U.S. v. Cephas

• Citation: 254 F.3d 488
• Decision Date: 06 April 2001
• Docket Number: DEFENDANT-APPELLEE,No. 00-4780,PLAINTIFF-APPELLANT,00-4780
• Parties: (4th Cir. 2001) UNITED STATES OF AMERICA,, v. GEORGE W. CEPHAS, Argued:
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 488

254 F.3d 488 (4th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT, v. GEORGE W. CEPHAS, DEFENDANT-APPELLEE.

No. 00-4780

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: April 6, 2001

Decided June 19, 2001

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Richard L. Williams, Senior District Judge. (CR-00-240) [Copyrighted Material Omitted] Argued: Alessandra DeBlasio, Assistant United States Attorney, Alexandria, Virginia, for Appellant. William Hartman Sooy, Richmond, Virginia, for Appellee. On Brief: Helen F. Fahey, United States Attorney, Alexandria, Virginia; Michael T. Hosang, Special Assistant United States Attorney, Richmond, Virginia, for Appellant.

Before Widener and Wilkins, Circuit Judges, and Patrick Michael Duffy, United States District Judge for the District of South Carolina, sitting by designation.

Vacated and remanded by published opinion. Judge Widener wrote the opinion, in which Judge Wilkins and Judge Duffy joined.

OPINION

Widener, Circuit Judge

The government appeals from the district court's order granting George Cephas's motion to suppress marijuana, crack cocaine, and two firearms seized by police officers during a search of Cephas's apartment. For the reasons stated below, we reverse.

I.

On June 14, 2000, Richmond Police Sergeant Scott Shapiro was on patrol in a marked police car when a concerned citizen (informant) flagged him down.¹ The informant claimed to have just come from an apartment where a 14 year old girl was smoking marijuana with a man named Cephas.² The informant also reported that the apartment in question was one block away from where Sergeant Shapiro was then located. Sergeant Shapiro promptly went to investigate at the address indicated by the informant, 2413 Lamb Avenue,³ which he found to be a house divided into apartments.

Sergeant Shapiro knocked on the front door of the house, which apparently opened to a common area, and his knock was answered by a woman. In response to Sergeant Shapiro's inquiry, the woman told him that a man named Cephas rented the apartment at the top of the stairs to the right. Sergeant Shapiro then went up the stairs and knocked on Cephas's door. The door was opened by a man, whom the district court determined was Cephas. Sergeant Shapiro observed both that a young girl was sitting in the apartment and that "a strong smell of marijuana was coming from the apartment."⁴ When Sergeant Shapiro asked if he could come inside to speak with Cephas, Cephas tried to slam shut the door. Sergeant Shapiro then pushed his way into the apartment.

Once inside the apartment, Sergeant Shapiro observed eight or nine people and what he believed to be a marijuana "roach" in an ashtray. He then told the people in the apartment to stay in the living room where they were, and he called for additional officers. Within ten minutes or so, more officers arrived. The officers then secured the location by patting down the occupants of the apartment which they considered conducting a protective sweep of the area in which they were sitting.

Sergeant Shapiro also called one Detective O'Connor to have his help in quickly obtaining a search warrant allowing a search of the apartment. O'Connor obtained the search warrant at approximately 4:30 p.m. and arrived with it at Cephas's apartment approximately one and one-half hours after Sergeant Shapiro first entered it.

While the officers were waiting for the search warrant, the eight or nine occupants were allowed to get glasses of water but were not permitted to use the telephone, and they were only permitted to use the bathroom if they first consented to be searched. Also during this time, Cephas refused to consent to a search of the apartment and made repeated complaints about the presence of the officers. Cephas also stated that as long as he was in his own home with his own family there was nothing illegal about having a little marijuana.

Either during the protective sweep or after the search warrant arrived, officers found in the apartment several "cigar blunts" containing marijuana, a plastic bag containing individually wrapped packages of a substance later determined to be crack cocaine, a.22 caliber pistol, a 12 gauge shotgun without a serial number, and a police scanner.⁵ Cephas was subsequently indicted on one count of possession of cocaine base in violation of 21 U.S.C. § 844, one count of possession of marijuana in violation of 21 U.S.C. § 844, two counts of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1), and two counts of possession of firearm by a user of controlled substances in violation of 18 U.S.C. § 922(g)(3).

II.

