CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES
The appellant, xxxxxxx xxxxxxx, and the appellee, the United States, are the only parties in this Court and were the only parties in the District Court.
Ruling Under Review
The only issue presented in this appeal is the District Court's denial of the defendant's motion to suppress. After an evidentiary ruling, the District Court, J. Gasch, orally denied the motion to suppress. (Supp 61-76; A. 80-95). The Court later issued a memorandum opinion, which is reported at 758 F. Supp. 756 (1991). (A.8).
This case has not previously been before this Court. There are presently no other related cases pending in this Court of which counsel is aware.
TABLE OF CONTENTS
STATEMENT OF THE CASE 1
A. The Proceedings in the District Court 1
B. The Evidence at the Suppression Hearing 2
I.APPELLANT WAS SEIZED IN VIOLATION OF THE FOURTH AMENDMENT BECAUSE THE ANONYMOUS TIP DID NOT PROVIDE THE REQUISITE DEGREE OF REASONABLE SUSPICION TO JUSTIFY THE FORCIBLE STOP AND FRISK OF APPELLANT 5
A.Standards Governing Seizures on Less Than Probable Cause 5
B.Anonymous Tips 7
C.The Stop and Frisk in this Case 13
II.THE ACTIONS OF THE POLICE AMOUNTED TO AN ARREST WITHOUT PROBABLE CAUSE 19
TABLE OF AUTHORITIES
Adams v. Williams, 407 U.S. 143 (1972)6, 7, 14
*Alabama v. White, 110 S.Ct. 2412 (1990)7, 8, 15
California v. Hodari, 111 S.Ct. 1547 (1991)16
Commonwealth v. Lyons, 564 N.E.2d 390 (Mass. 1990) . . . . . . 12
Florida v. Royer, 460 U.S. 491 (1983)19
Hardy v. Commonwealth, 399 S.E.2d 27 (Va. Ct. App. 1990)13
Johnson v. State, 398 S.E.2d 826 (Ga. Ct. App. 1990)13
Michigan v. Chesternut, 486 U.S. 544 (1988)20
Reid v. Georgia, 448 U.S. 438 (1980)18, 22
Sibron v. New York, 392 U.S. 44 (1968)6
State v. Bedolla, 806 P.2d 588 (N.M. Ct. App. 1991)13
State v. Bullington, 795 P.2d 1294 (Ariz. Ct. App. 1990)13
*Terry v. Ohio, 393 U.S. 1 (1968)5, 6, 16, 17
United States v. Barber, 577 F.2d 628 (8th Cir. 1977)21
United States v. Ceballos, 654 F.2d 177 (2d Cir. 1981) 20, 21
United States v. Lampkin, 464 F.2d 1093 (3d Cir. 1972)20
United States v. Lane, 909 F.2d 895 (6th Cir. 1990)15
United States v. Novak, 870 F.2d 1345 (7th Cir. 1989)20
United States v. Robertson, 833 F.2d 777 (9th Cir. 1987)20, 21
United States v. Watson, 423 U.S. 411 (1976)5
*United States v. White, 648 F.2d 29 (D.C. Cir. 1981)11, 19, 21
Wong Sun v. United States, 371 U.S. 471 (1963)18
Fed. R. Evid. 803(3)14
ISSUES PRESENTED FOR REVIEW
1. Whether an anonymous tip that an individual in a blue and green jacket and a black hat in a certain vicinity had a weapon provides reasonable suspicion for police officers to accost appellant at gunpoint, order him to turn and face a nearby fence, and commence a search of his clothing, merely because appellant was wearing a jacket and hat of the described color?
2. Whether, assuming a valid Terry stop, the actions of the officers transformed the investigatory stop into an arrest, unsupported by probable cause?
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
UNITED STATES OF AMERICA,Appellee
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BRIEF FOR APPELLANT
Jurisdiction of this appeal from the final judgment entered by the District Court is conferred by 28 U.S.C. § 1291. The appellant filed a timely notice of appeal. (A.23).
