Appeal from the Superior Court of the District of Columbia (Hon. Robert E. Morin, Trial Judge)
Before Schwelb, Farrell, and Ruiz, Associate Judges.
The opinion of the court was delivered by: Farrell, Associate Judge
Responding to an anonymous tip that a particular Amoco gas station was about to be robbed, police responded to the station and saw Jefferson emerging from a fenced enclosure that permitted access to the cashier's office. They stopped and detained Jefferson until the cashier identified him as the person who had just attempted to take money and cigarettes from the office without authorization. Upon his subsequent arrest, appellant was searched and money was found on him that, along with the identification by the cashier, formed the basis for his later conviction of second-degree theft.
Jefferson contends on appeal that the police lacked reasonable articulable suspicion justifying his detention, and that the trial court therefore erred in denying his motion to suppress the identification and the fruits of the resulting search of his person. For the reasons that follow, we affirm.
Testimony at the suppression hearing established that at about 3:00 a.m. on August 2, 1998, MPD Officers Zermeno and Grunett were on patrol when they received a radio report from the police dispatcher that "a robbery . . . was about to happen" at an Amoco gas station in the 900 block of Vermont Avenue, Northwest. The report in turn was based on a 911 telephone call which the police had received from a caller who would not leave his name. *fn1 Since the officers knew there was no 900 block of Vermont Avenue, they responded to the Amoco station at the intersection of Vermont and Florida Avenues, "maybe a quarter block away from 9th Street," arriving there "maybe a minute" after receipt of the dispatch. *fn2 As they pulled into the gas station (which was open for business), they saw Jefferson "walking from the back, inside of the gate area of the station." The "gate area" was a fenced enclosure adjoining the wall of the booth that housed the cashier's office; the entrance to the office was within the enclosure. Jefferson was leaving the fenced enclosure through a gate.
As Officer Zermeno alighted and "went to grab [Jefferson]," he could see the station attendant inside the cashier's booth. In part because Zermeno "didn't know what [Jefferson] was doing behind the gate," he stopped Jefferson, "told him to grab the fence" with his hands, and patted him down. *fn3 At the same time, Officer Grunett stopped and frisked two men who were standing by the gas pumps. As Jefferson was being detained, Zermeno spoke to the station attendant who told him that moments earlier, when temporarily out of the office, he had seen Jefferson enter it and attempt to pack cigarettes into a bag. He ordered Jefferson to leave, but later found the cash register to be short of money by some $38. The police arrested Jefferson and seized cash in approximately that amount from his pocket.
Both officers acknowledged that the tip reported in the radio call had not described the individual(s) who were purportedly about to commit the robbery. When the officers pulled up to the station, they intended to stop and question everyone there, but in the case of Jefferson specifically, when Zermeno saw him come out from behind the gate, the "hair on [the officer's] neck stood up" and he told himself, "stop him." Zermeno then frisked Jefferson because the radio report said "a robbery [was] about to happen," and he "wasn't taking any chances" that the suspect was armed. According to Grunett, the gas station was located in an area where there were "a lot of robberies and [a] lot of drug transactions, all kinds of activity all night long."
"A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing." City of Indianapolis v. Edmond, 121 S. Ct. 447, 451 (2000). But, as this court has explained, "[t]he requirement of `articulable suspicion' is not an onerous one," Gomez v. United States, 597 A.2d 884, 888 (D.C. 1991); it demands only that the police have "`some minimal level of objective justification' for making the stop. That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence." United States v. Sokolow, 490 U.S. 1, 7 (1989) (citation omitted).
Jefferson contends that neither the 911 call of an imminent robbery of the Amoco station nor the observations of the police on arriving there gave the officers individualized suspicion that he was, or had been, engaged in wrongdoing. He relies first of all on the fact that the anonymous informant's tip, besides telling nothing about the reliability of the informant, gave no description of the individual(s) purportedly about to rob the gas station. Jefferson thus likens the information the police had to the anonymous tips found insufficient to support a stop in Florida v. J.L., 529 U.S. 266 (2000), and Cauthen v. United States, 592 A.2d 1021 (D.C. 1991). On the facts of this case, his reliance on those decisions is unfounded.
Although "an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity," Alabama v. White, 496 U.S. 325, 329 (1990), "there are situations in which an anonymous tip, suitably corroborated, exhibits `sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.'" J.L., 529 U.S. at 270 (quoting White, 496 U.S. at 327). The prime example of such a tip is one containing "predictive information" that, when corroborated, shows that the informant had "knowledge of concealed criminal activity." Id. at 271, 272. Jefferson does not really dispute the predictive nature of the tip here, which stated that a person or persons were "about to" rob a particular gas station. His argument is that the tip could not meaningfully be corroborated because it gave no description of the putative robbers, thus inviting the police to "round up" everyone at the Amoco station. He analogizes to our decision in Cauthen, in which the absence from the tip of any "physical description of the suspects by sex, race, size, clothing or any other distinguishing feature" allowed it to apply indiscriminately to any of "three to five persons" standing at the location where the criminal activity was said to be taking place. Cauthen, 592 A.2d at 1021, 1023.
This case, however, differs markedly from both Cauthen and J.L. in the corroborating observations of suspicious behavior the police made when they arrived at the scene of the predicted robbery. *fn4 Unlike in J.L., where the police arrived at the reported crime location "and saw three black males `just hanging out [there],'" 529 U.S. at 268, the police saw Jefferson emerging through a gate from a fenced area reasonably perceived to be off-limits to the public and housing the entrance to the cashier's office. That behavior caused the officers to suspect that he was the person (or among the persons) who the tip said would shortly be robbing the station. Of course, Jefferson could have been merely an employee of the station (although Officer Zermeno had seen the cashier in the office ...