ORAL ARGUMENT SCHEDULED FOR NOVEMBER 3, 2000



UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT





NO. xxxxxxxx





BRIEF OF APPELLANT



UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



xxxxxxxxxxxxxxx, Defendant-Appellant.





APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA













A.J. KRAMER

FEDERAL PUBLIC DEFENDER



BEVERLY G. DYER

ASSISTANT FEDERAL PUBLIC DEFENDER

Counsel for Appellant

625 Indiana Avenue, Suite 550

Washington, D.C. 20004



(202) 208-7500



District Court

Cr. No.



CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES

Pursuant to D.C. Circuit Rule 28(a)(1), appellant Terrell L. xxxxxxx hereby states as follows:

A. Parties and Amici: This appeal arises from a criminal prosecution of defendant-appellant Terrell L. xxxxxxx by plaintiff-appellee, the United States of America. There are no intervenors or amici.

B. Rulings Under Review: In this appeal, Mr. xxxxxxx seeks review of the ruling by the district court (the Honorable Paul L. Friedman) denying his motion to suppress evidence and statements, (6/14/99 Tr. 67-76), and of the sentence imposed by the district court, enhancing Mr. xxxxxxx's sentence by two levels under the Sentencing Guidelines for possession of a stolen firearm pursuant to U.S.S.G. 2K2.1(b)(4). (9/1/99 Tr. 11-12).

C. Related Cases: There are no related cases. This case has not previously been before this Court.

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

NO. 99-3120

BRIEF OF APPELLANT



UNITED STATES OF AMERICA, Plaintiff-Appellee,





v.





TERRELL L. xxxxxxx, Defendant-Appellant.





JURISDICTION



This is an appeal from a sentence in a criminal case imposed on September 1, 1999. The district court had jurisdiction pursuant to 18 U.S.C. 3231. This Court has jurisdiction pursuant to 28 U.S.C. 1291 and 18 U.S.C. 3742(a)(1) and (2). Appellant filed a timely notice of appeal on September 3, 1999.



STATUTES AND RULES

Pursuant to D.C. Cir. Rule 28(a)(5), relevant statutes and Sentencing Guidelines are included in the addendum to this brief.

ISSUES PRESENTED FOR REVIEW



1. Whether police officers are prohibited by the Fourth Amendment from stopping and searching a person pursuant to Terry v. Ohio, 392 U.S. 1 (1968), and Florida v. J.L., 120 S. Ct. 1375 (2000), when the officers have no basis for reasonable suspicion except a face-to-face anonymous tip, no information about the reliability of the information or the veracity or identity of the informant, no information predicting future behavior, and no independent corroboration of criminal activity.

2. Whether the district court clearly erred in enhancing defendant's sentence for possession of a stolen weapon, pursuant to U.S.S.G. 2K2.1(b)(4), based on a report issued by the National Crime Information Center ("NCIC") that did not show the weapon recovered in this case to be stolen.

STATEMENT OF THE CASE

    1. Nature of the Case, Course of Proceedings, and Disposition in the Court Below

On April 22, 1999, a federal grand jury returned an indictment charging defendant Terrell L. xxxxxxx with possession of a firearm by a convicted felon in violation of 18 U.S.C. 922(g). (App. 9). (1) Mr. xxxxxxx moved to suppress the evidence against him. The district court denied that motion at a suppression hearing held on June 14, 1999. (6/14/99 Tr. 67-76). On June 24, 1999, Mr. xxxxxxx entered a conditional plea of guilty, reserving the right to appeal his suppression motion. (App. 13). On September 1, 1999, the district court sentenced Mr. xxxxxxx to 37 months imprisonment, three years supervised release, and a special assessment of $100.00. (App. 20-25). Mr. xxxxxxx filed a notice of appeal on September 3, 1999. (App. 26). (2)

    1. Statement of Facts
      1. The Stop and Search and Suppression Hearing

On April 3, 1999, at 3:20 a.m., on Half Street between K and L Streets, S.E., Metropolitan Police Officer John Holloway was approached by an unidentified man in a car who stated that he had just seen a person with a gun. (6/14/99 Tr. 6-7, 18, 20). (3) Officer Holloway recalled:

We were standing outside of a car. We had just finished a traffic stop and he pulled up and said I just saw a guy get out of a vehicle, he described as an SU type vehicle, a jeep or a tow. He didn't know what kind it was. He walked out of the vehicle and he had a gun in his hand.



