U.S. v. Childress, 82-1261

• Decision Date: 02 September 1983
• Docket Number: No. 82-1261,82-1261
• Citation: 721 F.2d 1148
• Parties: UNITED STATES of America, Appellee, v. C.L. CHILDRESS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1148

721 F.2d 1148

UNITED STATES of America, Appellee, v. C.L. CHILDRESS, Appellant.

No. 82-1261.

United States Court of Appeals Eighth Circuit.

Submitted July 16, 1982.

Decided Aug. 24, 1982.

Limited Rehearing En Banc Granted Sept. 2, 1983.

Paul J. Schroeder, Jr., Spoehrer & Lemkemeier, St. Louis, Mo., for appellant.

Thomas E. Dittmeier, U.S. Atty., Robert T. Haar, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before LAY, Chief Judge, and HEANEY and McMILLIAN, Circuit Judges.

McMILLIAN, Circuit Judge.

C.L. Childress appeals his conviction on three counts of possession of a firearm by a convicted felon in violation of 18 U.S.C. Sec. 1202(a)(1) (App.) entered in the District Court ¹ for the Eastern District of Missouri after a jury trial. For reversal Childress argues that the district court erred in (1) denying his motion to suppress a semiautomatic pistol seized on September 11, 1980, during an alleged illegal investigatory stop, ² (2) denying his motion to reopen the suppression hearing, and (3) denying his motion to strike the impanelled jury. For the reasons discussed below, we affirm the district court.

Childress, a convicted felon, ³ was arrested on three separate occasions between September 1980 and July 1981 for illegal possession of firearms. On appeal he challenges the admissibility of evidence relating to his September 11, 1980 arrest, count one of the indictment against him. The relevant facts are as follows. On September 10, 1980, St. Louis Metropolitan Police Detectives Robert Schaefer and Emmett Gelhot received information from a confidential informant that Childress was distributing drugs from a building located at 1607 North 18th Street and that Childress was usually armed, carrying a weapon in the crotch area of his pants. The informant also told the detectives that Childress had another individual dispense the drugs at the building, that Childress made frequent trips to the building to keep his distributor supplied, and that Childress drove a green Pontiac Bonneville. Based on this information, Schaefer established a surveillance of the building during the afternoon of September 10, 1980. Although the building appeared to be abandoned, Schaefer observed several individuals approach the rear of the building and then depart after a few minutes. Schaefer surveyed the building for approximately one half hour on this date but did not see Childress.

On September 11, 1980, Schaefer and Gelhot re-established surveillance of the building at approximately 9:00 a.m. At approximately 11:30 a.m., Schaefer observed Childress, whom he identified from police photographs, arrive in a green Pontiac Bonneville and park on the east side of the street. At this time Schaefer was positioned at the rear of the building adjacent to a gangway which ran between 1607 North 18th Street and the adjacent building and Gelhot was positioned at the front of the building. Childress walked across the street and into the gangway. Childress saw Schaefer, turned and began walking back to his automobile. Schaefer then shouted, "police officer, stop," but Childress continued to walk toward his automobile and Schaefer followed. Before Schaefer reached Childress he saw Childress reach into the front of his clothing at waist level and throw a pistol to the ground. As Schaefer retrieved the weapon, a Raven Arms .25 caliber semi-automatic pistol, Gelhot arrested Childress.

On appeal Childress first argues that the investigatory stop was illegal and therefore the pistol should have been suppressed. At the suppression hearing only Schaefer testified as to the events of the September 11, 1980 arrest. The magistrate credited Schaefer's testimony. For purposes of this appeal we accept the magistrate's findings of fact that the stop of Childress and discovery of the pistol occurred essentially the way Schaefer testified. See, e.g., United States v. Henderson, 645 F.2d 627, 629 (8th Cir.), cert. denied, 454 U.S. 829, 102 S.Ct. 122, 70 L.Ed.2d 104 (1981). Thus, there is no issue as to whether the detectives properly arrested Childress once they observed the pistol. The question is whether the initial stop was unlawful.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (Terry ), the Supreme Court held that fourth amendment protections apply to a "stop and frisk" situation which is less than a complete arrest and that the constitutionality of the stop depends upon the reasonableness of the police conduct in the circumstances.

[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.... [I]t is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?

Id. at 21-22, 88 S.Ct. at 1879-1880.

Childress asserts that the stop in the present case was not justified under Terry because the detectives did not have reasonable suspicion based upon objective facts from which they could have concluded that Childress was involved in criminal activity. Childress argues that there was nothing suspicious about his actions on September 11, 1980, and further argues that the information from the unidentified informant did not establish reasonable suspicion because there is no evidence of the informant's reliability in the record.

We disagree. Schaefer testified that the unidentified informant had given reliable information on three or four previous occasions prior to September 10, 1980. It is true that the informant's reliability was not further demonstrated in the record. However, a lesser showing of the reliability of an informant is required to support the reasonable suspicion which is a prerequisite for an investigatory stop than is needed to support probable cause for a search. See United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); United States v. Sierra-Hernandez, 581 F.2d 760, 762 (9th Cir.), cert. denied, 439 U.S. 936, 99 S.Ct. 333, 58 L.Ed.2d 333 (1978); United States v. Afanador, 567 F.2d 1325, 1329 (5th Cir.1978). Although it is not certain how much less demanding the test of reliability is where only reasonable suspicion is required, the Supreme Court has said, "[s]ome tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized." Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972).

In the present case the magistrate found that the informant's information had sufficient indicia of reliability to provide the detectives with reasonable grounds to detain Childress for questioning when Schaefer first showed himself to Childress and directed him to stop. The district court's findings on a motion to suppress are subject to the clearly erroneous standard of review. See United States v. Bruton, 647 F.2d 818, 822 (8th Cir.), cert. denied, 454 U.S. 868, 102 S.Ct. 333, 70 L.Ed.2d 170 (1981); United States v. Williams, 604 F.2d 1102, 1121 (8th Cir.1979). We conclude that there is ample evidence in the record to...