We review the district court's findings of historical fact for clear error. See Ornelas v. United States, 517 U.S. 690, 699 (1996). We review de novo the ultimate questions of reasonable suspicion and probable cause to make a warrantless search or seizure. See Ornelas, 517 U.S. at 691, 699.

The district court held a suppression hearing on September 3, 2000, and heard testimony from Sergeant Shapiro and from Earl Camp, one of the police officers who responded to Sergeant Shapiro's call for assistance after he entered the apartment. The district court suppressed the evidence seized from Cephas's apartment because it concluded that the anonymous tip which led Sergeant Shapiro to the house in which Cephas rented an apartment was constitutionally insufficient under Florida v. J.L., 529 U.S. 266 (2000).

The issue in J.L. was whether an anonymous tip gave officers reasonable suspicion to stop and frisk an individual reported to be carrying a firearm. The anonymous tip at issue in the case was made by telephone to the Miami-Dade Police and reported that a young black male wearing a plaid shirt and standing at a particular bus stop was carrying a gun. J.L., 529 U.S. at 268. The officers who responded to the tip saw three young black men, one wearing a plaid shirt, at the bus stop. J.L., 529 U.S. at 268. Apart from the tip, the officers had no reason to suspect any of the three were engaging in illegal conduct. J.L., 529 U.S. at 268. One of the officers approached J.L., who was wearing the plaid shirt, had him put his hands on the bus stop, frisked him, and seized a gun from his pocket. J.L., 529 U.S. at 268. Because the Court concluded that the anonymous tip at issue, without more, was insufficient to create the reasonable suspicion that would have allowed the officers to stop and frisk J.L. as allowed under Terry v. Ohio, 392 U.S. 1 (1968), it held the search invalid. J.L., 529 U.S. at 268.

In this case, apparently, the district court analogized Sergeant Shapiro's appearance at the house in which Cephas had an apartment, or at Cephas's apartment, to a Terry stop and frisk.⁶ The district court concluded that because the tip about Cephas was given by an anonymous individual and at the moment it was given to Shapiro was without sufficient indicia of reliability, the tip did not create a reasonable suspicion permitting Shapiro to conduct what the district court termed "an investigatory stop," finding the tip was not "reliable in its assertion of illegality." Therefore, the court ordered not only that the seized marijuana, crack cocaine, and firearms were inadmissible, but that the evidence that Sergeant Shapiro smelled marijuana in and around Cephas's apartment was also inadmissible.

III.

At this point, it is of some consequence that we recount the situation which faced Sergeant Shapiro. He had been told, face to face, by an informant, that there probably was occurring a serious felony under Virginia law, furnishing illegal drugs to an infant, with a tenyear prison term minimum penalty. He was given the exact address of the nearby apartment in which the illegal activity was taking place, the name of Cephas, and the participation of an infant girl; and the informant was no longer at hand. Shapiro either had to walk away from the crime or investigate. He investigated. We are of opinion his investigation was lawful and not in violation of the Fourth Amendment, as we will set forth below.

A.

We first decide whether Sergeant Shapiro's conduct from the time he received the tip until the point at which Cephas attempted to shut his apartment door implicated the Fourth Amendment. Here, we disagree with the district court's application of J.L. to this case. J.L. does not establish a rule that when officers receive a tip that by itself would not establish reasonable suspicion to conduct a Terry stop they are therefore constitutionally barred from conducting any investigation pursuant to that tip. We read nothing in J.L. that forbade the officers in that case to appear at the bus stop in an attempt to investigate the tip.⁷

Thus, Sergeant Shapiro's appearance at the address given to him by the informant was not forbidden by J.L. Neither was it forbidden by another rule of law of which we are aware. Cf. United States v. Christmas, 222 F.3d 141, 145 (4th Cir. 2000) (explaining that a "community might quickly succumb to a sense of helplessness if police were prevented from responding to the face-to-face pleas of neighborhood residents for assistance").

Sergeant Shapiro was given a face-to-face tip that a felony, delivery of drugs to a minor,⁸ was likely being committed by a man or men named Cephas at a nearby apartment, and the tip was given by someone who claimed just to have left that apartment. Even if the tip by itself would not have been sufficient to establish reasonable suspicion, we fail to see how the officer properly could have done anything other than follow up the tip.

A voluntary response to an officer's knock at the front door of a dwelling does not generally implicate the Fourth Amendment, and thus an officer generally does not need probable cause or reasonable suspicion to justify knocking on the door and then making verbal inquiry. As we recently reiterated in a case...