(6/14/99 Tr. 8; see also 4/7/99 Tr. 6). The informant told Officer Holloway that the person with the gun was located in the parking lot of the Wendy's Restaurant at the intersection of South Capital and I Streets, S.E., and that he was a "[y]oung black male" wearing "dark pants" and "a bright orange shirt." (6/14/99 Tr. at 8). (4)

The unknown informant was "a middle-aged African American male." (6/14/99 Tr. 7). This was the "best" description the officer could give of the informant. Id. Officer Holloway had never seen the informant before and knew nothing about him or his reputation for truthfulness. (6/14/99 Tr. 19; 4/7/99 Tr. 9-10). The officer had "no information about this person whatsoever." (6/14/99 Tr. 20). Officer Holloway did not ask the informant for his name, telephone number or address. Id. The officer did not provide any testimony regarding the type of car used by the informant, the state in which it was licensed, or the license plate number. When asked about the informant's tone of voice, Officer Holloway stated that he spoke "with some anxiety in his voice. He was a bit excited. I wouldn't say hysterical, but he was excited." (6/14/99 Tr. 8). Officer Holloway had the impression the information he received was reliable. (6/14/99 Tr. 9). He did not testify to any facts in support of that belief.

The neighborhood around the Wendy's restaurant includes fast food restaurants, gas stations and eight or nine nightclubs in an area of two square blocks. (6/14/99 Tr. 7, 17). The drive-through window at the Wendy's Restaurant closes at 3:00 a.m. and a McDonald's restaurant across the street is open 24 hours a day. (6/14/99 Tr. 38). At 3:00 a.m., a lot of people come out of the nightclubs and congregate in the Wendy's parking lot, which "is always very full." (6/14/99 Tr. 38). April 3, 1999 was a Saturday morning. (6/14/99 Tr. 17). Officer Holloway testified that "[i]t's a very well populated area. There are a lot of problems down there." (6/14/99 Tr. 7). He did not identify the type of problems in the neighborhood.

Officer Holloway's testimony at the suppression hearing differed from his preliminary hearing testimony regarding the vehicle. At the suppression hearing, Officer Holloway testified that the informant described the vehicle as "a Jimmy or a Blazer." (6/14/99 Tr. 20). The officer stated: "I think [the informant's] exact words were he got out of a Jimmy or a Blazer and he walked by his car and he had a gun in his hand." (6/14/99 Tr. 21). In contrast, at the preliminary hearing, Officer Holloway testified: "The vehicle that the guy told us, he said it was an SUV type vehicle, he said a Suburban or a Jeep or something like that, a Jeep Cherokee I think is what his exact words were." (4/7/99 Tr. 10).

At the suppression hearing Officer Holloway testified that as he was driving into the Wendy's parking lot, he saw a "dark colored SUV . . . exiting out when I was pulling in." (6/14/99 Tr. 9). He could not identify the type of SUV but thought it was a Jeep or Blazer. Id. He did not stop the vehicle, which drove away, and he did not look closely at who was inside the vehicle. (6/14/99 Tr. 9, 22-23). In contrast, at the preliminary hearing, Officer Holloway's testimony was that "[w]e saw a, I believe it's a Suburban as we entered the parking lot on the K Street side." (4/7/99 Tr. 10). The officer drove past the vehicle, did not observe whether it was occupied or not, and did not indicate that it was moving. (4/7/99 Tr. 10-11).