STATEMENT OF THE CASE
A. The Proceedings in the District Court
On October 25, 1990 a one count indictment was returned charging appellant with possession with intent to distribute a quantity of crack cocaine. (A.7). A motion to suppress was filed by appellant. (A.3). After an evidentiary hearing the District Court orally denied appellant's motion. (A.95). The Court later issued a memorandum opinion. (A.8). Appellant was convicted after a jury trial (A.4-5), and a sentence of 75 months was imposed. (A.20). Appellant filed a timely notice of appeal. (A.23).
B. The Evidence at the Suppression Hearing
On September 26, 1990 an anonymous call was received by a District of Columbia police dispatcher. The caller reported that there was a black male with a gun in the area of First and U Streets N.W. According to the caller, the individual was wearing a green and blue jacket and a black hat. (Supp. 60; A.79). No other information was given. The dispatcher then put out a description for a black male wearing a black hat and a blue and green jacket and in possession of a gun in the area of First and U Street, N.W. (Supp. 6-8; A.25-27).
Officers Sherrie Bonner and Eric Jones were patrolling in this vicinity when they heard this broadcast. (Supp. 8-9; A.27-28). Proceeding to the general area, Officer Bonner and Jones observed the appellant near the intersection of First St. and Rhode Island Ave., N.W. (Supp.8; A.27). The appellant matched the description in that he is a black male and was wearing a blue and green jacket and a dark cap. (Supp. 9; A.28). The officers quickly stopped their unmarked car near the appellant. The officers, dressed in civilian clothes, then rapidly exited their vehicle, identifying themselves as police officers. Officer Bonner had her service revolver in hand and pointed it at the appellant, ordering him to turn around and place his hands on a nearby fence. The officers stood on each side of appellant. (Supp. 24-26; A.43-45). Officer Jones placed his hands on the defendant and spun him around to face to fence. (Supp. 26; A.45). The officers' intent was to quickly frisk the appellant. (Supp. 26; A. 45). The appellant, spread eagled against the fence and looking over his shoulder, attempted to inquire why he was being accosted. (Supp. 28-30, 48; A.47-49, 67). The officers merely responded by telling appellant they were "checking something out" and commanding him to keep his hands on the fence. (Supp. 28-29; A.47-48). The officers did not tell appellant why he was being stopped or inquire whether he had a gun or other weapon. (Supp. 29; A.48). Officer Jones proceeded to "pat down" appellant. As he got to the appellant's jacket he felt a "big bulge" in the right pocket. (Supp. 50-51; A.69-70). Officer Jones testified that he thought it might be a weapon. At this point Officer Jones did not attempt to further determine by feel whether the bulge in the defendant's jacket pocket was consistent with a weapon, but instead simply reached in the appellant's jacket pocket and removed the "bulge" , which turned out to be a large roll of money. (Supp. 51-54; A.70-73). Officer Jones knew when he reached in the appellant's jacket pocket and felt the object, that indeed it was not a gun. Nevertheless, Jones removed the money. (Supp. 53-54; A. 72-73). Examining the money, Jones then asked the appellant "why he was carrying this large lump sum of money." (Supp. 52; A.71). At this point Officer Bonner instructed Jones to continue with the "pat down." (Supp. 52; A.71). Continuing, Jones felt another bulge in the appellant's crotch area. At this point, the appellant knocked the money from Officer's Jones hand and began running. (Supp. 52-53; A.71-72). After a brief chase across Rhode Island Ave., Officers Bonner and Jones caught the appellant. (Supp. 11; A. 30). During the ensuing struggle the officers observed a brown paper bag in the appellant's hand. This bag contained crack cocaine. (Supp. 11-12; A.30-31). The appellant did not have a gun in his possession. These events occurred at approximately 4:30 in the afternoon. (Supp. 37; A. 56).
It was stipulated by the parties that "the original source of the information that the dispatcher provided to the officers...was an anonymous caller who reported a black male with a gun, in the area of First and U, wearing a green and blue jacket and a black hat." (Supp. 60; A.79).
I.APPELLANT WAS SEIZED IN VIOLATION OF THE FOURTH AMENDMENT BECAUSE THE ANONYMOUS TIP DID NOT PROVIDE THE REQUISITE DEGREE OF REASONABLE SUSPICION TO JUSTIFY THE FORCIBLE STOP AND FRISK OF APPELLANT
A. Standards Governing Seizures on Less Than Probable Cause
The Fourth Amendment provides that:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .
