February 12, 2015
MELVIN E. JACKSON, APPELLANT,
UNITED STATES, APPELLEE
Submitted: January 22, 2015.
Appeal from the Superior Court of the District of Columbia. (CF2-10019-13). (Hon. Robert I. Richter, Trial Judge).
Sidney R. Bixler was on the brief for appellant.
Ronald C. Machen Jr., United States Attorney, Elizabeth Trosman, Elizabeth H. Danello, and Christian Natiello, Assistant United States Attorneys, and Rockne Chickinell, Special Assistant United States Attorney, were on the brief for appellee.
Before GLICKMAN and FISHER, Associate Judges, and FARRELL, Senior Judge.
Farrell, Senior Judge:
Found guilty by the court of multiple firearms offenses on stipulated facts, appellant argues that his motion to suppress the loaded revolver seized from him during a pat-down was wrongly denied, because in stopping him the police relied on an anonymous 911 telephone tip that, he contends, did not furnish the reasonable suspicion necessary for a lawful stop. Largely on the basis of Prado Navarette v. California, 572 U.S., 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014), we affirm.
Officer Lina of the Metropolitan Police Department testified that on June 13, 2013, around 8:30 p.m. and as it was getting dark, he received a radio call about a man with a gun standing at the bus stop between Condon Terrace and Fourth Street, Southeast. In the radio call the dispatcher described the man as a black male with a brown shirt. Lina drove south on Fourth Street and, between Valley Avenue and Condon Terrace a minute or two after he got the call, saw appellant standing in front of a church along Fourth Street, wearing a black windbreaker. The officer drove on to the nearby bus stop, but when he arrived no one was there. Other than appellant, Lina saw no persons between appellant at the church and the bus stop.
Lina made a u-turn to drive back up Fourth Street, stopped at Valley Avenue, and called the dispatcher for a better lookout while watching appellant, who was wearing a black skullcap and a black windbreaker poncho. The dispatcher called back with a description of a black man wearing a black hat and a windbreaker. Four minutes after first spotting appellant in front of the church, Lina and his partner approached appellant at the corner of Valley Avenue and Fourth Street and directed him to turn around and submit to a protective pat-down. During the pat-down, Lina felt what he believed to be a gun on appellant's right side, and pulled a silver revolver out of appellant's right pocket.
On the government's motion, the trial court admitted into evidence a 911 call and the radio dispatch, both recorded on Government Exhibit 4. The 911 call was made by an anonymous female caller, who stated that a man was walking near Fourth and Atlantic, down toward a church or elementary school, and had a silver gun on him. The caller had " [seen the gun] when [appellant] took it out of his pocket," explaining that she had been waiting for her friend to come off a bus when " I see him bring out a silver pistol out of his pocket," and that she then made the 911 call. Seeing the gun, the caller said, " scared the hell out of [her]." She described the suspect as wearing a " brown windbreaker," " raincoat thing," and a black hat. When the 911 operator stated her own understanding that the suspect was at Fourth Street and Condon Terrace, the caller corrected her, stating that he was " not on
Condon Terrace" but was walking down Fourth Street (" not up" ) toward the elementary school. Officer Lina confirmed that there was a school and church on Fourth Street, and that appellant was standing by the church when he first saw him, with no one else around.
The trial judge credited the testimony of Lina that, in responding to the radio call, he had seen only appellant walking on the block in question. The 911 caller was " a concerned citizen who had just seen a defendant holding a gun and was reporting it contemporaneously." The dispatcher, the judge noted, had initially erred in putting out a lookout for a man wearing a brown shirt, but then gave a more particular description -- on which Officer Lina relied -- of a man wearing a windbreaker and a black skull cap. The difference in the color description was not material, the judge found, considering that it was getting dark at the time and appellant was the only person on the block when observed. Because, in the judge's view, the stop and frisk of appellant was supported by reasonable, articulable suspicion based on the call, he denied the motion to suppress.
" The Fourth Amendment permits brief investigative stops . . . when a law enforcement officer has 'a particularized and objective basis for suspecting the particular person stopped of criminal activity.'" Prado Navarette, 134 S.Ct. at 1687 (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)) . When, as here, the basis for the stop is an anonymous tip, the tip must " be reliable in its assertion of illegality" and " in its tendency to identify a determinate person." Florida v. J.L., 529 U.S. 266, 272, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). Tips regarding " unlawful carriage of a gun" enjoy no privileged Fourth Amendment status, id. at 272; they too have to " bear standard indicia of reliability in order to justify a stop." Id. at 274. Prado Navarette is the Supreme Court's latest treatment of anonymous tips, and the reliability features it cited in upholding the investigative stop there persuade us that the police had the required justification for the stop here.
The Court began by reaffirming that " under appropriate circumstances, an anonymous tip can demonstrate 'sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop.'" Id. at 1688 (quoting Alabama v. White, 496 U.S. 325, 327, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)). The caller in Prado Navarette had reported that her vehicle was run off the road by a truck shortly before, a report that, if reliable, gave the police reason to suspect the truck driver " of an ongoing crime such as drunk driving." Id. at 1690-91. The Court then explained why " the  call bore adequate indicia of reliability for the officer to credit the caller's account" of what happened to her. Id. at 1688.