After driving into the Wendy's parking lot, which was about 100 yards from where the officers spoke with the informant, Officer Holloway saw Mr. xxxxxxx, wearing a bright orange shirt, standing with his back against a fence line. (6/14/99 Tr. 9-11). Mr. xxxxxxx was looking around the fence and east on I street towards the Mirage nightclub, about 200 yards away. (6/14/99 Tr. 10-11, 23). People were coming out of the nightclub. (6/14/99 Tr. 17). Officer Holloway did not see any other people standing in the parking lot, though a car was parked 20 yards away with two people in it. (6/14/99 Tr. 11). When asked what he thought when he saw Mr. xxxxxxx, Officer Holloway stated: "It looked like he was going to shoot someone. Well, it had the appearance that he was looking for somebody or trying to keep his position concealed." Id. The officer did not see any evidence that Mr. xxxxxxx had a weapon. (6/14/99 Tr. 27).

Officer Holloway testified that he had no basis for believing Mr. xxxxxxx had a gun other than the anonymous informant's tip. (6/14/99 Tr. 31; 4/7/99 Tr. 16).

Officer Holloway parked his car, drew his weapon and quickly walked towards Mr. xxxxxxx. (6/14/99 Tr. 12). Mr. xxxxxxx did not turn around and see the officer, who was approaching "hastily" in full uniform with his gun drawn, until the officer was five to seven feet away. Id. When he saw the officer, Mr. xxxxxxx took a few steps away. Id. (5) The officer told Mr. xxxxxxx to stop and raise his hands and Mr. xxxxxxx complied. Id. By the time the officer instructed Mr. xxxxxxx to raise his hands, the officer had his hand on the back of Mr. xxxxxxx's shirt. (6/14/99 Tr. 24). At that time, Mr. xxxxxxx made a statement to the effect of "you got me." (6/14/99 Tr. 13, 32). The officer told Mr. xxxxxxx to put his hands behind his head and secured his hands in that position, then told Mr. xxxxxxx to go to his knees and helped him to the ground. (6/14/99 Tr. 13). Mr. xxxxxxx cooperated with the officer's instructions and went all the way to the ground to his stomach. (6/14/99 Tr. 13, 30-31). As Mr. xxxxxxx was going to the ground, the officer holstered his own weapon, held Mr. xxxxxxx's hands over his head and frisked the front of Mr. xxxxxxx's person, feeling a weapon in the front of the waist of Mr. xxxxxxx's pants. (6/14/99 Tr. 13, 35). By the time Mr. xxxxxxx was on the ground, Officer Pope had arrived and both officers handcuffed Mr. xxxxxxx and retrieved a Llama nine millimeter semiautomatic pistol from Mr. xxxxxxx's waistband. (6/14/99 Tr. 13). The pistol was loaded with the trigger in the cocked position. (6/14/99 Tr. 13-14). After he was handcuffed and the pistol had been retrieved, Mr. xxxxxxx made a statement that he had just gotten out of prison. The officer asked him what he was imprisoned for and Mr. xxxxxxx stated that it was a gun charge and that he had a problem with guns. (6/14/99 Tr. 14, 32-34). Mr. xxxxxxx was not given any Miranda warnings until he was taken to the police station. (6/14/99 Tr. 34).

Following the testimony at the suppression hearing, Mr. xxxxxxx argued that there was no basis for finding the information received from the anonymous informant to be reliable and that the informant's tip did not establish reasonable suspicion to stop Mr. xxxxxxx. (6/14/99 Tr. 50). Mr. xxxxxxx also argued that the arrest occurred at the time the officer ordered Mr. xxxxxxx not to move, that the officers did not have probable cause to arrest him at that time, that the statements should be suppressed as fruit of an unlawful arrest and that the government improperly interrogated him after his arrest without providing Miranda warnings. (6/14/99 Tr. 48-56). In response, citing United States v. Clipper, 973 F.2d 944 (D.C. Cir. 1992), the government argued that the police had both probable cause and reasonable suspicion to stop and search Mr. xxxxxxx. (6/14/99 Tr. 57-62). The government also argued that the statements were made voluntarily and not in response to interrogation. (6/14/99 Tr. 62-63).

The district court denied the motion to suppress in an oral ruling, stating that:

[I]t seems to me that it's quite clear from the [S]upreme Court's decisions in [Adams v. Williams, 407 U.S. 143 (1972), Illinois v. Gates, 462 U.S. 213 (1983), and Alabama v. White, 496 U.S. 325 (1990)] and the D.C. Circuit's opinion in [Clipper] and some earlier cases of this Circuit as well, [United States v. McClinnhan, 660 F.2d 500 (D.C. Cir. 1981)] that what the officer did here was perfectly appropriate.