Whenever a police officer approaches a citizen and in any way restrains his freedom to leave, that individual has been "seized" within the meaning of the Fourth Amendment. Terry v. Ohio, 393 U.S. 1, 16 (1968). While a police officer may not effectuate an arrest in the absence of probable cause, United States v. Watson, 423 U.S. 411 (1976), the Fourth Amendment does not require the police officer have probable cause in order to investigate a suspicion that criminal activity is afoot. Terry v. Ohio, 393 U.S. at 25-26. Further, where a law enforcement officer can point to "specific and articulable facts", id. at 21, reasonably supporting an inference that an individual may be engaged or about to engage in criminal conduct, it is not unreasonable within the meaning of the Fourth Amendment for the officer to approach and briefly detain that individual for questioning. During the course of such a brief investigatory stop, if the officer reasonably believes that the individual stopped is armed and poses a danger, the officer may under certain circumstances conduct a "carefully limited search of the outer clothing" of the person. Id. at 30. However, before the officer "places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so." Sibron v. New York, 392 U.S. 44, 64 (1968).
In determining the reasonableness of the seizure, courts must focus on the basis for the officer's actions. The actions of the officer must be justified by "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant th[e] intrusion." Terry v. Ohio, 393 U.S. at 21. The police cannot rely on unparticularized suspicion or "hunches". Id. at 27. While the officer in Terry drew his conclusions based on personal observations, informant's tips, especially when adequately corroborated, may form the justification for a brief seizure on less than probable cause. Adams v. Williams, 407 U.S. 143, 151 (1972). However, when the officer does act on the basis of a information received from another, or a "tip", the reviewing court must focus on the reliability of the tip. Id. While some tips, such as that of a victim of a street crime specifically describing his assailant or that of a credible informant warning of a specific impending crime, may warrant a prompt investigatory stop without further corroboration, other tips may be so completely lacking in indicia of reliability as to "warrant no police response or require further investigation before a forcible stop of a suspect would be authorized." Id.
B. Anonymous Tips
In Terry the specific and articulable facts justifying the stop were based upon the officer's own observations. In Adams v. Williams, 407 U.S. 143 (1972) the Supreme Court addressed the situation where the stop was based not entirely upon the officer's own observations but rather upon information received from a informant who was personally known to the officer and who had supplied reliable information in the past. Upholding the stop in Adams, the Court noted that the situation presented there was "a stronger case than obtained in the case of an anonymous telephone tip." Id. at 147. The issue as to the justification for a Terry stop based on anonymous tips was left open until the recent decision in Alabama v. White, 110 S.Ct. 2412 (1990).
In Alabama v. White, infra, the Supreme Court addressed the issue which had divided the lower courts since Terry v. Ohio, supra, and Adams v. Williams, supra, and which is present in this case, namely the extent to which police officers can rely on anonymous tips as a basis for so-called "Terry stops". In White the police received an anonymous telephone tip stating that the defendant, Vanessa White, would be leaving a specific address at a particular time in a brown Plymouth station wagon with a missing right tail light. The tip further indicated that Ms. White would be heading to a certain location and would be in possession of an ounce of cocaine. The officer receiving the tip drove to the specified address where, at or near the stated time, Ms. White left the described location in the described Plymouth station wagon. The officer followed Ms. White's car for approximately four (4) miles as it was being driven on the most direct route to the stated destination. Just short of that destination the officer stopped Ms. White and sought consent to search the vehicle. Inside was an attache case which was found to contain cocaine, just as stated by the tipster.
The Court framed the issue as "whether the tip, as corroborated by independent police work, exhibited sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop." Alabama v. White, 110 S.Ct. at 2414. While recognizing that the reasonable suspicion required to justify an investigatory stop may be less reliable information than that required for probable cause, nonetheless the Court noted that the informer's "reliability" and "basis of knowledge" are still relevant in assessing the existence of reasonable suspicion. Id. at 2414. "Reasonable suspicion, like probable cause, is dependent both upon the content of information possessed by the police and its degree of reliability." Id. at 2416. Thus, a tip with a "relatively low degree of reliability" requires more corroborative information than a tip otherwise considered more reliable. Id.
