U.S. v. McClinnhan

• Decision Date: 09 July 1981
• Docket Number: No. 80-1686,80-1686
• Citation: 212 U.S.App.D.C. 368,660 F.2d 500
• Parties: UNITED STATES of America v. Harvey R. McCLINNHAN, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 500

660 F.2d 500

212 U.S.App.D.C. 368

UNITED STATES of America v. Harvey R. McCLINNHAN, Appellant.

No. 80-1686.

United States Court of Appeals District of Columbia Circuit.

Argued April 13, 1981.

Decided July 9, 1981.

Appeal from the District Court for the District of Columbia (Criminal No. 80-00142-01).

Jay E. Shanklin, Washington, D. C. (appointed by this Court), for appellant.

Charles F. C. Ruff, U. S. Atty., Washington, D. C., with whom Darryl W. Jackson, John A. Terry and H. Lowell Brown, Asst. U. S. Attys., Washington, D. C., were on the brief for appellee.

Before McGOWAN and WALD, Circuit Judges, and MARKEY, ^* Chief Judge, United States Court of Customs and Patent Appeals.

Opinion for the Court filed by McGOWAN, Circuit Judge.

McGOWAN, Circuit Judge:

Appellant Harvey McClinnhan challenges the District Court's denial of a pretrial motion to suppress evidence garnered in a warrantless search of his briefcase that occurred during an investigative stop. Although appellant raises nonfrivolous Fourth Amendment arguments for the invalidity of the stop and the accompanying search, we are persuaded that both were reasonable in the particular circumstances of this case and therefore affirm the District Court.

I

The material facts are not in dispute. On the evening of October 3, 1978, Officers Joseph Bryant and Clinton Bement of the District of Columbia Metropolitan Police, while driving in their patrol car, received a police radio report of a man walking south near 16th and Crescent Streets, N.W. The transcript of that report, which was received by the police from an anonymous telephone caller, described a black man wearing jeans, a black coat, and a black hat, carrying a sawed-off shotgun concealed in a black briefcase. Less than one minute later, the police officers reached the area and observed a man matching the description precisely, who was standing less than one foot from a black briefcase. The man was appellant.

The officers stopped their car near the appellant. Officer Bryant asked him to identify himself and conducted a weapons frisk. At the same time Officer Bement seized the briefcase, walked two to three feet away, and then opened it. Inside he found a loaded sawed-off shotgun, and two identifying papers. Upon discovering the concealed weapon, the officers placed appellant under arrest.

A three-count indictment against appellant was filed on March 25, 1980. He was charged with possession of an unregistered firearm, 26 U.S.C. §§ 5861(d), 5871 (1976); possession of a firearm by a convicted felon, 18 U.S.C. App. § 1202(a)(1) (1976); and bail jumping, 18 U.S.C. § 3150 (1976). The defendant, on May 2, 1980, moved to suppress the introduction into evidence of the briefcase, shotgun, and papers, arguing that the police lacked a reasonably-founded suspicion for the investigative detention, and that there were no exigent circumstances allowing the police to conduct a warrantless search of the briefcase. On May 2, 1980, the District Court held an evidentiary hearing at which Officer Bement was the sole witness, and, one week later the District Court, in a memorandum opinion, denied the motion to suppress.

Appellant pleaded guilty to the bail-jumping charge on May 16, 1980, and agreed to a trial to the court of the firearms charges on the basis of stipulated evidence. The District Court, after accepting the stipulation, found appellant guilty of both charges. Appellant was sentenced to one to four years' imprisonment for possession of an unregistered firearm, six months' to two years' imprisonment for firearm possession following a felony conviction, and six months' to two years' imprisonment for jumping bail. While the two firearms sentences were to run concurrently, the bail-jumping sentence was to run consecutively to them. McClinnhan then filed a notice of appeal. ¹

II

On appeal, McClinnhan renews his attack on the constitutionality of the investigative stop and the warrantless briefcase search. We have little difficulty in concluding that the stop was justified by the anonymous tip verified by the officers' pre-stop observations, and, although the question is somewhat closer, reach the conclusion that the police acted reasonably to protect their safety by opening the briefcase to check for weapons.

