U.S. v. Perrin, No. 93-5702

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtBefore ERVIN, Chief Judge, WILKINSON, Circuit Judge, and PHILLIPS; ERVIN
Citation45 F.3d 869
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Charles Odell PERRIN, Defendant-Appellant.
Decision Date31 January 1995
Docket NumberNo. 93-5702

Page 869

45 F.3d 869
UNITED STATES of America, Plaintiff-Appellee,
v.
Charles Odell PERRIN, Defendant-Appellant.
No. 93-5702.
United States Court of Appeals,
Fourth Circuit.
Argued Sept. 30, 1994.
Decided Jan. 31, 1995.

Page 870

ARGUED: Donald E. Jeffrey, III, Hill & Rainey, Petersburg, VA, for appellant. Arenda L. Wright Allen, Asst. U.S. Atty., Norfolk, VA, for appellee. ON BRIEF: Helen F. Fahey, U.S. Atty., Alexandria, VA, for appellee.

Before ERVIN, Chief Judge, WILKINSON, Circuit Judge, and PHILLIPS, Senior Circuit Judge.

Affirmed by published opinion. Chief Judge ERVIN wrote the opinion, in which Judge WILKINSON and Senior Judge PHILLIPS joined.

OPINION

ERVIN, Chief Judge:

Appellant Charles Odell Perrin was convicted under 18 U.S.C. Sec. 922(g)(1) for possession of a firearm by a felon and under 21 U.S.C. Sec. 841(a)(1) for being in possession with intent to distribute more than five grams of cocaine base. Perrin's 216 month sentence on the drug charge and 180 month sentence on the weapon charge are to be served concurrently. He appeals the Sec. 922(g)(1) conviction on the grounds that his rights under the Fourth Amendment were violated by virtue of an illegal search and that the district court erred in refusing to instruct the jury on the defense of justification. Perrin claims that his Sec. 841(a)(1) conviction should be reversed, because the police conducted an unconstitutional search of his car. We find that the officers possessed the requisite degree of suspicion to justify the Terry search, that Perrin was not entitled to an instruction on justification, and that Perrin's voluntary consent assured the constitutionality of the vehicular search. Accordingly, we affirm the decision of the district court in all respects.

I.

On July 8, 1992 police investigator Werner Extine was notified by the York County, Virginia Sheriff's Department that the department had just received an anonymous phone call indicating that crack cocaine was being sold at the Yorktown Square Apartments. The caller provided very specific information. According to the caller, "Charlie Red" and Jackie Tabb were in the area of building four at the Yorktown Apartments dealing crack cocaine. Officer Extine found the story plausible--he knew both that "Charlie Red" was the street name of Charles Odell Perrin and that the Yorktown Apartments were located in a high crime area and were the scene of numerous narcotics operations. Most important, the tip was consistent with similar information that the Department had received three days earlier. On that occasion, an unidentified caller had told the police that a black male named Charles Odell and a Jamaican named Rob

Page 871

Harvey were selling drugs in the Yorktown Apartments' laundromat.

When Officer Extine received the tip about "Charlie Red," he and Officer Barry Holloway went directly to the Yorktown Apartments. As the two drove past building four, Perrin emerged from behind the building carrying a can of beer. Officer Extine recognized Perrin from a previous encounter. Although the officer was unaware of the details of Perrin's record, he "knew Perrin had a violent criminal past." Extine approached Perrin with caution and displayed his badge. The officer testified that as soon as he was within arm's reach of Perrin, he took the beer away from Perrin and proceeded to pat him down "for my own safety." Extine found a .22 caliber Jennings Bryco Arms pistol in Perrin's pocket and immediately placed Perrin under arrest.

According to Perrin, he was carrying the gun as protection because of threats made by Delano "Dee" Graves. Perrin felt that he had to carry a gun to protect himself from Graves, despite the fact that another officer had told Perrin on the morning of July 8 that Graves was in jail.