After noting that generally an anonymous tip will rarely, in and of itself, satisfy the reliability criteria, inasmuch as such tips alone "seldom demonstrate[s] the informant's basis of knowledge or veracity", id. at 2415, the Court observed that "a tip such as this one, standing alone, would not `warrant a man of reasonable caution in the belief' that a stop was appropriate." Id. at 2416 (citation omitted).
After holding that the tip in White, standing alone, would not justify a stop, the Court went on to analyze whether independent police investigation and observations sufficiently corroborated the tip to establish the requisite degree of suspicion. The Court held that the tip was sufficiently corroborated because the woman did leave the described location, within the time frame given by the tipster, got in the described car, and proceeded to the described destination. In holding that the independent corroboration by the police imparted the requisite degree of reliability the Court relied heavily on the fact that the anonymous tip contained not only a range of details that could easily have been obtained by anyone, such as the address of Ms. White and a description of her car, but also, more importantly, the fact that the caller was able to predict Ms. White's "future behavior" id at 2417 (emphasis in original), a fact which demonstrated the caller's intimate familiarity with the activities of Ms. White, thus making it more likely that the tip was reliable.
The 6-3 majority in White nonetheless noted that the facts presented a "close case" as to the justification for a investigatory stop.
In contrast, the quantum of information given by the anonymous caller in this case, as well as the limited independent corroboration, was far less than that found in White and, applying the reasoning of White, insufficient to justify the forcible stop of appellant. The anonymous telephone caller here merely gave the colors of a jacket that had allegedly been worn by an individual with a gun in the vicinity of 1st and U Streets. The tip did not give any information concerning the reliability of the caller nor any basis for inferring the accuracy of his accusation. Unlike White, the content of the tip did not lead to any inference that the caller was in possession of any "inside information" or in possession of any "special familiarity with [defendant's] affairs". Id. at 2417. Likewise, unlike White, the tip did not contain any information demonstrating any familiarity with the defendant's "future behavior" or movements which would lead to an inference of reliable information. Again, unlike White, the content of this tip contained nothing other than details (the color of the coat and hat) that would be "easily obtained facts and conditions existing at the time of the tip", id. at 2417; in other words, any individual who observed another person walking down the street could simply make an anonymous call to the police (for which there would be no liability on the caller's part) and report that a person in described clothing had certain contraband on him. Here, there is nothing other than the barest of details and the fact that the police officers did see an individual in a blue and green coat in a dark colored hat in the vicinity did not supply reasonable suspicion or probable cause.
In addition, unlike the defendant in Alabama v. White, who was merely stopped in her car by the police and asked for permission to search, here the encounter was much more coercive, with two police officers jumping out of an unmarked car, one at least with her gun drawn, and ordering an individual up against the fence, spread eagled, and then conducting a forcible frisk.
The leading case in this Circuit on the propriety of a Terry stop based on an anonymous tip, is United States v. White, 648 F.2d 29 (D.C. Cir. 1981). There, a narcotics officer received an anonymous telephone tip indicating that a young black man, known as "Nicky", approximately nineteen to twenty years old, and wearing certain described clothing had parked a described Ford car at Number 1, 15th Street, N.E. and entered a different car, which was also described by make, color, and license tag. The caller further stated that the young black man, "Nicky", and the driver of the second car, an Oldsmobile, were involved in drug trafficking and would be returning in the Oldsmobile with drugs. The narcotics officer confirmed the presence of the Ford automobile at the described location and waited for the return of the Oldsmobile. Within a few minutes the officer spotted and stopped the Oldsmobile. Identifying themselves the officers unholstered their guns and ordered the occupants to exit the car.
Recognizing that "the question whether an anonymous tip corroborated only by observation of innocent details justifies a Terry stop is a live and disputed one", id. at 43, the Court upheld the stop in that case because of the detailed specificity as to the time and place of the ongoing drug transaction, and information concerning the modus operandi of the participants, reasoning, as did the Supreme Court later in Alabama v. White, supra, that such detailed knowledge was indicative of insider information, especially when extensively verified. However, the Court recognized that the factual pattern presented represented "the outermost perimeters of the Terry doctrine", United States v. White, 648 F.2d at 43, and that "other fact situations may produce different results." Id. at 46.
