U.S. v. Clipper

• Decision Date: 04 September 1992
• Docket Number: No. 91-3126,91-3126
• Parties: UNITED STATES of America v. Ronald T. CLIPPER, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 944

973 F.2d 944

297 U.S.App.D.C. 372

UNITED STATES of America v. Ronald T. CLIPPER, Appellant.

No. 91-3126.

United States Court of Appeals, District of Columbia Circuit.

Argued April 9, 1992.

Decided Sept. 4, 1992.

Appeal from the United States District Court for the District of Columbia.

Robert L. Tucker, Asst. Federal Public Defender, with whom A.J. Kramer, Federal Public Defender, Washington, D.C., was on the brief, for appellant.

Cynthia G. Wright, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher and David E. Mills, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before BUCKLEY, WILLIAMS, and D.H. GINSBURG, Circuit Judges.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

In responding to a police broadcast, two officers found Ronald T. Clipper at the location and wearing the clothing described to the police in an anonymous telephone call. The informant reported that the man had a gun. The officers stopped Clipper and subjected him to a weapons pat down. Although no gun was found on him, the stop led to the discovery of cocaine and to Clipper's subsequent conviction of possession with intent to distribute. We are asked to decide whether these facts could give rise to the reasonable suspicion required to justify a Terry stop and search. We conclude that they could have, and affirm the conviction.

I. BACKGROUND

On September 26, 1990, at approximately 4:30 p.m., the District of Columbia Metropolitan Police received an anonymous call reporting that a black male armed with a gun was in the area of First and U Streets, N.W. According to the caller, the individual was wearing a green and blue jacket and a black hat. Officers Sherrie E. Bonner and Eric Andre Jones were patrolling in the vicinity and heard the police dispatcher's broadcast of a "look out" for an armed man. Proceeding rapidly to the area, the officers observed an individual matching the description of the man.

The officers left their car, identified themselves as police officers, and asked the individual, Clipper, to put his hands on a nearby fence. Officer Bonner testified that she had her weapon drawn at the time, as she feared that Clipper had a gun. Officer Bonner then ordered Clipper to turn around and place his hands on the fence.

Officer Jones proceeded to frisk Clipper for a weapon. Officer Jones felt a bulge in Clipper's right jacket pocket that he "thought [ ] might have been the weapon that we was supposed to have been looking for.... [T]hen I reached my hand inside and see what it was and pulled it out, and it was the money." Suppression Hearing Transcript, Feb. 28, 1991 ("S.T.") at 51. After retrieving a thick wad of currency, Officer Jones asked Clipper why he was carrying so much money; Officer Bonner, however, told Officer Jones to continue the pat down. Upon resuming, Officer Jones felt another bulge in Clipper's crotch area that he "thought [ ] was the gun." Id. at 52. "At that point, ... Mr. Clipper threw his hands up, and knocked the money out of Officer Jones's hand[.]" Id. at 10. Clipper then fled.

The officers caught Clipper after a brief chase, and during the ensuing struggle, the officers observed a brown paper bag containing crack cocaine in Clipper's hand. They recovered the bag and placed Clipper under arrest. No gun was found.

Clipper moved to suppress the money and drugs, claiming, inter alia, that the police did not have the reasonable suspicion required for a Terry stop and search. District Judge Gasch denied the motion. See United States v. Clipper, 758 F.Supp. 756 (D.D.C.1991). Relying on our decision in United States v. White, 648 F.2d 29, 45 (D.C.Cir.), cert. denied, 454 U.S. 924, 102 S.Ct. 424, 70 L.Ed.2d 233, 235 (1981), Judge Gasch held that

the officers had a fair description of the defendant and the direction in which he was walking. The important detail transmitted to them by the dispatcher was that he was armed. When confronted with an armed suspect, more direct action is required. Protective action is required by the officers for their safety and for that of people in the area. It must always be emphasized that the action of the police must be reasonable; it must be prompt. Here, the officers were confronted with a man who fit the description given by the dispatcher who was believed to be armed.

Clipper, 758 F.Supp. at 761.

After a jury trial, Clipper was convicted of possession of cocaine base with intent to distribute and sentenced to seventy-five months in jail. On appeal, Clipper brings three challenges to the district court's denial of his motion to suppress: (1) the anonymous tip did not provide the police with reasonable suspicion to stop him; (2) the stop was done improperly, transforming the encounter into an illegal arrest; and (3) the frisk of his person exceeded permissible bounds, constituting a search without probable cause.

