USA. v. Thompson

• Decision Date: 22 December 2000
• Docket Number: No. 99-3120,99-3120
• Citation: 234 F.3d 725
• Parties: (D.C. Cir. 2000) United States of America, Appellee v. Terrell L. Thompson, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 725

234 F.3d 725 (D.C. Cir. 2000)

United States of America, Appellee v. Terrell L. Thompson, Appellant

No. 99-3120

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 3, 2000

Decided December 22, 2000

Appeal from the United States District Court for the District of Columbia (No. 99cr00139-01)

Beverly G. Dyer, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A. J. Kramer, Federal Public Defender. Tony W. Miles, Assistant Federal Public Defender, entered an appearance.

Marc E. Rindner, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Wilma A. Lewis, U.S. Attorney, John R. Fisher and Roy W. McLeese, III, Assistant U.S. Attorneys.

Before: Ginsburg, Randolph, and Garland, Circuit Judges.

Opinion for the court filed by Circuit Judge Ginsburg.

Ginsburg, Circuit Judge:

The question before the court is whether the district court properly admitted evidence police obtained from a search of the appellant. The district court held that the police had reasonable suspicion to search the appellant because they had received an anonymous tip that he was carrying a gun -the possession of which is unlawful in the District of Columbia -and because the tip was corroborated to the extent of certain details, which were in themselves innocent. The Supreme Court subsequently held that a search based upon an anonymous tip, only innocent details of which have been corroborated, is not reasonable and the evidence it produces is not admissible. Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 1379-80 (2000).

We nonetheless affirm the judgment in this case because uncontradicted evidence in the record shows that the tip at issue bore indicia of reliability not present in J.L. and because the defendant's conduct itself gave the police reasonable cause to suspect that he was engaged in unlawful activity. We remand the case to the district court for re-sentencing, however, at the request of both parties.

I. Background

The facts surrounding the search of Terrell Thompson were established at an evidentiary hearing and are not in dispute. At around 3:20 a.m. Officers Holloway and Pope of the Metropolitan Police Department had just completed a traffic stop near the intersection of "I" and Half Streets, S.E. Officer Holloway was in uniform standing near his marked cruiser with Officer Pope when a middle-aged, Black man traveling southbound on Half Street drove up to them.

The motorist told the officers that he "just saw" a man carrying a gun get out of a sport-utility vehicle in the parking lot of a Wendy's restaurant some 100 yards from where the officers stood. The informant, who was anxious and agitated, described the suspect as a young Black man wearing dark pants and a bright orange shirt. The officers accepted what he said as likely true and neither requested nor acquired specific information identifying him.

Officers Holloway and Pope then drove in their separate cars to the Wendy's, which was closed. As the two officers entered the parking lot from "K" Street, they saw a dark colored sport-utility vehicle leaving the lot. Because the officers had been told the suspect had exited the vehicle, however, they did not stop it. Officer Holloway then saw a Black man, who turned out to be Thompson, wearing a bright orange shirt and standing by himself at the far end of the parking lot with his back against a fence. There was no one else in the parking lot. Thompson was looking around the edge of the fence toward a nightclub called the Mirage. He was, the district court found, "sort of peeking around as if he was trying to keep his position concealed."

Fearing, based upon the tip, that Thompson was armed, Officer Holloway exited his cruiser with his weapon drawn and approached Thompson. Thompson spotted Officer Holloway over his left shoulder when Holloway was within five to seven feet of him. Thompson stepped away from the fence and, without trying to flee, took five steps toward "I" Street. Holloway instructed him to raise his hands in the air and to stop, and Thompson complied. Thompson at that point said something to the effect of "you got me" and indicated that he would not put up a fight. At Holloway's instruction he dropped to his knees. As Holloway assisted him to the ground, the officer felt a weapon toward the front of Thompson's person. At that point Officer Pope arrived and helped to handcuff Thompson. The two officers then rolled Thompson over and retrieved a nine-millimeter semiautomatic pistol, loaded and cocked, that was sticking out of his waistband.

A federal grand jury indicted Thompson for unlawful possession of a firearm by a convicted felon. The district court denied Thompson's motion to suppress the gun and certain statements he made to the police, ruling that the anonymous tip together with certain corroborating details, such as Thompson's attire, race, sex, and location, gave the police reasonable ground to suspect that Thompson had a gun. Thompson then entered a conditional plea of guilty, reserving his right to appeal the court's denial of his motion to suppress. The court sentenced Thompson to 37 months in prison, reflecting a two-point enhancement under the United States Sentencing Guidelines for possession of a stolen weapon.

Thompson initially filed a notice of appeal challenging only his sentence, but he has since filed an unopposed motion to add the suppression issue in light of the decision of the Supreme Court in Florida v. J.L., 120 S. Ct. 1375.

II. Analysis

Under the Fourth Amendment to the Constitution of the United States, the police may not stop and search a person unless they have reason to suspect he is engaged in wrongdoing. See Terry v. Ohio, 392 U.S. 1, 27-28 (1968) (police may stop and frisk persons walking up and down street and peering into window of store, apparently casing it for robbery). As applied to the facts of this case, the fourth amendment requires that Officer Holloway have had a "reasonable fear for his own or others' safety" before frisking Thompson. Id. at 30.

Specifically, "[t]he officer ... must be able to articulate something more than an 'inchoate and unparticularized suspicion or hunch.' " United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry, 392 U.S. at 27). Whether that standard is met must be determined " 'from the standpoint of an objectively reasonable police officer,' " without reference to "the actual motivations of the individual officers involved." United States v. Hill, 131 F.3d 1056, 1059 (D.C. Cir. 1997) (quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)).

In this case the district court determined that Officer Holloway had reasonable suspicion to search Thompson based upon the tip he got from the motorist and the corroboration of certain of the details of that tip:

[A]n anonymous tip from an anonymous citizen can be the basis for a Terry stop provided that there is some corroboration to provide the police officers with legitimate reasons to believe that the tip was reliable. And the cases have held that the corroboration can be that when they go to the scene they're confronted with what the tipster told them he saw. And so the corroboration in this case ... is exactly what the Government says it is. The citizen tipster said black male, bright orange shirt, blue jeans or dark pants. And he's in a parking lot at Wendy's .... And he's got a gun .... They [then] found what they were told they were going to find.

The district court's reasoning was based solidly upon the holdings of this court in United States v. Clipper, 973 F.2d 944, 947-51 (1992), and United States v. McClinnhan, 660 F.2d 500, 502-03 (1981), in which we deemed the same type of combination sufficient to support a stop and frisk.

The decision of the Supreme Court in Florida v. J.L. casts new light upon this recurring situation. In that case an anonymous caller had told the Miami-Dade police that a young Black man, standing at a particular bus stop and wearing a plaid shirt, had a gun. When the police went to investigate they saw three Black males there, one of whom, 15 year-old J.L., was wearing a plaid shirt. Upon frisking him, the police discovered a gun. See 120 S. Ct. at 1377.

The Supreme Court, upon those facts, held that the police did not have reason to believe that the suspect had an illegal firearm nor, hence, reason to stop and frisk him. Id. at 1380. The police cannot rely upon "the bare report of an unknown,...