USA. v. Davis

• Citation: 235 F.3d 584,344 U.S.App. D.C. 212
• Decision Date: 29 December 2000
• Docket Number: No. 00-3016,00-3016
• Parties: (D.C. Cir. 2000) United States of America, Appellee v. Curnell L. Davis, Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 584

235 F.3d 584 (D.C. Cir. 2000)

United States of America, Appellee v. Curnell L. Davis, Appellant

No. 00-3016

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 14, 2000

Decided December 29, 2000

Appeal from the United States District Court for the District of Columbia (No. 99cr00222-01)

A. J. Kramer, Federal Public Defender, argued the cause and filed the briefs for appellant. Gregory L. Poe entered an appearance.

Suzanne Grealy Curt, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Wilma A. Lewis, U.S. Attorney, John R. Fisher, Thomas J. Tourish, Jr. and Ricardo Nunez, Assistant U.S. Attorneys.

Before: Williams, Rogers and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Tatel:

Tatel, Circuit Judge:

After police conducting a Terry stop and-frisk discovered a shotgun hidden in his clothing, appellant pled guilty to possession of a firearm by a felon. He appeals the district court's denial of his motion to suppress, arguing, among other things, that the court erred by relying on information police obtained from a citizen 911 call describing a man fleeing the scene of a shooting even though the government failed to produce a tape of the call. Finding that appellant waived this argument, and that his similarity to the 911 caller's description and to witness accounts of the shooter gave police a "reasonable, articulable suspicion" sufficient to justify the stop, see Illinois v. Wardlow, 528 U.S. 119, 123 (2000), we affirm.

I

At 11:33 PM on May 31, 1999, a 911 caller reported gunfire and screaming in the 2300 block of North Capitol Street. Minutes later, a police dispatcher sent units to 2308 North Capitol to investigate a "shooting." As police arrived at the scene, the dispatcher relayed additional citizen reports describing two men, one with blood on his clothes and another in khaki shorts and a white t-shirt. At 11:40, the police unit that had arrived at the North Capitol address broadcast its first account of witness reports. Known as a "lookout," the broadcast described the suspect as a man on a bike, dressed all in black, heading north on North Capitol. The unit also relayed witness reports that the "subjects" were in a four door sedan and that "there seem[ed] to be a grey, small weapon." Updating the lookout two minutes later, the unit described the suspect as a "black male, light skinned, black [unclear], all black, or possibly on a bike, [unclear] carrying a small weapon."

At midnight, about thirty minutes after the shooting, the dispatcher reported that "we have a citizen that's on land line, says the subject is wearing all black, that appears to be running away from 2308 North Capitol. He's on foot, possibly now in the unit block of Channing." Police Lieutenant Taliaferro and his partner investigated and within thirty seconds noticed appellant Curnell Davis, a black man wearing dark blue coveralls, walking with a companion just a block away from where the midnight 911 caller had reported seeing the fleeing man. Stopping and frisking Davis, Taliaferro found a sawed-off shotgun hidden in Davis's clothing. Davis told the police that "it was [his] boy that got shot" and that he needed a gun for protection because the neighborhood was so dangerous. A grand jury indicted Davis for unlawful possession of a firearm by a felon. See 18 U.S.C. § 922(g)(1).

Arguing that the police lacked a reasonable suspicion for the stop-and-frisk, see Terry v. Ohio, 392 U.S. 1, 30 (1968), Davis moved to suppress both the shotgun and his statements to the police. In response, the government pointed to Davis's similarity to the lookouts and to the midnight 911 caller's description of the man fleeing the crime scene. Although at a status conference the government apparently promised (the record does not contain the transcript) to search for the tape of the midnight 911 call, it failed to produce it at the evidentiary hearing on the suppression motion. Davis's counsel, however, never mentioned the tape's absence at the hearing, focusing both his cross-examination of Taliaferro (the only witness) and his closing argument on ways in which Davis failed to match the descriptions of the shooting suspect. Finding Taliaferro's suspicion of Davis reasonable, the district court denied the suppression motion. Davis pled guilty, reserving his right to appeal. We review the district court's findings of fact for clear error and its conclusions of law de novo. See Ornelas v. United States, 517 U.S. 690, 699 (1996).

II

Investigative stops do not run afoul of the Fourth Amendment if they are based on "reasonable, articulable suspicion" of criminal conduct. Wardlow, 528 U.S. at 123. Requiring considerably less than probable cause, Terry stops are constitutional if the police can show a "minimal level of objective justification." INS v. Delgado, 466 U.S. 210, 217 (1984).

Davis argues that in defending the constitutionality of the stop, the government cannot rely on the information supplied by the midnight 911 caller and relayed by the dispatcher to the arresting officer because the government failed to produce the tape of the call. In Whiteley v. Warden, Wyo State Penitentiary, 401 U.S. 560, 568 (1971), the Supreme Court held unlawful an arrest based on a radio bulletin where the government failed to prove that the bulletin was itself based on probable cause. Later, in United States v. Hensley, 469 U.S. 221 (1985), the Court described Whiteley as standing for the proposition that "when evidence is uncovered during a search incident to an arrest in reliance merely on a flyer or bulletin, its admissibility turns on whether the officers who issued the flyer possessed probable cause to make the arrest," id. at 231; see also Whiteley, 401 U.S. at 568 ("An otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest."). Hensley also extended Whiteley to reasonable suspicion cases. 469 U.S. at 232. Following Hensley, in United States v. Cutchin we overturned a district court's exclusion of a 911 tape, saying: "What the tape itself revealed went directly to the issue whether the dispatcher had a reasonable, articulable suspicion, without which [the officer's] stop of [the suspect's] car might not have been legal." 956 F.2d 1216, 1217-18 (D.C. Cir. 1992).

Relying on these cases, Davis urges us to find that...