In re R.E.G. , 602 A.2d 146 ( 1992 )

GALLAGHER, Senior Judge:

This case presents for our determination whether there was error when a trial judge in a suppression hearing refused to suppress evidence seized incident to appellant’s arrest for unauthorized use of vehicle. Appellant was convicted of possession with intent to distribute cocaine. D.C.Code § 33-541(a) (1988 Repl.). He contends there was no probable cause for his arrest and the conviction should be reversed because the arresting officer relied on inaccurate computer information. Finding, as we do, that the information relied upon was not established as inaccurate and that probable cause existed independently of the information, we affirm.

I

Testifying at a suppression hearing, Officer Cortwright, the arresting officer, stated that on February 3, 1989, at 8:45 p.m., while assigned to the auto theft unit, he received a stolen vehicle report from Willie Walker, the owner of a blue Nissan truck. According to the report, the truck was stolen by a young man in the vicinity of Georgia Avenue and Park Road, N.W. Walker told the officer that he was giving a ride to a young man, whom he knew by first name only, and when he went into a store, leaving the keys in the ignition, the young man drove off. Although somewhat puzzled about those circumstances of the theft, Cortwright accepted that the truck was stolen and consequently filed a missing vehicle report. A computer printout, entered into evidence at the suppression hearing, showed the tag number of the truck entered as stolen at 11:02 p.m.

On February 7, 1989, at 7:35 a.m., while on duty, Cortwright observed appellant driving a truck corresponding to the description Walker had given him. A check revealed that the tag number matched a number on the officer’s ten/ten sheet, which is a list of the license plate numbers of stolen vehicles, issued earlier that morning. To verify the accuracy of the ten/ten sheet, the officer called the police dispatcher for the latest computer information. The dispatcher, indicating that the computer was temporarily down, told Cortwright to rely on his “ten/ten.” After calling for assistance, he pulled up behind the truck which was stopped and the responding police car pulled in front of appellant. Cort-wright, who was in uniform, walked to the driver’s side of the truck. When appellant saw the officer, he floored the gas pedal in an attempt to escape, however, the gear was in neutral so, although the engine revved, the truck did not move. The two passengers with appellant attempted to jump out. All three were arrested and, in a search incident to arrest, the police recovered seven bags of cocaine from appellant.

Appellant was initially arrested for unauthorized use of a vehicle (UUV), as well as possession of cocaine. However, he was not charged with UUV because the officer believed him when he later stated that Walker had rented the truck to him in exchange for “crack.”

At the suppression hearing, appellant’s counsel produced as an expert witness a computer programmer employed in the data processing division of the police department. In addition to testimony about the computer system and procedures attending its use, the expert interpreted data from the computer relating to the status of the truck. He testified that according to the computer printout, the truck was entered into the computer as stolen on February 3rd and remained listed as stolen until it was cleared from the computer on February 7th after appellant’s arrest. A computer printout from February 4th revealed seven inquiries regarding the truck’s tag number. To each inquiry, the computer reported no record that' the truck was stolen. The witness could not determine the exact reason for this inconsistency. He opined that it could have been a computer malfunction or an improper formatting of the inquiry into the computer that would have failed to elicit the correct information.

Defense counsel proffered that a missing witness, Walker, would have testified that he reported the truck’s recovery on February 4th. Counsel also proffered, based on inference, that an unidentified policeman checked the computer after receiving the phone call and, when the truck’s tag number did not show up as stolen, did not attempt to enter the correct information. Appellant contended there was no probable cause for his arrest, because, if the missing witness had testified,¹ his testimony would, in effect, have shown that the ten/ten report was based on inaccurate computer information that was the result of police error. The court concluded that, even if the proffers were proven, the officer acted in good faith and that probable cause existed for an arrest.

II

In this court, appellant contends that because the arresting officer relied on erroneous information supplied by the police, there was no probable cause for his arrest. He argues that regardless of the good faith belief and reasonable actions of the arresting officer, if the information upon which he relies is faulty, the resulting arrest is invalid. See Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).