A. The Investigative Detention and Weapons Frisk

Appellant's Fourth Amendment challenge to the stop-and-frisk is based upon his characterization of the anonymous tip as lacking sufficient indicia of reliability to justify the intrusion upon personal privacy attendant upon an investigative stop and accompanying weapons frisk. This court has, however, held recently that in certain circumstances an investigative detention of the variety found constitutional in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), could properly be based upon an anonymous tip, if the officers had legitimate reasons to believe that the tip was reliable. United States v. White, 648 F.2d 29 (D.C.Cir. 1981), petition for cert. filed, No. 80-6704 (May 20, 1981).

The White case concerned an investigative stop triggered by an anonymous telephone tip informing police that a young man wearing a blue jumpsuit had entered a 1974 Oldsmobile in front of a particular address and would be carrying drugs upon his return. Id. at 30. When the police staked out the address, they spied a 1974 Oldsmobile being driven by a young man in a blue sweatsuit. Id. at 30-31. The White court wrote:

Based on the particular facts of this case, we conclude that an anonymous tip about an ongoing transaction, detailed as to time and place, including a specific description of the participants and their vehicles as well as their modus operandi, and verified by the officers through surveillance in all details except for the actual possession or exchange of narcotics provides a sufficient basis for a legitimate Terry stop to question the occupants as to their identity and visually check inside the car.

Id. at 43.

We think that the officers' suspicions about McClinnhan were similarly reasonable, because they were based on an anonymous tip that, while lacking facial indicia of reliability, was corroborated in every significant detail by their pre-stop surveillance. While the corroborated tip may not have supplied probable cause for an arrest, it need only be mentioned that the level of suspicion required for a valid investigative detention does not rise to the level requisite for an arrest. See Terry v. Ohio, 392 U.S. 1, 15-16, 88 S.Ct. 1868, 1876-77, 20 L.Ed.2d 889 (1968).

We are mindful that the investigative stop is a significant intrusion into personal privacy, and that it is possible for anyone with a grudge to fabricate a tip whose neutral details, such as clothing or location, would provide the corroboration required by the White decision for a stop. But the White court was ultimately persuaded that the police had no alternative to an investigative detention except to "sit, wait, and hope they will see from afar some suspicious conduct...." Id. at 45.

We think that Officers Bryant and Bement were confronted with the same unappealing choice. Either they 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 of doors, rather than walking inside a dwelling, and thus beyond police purview, before putting the shotgun to its intended use. Either they ignored their reasonable suspicion, or they took some action. We think that where their suspicion has some objective foundation, the Fourth Amendment does not, particularly where the reported contraband is a weapon as lethal as a sawed-off shotgun, require a police officer to ignore his well-founded doubts and accordingly will permit an investigative detention.

The tip also stated that McClinnhan was carrying a concealed weapon. Although that aspect of the tip was inherently impossible to verify by observation alone, we think that the corroborative detail noted by the officers allowed them to form the reasonable suspicion that McClinnhan was armed, and therefore to conduct a weapons search. The rule for weapons frisks pursuant to a Terry stop was articulated in Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972) (footnote omitted): "So long as the officer is entitled to make a forcible stop, and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope" to protect the officers or others present.

Again, to deny the officers the right to frisk for weapons in this situation would present them with a dangerous alternative: to question a suspect reported to be armed by a tipster whose information has in other respects been verified while fearing that individual could well have transferred the sawed-off shotgun to his coat, or that he could remove it from his briefcase at any moment. When their suspicion is reasonable, the police should not be subjected to this degree of risk. Thus, Officer Bryant's frisk of McClinnhan was reasonable and constitutional: Officer Bement's simultaneous warrantless search of the briefcase implicates other Fourth Amendment issues requiring separate discussion.

B. The Warrantless Search of McClinnhan's Briefcase

In deciding whether the police could search appellant's briefcase without a warrant, we take as our point of departure the principle that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967) (footnote omitted). Recently, this court, sitting en banc, said that Katz required judicial adherence to "the Court's command that the police obtain a warrant unless...