584 F.3d 1083 (D.C. Cir. 2009), 07-3025, United States v. Jones

Docket Nº:07-3025.
Citation:584 F.3d 1083
Opinion Judge:ROGERS, Circuit Judge:
Party Name:UNITED STATES of America, Appellee v. Jerome H. JONES, Appellant.
Attorney:Dennis M. Hart, appointed by the court, argued the cause and filed the brief for appellant. Leslie A. Gerardo, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Jeffrey A. Taylor, U.S. Attorney at the time the brief was filed, and Roy W. McLeese III and Chrisellen...
Judge Panel:Before: ROGERS, TATEL and BROWN, Circuit Judges.
Case Date:October 23, 2009
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1083

584 F.3d 1083 (D.C. Cir. 2009)

UNITED STATES of America, Appellee

v.

Jerome H. JONES, Appellant.

No. 07-3025.

United States Court of Appeals, District of Columbia Circuit.

October 23, 2009

Page 1084

Appeal from the United States District Court for the District of Columbia, (No. 05cr00441-01).

Dennis M. Hart, appointed by the court, argued the cause and filed the brief for appellant.

Leslie A. Gerardo, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Jeffrey A. Taylor, U.S. Attorney at the time the brief was filed, and Roy W. McLeese III and Chrisellen R. Kolb, Assistant U.S. Attorneys.

Before: ROGERS, TATEL and BROWN, Circuit Judges.

OPINION

ROGERS, Circuit Judge:

In the District of Columbia it is a misdemeanor to drink alcoholic beverages in a public place. Specifically, " no person in the District [of Columbia] shall drink an alcoholic beverage or possess in an open container an alcoholic beverage in or upon ... [a] street ... [or] sidewalk." D.C.Code § 25-1001(a)(1). The question on appeal is whether there was a proper investigative stop of appellant under

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Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to determine whether he was violating the statute. See Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

I.

Around midnight on Saturday, October 15, 2005, Officer Leroy Rollins of the Metropolitan Police Department arrived, on duty, in an unmarked vehicle at the 1100 block of Talbert Street SE, Washington, D.C., an area he " felt" was a high crime area, Hr'g Tr. 10, July 19, 2006. He was on patrol with approximately five other officers, some of whom were in a separate vehicle. Rollins was wearing a black utility vest with " POLICE" in large letters on the front and back. Officer Rollins testified that upon arrival he " observed approximately 15 or 20 [people] gathered throughout the block" in what " appeared to be somewhat of a party atmosphere." Id. at 4. Rollins parked his car in the middle of the street, and the officers got out of their vehicles.

The group of people began to disperse as the police approached, and, according to Officer Rollins, appellant, unlike the others, " began to walk away at a very fast pace." Id. at 4. Rollins " noticed that [appellant] had a large, white styrofoam cup" in his hand, id., as well as " a brown paper bag ... in his arm," id. at 4-5. Rollins walked toward appellant and, according to Rollins, appellant stated: " I ain't doing nothing. I'm just drinking." Id. at 5. Appellant did not appear to be stumbling, and Rollins did not notice whether appellant was slurring his words, nor did Rollins pay attention to whether appellant smelled of alcohol. Rollins also could not see what was in the cup or the brown bag. However, based on the styrofoam cup, the brown bag, and appellant's statement that he was drinking, Rollins " believed that [appellant] was in possession of a container of alcohol," id. at 7, an arrestable offense, id.

Continuing to walk toward appellant and intending to " investigate further," id. at 14, Officer Rollins instructed appellant to " Come here," id. at 5. They were less than ten feet apart when Rollins first encountered him. Appellant then " pushed [Rollins] in the chest area and reached toward the right side of his waist band." Id. Once appellant reached toward his waist band, Rollins " believed he was in possession of a gun" and therefore " immediately grabbed him and pushed him up against the police car." Id. Appellant again reached toward the right side of his waist, and Rollins " tr[ied] to pull his hand away from his waistband." Id. at 6. The struggle ensued for approximately thirty to forty seconds, after which several police officers came to assist and wrestled appellant to the ground. While on the ground, appellant's shirt came up above his waist, revealing " a large caliber handgun in the right side of his waist." Id. Rollins took the gun from appellant's waist and saw it was loaded with " ten rounds in the magazine, and ... one round in [the] chamber." Id. at 7. Upon recovery of the gun, appellant was placed under arrest. Afterwards, Rollins discovered that inside the brown paper bag were a bottle containing vodka and another containing cranberry juice, and both had been " opened." Id. at 23. The top of the styrofoam cup had come off; there was ice in the cup, but nothing else.

The district court denied appellant's motion to suppress the gun and ammunition and his statement. Appellant then pleaded guilty, conditioned upon his right to bring the instant appeal, to the indictment charging one count of unlawful possession of a firearm and ammunition by a person convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. § 922(g)(1).

II.

The Fourth Amendment protects " [t]he right of the people to be secure in

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their persons ... against unreasonable searches and seizures, ... and no Warrants shall issue, but upon probable cause...." A narrow exception to the warrant requirement exists under Terry, whereby " the 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, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting Terry, 392 U.S. at 30, 88 S.Ct. 1868). The required level of suspicion is " considerably less than proof of wrongdoing by a preponderance of the evidence," and " obviously less demanding than that for probable cause," but " [t]he officer, of course, must be able to articulate something more than an ‘ inchoate and...

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