First of all, an 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 regardless of whether the officer specifically said and I found corroboration in the following, 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 Wendy's parking lot at 3:20 in the morning. And he's got a gun.



Within minutes of that tip the officers got to the parking lot. They see an SUV leaving. And the tipster said he was getting out of an SUV. They see an SUV leaving. They see a man in the parking lot. They see only one man in the parking lot. They see that he's wearing a bright orange shirt and blue jeans or dark pants.

It seems to me under the cases that I just mentioned that that then gives them at least reasonable suspicion to approach the individual and to detain him briefly and to frisk him out of concern for their own safety and because they were specifically told that he could have a gun.

(6/14/99 Tr. 72-73).

      1. The NCIC Report and Sentencing Proceedings

A PD-163 police report signed by Officer Pope stated:

Wales/NCIC checked showed no record for D-1 to carry pistol. Weapon [serial] number check revealed that the handgun was reported stolen from Martin County, FL on 10-28-98 ORI CA0331320.



(App. 11). The statement of facts attached to the criminal complaint stated "[f]urther investigation revealed that the gun had been reported stolen in Martin County, Florida." (App. 8). At the preliminary hearing, Officer Holloway testified that "[a] WALES and NCIC check was done [on the weapon] and it was traced to being stolen out of I believe it's Martin County, Florida." (4/7/99 Tr. 9).

The presentence report stated that "[a] check of the weapon's serial number revealed that the weapon was reported stolen from Martin County, Florida on October 28, 1998" and recommended a two-level enhancement for possession of a stolen weapon pursuant to U.S.S.G. 2K2.1(b)(4). PSR 3-4, 5 and 12. Mr. xxxxxxx objected to this enhancement on the ground that insufficient evidence had been presented to show that the weapon was stolen. (App. 19). In response to that objection, the probation officer noted that "[i]nformation in the Criminal Complaint stated that the MPD investigation revealed the gun had been reported stolen, as detailed in paragraph 5 of the report. Therefore, this section has not been revised . . . ." (PSR 14).

At the sentencing hearing, Mr. xxxxxxx restated his objection. (9/1/99 Tr. 3). In response, the government cited the PD-163 and Officer Holloway's testimony at the preliminary hearing, which referred to the PD-163 and National Crime Information Center ("NCIC") check. (9/1/99 Tr. 4-5). The government also produced the NCIC computer printout. (App. 17). (6)

The district court found that the government had met its burden of proving by a preponderance of the evidence that the weapon was stolen based on three pieces of evidence: the PD-163, Officer Holloway's testimony at the preliminary hearing, and the NCIC report itself. (9/1/99 Tr. 11-12). The court applied the two-level enhancement for possession of a stolen weapon pursuant to U.S.S.G. 2K2.1(b)(4), which increased the base offense level to an adjusted level of 16. (9/1/99 Tr. 12). The court then reduced the sentence by three levels for acceptance of responsibility, resulting in a total offense level of 13. (Id. at 14). Mr. xxxxxxx had a criminal history category of V and was subject to a Guidelines range of 30 to 37 months. (Id. at 16). The court sentenced Mr. xxxxxxx to 37 months imprisonment. (Id. at 25).


SUMMARY OF ARGUMENT

The anonymous tip provided in this case did not establish reasonable suspicion to stop and search Mr. xxxxxxx. The informant did not provide any information that would not have been readily observable to a bystander observing an innocent person, other than the allegation that Mr. xxxxxxx had a gun. The informant could have intended to harass Mr. xxxxxxx. He provided no predictive information. The police officer had no knowledge of the informant's identity, could not describe the informant other than the fact that he was a middle-aged African American male, could not describe his car, and had no basis for determining the reliability of the information he provided. The police officer cited no articulable facts other than the tip as a basis for stopping and searching Mr. xxxxxxx. Thus, the officer's decision to seize Mr. xxxxxxx was based solely on the tip and the corroboration of innocent details such as Mr. xxxxxxx's location and clothing. Similarly, the district court upheld the search based only on the tip and corroboration of innocent details.