As in Alabama v. White, supra, the stop and frisk on the basis of the anonymous tip in this case was beyond the "outermost perimeters" circumscribed by this Court in United States v. White, supra. The anonymous tip received in this case was not self-authenticating in the sense of providing detailed "insider information" such as that found in United States v. White, or in the sense of describing "future behavior", such as that present in Alabama v. White. Further, to the extent that this Court's decision in United States v. White is inconsistent with the Alabama v. White, the latter is, of course, controlling.
In light of Alabama v. White, supra, several state cases have invalidated stops based on anonymous tips where the crucial element of predictive information is not present. See Commonwealth v. Lyons, 564 N.E.2d 390, 393 (Mass. 1990) ("no future behavior was verified. The only facts corroborated were descriptive obvious details . . . that did not bespeak the kind of "inside information crucial to the holding in White."); Johnson v. State, 398 S.E. 2d 826, 827 (Ga. Ct. App. 1990) ("The Supreme Court in White made clear that for an anonymous tip to provide a basis for articulable suspicion for police to make an investigatory stop, the tip must provide some basis for predicting the future behavior of the subject of suspicion"); State v. Bullington, 795 P.2d 1294, 1296 (Ariz. Ct. App. 1990) ("The tip in this case, unlike that in either White or Gates involved details only as to existing facts; there were no details as to appellee's future actions"); Hardy v. Commonwealth, 399 S.E.2d 27, 28 (Va. Ct. App. 1990) ("Although Officer Dunn verified the description, this was nothing more than innocent details which any casual observer could have given. None of the information was predictive. None bolstered the informant's reliability by revealing inner-knowledge of Hardy's activities. Anyone who saw Hardy on Hull Street that day could have given the same description of him"); State v. Bedolla, 806 P.2d 588, 591-92 (N.M. Ct. App. 1991) ("The function of anonymous tips, however, is to direct police investigative activities, not to substitute for them." Held, degree of detail given in tip not sufficient to warrant inference of reliability under White).
C. The Stop and Frisk in this Case
The anonymous tip received by the dispatcher indicated only that a black male, wearing a green and blue jacket and a black hat in the vicinity of First and U Streets, N.W., was in possession of a gun. Unlike the caller in Alabama v. White, supra, or United States v. White, supra, the tip related no detailed information as to future behavior or inside information relating to the described individual that would lead one reasonably to conclude that the informant was reliable. There was nothing to indicate the basis of the informant's information. For instance, the informant did not say that he had seen the weapon or otherwise relate any other basis for his statement. The informant did not indicate where the weapon was located, a fact which if related may have led to an inference that the informant possessed some particularized knowledge. See Adams v. Williams, supra (informant, known to officer, informed him that there was a man sitting in a nearby car with a gun in his waist). There was no indication that the informant was a victim, id. at 147, or was speaking in an excited manner when reporting the information. See Fed. R. Evid. 803(3) (excited utterance as exception to hearsay rule as circumstantial guarantee of trustworthiness provided by the stressful circumstances in which statement related). Finally, as inherent in the use of the terminology of "anonymous" tip, there was no information from which either the dispatcher or Officers Bonner or Jones could conclude that the informant was a reliable person. Unlike the informant in Adams v. Williams, supra, the identity of the informant was unknown and therefore no one could know of any prior dealings with him or her.
While an anonymous tip such as that present in this case may not, standing alone, provide sufficient grounds for a non-consensual seizure, the tip when sufficiently corroborated by the officer's own observations may then justify a Terry stop. See United States v. Lane, 909 F.2d 895 (6th Cir. 1990) (no need to determine whether anonymous tip was sufficient under Alabama v. White, as defendant's flight upon approach of the officers supplied reasonable suspicion when considered with the tip). Here, however the only observation of Officers Bonner and Jones prior to exiting their unmarked vehicle with at least one weapon drawn and aimed and ordering the appellant against the fence was that of a black male with the same color jacket and hat near the corner of First and Rhode Island Ave., N.W. There is no indication that either Bonner or Jones observed the appellant acting in any unusual or suspicious manner. In fact, the officers did not take the time to do any minimal observation or investigation to attempt to corroborate the accuracy of the information or whether the black man with the green and blue jacket and black hat (no further information was given as to the type of jacket or hat) was indeed the same person before taking the actions they did. Although the appellant did attempt to flee, this was later in the encounter after the stop had been effectuated, the intrusive frisk commenced, and the money found. Thus, this case is unlike Lane, where the defendant fled upon seeing the officers and where such flight could thus be considered as contributing to the quantum of information justifying the stop. See California v. Hodari, 111 S.Ct. 1547 (1991).