The narcotics incident that led to Perrin's arrest on Sec. 841(a) charges took place seven months after the weapon incident. For several weeks in early 1993, Officer Patrick of the York County Sheriff's Department had been accustomed to seeing Perrin drive a certain 1992 red, two-door Chevrolet Cavalier. On February 1, however, the officer saw a different man driving the vehicle and decided to contact the car rental company that owned the Cavalier. The following day, February 2, the company advised Patrick that the vehicle, which had been leased by Perrin's girlfriend, was a week overdue.

Later that day, Officer Patrick spotted the car while on patrol and followed it. Patrick's patrol car was only fifteen feet from the Cavalier when he recognized Perrin sitting in the front passenger seat. According to Patrick, Perrin was aware of the officer's presence. When the officer was slightly over a car length away from the Cavalier, Patrick saw Perrin lean forward in the front passenger seat as if to hide something underneath him. At that point, the officer decided to pull the car over.

Perrin was asked to step out of the car, and Officer Patrick contacted the rental company so that one of its employees could come pick up the car. The officer asked for and received Perrin's consent to search the car. Another officer and a trained police dog were summoned to the scene. The canine "alerted" on the floor in front of the passenger seat, drawing Officer Patrick's attention to a film canister lying beneath the seat. In the canister was an off-white, chalky material that was later discovered to be between eight and nine grams of crack cocaine with a street value of $1,000 to $2,000. After placing Perrin under arrest for possession of cocaine with intent to distribute, Officer Patrick discovered $116 and a green beeper on Perrin's person.

II.

Perrin challenges his Sec. 922(g) conviction on two grounds. First, he claims that the officers did not have the requisite level of suspicion necessary to justify the Terry search which revealed the .22 caliber pistol in Perrin's pocket. Whether an officer has a reasonable suspicion sufficient to warrant a Terry stop and frisk is subject to de novo review, but factual findings will not be overturned unless clearly erroneous. United States v. Porter, 738 F.2d 622, 625 (4th Cir.) (en banc), cert. denied, 469 U.S. 983, 105 S.Ct. 389, 83 L.Ed.2d 323 (1984). Perrin's second argument is that the jury should have been instructed as to the justification defense, because he supposedly had only been carrying the gun to protect himself from Delano "Dee" Graves. The issue of whether the trial court erred in refusing to instruct the jury on the defense of justification raises a question of law, and we review de novo the district court's conclusion. Bose Corp. v. Consumers Union of the United States, Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984); Rawl v. United States, 778 F.2d 1009 (4th Cir.1985), cert. denied, 479 U.S. 814, 107 S.Ct. 67, 93 L.Ed.2d 25 (1986).

A.

"[T]he police can stop and briefly detain a person for investigative purposes if the

Page 872

officer has a reasonable suspicion supported by articulable facts that criminal activity 'may be afoot,' even if the officer lacks probable cause." United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581-85, 104 L.Ed.2d 1 (1989). The level of suspicion required to justify a search under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), must be based on more than an "inchoate and unparticularized suspicion or 'hunch,' " 392 U.S. at 27, 88 S.Ct. at 1883, but it need not rise to the level of probable cause to survive scrutiny under the Fourth Amendment. Id. at 22-24, 88 S.Ct. at 1880-81. We have held that "[a]n informant's tip can provide the justification for a Terry stop even if the informant's reliability is unknown, and certainly can do so if ... the information is corroborated." Porter, 738 F.2d at 625. We find that the July 8, 1992 tip, as corroborated by other information that was not obtained from the July 8 caller, exhibited "sufficient indicia of reliability to provide suspicion to make the investigatory stop." Alabama v. White, 496 U.S. 325, 327, 110 S.Ct. 2412, 2414, 110 L.Ed.2d 301 (1990).

Perrin underestimates the impact that the probable cause-reasonable suspicion distinction has on our evaluation of the quantum of evidence needed to justify a Terry search. "Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause." White, 496 U.S. at 330, 110 S.Ct. at 2416; United States v. Wilson, 953 F.2d 116, 124 (4th Cir.1991). An anonymous tip, for instance, when combined with other known facts, may be sufficiently reliable to serve as the basis for a Terry search, yet...

