518 F.3d 926 (D.C. Cir. 2008), 06-3075, United States v. Abdus-Price
|Citation:||518 F.3d 926|
|Party Name:||UNITED STATES of America, Appellee v. Jamal ABDUS-PRICE, Appellant.|
|Case Date:||March 11, 2008|
|Court:||United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit|
Argued Jan. 17, 2008.
Appeal from the United States District Court for the District of Columbia (No. 05cr00123-01).
Rita B. Bosworth, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A. J. Kramer, Federal Public Defender.
Stratton C. Strand, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jeffrey A. Taylor, U.S. Attorney, and Roy W. McLeese, III and Mary B. McCord, Assistant U.S. Attorneys.
Before: GINSBURG, ROGERS, and GRIFFITH, Circuit Judges.
GRIFFITH, Circuit Judge.
Can the target of a Terry stop defeat the legality of his seizure by pointing to a slight color discrepancy between the car in which he was traveling and a crime victim's description of that vehicle? We hold that he cannot, so long as the remaining points of similarity support a reasonable suspicion that the target was involved in criminal activity. The investigative seizure and subsequent protective frisk at issue in this case did not violate the Fourth Amendment.
On the evening of March 9, 2005, Sergeant Dennis Hance and other Metropolitan Police Department ("MPD") officers heard the following radio broadcast:
Lookout for an armed robbery that occurred on Today's date 19:35 hours, 1300 block of Florida Avenue NE. Lookout for a Number One black male, 19 years of age 5' 11' 200 lbs, dark-complicated. He'se wearing a black North Face jacket, black pants, black shoes. This individual had a light mustache. Number two black male was a passenger; he'se about a16, 17 years of age, 150 lbs, medium complexion. He has a black and red North Face, a new one with North Face on the sleeve and on the back of the jacket. This individual is armed with a silver-colored hand gun. Stolen from one of the complainants was a black (inaudible) blue North Face jacket, black Nike's, and a CD player. Suspects were last seen inside a Crown Vic Ford model, tan on the side, black on top with smoked-out windows, year between 94 and 97. Last seen Westbound on Florida and Northbound on Trinidad. Radio Run Tr. (Mar. 9, 2005) (errors in original).
At 8:14 p.m., less than forty minutes after the robbery, Sergeant Hance spotted a Ford Crown Victoria with dark-tinted windows, dark blue in color with a white driver's-side rear door, roughly two blocks from the scene of the crime. Reasoning that the car basically matched the lookout description and was in the general area where the robbery occurred, Sergeant Hance pulled over the car. MPD Officer Milner quickly arrived at the scene in response to Sergeant Hance's call for backup, and MPD Officers Monk and Gaumond appeared shortly thereafter.
Traveling in the stopped car were Jamal Abdus-Price, the passenger, and Jamaal Harris, the driver. Officers later described Abdus-Price as a dark-skinned black male between 18 and 30 years old, weighing about 200 pounds, and wearing a black North Face jacket. Harris was described as a stocky, light-skinned black male wearing a North Face jacket. Sergeant Hance and Officer Milner asked Abdus-Price and Harris to exit the vehicle, explaining that they had been stopped because their car fit a description from a radio lookout for an armed robbery. When the officers informed the occupants that they would be patted down for officer safety, Harris complied but Abdus-Price's "eyes got big." Motions Hearing Tr. at 7:21-25 (Oct. 24, 2005). Abdus-Price tried to run away, prompting Officer Milner to grab him in a bear hug. In so restraining the suspect, Officer Milner felt the handle of a gun in the pocket of Abdus-Price's jacket and warned his colleagues. A scuffle ensued. The officers eventually subdued Abdus-Price and, in an effort to avoid accidentally discharging the loaded and cocked weapon, cut open his jacket to retrieve a .22-caliber Beretta handgun.1
Officer Monk arrested Abdus-Price for carrying a pistol without a license. Before departing with their prisoner, the officers conducted a show-up procedure to determine whether the victims of the armed robbery that had occasioned the stop could identify Harris or Abdus-Price as the robbers. The victims could not, and Harris was allowed to leave.
Abdus-Price was indicted for unlawful possession of a firearm and ammunition by a felon, a violation of 18 U.S.C. § 922(g)(1). He moved to suppress the weapon seized during the stop that led to his arrest, arguing that the officers violated the Fourth Amendment. After two days of evidentiary hearings, the district court denied the suppression motion in an oral ruling, finding that the car "basically met the description of the vehicle used by the robbery suspects" and concluding that Sergeant Hance thus had reasonable articulable suspicion under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to justify his decision to pull over the vehicle. Plea Hearing Tr. at 15:5-10 (Jan. 26, 2006).
Abdus-Price subsequently entered a conditional plea of guilty, reserving his right to appeal the denial of his suppression motion. The district court sentenced him to forty-six months' incarceration followed by three years' supervised release, and imposed fines and special assessments totaling $1,100. Abdus-Price appeals the denial of his suppression motion. We have jurisdiction under 28 U.S.C. § 1291.
The Fourth Amendment protects against unreasonable seizures of the person. U.S. CONST. amend. IV ("The right of the people to be secure in their persons . . . against unreasonable . . . seizures, shall not be violated ...."). Stopping the car in which Abdus-Price was traveling was a seizure within the meaning of the Fourth Amendment. Brendlin v. California, --- U.S. ----, 127 S.Ct. 2400, 2406-07, 168 L.Ed.2d 132 (2007). Abdus-Price argues that there was not reasonable suspicion under Terry to...
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