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Joseph v. United States

June 28, 2007

KWAME R. JOSEPH, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia (F-991-99) (Hon. Natalia Combs Greene, Trial Judge).

The opinion of the court was delivered by: Terry, Senior Judge

Argued November 25, 2003

Before GLICKMAN, Associate Judge, and TERRY and SCHWELB, Senior Judges.*fn1

Appellant was charged in an indictment with carrying a pistol without a license, possession of an unregistered firearm, unlawful possession of ammunition, and possession of a controlled substance (marijuana). After an evidentiary hearing, the trial court denied appellant's motion to suppress tangible evidence (the pistol, the ammunition, and the marijuana). Appellant then entered a conditional guilty plea*fn2 and was sentenced to concurrent prison terms totaling five years; execution of that sentence was suspended, however, and he was placed on probation for thirty-three months. Before this court appellant argues (1) that the evidence should have been suppressed because the citizen informant's reliability and basis of knowledge were not properly considered, and that if they had been, a Terry stop and frisk*fn3 would not have been justified, and (2) that the trial court erred by denying his discovery request for an audiotape of a 911 telephone call made on the day before his arrest, in which someone who may have been that same informant allegedly provided an inaccurate tip regarding the same location. We affirm.

I.

A. The Suppression Hearing

On February 11, 1999, at 9:24 p.m., a telephone call came in to the Metropolitan Police Department over the 911 emergency line. The male caller reported that a man with a gun "in the side of his waist" was standing in front of a house at 646 Newton Place, N.W. The caller said that his last name was Williams and gave the dispatcher his address and telephone number.*fn4 Williams went on to say that the man with the gun was wearing a grey sweatshirt, blue jeans, and brown Timberland boots.*fn5 At the conclusion of the telephone call, the dispatcher directed two patrol cars to go to 646 Newton Place. One of these cars was driven by Officer John Hackley.

Officer Hackley testified that he was on duty in the area of 3200 Georgia Avenue, N.W., when he received a radio call instructing him to go to 646 Newton Place because of a report of a man with a gun standing outside that address wearing "a grey sweat jacket and blue jeans." The officer was in a police car only four blocks from 646 Newton Place, so he arrived there in less than a minute. When he reached that address, Officer Hackley saw three men; one of them - appellant - was wearing a grey sweatshirt and blue jeans, but the other two did not match the clothing description given by the dispatcher.*fn6

Officer Hackley approached appellant and said that he had received a report of a man with a gun and that appellant fit the description given in the report. The officer immediately conducted a patdown for weapons, in the course of which he felt a hard metallic object of a size consistent with a gun. When he lifted appellant's shirt, Officer Hackley found a loaded pistol in appellant's waistband and promptly placed him under arrest. A search incident to that arrest yielded a bag of marijuana from appellant's pants pocket.

At the suppression hearing, the government played an audiotape of the 911 call that precipitated appellant's arrest. During that call, the police dispatcher mentioned to the caller that she had received a similar call from him just a day earlier, but the caller denied it. When the tape finished playing, defense counsel made a discovery request for "the other 911 call," referring to the call that the dispatcher had received the previous day from someone whom she believed to be the same informant, Williams. Counsel wanted to find out whether this other tape could be used to impeach Williams' credibility as an informant. The prosecutor responded that the earlier tape was not relevant because the information in the previous call was not known to, or used by, Officer Hackley when he decided to conduct a Terry stop and frisk of appellant. In denying the discovery request, the trial court said that "the question is whether or not this officer was justified in acting upon the call," and whether the officer "acted based on a description that was accurately given. . . .

[T]here was no apparent reason for this officer . . . not to act as he did."*fn7

At the conclusion of the testimony, defense counsel argued that the evidence should be suppressed under Florida v. J.L., 529 U.S. 266 (2000), despite the fact that the caller identified himself (which did not happen in J.L.). Counsel challenged the quality of the identification made*fn8 and the caller's basis of knowledge for the information he provided, arguing that the informant offered nothing more than "status information . . . no information about prediction of future behavior or action that would lend some kind of credibility to that informant's call."

The court denied the motion to suppress because the facts in this case were distinguishable from those in J.L., specifically ruling that the caller "was anything . . . but anonymous." In addition, the court held that the specific information given by the caller - the description of appellant, his exact location, and the number of others present - was sufficient to justify the Terry stop. Moreover, the court noted that the officer arrived just one minute after the 911 call was made, and that he was able to confirm the specific information related to him by the dispatcher. All of these facts, the court said, gave the officer "a reasonable, articulable suspicion to stop the defendant." The court then concluded that when the officer, in the course of the frisk, felt the gun in appellant's waistband, he had probable cause to lift the shirt and seize the gun. The discovery of the gun, in turn, gave the officer probable cause to arrest appellant, to conduct a search incident to that arrest, and to seize the marijuana from appellant's pocket.

B. Post-Hearing Proceedings

On the day after the hearing, appellant filed a written motion asking the court to reconsider its denial of the motion to suppress. Again citing Florida v. J.L., appellant argued that the motion should have been granted because the government had failed to establish the informant's basis of knowledge. The court reaffirmed its denial of the ...


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