Pursuant to Florida v. J.L., 120 S. Ct. 1375 (2000), the Fourth Amendment prohibits the officer's stop and search because it was based solely on an anonymous tip with no "indicia of reliability" and no corroboration of the informant's assertion of illegality. No other facts in the record establish reasonable suspicion. Although the search occurred at approximately 3:20 a.m. on a Saturday morning, the neighborhood, which included eight or nine nightclubs, is highly populated at that time and the record does not indicate that it is a high-crime neighborhood. Accordingly, in the totality of the circumstances here, the district court erred in finding reasonable suspicion to stop and search Mr. xxxxxxx and its decision must be reversed or remanded.

In addition, the district court erred in relying on insufficient evidence to enhance Mr. xxxxxxx's sentence by two levels for possession of a stolen weapon. The only evidence before the court was an NCIC report and police interpretation of that report. The report was incomplete and combines partial listings of two different weapons, neither of which is the weapon recovered from Mr. xxxxxxx, a Llama with the serial number 46032. The police interpretation of the NCIC report combines certain facts from part of a listing originating in California (such as a number identifying the origin and date) and other facts from part of a Florida listing (such as the location). Nothing in the report identifies either weapon as a Llama. Therefore, the district court clearly erred by relying on the NCIC report to enhance Mr. xxxxxxx's sentence.

ARGUMENT

  1. THE FOURTH AMENDMENT REQUIRES THE SUPPRESSION OF EVIDENCE AND STATEMENTS AGAINST MR. xxxxxxx


    1. Standard of Review


The district court's ruling that the police had reasonable suspicion to detain Mr. xxxxxxx should be reviewed de novo. Ornelas v. United States, 517 U.S. 690, 699 (1996). The district court's factual findings should be reviewed for clear error. Id.

    1. The Anonymous Tip Did Not Provide Reasonable Suspicion to Detain and Search Mr. xxxxxxx
  1.  

Under the Fourth Amendment, police officers are prohibited from stopping or searching an individual without "specific and articulable facts" supporting a reasonable inference that the individual has committed or may commit a crime. Terry v. Ohio, 392 U.S. 1, 21 (1968). Reasonable suspicion to conduct a Terry stop "is dependent upon both the content of information possessed by police and its degree of reliability." Alabama v. White, 496 U.S. 325, 330 (1990). Both the quantity and quality of information is assessed under the "totality of the circumstances." Id. (citing United States v. Cortez, 449 U.S. 411, 417 (1981)); see also Illinois v. Gates, 462 U.S. 213, 238 (1983).

In many circumstances, police officers may conduct a Terry stop based on information received from a "known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated." Florida v. J.L., 120 S. Ct. 1375, 1378 (2000) (citing Adams v. Williams, 407 U.S. 143, 146-47 (1972)). Similarly, at least in some circumstances, police may conduct a Terry stop based on a tip from an unknown informant who predicts future behavior corroborated by the police, demonstrating that the informant has "inside information -- a special familiarity with respondent's affairs," unlikely to be known by the general public. Alabama v. White, 496 U.S. at 332. White, however, was a "close case," id., regarded by the Court as "borderline." Florida v. J.L., 120 S. Ct. at 1379.

In Florida v. J.L., the Supreme Court unanimously ruled that an anonymous telephone tip corroborated only by innocent and descriptive details such as location and appearance is insufficient to establish reasonable suspicion for a Terry stop. 102 S. Ct. at 1379. In J.L., an unknown telephone informant told the police that a young black male located at a particular bus stop, wearing a plaid shirt, was carrying a gun. Id. at 1377. When the police arrived at the bus stop, they found three black males, one of whom was wearing a plaid shirt. Id. Upon frisking the men, they found a gun in the possession of the one wearing a plaid shirt. Id. The Court held that:

An accurate description of a subject's readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.



120 S. Ct. at 1379. The Court also rejected the argument that the standard for Terry stops based on anonymous tips should be lower when the tip involves a firearm. Id. at 1379-80.