We note at the outset that there is no proof that the computer information was in fact inaccurate. The evidence does not establish that the owner of the truck, Walker, reported its recovery. A mere proffer is not evidence. The witness did not testify and there was no opportunity for the government to cross-examine the witness. There was no basis for the trial judge to conclude that the witness was credible. It is error for the trial court, absent a stipulation, to accept as evidence an unsubstantiated proffer. See Jackson v. United States, 589 A.2d 1270 (D.C.1991).

In this case, the trial court did not accept appellant’s proffer as evidence. The court stated:

My point is if I accept your proffer it seems to me the case can be decided— and unless you show me more it is not going to be decided in your favor, which is all the more reason why I will accept your proffer. If I thought your proffer was going to make a factual difference in the outcome of the case, I couldn’t accept the proffer and move on. But what I’m saying is assuming the evidence in the light most favorable to you, which is not what I ordinarily do, if the law is still not in your favor, that ends the discussion and we don’t need to wait for your witness. It is only if your proffered evidence is critical to the outcome that I have to wait for the evidence to come in — competently.

(Emphasis added.)

Later in ruling on the matter the court had this to say:

And frankly, I would like to assume the truth and the competence of your proposed testimony, / suspect over the objection of the Government, because the Government’s position yesterday was that their evidence would show that no one called the Police Department to report the car recovered. And I’m prepared to make the ruling I proposed about which we disagree, even assuming that there is competent evidence that the police were so informed and that I credit that evidence over the police evidence that no one had informed the police that the car was recovered.

So almost in effect taking the evidence in the light most favorable to you, I’m still prepared to rule that there was probable cause to make this stop.

(Emphasis added.) The trial judge accepted, for the sake of argument, that the owner of the truck called to report the recovery, and ruled there was still probable cause for an arrest because the officer acted in good faith in relying on the ten/ ten sheet. Furthermore, the trial court merely assumed appellant’s hypothesis that the subsequent inquiries showing the truck not stolen resulted in police failure to enter the correct information into the computer.² Although the hypothesis is one possible explanation, it is merely speculation on the part of appellant where there is no evidence establishing the purported phone call and no evidence that any officer received a call and then failed to enter the information into the computer.³ The trial court made it clear that if it thought the proffer would make a factual difference in the outcome of the case, it couldn’t accept the proffer. Accordingly, we hold that the computer information upon which the officer relied was not shown to be inaccurate and provided sufficient probable cause for the arrest.

Even if we were to accept appellant’s proffer as evidence, we would still conclude that there was probable cause for his arrest. The Fourth Amendment requires a standard of reasonableness, not certainty, and “sufficient probability ... is the touchstone of reasonableness.” Hill v. California, 401 U.S. 797, 804, 91 S.Ct. 1106, 1111, 28 L.Ed.2d 484 (1971). It is not reasonable to require law enforcement agencies to instantly update their computer information and the Fourth Amendment does not impose such a stringent demand. Other courts have recognized that some delay in correcting or updating computer records is to be expected. See Commonwealth v. Riley, 284 Pa.Super. 280, 425 A.2d 813 (1981); State v. Cross, 164 N.J.Super. 368, 396 A.2d 604 (1978); State v. Somfleth, 8 Or.App. 171, 492 P.2d 808 (1972). In Childress v. United States, 381 A.2d 614 (D.C.1977), this court addressed a delay in updating the computer and held that a reasonable administrative delay, even though unexplained, was acceptable.

Thus, assuming arguendo the validity of the proffer, our decision in Childress would compel our conclusion that there was probable cause to justify the police action. The inaccurate computer information at issue here is attributable to an “[ajdministrative delay[] attendant to the operation of any metropolitan area police department.” Id. at 617. In Childress, a “four-day delay” in cancelling information, “two days of which were attributable to the weekend ... [did] not rise to the level of administrative negligence fatal to the government.” Id. at 617 n. 3. In this case, there was a three-day delay from the time the information was reported until the computer was updated. Moreover, the initial stolen report was made on Friday, February 3rd, the truck was reported recovered on Saturday, February 4th, and appellant was arrested on Tuesday, February 7th. Thus, as in Childress, two of the three days were attributable to a weekend.

