emphasis added.)

The dissenting opinion undertakes to distinguish the present case from Draper by emphasizing that there the informant had been one of the Government’s “special employees” for the narcotics bureau. There are always some factual differences in cases, but the factual differences between the present case and Draper afford firmer grounds for belief that Smith was carrying narcotics than was true as to Draper. The informant here had supplied information to the Bureau of Narcotics for a much longer period than the six months in Draper. Moreover, the information in Draper was that the suspect was going to go to Chicago to obtain narcotics, which he would carry back to Denver; here, by contrast, the informant called from New York, the source of the narcotics, to say that Smith already had narcotics and was enroute to Washington. The dissent points out that “the informant [in Draper] gave police information on the whereabouts and criminal activities of the suspect four days before the information which led to the arrest.” The minute description in the present case of Smith and Ollie Jones, who were traveling on the same bus, and who had both been identified previously by others as connected with illegal narcotics, supplies far more probability that the informant’s information is correct than did the single previous report on the activities of the suspect in Draper.

Finally, the dissent says that “Draper is necessarily modified to the extent that it is inconsistent with the specific requirements for ‘probable cause’ laid down later in Aguilar.” This truism can hardly bear much weight when we observe that the Supreme Court continues to cite Draper without intimating that it has been modified. In light of this we can only conclude that Aguilar’s “specific” rules were not intended to exhaust all the possible ways of using hearsay information as part of the basis for probable cause and indeed were not aimed at situations like those in Draper and the present case.²

Finally, Appellant contends that the trial court erred in refusing to compel disclosure of the Government’s informant at the hearing on the motion to suppress. Under the circumstances of this case, where before the arrest officers made first hand observations tending strongly to support the informant’s reliability, the claim for disclosure is clearly precluded. Walker v. United States, 117 U.S.App.D.C. 151, 153 n. 4, 327 F.2d 597, 599 n. 4 (1963), cert. denied, 377 U.S. 956, 84 S.Ct. 1635, 12 L.Ed.2d 500 (1964); Anderson Jones, supra, 106 U.S.App.D.C. at 230 n. 3, 271 F.2d at 496 n. 3; cf. Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964). See also Buford v. United States, 308 F.2d 804 (5th Cir. 1962).

Affirmed.

1 . The language in Aguilar relied on by the dissent was not intended to be a formulation of a fixed rule of law to be applied literally, as though it were a statute, to all probable cause cases, as is emphasized by the narrowness of the Supreme Court’s language in terms of the specific facts before the Court: the magistrate must be told some of the informant’s reasons for concluding that “the narcoties were where he claimed they were * * (Emphasis added.)

2 . Perry v. United States, 118 U.S.App. D.C. 360, 336 F.2d 748 (1964), cited by the dissent, is not in point; there reversal was based on the trial court’s undue restriction on defense questioning seeking to undermine the police conclusion that their informant was reliable. Thus, Perry beld merely that police knowledge of the “underlying circumstances from which the informant concluded that the narcotics were where he claimed they were” was relevant to the question of probable cause, not that it was requisite.