Joseph v. U.S.

• Citation: 926 A.2d 1156
• Decision Date: 28 June 2007
• Docket Number: No. 00-CF-942.,00-CF-942.
• Parties: Kwame R. JOSEPH, Appellant v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

926 A.2d 1156

Kwame R. JOSEPH, Appellant v. UNITED STATES, Appellee.

No. 00-CF-942.

District of Columbia Court of Appeals.

Argued November 25, 2003.

Decided June 28, 2007.

Jennifer Lanoff, Public Defender Service, with whom James Klein and Jaclyn S. Frankfurt, Public Defender Service, were on the brief, for appellant.

Geoffrey A. Barrow, Assistant United States Attorney, with whom Roscoe C. Howard, Jr., United States Attorney at the time the brief was filed, John R. Fisher, Assistant United States Attorney at the time the brief was filed, and Roy W. McLeese, III, and Marc O. Litt, Assistant United States Attorneys, were on the brief, for appellee.

Before GLICKMAN, Associate Judge, and TERRY and SCHWELB, Senior Judges.^*

TERRY, Senior Judge:

Appellant was charged in an indictment with carrying a pistol without a license, possession of an unregistered firearm, unlawful possession of ammunition, and possession of a controlled substance (marijuana). After an evidentiary hearing, the trial court denied appellant's motion to suppress tangible evidence (the pistol, the ammunition, and the marijuana). Appellant then entered a conditional guilty plea¹ and was sentenced to concurrent prison terms totaling five years; execution of that sentence was suspended, however, and he was placed on probation for thirty-three months. Before this court appellant argues (1) that the evidence should have been suppressed because the citizen informant's reliability and basis of knowledge were not properly considered, and that if they had been, a Terry stop and frisk² would not have been justified, and (2) that the trial court erred by denying his discovery request for an audiotape of a 911 telephone call made on the day before his arrest, in which someone who may have been that same informant allegedly provided an inaccurate tip regarding the same location. We affirm.

I

A. The Suppression Hearing

On February 11, 1999, at 9:24 p.m., a telephone call came in to the Metropolitan Police Department over the 911 emergency line. The male caller reported that a man with a gun "in the side of his waist" was standing in front of a house at 646 Newton Place, N.W. The caller said that his last name was Williams and gave the dispatcher his address and telephone number.³ Williams went on to say that the man with the gun was wearing a grey sweatshirt, blue jeans, and brown Timberland boots.⁴ At the conclusion of the telephone call, the dispatcher directed two patrol cars to go to 646 Newton Place. One of these cars was driven by Officer John Hackley.

Officer Hackley testified that he was on duty in the area of 3200 Georgia Avenue, N.W., when he received a radio call instructing him to go to 646 Newton Place because of a report of a man with a gun standing outside that address wearing "a grey sweat jacket and blue jeans." The officer was in a police car only four blocks from 646 Newton Place, so he arrived there in less than a minute. When he reached that address, Officer Hackley saw three men; one of them — appellant — was wearing a grey sweatshirt and blue jeans, but the other two did not match the clothing description given by the dispatcher.⁵

Officer Hackley approached appellant and said that he had received a report of a man with a gun and that appellant fit the description given in the report. The officer immediately conducted a patdown for weapons, in the course of which he felt a hard metallic object of a size consistent with a gun. When he lifted appellant's shirt, Officer Hackley found a loaded pistol in appellant's waistband and promptly placed him under arrest. A search incident to that arrest yielded a bag of marijuana from appellant's pants pocket.

At the suppression hearing, the government played an audiotape of the 911 call that precipitated appellant's arrest. During that call, the police dispatcher mentioned to the caller that she had received a similar call from him just a day earlier, but the caller denied it. When the tape finished playing, defense counsel made a discovery request for "the other 911 call," referring to the call that the dispatcher had received the previous day from someone whom she believed to be the same informant, Williams. Counsel wanted to find out whether this other tape could be used to impeach Williams' credibility as an informant. The prosecutor responded that the earlier tape was not relevant because the information in the previous call was not known to, or used by, Officer Hackley when he decided to conduct a Terry stop and frisk of appellant. In denying the discovery request, the trial court said that "the question is whether or not this officer was justified in acting upon the call," and whether the officer "acted based on a description that was accurately given.... [T]here was no apparent reason for this officer ... not to act as he did."⁶

At the conclusion of the testimony, defense counsel argued that the evidence should be suppressed under Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), despite the fact that the caller identified himself (which did not happen in J.L.). Counsel challenged the quality of the identification made⁷ and the caller's basis of knowledge for the information he provided, arguing that the informant offered nothing more than "status information ... no information about prediction of future behavior or action that would lend some kind of credibility to that informant's call."