Ill

The accuracy of the computer information was not the only factor to consider in deciding the validity of the arrest. Probable cause is determined by this court as a matter of law after a review of the totality of all of the circumstances of the case. See Allen v. United States, 496 A.2d 1046, 1048 (D.C.1985); United States v. Green, 216 U.S.App.D.C. 329, 333, 670 F.2d 1148, 1152 (1981). Based on the totality of the circumstances in this case, Cortwright’s actions were those of a reasonable, prudent police officer in possession of facts, independent of the computer information, sufficient to constitute probable cause.

An examination of the record reveals that, in addition to the ten/ten sheet, he had personal knowledge of the theft. Cort-wright was the same officer who took the stolen report and was intimately familiar with the details of the alleged theft. He knew, firsthand, the appearance of the truck, testifying that he recognized it from its description before checking the license tags. “I first saw the truck pull in, it was a blue Nissan, it appeared similar to the same vehicle I had taken a report for. As I drove pas[t] it — they pulled up in the alley — I saw the tag number.” He knew the place where the truck was stolen and he observed the truck in the same vicinity. He also had a description of the alleged thief, given to him by the owner. He stated, “I had knowledge that a young, black male had taken it, I saw a young black male driving it, I knew the owner, he was an older black man, so I knew it wasn’t the owner driving it."

A check of the current ten/ten sheet, issued that morning, showed that the truck was still listed as stolen. He then attempted to confirm that information by checking with the police dispatcher, who informed him that the computer was “down” and to rely on the ten/ten sheet.

Added to the officer’s reasonable suspicions was the fact that at the time of the stop, appellant and his passengers attempted to evade the police. The officer stated that he approached the driver’s side of the truck and “the door was locked, I was in uniform. I knocked on the window and told him to get out of the truck and he floored it. Luckily it was in neutral.” At the same time the passengers tried to jump out of the truck. Flight from the police, under these circumstances, is surely evidence of a guilty conscience and when combined with other factors can provide probable cause for arrest. See California v. Hodari D., — U.S. -, 111 S.Ct. 1547, 1549 n. 1, 113 L.Ed.2d 690 (1991); Smith v. United States, 558 A.2d 312, 319 (D.C. 1989) (en banc) (Ferren, J. concurring).

In very similar circumstances, where a “stolen sheet” of the police department did not accurately reflect the current situation regarding the status of the property in question, but the arresting officer relied upon it, this court has upheld the arrest, stating that although the officer “was mistaken in his belief that appellant was driving a stolen car ... at the moment of arrest, he clearly had probable cause to believe a crime had been committed and that appellant was the person who had committed it.” Patterson v. United States, 301 A.2d 67, 69 (D.C.1973).

Accordingly, we conclude that, on the totality of the circumstances, the officer had probable cause for an arrest.

So ordered.

1 . Walker, the truck owner, did not testify at the suppression hearing. He did not appear in response to a subpoena and the U.S. Marshall was unable to locate him to bring him to court.

2 . We note also that the government did not accept that Mr. Walker reported the truck recovered. The government stated that it had a printout showing that inquiries about the truck were made of the computer on February 4th but nothing that indicated “in response to what that inquiry was made.” The government conceded only that appellant’s theory was consistent with the printout.

3 . One could draw an equally logical argument that after entry of the stolen vehicle in the computer on February 3rd, the ten/ten sheet issued on the 4th would have shown the truck as stolen. Any officer on duty seeing the truck's license number as stolen on his ten/ten would have called to verify the information with the most recent computer update, as Cortwright did prior to appellant’s arrest. This might explain the numerous inquiries made of the computer on the 4th.

9 Although subpoenaed to testify, Mr. Walker did not show up over a series of days of motions hearings and the U.S. Marshal was unable to locate him to bring him to court. The District did not object to the court accepting the proffer because the court indicated first that the proffered evidence was insufficient to defeat probable cause as a matter of law. Tr. 135-137.