Rushing v. United States

381 A.2d 252, 1977 D.C. App. LEXIS 297
CourtDistrict of Columbia Court of Appeals
DecidedDecember 14, 1977
Docket11458, 11538
StatusPublished
Cited by44 cases

This text of 381 A.2d 252 (Rushing v. United States) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rushing v. United States, 381 A.2d 252, 1977 D.C. App. LEXIS 297 (D.C. 1977).

Opinions

MACK, Associate Judge:

In a prosecution for the possession of narcotics, defendants Rushing and Childs moved to suppress evidence obtained in the course of an allegedly illegal search and arrest. The sole witness at the hearing on the motion was Officer Cicioni who testified as follows. A woman who had furnished the police drug information before, but whose identity Cicioni did not know, called to say that two men, one of whom was wearing a white T-shirt, were selling narcotics at a specified location. A radio dispatcher, whose identity Cicioni also did not know, passed this information on to Officer Morgan who went to the site. The dispatcher then came back on and asked for someone to assist Morgan. When Cicioni arrived at the scene, Morgan was searching defendant Rushing, who had on a white T-shirt. At Morgan’s behest, Cicioni then “got” Childs, who was standing nearby, and proceeded to search him. Narcotics were found on both Rushing and Childs, who were then arrested. The trial court found that probable cause existed for the search and arrest and therefore denied the motion to suppress. The principal issue on appeal is the correctness of this ruling.

The function of the court in passing on any motion to suppress evidence obtained in the course of a warrantless search and seizure is to determine whether, at the time of the search and seizure, the police acted reasonably. Where the police attempt to justify their action by reference to a “tip,” the primary focus will necessarily be upon the reliability of the tip. However, the overall Fourth Amendment question of reasonableness clearly does not turn solely on the reliability question. For example, a tip may appear in many ways quite untrustworthy and yet be so alarming in nature as to justify police reliance thereon. See ALI A Model Code of Pre-Arraignment Procedure, Commentary to § 120.1 at 302-03 (1975). As the Supreme Court said in Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972): “[informants’ tips, like all other clues and evidence coming to a policeman on the scene, may vary greatly in their value and reliability. One simple rule will not cover every situation.”

In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the Supreme Court elaborated a standard which is useful in evaluating the trustworthiness of hearsay in any Fourth Amendment situation. Under the Aguilar-Spinelli analysis, hearsay may be found trustworthy if there is proof regarding (1) the underlying circumstances from which the officer concluded that the informant was credible or his [255]*255information reliable;1 and (2) the underlying circumstances from which the informant concluded that a crime was being committed.2 Aguilar v. Texas, supra at 114, 84 S.Ct. 1509. If there is insufficient evidence regarding “veracity,” an officer’s independent verification of some of the information given may in some cases support an inference that the informant is trustworthy. Spinelli v. United States, supra at 417-18, 89 S.Ct. 584. If, on the other hand, a tip does not otherwise satisfy the “basis of knowledge” requirement, the tip may nevertheless be found trustworthy if it is sufficiently detailed with respect to the alleged criminal activity to support an inference that the information was obtained in a reliable way. Id. at 416-17, 89 S.Ct. 584.

On the facts, the Aguilar case involved a police informant’s tip concerning narcotics transactions, and Spinelli concerned a tip regarding a gambling operation. The usefulness of the Aguilar-Spinelli standard, however, is not limited to cases involving police informants and sumptuary crimes. But where the mode of analysis developed in those two decisions is applied to new fact situations, the analysis will necessarily be somewhat different.

This is illustrated by our decision in Galloway v. United States, D.C.App., 326 A.2d 803 (1974), cert. denied, 421 U.S. 979, 95 S.Ct. 1981, 44 L.Ed.2d 47 (1975). There, an “unidentified citizen” warned the police that the occupants of a certain car had a gun. The police, in response, stopped the car and searched it. We found this conduct to be reasonable.

Strictly speaking, the “veracity” prong of the Aguilar-Spinelli analysis was satisfied but tenuously in the Galloway case. The tipster, it is true, was a “citizen,” and the courts — ours among them — have presumed that a citizen is prima facie a more credible source than a paid police informant. See, e. g., Lawson v. United States, D.C.App., 360 A.2d 38, 39-40 (1976).3 Nevertheless, it is also true that a citizen who prefers to remain anonymous would seem less reliable than a citizen who is willing to accept personal responsibility for his accusations. Adams v. Williams, supra at 146-47, 92 S.Ct. 1921. See also La Fave, Street Encounters and the Constitution: Terry, Sibron, Peters and Beyond, 67 Mich. L.Rev. 40, 77-78 (1968); Note, State v. Gerber: Credibility of the Anonymous Informant, 22 S.D.L.Rev. 222 (1977). Another relevant consideration is the status of the citizen as a victim or eyewitness. A tip from someone who is the prey of a criminal act, or from someone who sees a crime and immediately calls the police, would appear reliable — from the point of view of veracity — for the same reason that spontaneous utterances are considered reliable in other hearsay contexts.

However, the tipster in Galloway remained in fact unidentified, and the evidence supporting our conclusion that the informant was an eyewitness was scant. Moreover, police observations independently verifying the tip in Galloway went only to the nonincriminating aspects thereof (the car, its color, its tags). See Spinelli v. United States, supra at 417-18, 89 S.Ct. 584.

[256]*256Similarly, the basis of knowledge prong of the Aguilar-Spinelli analysis was weak in Galloway. There was no direct evidence that the citizen had observed the alleged crime, or that he had obtained his knowledge in a reliable way. Nor did the citizen “describe the accused’s criminal activity in sufficient detail” that the court could know he was relying on something more than rumor or reputation. Spinelli v. United States, supra at 416, 89 S.Ct. 584 (emphasis added).

In spite of the fact, however, that the tip in Galloway left much to be desired in terms of strict Aguilar-Spinelli concepts of trustworthiness, we held that the police conduct in that case was permissible under the Fourth Amendment, and we do not today depart from that holding. As the Galloway court carefully pointed out, the citizen’s report in that case was of a rapidly moving street occurrence (compare Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925)) involving a dangerous weapon (compare Adams v. Williams, supra ).4

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Bluebook (online)
381 A.2d 252, 1977 D.C. App. LEXIS 297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rushing-v-united-states-dc-1977.