In addition to the unjustified forcible seizure of appellant, Officers Bonner and Jones exceeded the permissible boundaries of the Fourth Amendment by immediately, in effect, searching the appellant. While the terms "stop" and "frisk" are often used in tandem, Terry does not automatically sanction an intrusive frisking or patting down even if a citizen is lawfully detained for brief, investigatory questioning. Rejecting any characterization of forcing a citizen to "stand helpless, facing a wall with his hands raised" as a "petty indignity", 393 U.S. at 17, Terry nevertheless held that where the officer reasonably believes the individual is armed and dangerous he may conduct a protective frisk. Id. at 24. However, such actions, characterized as an "intrusion upon cherished personal security", and an "annoying, frightening, and perhaps humiliating experience", id. at 24-25, are not justified merely on hunch or speculation. Terry made it clear that the officer must engage in at least minimal inquiry before engaging in a further intrusion subsequent to the stop.
We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.
Id. at 30.
Here, the officers made no attempt to investigate or make any inquiry before ordering the appellant against the fence at gunpoint. No inquiry was made of appellant. His repeated questions and protestations went unanswered. Brute force was substituted for "reasonable inquiry." Id.
Further, as noted in Terry, "the manner in which the seizure and search were conducted is, of course, as vital a part of the inquiry as whether they were warranted at all." Id. at 28. Again, the actions of the officers went beyond the permissible bounds. Officer Jones did not limit himself to a brief, protective frisking or pat-down for weapons. Indeed, when Jones felt a "bulge" in the appellant's jacket and reached inside to feel the object, he removed it despite the fact that he knew the object (money) was not a weapon. Jones then began to examine the money and questioned appellant as to why he was carrying such a large amount of money. The removal of the money from appellant's jacket pocket and subsequent questioning as to its source exceeded any arguable justification for the initial stop or protective frisk, as the money was unrelated to either the proffered reason for the stop or protection of the officers.
Only after officer Bonner remonstrated did officer Jones recommence the frisk. As Jones felt what appeared to be another bulge in the appellant's crotch area, appellant broke and ran. It is not contended that the officers did not have the right at this point to pursue and forcibly detain appellant. Indeed, as stated above, if appellant had initially run upon seeing the officers, before the forcible detention, appellant's argument would be much weaker, as the flight itself could be considered in the articulable facts available to the officers to justify the stop. However, the flight of the appellant at the time it did occur, after the illegal seizure and subsequent actions of the officers, removes this factor from consideration, as this flight, as well as the evidence that was subsequently seized from appellant, was the fruit of the initial illegality. Wong Sun v. United States, 371 U.S. 471 (1963); see also Reid v. Georgia, 448 U.S. 438 (1980) (fact that defendant attempted to run subsequent to his illegal seizure did not erase taint of the Fourth Amendment violation).
II.THE ACTIONS OF THE POLICE AMOUNTED TO AN ARREST WITHOUT PROBABLE CAUSE
Even if this Court were to find that the anonymous tip provided reasonable suspicion for a brief Terry stop, the actions of officers Bonner and Jones went far beyond those authorized under the circumstances and instead transformed the encounter into an arrest that needed to be supported by probable cause. The actions of the officers in exiting their car, pointing a gun at appellant and brusquely ordering him to turn around and place his hands on a nearby fence, while physically placing their hands on him and refusing to provide any information in response to his repeated entreaties is the type of conduct associated more with an arrest than a limited stop for investigatory purposes.