Thus, the Court's decision in J.L. effectively overrules this Court's cases upholding seizures based on anonymous tips corroborated only by innocent, descriptive details, and applying a less stringent standard to tips involving guns. See, e.g., United States v. Clipper, 973 F.2d 944, 949-51 (D.C. Cir. 1992) ("totality of the circumstances to which the Court refers in Alabama v. White must include those in which the anonymous informant makes no predictions, but provides the police with verifiable facts while alerting them to an imminent danger that the police cannot ignore except at risk to their personal or the public's safety" and the "element of imminent danger distinguishes a gun tip from one involving possession of drugs"); United States v. McClinnhan, 660 F.2d 500, 502-03 (D.C. Cir. 1981) ("anonymous tip that, while lacking facial indicia of reliability, was corroborated in every significant detail by [police] pre-stop surveillance" justifies Terry stop and search, "particularly where the reported contraband is a weapon as lethal as a sawed-off shotgun"). The district court explicitly relied on Clipper and McClinnhan in denying Mr. xxxxxxx's motion to suppress and, therefore, its decision is no longer valid.

In this case, an anonymous individual told the police he had seen a person wearing an orange shirt get out of an SUV in the parking lot of a Wendy's restaurant with a gun in his hand. The police confirmed that a person wearing an orange shirt was in the parking lot of the Wendy's restaurant. The officer also saw an SUV. (7) The informant provided no predictive information. In addition, the officer was not able to confirm the informant's statement that Mr. xxxxxxx had a gun in his hand, nor did the officer see any sign of a gun on Mr. xxxxxxx's person. The district court based its decision only on the officer's corroboration of innocent, descriptive facts including location, clothing and the presence of an SUV.

Thus, Florida v. J.L. requires suppression of the evidence and statements against Mr. xxxxxxx. (8) The fact that in this case the informant approached the officer in person, rather than telephoning the police, does not establish reasonable suspicion in the totality of these circumstances. Concurring in J.L., Justice Kennedy hypothesized that a stop might be upheld where "an unnamed person driving a car the police officer later describes stops for a moment and, face to face, informs the police that criminal activity is occurring." 120 S. Ct. at 1381. (9) Here, however, the police officer did not later describe the car and he described the informant only as a middle-aged African American male -- a description consistent with a significant percentage of the population. The officers did not record any identifying information about the informant, such as the license plate number of the car, and therefore, as in J.L., had no means of holding the informant responsible if the tip turned out to be a fabrication. The officers did not corroborate whether criminal activity was occurring. Today, telephone calls provide no more anonymity than face-to-face contact in light of caller-ID, the police practice of routinely recording telephone calls, and the ability to send "squad cars . . . within seconds to the location of the telephone used by the informant." J.L., 120 S. Ct. at 1381. (10) Under the circumstances here, there was no basis for the police to view the informant's tip as bearing sufficient "'indicia of reliability to provide reasonable suspicion to make the investigatory stop.'" J.L., 120 S. Ct. at 1378 (citing White, 496 U.S. at 327).

For example, the informant could have just had an altercation with Mr. xxxxxxx in a nearby nightclub and wanted to harass him by falsely reporting him to the police. Any of the details stated by the informant and confirmed by the police could have been provided by anyone observing an innocent person. The informant did not have "inside information," as in White. Nothing in the record establishes the reliability of the informant's information, or that the tip was "reliable in its assertion of illegality" as opposed to its "tendency to identify a determinate person." 120 S. Ct. at 1379. Furthermore, the informant's assertion that he witnessed criminal activity is no more reliable than his assertion that the criminal activity occurred in the first place.

Moreover, the officer provided no articulable facts to support either his belief that the tip was reliable or his belief that Mr. xxxxxxx was going to shoot someone. Officer Holloway had no information that Mr. xxxxxxx had a gun other than the informant's tip and he did not have any information with which to assess the reliability of that tip. The officer's fear that Mr. xxxxxxx was going to shoot someone was completely unfounded. (11) Thus, these statements were conclusory, unsupported by the facts necessary for a court to make an independent judgment. See, e.g., Illinois v. Gates, 462 U.S. at 239 ("mere conclusory statement that gives the magistrate virtually no basis at all for making a judgment regarding probable cause" is insufficient because magistrate's "action cannot be a mere ratification of the bare conclusions of others"); Aguilar v. Texas, 378 U.S. 108, 111, 114 (1964) (judicial officer must "not serve merely as a rubber stamp for the police" and must "'judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause'" (citing Giordenello v. United States, 357 U.S. 480, 486, 78 S. Ct. 1245, 1250 (1958))).

