Henry W. Jackson v. United States

336 F.2d 579, 118 U.S. App. D.C. 341, 1964 U.S. App. LEXIS 4531

• Court: Court of Appeals for the D.C. Circuit
• Decided: August 7, 1964
• Docket: 18225
• Status: Published

Opinions

PER CURIAM:

Appellant was tried without a jury and convicted of narcotic violations. 26 U.S.C. § 4704(a)'; 21 U.S.C. § 174. The principal issue presented here concerns his right to cross-examine a police officer about the reliability of the informant on whose report he was arrested.

The Government’s evidence was that two police officers were approached on the street by one Ethel Gaskins who told them that a man of a certain description was then sitting in the Franklin Delicatessen with narcotics on his person. The officers entered the delicatessen and asked two men, one the appellant herein, to step outside so they could talk to them. Outside the store, while the police were asking questions, appellant started to run. An officer tackled him across the street from the delicatessen and recovered narcotics from his coat pocket.

Information received through an informant may be relied on if “the information given is sufficiently accurate to lead the officers directly to the suspect,” Wong Sun v. United States, 371 U.S. 471, 480, 83 S.Ct. 407, 413, 9 L.Ed.2d 441 (1963), “so long as a substantial basis for crediting the hearsay is presented,” Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 735, 4 L.Ed.2d 697 (1960). Such a substantial basis exists where “[t]he informant had previously given accurate information. His story was corroborated by other sources of information. And petitioner was known by the police * * Id. at 271, 80 S.Ct. at 736. Thus there are “requirements of reliability and particularity,” Wong Sun v. United States, supra, 371 U.S. at 479, 83 S.Ct. 407; the information must not be “too vague” or “from too untested a source.” Id. at 482, 83 S.Ct. 407. Here our major concern is with the reliability of the informant as demonstrated by information she had previously given.

The police officer testified that his informant, Miss Gaskins, was reliable, but his judgment is not the final one. “[T]he deliberate, impartial judgment of a judicial officer” is required “to assess the weight and credibility of the information which the complaining officer adduces as probable cause.” Id. at 481-482, 83 S.Ct. at 414. When a motion to suppress challenges the “probable cause for believing the existence of the grounds on which the warrant was issued,” Rule 41(e), F.R.Cr.P., “[t]he judge shall receive evidence on any issue of fact necessary to the decision of the motion.” Ibid. Thus the court, in determining probable cause, like the magistrate issuing a warrant, must be informed of the underlying circumstances from which the officers concluded that the informant was credible or his information reliable. See Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). And the evidentiary requirements are greater when, as here, a warrant is absent. Id., 378 U.S. at 111, 84 S.Ct. 1509.¹

Here the police arrested appellant solely on the information obtained from this informant. As in Kelley v. United States, 111 U.S.App.D.C. 396, 298 F.2d 310 (1961), we can say that if appellant was not arrested when he was asked to step outside, he was certainly under arrest by the time he was escorted outside and questioned by the police. Under the circumstances, the issue of probable cause to arrest depends on the reliability of Miss Gaskins as an informant. But when the appellant, acting pro se, attempted to cross-examine the police officer about the reliability of Miss Gas-kins’ information on prior occasions, the trial court interjected: “No, we won’t go into that. We are not going into that.” For the reasons stated, it was error to rule out questioning as to the basis for the police officer's conclusion that the informant was reliable.

Without knowing what testimony the officer would have given, however, we do not know how prejudicial that error was. Therefore, without reversing the conviction, we remand the case to the District Court with directions to hold a hearing on the issue of Miss Gaskins’ reliability. A new trial will be ordered if the hearing shows that the lower court’s exclusion of this issue from trial was prejudicial. In the absence of a finding of prejudice, the conviction will stand. Any determination of the trial judge will, of course, be appealable to this court. See Greenwell v. United States, 115 U.S.App.D.C. 44, 47, 317 F.2d 108, 111 (1963).

In view of this disposition, we do not reach the other issues on this appeal, including the one considered in Judge Bazelon’s separate opinion. Since that issue has not been heretofore raised, it too may be the subject of a motion for new trial or other relief on remand. Remanded with instructions.

1 . Though Aguilar involved a search warrant, the Court noted that the Fourth Amendment “of course applies to arrest as well as to search warrants,” 378 U.S. at 112, 84 S.Ct. 1513 n. 3, and thus drew upon both search and arrest cases in determining the Fourth Amendment’s requirements.