II. DISCUSSION

A. Reasonable Suspicion

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court established that, consistent with the Fourth Amendment, police may stop an individual for brief questioning and perform a protective search based upon a reasonable suspicion that the suspect is engaged in criminal activity and a reasonable belief that he is armed. The Terry Court upheld a stop and protective frisk that led to the discovery of weapons. The reasonable suspicion was provided by the officer's observations of defendants' conduct in "casing" a jewelry store. Id. at 27-31, 88 S.Ct. at 1883-85.

Four years later, in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), the Supreme Court considered whether an informant's tip, verified by law officers as to certain details, could give rise to a reasonable suspicion. In holding that the tip justified the officer's stop, the Court stressed that the informant was known to the officer and had provided him with reliable information in the past. Id. at 146-47, 92 S.Ct. at 1923. The Court did not decide whether information given anonymously could ever justify a stop. Id. at 147, 92 S.Ct. at 1923.

In two separate opinions in 1981, we answered that question in the affirmative. In United States v. White, supra, police received an anonymous telephone call reporting that

a young black man known as "Nicky," about 19 or 20 years old, wearing a blue jumpsuit with white stripes, had parked a 1971 Ford LTD in front of No. 1 15th Street, N.E., entered a 1974 Oldsmobile four door, and driven away in it. The caller identified the color of the Ford, and supplied the license tag numbers of both cars. He concluded by stating that "Nicky" and the unidentified driver of the Oldsmobile were involved in narcotics traffic and would be "dirty" with drugs when they returned.

United States v. White, 648 F.2d at 30-31 (citations omitted). Acting on the tip, the police found the described Ford parked in front of No. 1 15th Street. The Oldsmobile returned shortly, as predicted, and parked behind the Ford. Three individuals were in the Oldsmobile: a driver, Orson White; a black male passenger in a blue sweatsuit, Lawrence Anderson; and a child in the rear seat. The officers approached the Oldsmobile and announced: "Police, get out of the vehicle." Id. at 31. The officers observed White remove an item from his pocket. When he got out of the car, it fell to the ground. The officers retrieved the object, which contained heroin, and placed White and Anderson under arrest. A subsequent search of the car revealed other drugs and paraphernalia. Id. at 31-32.

We found that when "credibility is enhanced by the responding officer's observation of corroborating details[,] an anonymous tip may provide a legitimate basis for a stop, and in some cases, an arrest." Id. at 41. "The difficult question," we continued, "is how much corroboration is necessary to justify an intrusion of the suspect's Fourth Amendment rights." Id. In this regard, we noted both that the tip "was quite specific" and that "it described a pattern of behavior on the suspects' part." Id. at 40-41. Based on these facts, we held

that an anonymous tip about an ongoing transaction, detailed as to time and place, including a specific description of one of the participants and their vehicles as well as their modus operandi, and verified by the officers through surveillance in all details ... provides a sufficient basis for a legitimate Terry stop[.]

Id. at 43.

Our second case, United States v. McClinnhan, 660 F.2d 500 (D.C.Cir.1981), involved a gun tip, not a drug tip. Police received an anonymous telephone report that a black male wearing jeans, a black hat, and a black coat was carrying a sawed-off shotgun in a black briefcase near 16th and Crescent Streets, N.W., in the District of Columbia. Officers drove to the area and observed a man matching the reported description standing one foot away from a black briefcase. The police approached the man, McClinnhan, identified themselves, and conducted a frisk. A later search of the briefcase uncovered a sawed-off shotgun. Id. at 501.

We upheld the stop and frisk as supported by reasonable suspicion, despite the less detailed nature of the tip and the fact that it was wholly descriptive. Relying on United States v. White, supra, we stated that "while [the tip] lack[ed] facial indicia of reliability, [it] was corroborated in every significant detail by [the officers'] pre-stop surveillance." Id. at 502. And while we recognized that "it is possible for anyone with a grudge to fabricate a tip whose neutral details ... would provide the corroboration required by the White decision," we concluded that the particular circumstances of the case justified the stop and search:

Either [the police] stopped McClinnhan on the basis of the tip as corroborated by their observation or they could at best follow him through the streets of Washington hoping he would commit a crime, or at least brandish the weapon, out...