First, unlike in Florida v. J.L., supra, on which appellant mainly relies, the 911 caller in Prado Navarette " claimed eyewitness knowledge" of the conduct yielding suspicion. 134 S.Ct. at 1689. That " basis of knowledge len[t] significant support to the tip's reliability," in contrast to J.L. where " the tip provided no basis for concluding that the tipster had actually seen the gun." Id. Moreover, the " timeline of events [in Prado Navarette ] suggest[ed] that the caller reported the incident
soon after she was run off the road," and this " sort of contemporaneous report has long been treated as especially reliable." Id. Whereas " [t]here was no indication that the tip in J.L. (or even in White ) was contemporaneous with the observation of criminal activity or made under the stress of excitement caused by a startling event, . . . those considerations weigh in favor of the caller's veracity here," the Court reasoned.
Finally, another " indicator of veracity is the caller's use of the 911 emergency system," the Court said, because " [a] 911 call has some features that allow for identifying and tracing callers." Id. The Court arrayed those features of a standard 911 call, including Federal Communications Commission (FCC) regulations that " permit law enforcement to verify important information about the caller." Id. at 1690. " Given [these] technological and regulatory developments," it explained, " a reasonable officer could conclude that a false tipster would think twice before using such a system." Id. " None of this is to suggest that tips in 911 calls are per se reliable," the Court added, but " [t]he caller's use of the 911 system is . . . one of the relevant circumstances that, taken together, justified the officer's reliance on the information reported in the 911 call." Id.
Appellant scarcely challenges the application of these reliability features to his case -- where the caller's report was made just after seeing the suspect pull out a gun " scared the hell out of her" -- except to argue that the caller's use of the 911 system has no relevance here. That is so, he says, because there is no indication that the 911 operator tried to trace the caller or call her back after she hung up or, if she did try, was successful in doing so. Those uncertainties, however, do not change the presumed application of the cited FCC regulations to the District's 911 system. Moreover, although the trial court and the parties undertook no examination of the capabilities of the District's system for tracking 911 callers (understandably, since this case was tried before Prado Navarette ), neither was the local (or California) 911 system closely examined in Prado Navarette. See id. at 1689-90. That record gap gives us no reason here, any more than in Prado Navarette, to discount the fact that " a reasonable officer could conclude that a false tipster would think twice before using such a system." 134 S.Ct. at 1690.
For these reasons, although the issue as in Prado Navarette is a " close" one, id. at 1692, we are satisfied that when the police saw appellant standing in front of a church on Fourth Street (the caller had said he was walking near Fourth and Atlantic down past a school and church) wearing a black skullcap and black windbreaker poncho (the caller had reported him wearing a black hat and " brown windbreaker," " raincoat thing" ), and with no one else visible between the church and the bus stop where appellant was first spotted, they had sufficient, particularized reason to suspect that he was the man referred to in the caller's tip and was carrying a gun. The tip was reliable both " in its assertion of illegality" and " in its tendency to identify a determinate person." J.L., 529 U.S. at 272.
In arguing to the contrary, appellant relies also on our decisions in In re S.B.,
44 A.3d 948 (D.C. 2012), and Plummer v. United States, 983 A.2d 323 (D.C. 2009), both decided before Prado Navarette. S.B. is readily distinguishable on its facts, because while the citizen's tip there was " sufficiently reliable" -- mainly because it " was based on firsthand knowledge," S.B., 44 A.3d at 954 -- it wholly failed the test of " particular[ity] as to the individual stopped."  Id. (citation and internal quotation marks omitted). The broad clothing and locational tip in S.B. enabled the kind of " 'dragnet seizure of . . . youths . . . resembl[ing] a generalized description'" that this court had previously condemned. Id. at 956 (quoting In re A.S., 614 A.2d 534, 540 (D.C. 1992)). That situation differs markedly from this case, where the 911 caller took pains -- even correcting the dispatcher -- to narrow the gun-bearer's location to a specific school and church on Fourth Street near the bus stop where she first saw him wearing a " windbreaker" or " raincoat thing" and dark hat, and no one else was visible between the bus stop and the church. See S.B., 44 A.3d at 955 (distinguishing the affirmance in Nixon v. United States, 870 A.2d 100 (D.C. 2005), where " [t]here was no one else in the area" where the drug users were said to be).
Finally, appellant reads Plummer, supra, as dictating that for reasonable suspicion to ripen here, " the police officers had to have seen something" such as suspicious movements on his part " that confirmed the presence of a gun prior to his seizure." Reply Brief for Appellant at 6. Plummer announced no such fixed rule, as we made clear in S.B., holding that " the tip [there] was sufficiently reliable such that independent corroboration of the illegality was not necessary before making [an investigative] stop. . . . " 44 A.3d at 954. Prado Navarette is to the same effect. See 134 S.Ct. at 1691 (" Nor did the absence of additional suspicious conduct, after the vehicle was first spotted by an officer, dispel the reasonable suspicion of drunk driving" furnished by the citizen's tip.). In Prado Navarette, the Court cited its prior " recogni[tion] that an informant who is proved to tell the truth about some things is more likely to tell the truth about other things, 'including the claim that the object of the tip is engaged in criminal activity.'" Id. at 1688 (citation omitted). Here, too, the caller's tip became " reliable in its assertion of illegality," Plummer, 983 A.2d at 333 (citation omitted), when the police saw appellant alone in the immediate area at the location and dressed in the manner the caller described shortly after she had been frightened seeing him take out a gun.