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90 practice notes
  • State v. Adam Ennedy, 99-LW-4172
    • United States
    • United States Court of Appeals (Ohio)
    • September 30, 1999
    ...Sakyi (C.A.4 1998), 160 F.3d 164, 169, United States v. Stanfield (C.A.4 1997), 109 F.3d 976, 984, United States v. Perrin (C.A.4 1995), 45 F.3d 869, 873, and therefore a proper pat-down is supported simply by the officer's objectively reasonable belief that drugs are in the vehicle. Sakyi,......
  • The State v. Taylor, No. 4687.
    • United States
    • Court of Appeals of South Carolina
    • May 13, 2010
    ...and location accused of criminal activity “failed to serve as sufficient corroboration to establish reliability.” 18. See U.S. v. Perrin, 45 F.3d 869, 873 (4th Cir.1995) (“Were we to treat the dangerousness of the neighborhood as an independent corroborating factor, we would be, in effect, ......
  • Ex parte Tucker
    • United States
    • Supreme Court of Alabama
    • May 12, 1995
    .../p search" located a total of 36 cases in the ALLFEDS database, several of which are published. See, e.g.: United States v. Perrin, 45 F.3d 869 (4th United States v. Wellman, 33 F.3d 944 (8th Cir.1994). United States v. Eastland, 989 F.2d 760 (5th Cir.1993). United States v. Nicholson, 983 ......
  • People v. Dupree, Docket No. 281408.
    • United States
    • Michigan Court of Appeals
    • May 28, 2009
    ...F.3d 240, 247 (C.A.2, 2009), quoting in part United States v. Deleveaux, 205 F.3d 1292, 1297 (C.A.11, 2000) and United States v. Perrin, 45 F.3d 869, 874-875 (C.A.4, In light of the evidence in this case, the defense is unavailable because defendant possessed the firearm longer than absolut......
  • Request a trial to view additional results
90 cases
  • State v. Adam Ennedy, 99-LW-4172
    • United States
    • United States Court of Appeals (Ohio)
    • September 30, 1999
    ...Sakyi (C.A.4 1998), 160 F.3d 164, 169, United States v. Stanfield (C.A.4 1997), 109 F.3d 976, 984, United States v. Perrin (C.A.4 1995), 45 F.3d 869, 873, and therefore a proper pat-down is supported simply by the officer's objectively reasonable belief that drugs are in the vehicle. Sakyi,......
  • The State v. Taylor, No. 4687.
    • United States
    • Court of Appeals of South Carolina
    • May 13, 2010
    ...and location accused of criminal activity “failed to serve as sufficient corroboration to establish reliability.” 18. See U.S. v. Perrin, 45 F.3d 869, 873 (4th Cir.1995) (“Were we to treat the dangerousness of the neighborhood as an independent corroborating factor, we would be, in effect, ......
  • Ex parte Tucker
    • United States
    • Supreme Court of Alabama
    • May 12, 1995
    .../p search" located a total of 36 cases in the ALLFEDS database, several of which are published. See, e.g.: United States v. Perrin, 45 F.3d 869 (4th United States v. Wellman, 33 F.3d 944 (8th Cir.1994). United States v. Eastland, 989 F.2d 760 (5th Cir.1993). United States v. Nicholson, 983 ......
  • People v. Dupree, Docket No. 281408.
    • United States
    • Michigan Court of Appeals
    • May 28, 2009
    ...F.3d 240, 247 (C.A.2, 2009), quoting in part United States v. Deleveaux, 205 F.3d 1292, 1297 (C.A.11, 2000) and United States v. Perrin, 45 F.3d 869, 874-875 (C.A.4, In light of the evidence in this case, the defense is unavailable because defendant possessed the firearm longer than absolut......
  • Request a trial to view additional results

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