Even when a limited investigatory stop is initially justified under a Terry rationale, circumstances may transform the stop into an arrest where there is a "more serious intrusion on [his] personal liberty than is allowable on mere suspicion of criminal activity." Florida v. Royer, 460 U.S. 491, 502 (1983) (although stop initially justified under Terry, circumstances amounted to an arrest without probable cause); United States v. White, 648 F.2d 29 (D.C. Cir. 1981). The actions of the officers as well as the state of mind likely engendered in the suspect by such actions are all relevant. Id. at 33-34 (whether an investigatory stop constitutes an arrest is "a determination made after examining both the objective circumstances and the subjective feeling those circumstances are likely to evoke."); United States v. Robertson, 833 F.2d 777, 780 (9th Cir. 1987) ("the ultimate question is whether in view of all the circumstances, a reasonable person would believe himself to be under arrest". See also Michigan v. Chesternut, 486 U.S. 544, 554 (1988) (whether a person has been "seized" within meaning of Fourth Amendment dependent on whether reasonable person would believe he was free to leave).
Although each case turns on its own facts, several decisions have held that actions similar to those found here supported a finding that the permissible bounds of a Terry stop had been exceeded and that an arrest had actually occurred. United States v. Novak, 870 F.2d 1345, 1353 (7th Cir. 1989) (Court emphasizes that stop could have been accomplished without brandishing guns and that officers could have "reach[ed] a clearer understanding with [defendant] about the nature of the stop"); United States v. Robertson, supra (defendant leaving house encircled by officers who gave her orders at gunpoint; cites numerous other cases); United States v. Ceballos, 654 F.2d 177 (2d Cir. 1981) (defendant's car surrounded by police vehicles and gun aimed in general area of defendant); United States v. Lampkin, 464 F.2d 1093 (3d Cir. 1972) (stop not investigatory where officers approached defendant at gunpoint and detained him prior to questioning).
The authorities seem to agree that the amount and type of force used to detain the suspect is highly relevant on the question of whether there has been merely an investigatory stop or an arrest. United States v. Robertson, 833 F.2d at 780; United States v. Ceballos, 654 F.2d at 183. This Court, while recognizing the significance of the "amount of force used to effectuate the stop", has also listed other factors to be considered including the officer's intent in stopping the citizen, the impression conveyed to the citizen as to whether he was in custody or only briefly detained for questioning, the length of the stop, the questions, if any, asked, and the extent of the search, if any, made." United States v. White, 654 F.2d at 34.
Application of these principles leads to a conclusion that the actions of officers Bonner and Jones exceeded the bounds of a permissible Terry stop. Approaching appellant with at least one gun aimed at him, coupled with immediately surrounding him and ordering him to turn around and face the fence with hands raised, reasonably conveyed the impression of arrest. The forceful nature of the encounter was emphasized, moreover, by Officer Jones' physical contact with appellant. As noted in United States v. Barber, 577 F.2d 628, 632 (8th Cir. 1977), cited approvingly by this Court in United States v. White, 648 F.2d at 34 n.25, the fact that no questions were asked of appellant (compounded here by the refusal to answer appellant's questions) is indicative more of an arrest than an investigatory stop. In addition, another factor mentioned in White, that of the extent of the search, is supportive of a finding of arrest, given officer Jones' removal of the money which he testified he knew upon touch was not a weapon. Also, unlike the situation in White, this arrest occurred in broad daylight in the middle of the afternoon. Here, also unlike White, the tip contained no details implying its accuracy and was not corroborated to the extent present in White. In light of the above, the actions of the officers constituted an arrest within the meaning of the Fourth Amendment. Because this arrest was not supported by probable cause, the fruits thereof should have been suppressed.
The appellant submits that this Court should find as a matter of law, see Reid v. Georgia, 448 U.S. 438, 441 (1980), that the anonymous tip in this case, relating only the barest of innocuous details which, in themselves, provide no inference that the informant possessed "insider information", and which were corroborated only by observation of such innocuous details, does not provide reasonable suspicion for the forcible seizure and physical confrontation of a citizen at gunpoint by a police officer. Accordingly, this Court should hold that the District Court erred in not suppressing the evidence seized from the appellant as a direct consequence of this illegal stop. Alternatively, if the Court were to find that reasonable grounds existed for a Terry stop, the Court should find that the manner of execution transformed the stop into an arrest, which was not supported by probable cause.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that two copies of the foregoing Brief For Appellant and one copy of the accompanying Record Excerpts has been mailed, first class, postage prepaid to the United States Attorney's Office, John R. Fisher, Appellate Division, Room 4229, 555 Fourth Street, N.W., Washington, D.C. 20001 this 10th day of October, 1991.
Robert L. Tucker