USA v. Christmas

Decision Date05 May 2000
Docket NumberCR-98-364,No. 99-4631,99-4631
Citation222 F.3d 141
Parties(4th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSEPH CHRISTMAS, a/k/a Jason Carter, Defendant-Appellant. () Argued:
CourtU.S. Court of Appeals — Fourth Circuit

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Frank W. Bullock, Jr., District Judge.

COUNSEL ARGUED: John A. Dusenberry, Jr., Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Lawrence Pat-rick Auld, UNITED STATES ATTORNEY'S OFFICE, Greensboro, North Carolina, for Appellee. ON BRIEF: Louis C. Allen, III, Federal Public Defender, Greensboro, North Carolina, for Appellant.

Before WILKINSON, Chief Judge, NIEMEYER, Circuit Judge, and Jerome B. FRIEDMAN, United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Chief Judge Wilkinson wrote the opinion, in which Judge Niemeyer and Judge Friedman joined.

Walter C. Holton, Jr., United States Attorney, Sandra J. Hairston, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

OPINION

WILKINSON, Chief Judge:

Joseph Christmas was charged with possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1). The district court denied Christmas' motion to suppress drugs and a firearm seized during his arrest. Christmas subsequently entered a conditional plea of guilty and was sentenced to eighty-eight months imprisonment. Christmas appeals the district court's suppression ruling, arguing that an unsolicited tip from a neighbor was not adequate grounds for a Terry stop. Because face-to-face encounters with informants are altogether different from anonymous tips and because the tip here furnished reasonable suspicion for the protective pat-down of defendant, we affirm the judgment of the district court.

I.

On May 7, 1998, Officers Anthony Smith and Jack Cates were investigating a homicide in the area of Mallard and Queen Streets in Durham, North Carolina. While speaking with a citizen regarding the homicide, Officer Smith was approached by a neighborhood resident. She informed Smith that, "instead of talking to this gentleman, you need to come and deal with the drugs and the guns that these guys have on the porch two doors down from me." The informant indicated that she lived at 309 Canal Street. She stated that the residence that was the object of her complaint was two houses away at 401 Canal Street. She did not give her name. The informant, who was intoxicated, insisted that the officers investigate her complaint immediately.

In response to her entreaties, the officers proceeded the short distance to 401 Canal Street. The informant did not accompany them. When they arrived, Officer Smith saw on the porch one woman and three men. Smith recognized one of the men as Christmas. Smith advised all four people on the porch that he was investigating a report about narcotics and gun activity on the premises. Smith then stated that he was going to conduct a pat-down search for the safety of all concerned. Smith twice asked Christmas if he was carrying any weapons. Although Christmas denied being armed both times, Smith's patdown of Christmas revealed the butt of a loaded .357 Magnum. After Smith placed Christmas under arrest, he conducted a more thorough search. This search yielded a plastic bag containing a large amount of crack cocaine and marijuana.

Christmas was charged with possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1). Christmas moved to suppress the evidence seized during the search, arguing that the police lacked reasonable suspicion to conduct a Terry stop and frisk. The district court denied the motion. Christmas subsequently entered a conditional plea of guilty to the charge, reserving the right to appeal the district court's adverse ruling on his suppression motion. Christmas now appeals that ruling and also his subsequent sentence under the federal Sentencing Guidelines.

II.

"[T]he police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity `may be afoot,' even if the officer lacks probable cause." United States v. Sokolow, 490 U.S. 1, 7 (1989); see also Terry v. Ohio, 392 U.S. 1 (1968). Christmas contends that, in light of Florida v. J.L., 120 S. Ct. 1375 (2000), a tip from a woman living two doors away from the porch where he had gathered did not provide reasonable suspicion for the protective pat-down of his person.

We disagree. Contrary to Christmas' assertions, J.L. is not controlling. In J.L., the police received an anonymous telephone tip that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun. Id. at 1377. The police did not know the informant's name nor could they verify the informant's credibility. Apart from the tip, the police had no reason to suspect the young man of illegal conduct. Id. The Supreme Court held that the tip, without more, was insufficient to justify a Terry stop and frisk. Id. The Court identified two problems with allowing anonymous tips to serve as the sole basis for a Terry stop. First, anonymous tips "alone seldom demonstrate[ ] the informant's basis of knowledge or veracity." Id. at 1378 (quoting Alabama v. White, 496 U.S. 325, 329 (1990)). Second, since anonymous tipsters cannot be held responsible for fabricated allegations, permitting such tips to result in a Terry stop would increase the potential for harassment through false accusation. Id.

A desire to ensure the informant's credibility and accountability thus underlies the Court's concern with anonymous tips. Turning first to credibility, the reasonable suspicion standard"requires that a tip be reliable in its assertion of illegality." Florida v. J.L., 120 S. Ct. at 1379. When police receive an anonymous telephone tip, it is difficult for them to determine the source and reliability of the caller's knowledge. See id. at 1378; id. at 1381 (Kennedy, J., concurring) ("If the telephone call is truly anonymous, the informant has not placed his credibility at risk and can lie with impunity.").

The face-to-face encounter here did not pose this same credibility problem. Officer Smith's conversation with the informant provided him with an opportunity to assess her credibility and demeanor. Two aspects of the encounter supported the credibility of the informant's report. The first was the close proximity of the informant's residence to the illegal activities at 401 Canal Street. It was reasonable for Officer Smith to conclude that a woman living two doors from 401 Canal Street would know if drugs were being dealt from the porch there.

Second, the informant's proximity to 401 Canal Street at the time she spoke with Officer Smith further bolstered her credibility. By informing the police about her neighbors' illegal activity, the informant exposed herself to the risk of reprisal. The fact that she provided the report to uniformed police officers in public only increased the probability that someone associated with the illegal activity would witness her aid to the police.

Unlike the anonymous tipster, a witness who directly approaches a police officer can also be held accountable for false statements. As the Supreme Court has observed, citizens who personally report crimes to the police thereby make themselves accountable for lodging false complaints. See Illinois v. Gates, 462 U.S. 213, 233-34 (1983); Adams v. Williams, 407 U.S. 143, 147 & n.2 (1972). Here the informant provided her home address to the officers. In doing so, the informant exposed herself to the repercussions of misleading or deceiving the police.

All of these factors make the information provided in this case more trustworthy and reliable than the anonymous tip at issue in J.L. Indeed, courts have had no difficulty distinguishing between cases involving face-to-face encounters with informants and cases involving anonymous tipsters. See Adams v. Williams , 407 U.S. 143, 146-47 (1972); United States v. Salazar, 945 F.2d 47, 50-51 (2d Cir. 1991) ("[T]hough the informant in the present case had not previously...

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