US v. Clipper

• Decision Date: 12 March 1991
• Docket Number: Crim. No. 90-0467 (OG).
• Parties: UNITED STATES of America v. Ronald T. CLIPPER.
• Court: U.S. District Court — District of Columbia

758 F. Supp. 756

UNITED STATES of America v. Ronald T. CLIPPER.

Crim. No. 90-0467 (OG).

United States District Court, District of Columbia.

March 12, 1991.

David E. Mills, Asst. U.S. Atty., Washington, D.C., for U.S.

Robert L. Tucker, Office of Federal Public Defender, Washington, D.C., for defendant.

MEMORANDUM

GASCH, Senior District Judge.

Defendant, by counsel, has moved to suppress the seizure of narcotics which the police state were taken from his person. To fully understand the implications of this case, the Terry doctrine must be reviewed. Terry and two associates were observed by Detective McFadden of the Chicago police apparently "casing" a store on McFadden's beat. McFadden did not know them nor had he any tip respecting their illegal activities or whether any of them possessed a pistol. He knew that armed robbery and burglary had taken place on his beat. It was conceded that he lacked probable cause to make an arrest. The Supreme Court sustained the action he took in what is now generally known as the Terry stop and frisk doctrine. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). McFadden approached Terry, spun him around, patted him down, and discovered a pistol, which he seized. He did the same to one of Terry's associates.

Chief Justice Warren, writing for the Supreme Court, at page 22, 88 S.Ct. at page 1880, described the situation as follows:

One general interest is of course that of effective crime prevention and detection; it is this interest which underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. It was this legitimate investigative function Officer McFadden was discharging when he decided to approach petitioner and his companions.

392 U.S. at 22, 88 S.Ct. at 1880. At page 23, 88 S.Ct. at page 1881, the Chief Justice provided further details as to the justification for McFadden's action:

We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him.

392 U.S. at 23, 88 S.Ct. at 1881. And, at page 24, 88 S.Ct. at page 1881, the opinion states:

It would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.

392 U.S. at 24, 88 S.Ct. at 1881. At pages 26-27, 88 S.Ct. at pages 1882-83, the Court further filled in the details justifying the stop and frisk doctrine:

It does not follow that because an officer may lawfully arrest a person only when he is apprised of facts sufficient to warrant a belief that the person has committed or is committing a crime, the officer is equally unjustified, absent that kind of evidence, in making any intrusions short of an arrest. Moreover, a perfectly reasonable apprehension of danger may arise long before the officer is possessed of adequate information to justify taking a person into custody for the purpose of prosecuting him for a crime.

392 U.S. at 26-27, 88 S.Ct. at 1882-83. And, at page 27, 88 S.Ct. at page 1883, the Court further elaborated the doctrine as follows:

The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.

392 U.S. at 27, 88 S.Ct. at 1883.

In the case under consideration, the police officers, proceeding in a westerly direction in the neighborhood of 4th and Rhode Island Avenue, N.E., monitored a lookout from the dispatcher to the effect that a black male, wearing a black hat and a blue and green jacket, walking south on First Street, N.W., between U and V Streets, was armed with a pistol. Officer Sherrie Bonner, a veteran of six years' service on the police force, most of which was in the Narcotics Branch, was operating the unmarked police cruiser. She and her partner proceeded to First Street, N.W., where they made a right turn upon observing a man fitting the description broadcast by the dispatcher. She stopped the cruiser, both officers got out and went to the defendant. Each had drawn the service weapon. They directed the defendant to place his hands on the fence surrounding a church located at that point. The defendant was slow in complying although the officers had announced that they were police. Each was dressed in casual clothes. Officer Bonner directed her partner to commence a pat-down search, noticing a bulge in the right jacket pocket. It developed that this was a large sum of currency, some of which was secured by a rubber band and the rest was loose. Officer Jones, a husky but relatively inexperienced officer, pulled out this money, which he held in his right hand and continued the pat-down with his left. He felt a hard object in defendant's crotch area. When he touched it, defendant threw up his hands, which had the effect of knocking the currency out of Jones' hand and instantaneously, the defendant ran up the street in a northerly direction. The officers did not stop to pick up the money. Jones pursued him, followed by Bonner, who had a police walkie-talkie, into which she stated what had happened and called for assistance. At about First and T Streets, N.W., Officer Jones overtook the defendant. They struggled. Officer Bonner told Officer Jones to put him down. This was done but it did not end the struggle. The officers had observed during the chase that defendant seemed to be trying to reach with his hands an object in the area of his crotch. They were uncertain as to what this was since the frisk had not been completed and they were apprehensive that it might be the weapon to which the dispatcher had made reference.

Sometime later and while the struggle was continuing, other units responded to the scene. The defendant was subdued and from his hand was taken a brown paper bag which contained approximately 100 ziplock packages of a whitish rock-like substance, subsequently found to be crack cocaine.

Defendant, through counsel, contends that the anonymous tip broadcast by the dispatcher was an inadequate basis for the Terry stop. He also contends that the narcotics seized from him was in fact planted on him by the police. He also contends that he was roughed up by the police and sustained injury in the course of the beating, which included a fractured bone in the occipital region of his eye.

Upon consideration of the evidence submitted in Court on the motion to suppress, the Court concludes that there was an adequate basis for the Terry stop.

DISCUSSION

On the day the Supreme Court announced its opinion in Terry, it also decided Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). Sibron had been arrested by a city police officer for possessing heroin. The evidence on which the officer relied was that he had observed Sibron conversing with several individuals known to the officer to be drug addicts. The officer had not observed the transfer of any suspected narcotics nor had he overheard any of the conversation. The conviction, sustained by the state court, was reversed. After discussing the inadequacy of the basis for the officer's seizure of the heroin, the Court said, at page 60, 88 S.Ct. at page 1901, "If Patrolman Martin lacked probable cause for an arrest, however, his seizure and search of Sibron might still have been justified at the outset if he had reasonable grounds to believe that Sibron was armed and dangerous." 392 U.S. at 60, 88 S.Ct. at 1901 (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).

In the instant case, the officers had received a call from the dispatcher to the effect that a black male with a black hat and a blue and green jacket was armed with a pistol and was proceeding south on First Street near U Street. Upon arriving at a point where the path of the cruiser and the path of the defendant intersected, he was observed by the officers and he reasonably met the description of the person believed to be carrying a pistol.

The officers proceeded to take action in accordance with the principles announced in Terry, which resulted with the stopping of defendant and the subsequent pat-down. When he asked what he was being stopped for, Officer Bonner said, we are checking something out. In the momentary frisk, which revealed the bundle of cash in his right jacket pocket and a hard object in his crotch area, no determination had been made by the police respecting the need for detention. The pat-down was continuing. Suddenly the defendant knocked the bundle of cash from Officer Jones's hand and bolted and ran. Officer Jones followed the defendant and sought to apprehend him. Officer Bonner called into the walkie-talkie a brief report on what had happened and requested assistance. Officer Jones caught up with the fleeing suspect and after a brief struggle, wrestled him to the ground on the median strip located at First and T Streets. Both officers were still trying to gain possession of the second hard object contained in a brown paper bag which defendant was clutching to his mid-section. When assisting officers arrived, the police gained possession of the brown paper bag. It contained 100 ziplock packets of crack cocaine. Defendant was then arrested and taken into custody.

The first problem with which the Court is confronted is an analysis of the cases involving an anonymous tip. In United States v. White, 648 F.2d 29, 45 (D.C.Cir. 1981), Judge Wald, writing for the Court, summarized the requirements of the Terry stop and frisk doctrine as follows:

We do not find anything in Terry or its

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