The court denied the motion to suppress because the facts in this case were distinguishable from those in J.L., specifically ruling that the caller "was anything ... but anonymous." In addition, the court held that the specific information given by the caller — the description of appellant, his exact location, and the number of others present — was sufficient to justify the Terry stop. Moreover, the court noted that the officer arrived just one minute after the 911 call was made, and that he was able to confirm the specific information related to him by the dispatcher. All of these facts, the court said, gave the officer "a reasonable, articulable suspicion to stop the defendant." The court then concluded that when the officer, in the course of the frisk, felt the gun in appellant's waistband, he had probable cause to lift the shirt and seize the gun. The discovery of the gun, in turn, gave the officer probable cause to arrest appellant, to conduct a search incident to that arrest, and to seize the marijuana from appellant's pocket.

B. Post-Hearing Proceedings

On the day after the hearing, appellant filed a written motion asking the court to reconsider its denial of the motion to suppress. Again citing Florida v. J.L., appellant argued that the motion should have been granted because the government had failed to establish the informant's basis of knowledge. The court reaffirmed its denial of the motion to suppress and again distinguished the facts in this case from the facts in J.L.:

And I have to say that on the facts of this case they are somewhat remarkably similar to the facts in J.L., except that this case does not present an anonymous tip because the caller gave a name and a telephone number [and an address] which the dispatcher ... seem[ed] to be able to have some recognition of that telephone number as a number that could be checked by saying something like well, you — I got a call from a different location yesterday.

And so, unlike J.L., this was not an anonymous tip.

The court specifically mentioned that the dispatcher had knowledge of the caller and relied on this fact to conclude that the dispatcher knew that she could get in contact with him if the tip was erroneous. The court also noted that the informant could be held "accountable" for the information he gave and that the innocent details of his tip were corroborated. The court did state that the verification of innocent details was "not enough for a Terry stop" in Florida v. J.L., but it was enough in this case because the informant here was not anonymous and because "in this case we have more."

II

Appellant contends that the trial court improperly applied the totality of the circumstances test, see Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), in denying his motion to suppress evidence because the court failed to consider the credibility and basis of the informant's asserted knowledge of appellant's illegal activities. We find his analysis flawed.

A. Applicable Legal Principles

Our review of a trial court's denial of a motion to suppress is limited. See White v. United States, 763 A.2d 715, 719 (D.C.2000) (citing cases). We must defer to the court's findings of evidentiary fact and view those facts and the reasonable inferences therefrom in the light most favorable to sustaining the ruling below. Id.; see, e.g., Peay v. United States, 597 A.2d 1318, 1320 (D.C.1991) (en banc). The court's legal conclusions on Fourth Amendment issues, however, are "subject to de novo review." Brown v. United States, 590 A.2d 1008, 1020 (D.C.1991). Essentially, our role as an appellate court "is to ensure that the trial court had a substantial basis for concluding" that no constitutional violation occurred. United States v. Johnson, 540 A.2d 1090, 1091 n. 2 (D.C.1988) (citing Illinois v. Gates, 462 U.S. at 238-239, 103 S.Ct. 2317); see Thompson v. United States, 745 A.2d 308, 312 (D.C.2000); Goldston v. United States, 562 A.2d 96, 98 (D.C.1989).

Under Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. 1868, a police officer must have a reasonable articulable suspicion that a person is engaging in criminal conduct before briefly detaining that person for investigation. The requirement of articulable suspicion, however, "is not an onerous one." Gomez v. United States, 597 A.2d 884, 888 (D.C.1991).⁸ An officer may conduct a Terry stop where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for...