In addition, the officer testified that the informant was anxious and excited, (6/14/99 Tr. 8), a state of mind that could have been caused by a recent altercation with Mr. xxxxxxx, fear of lying to the police, fear of risking identification, or fear of possible punishment for filing a false report. See D.C. Code 4-151. Any of these possible causes is just as likely as the possibility that the informant was anxious because he had just seen a person with a gun. Furthermore, it is most likely that the officer's reference to problems in the neighborhood pertained to congestion, parking, and traffic, since the officers had just completed a traffic stop and the neighborhood, which contains eight or nine nightclubs within a two-block radius, is highly populated in the middle of the night. (6/14/99 Tr. 7, 17, 38).

The district court based its ruling solely on police corroboration of innocent details including the individual's presence in the Wendy's parking lot, the fact that he was wearing a bright orange shirt and dark pants or blue jeans, and the presence of an SUV. (6/14/99 Tr. 73). In its factual findings, the district court explicitly noted that the officer had no reason for believing Mr. xxxxxxx had a gun other than the informant's tip. (6/14/99 Tr. 70). The district court's ruling cannot stand, pursuant to J.L., and the evidence and statements against Mr. xxxxxxx should be suppressed. Accordingly, this Court should vacate the district court's finding and rule that the unknown informant's tip did not provide reasonable suspicion to detain Mr. xxxxxxx. (12)

  1. THE NCIC PROVIDED NO EVIDENCE IN THIS CASE THAT MR. xxxxxxx POSSESSED A STOLEN WEAPON



    1. Standard of Review

Under the Sentencing Guidelines, this Court reviews a district court's factual findings for clear error. See, e.g., United States v. Yelverton, 197 F.3d 531, 533 (D.C. Cir. 1999), cert. denied, 120 S. Ct. 1255 (2000); United States v. Kim, 23 F.3d 513, 517 (D.C. Cir. 1994).

    1. The NCIC Report Does Not Show that This Weapon was Stolen

The district court at sentencing cited three items of evidence in support of its finding that the government had shown by a preponderance of the evidence that the weapon was stolen. (Sent. Tr. 11-12). However, the third item, the NCIC report, was the source of the first two items, the PD-163 and Officer Holloway's testimony at the preliminary hearing. Therefore, effectively, the court had before it one item of evidence, not three.

Contrary to the district court's conclusion, the NCIC report does not show the weapon recovered from Mr. xxxxxxx to be stolen. The weapon recovered from Mr. xxxxxxx was a Llama nine millimeter semiautomatic pistol, Model 38, serial number 46032. (Prelim. H. Tr. 7-8; App. 8). The version of the NCIC printout relied on by the government and provided to the district court at sentencing shows partial listings for two different guns, including the first half of a listing originating in Florida and the second half of a listing originating in California. (App. 17). (13) The printout contains two entries showing NCIC identification numbers, "NIC/G733362246" and "NIC/G776841920." (Id.). Similarly, it contains two entries for "DOT" or date of theft, "DOT/19970418" and "DOT/19981026," corresponding to April 18, 1997, and October 26, 1998, respectively. (Id.). One of the two weapons is chrome-colored, the other is black. (Id.). "OCA" on the NCIC report stands for originating agency case number, and this printout contains two entries: "OCA/9706041" and "OCA/98299038." (Id.). The first report originated in "MARTIN CO SO STUART FL." (Id.). The second report, which begins with "MKE/STOLEN GUN," originated in California, as evidenced by the "CA" in the entry "ORI/CA0331320." That entry also states "MAK/KIM" which indicates that its manufacturer is Kimel. (Id.).

In preparing the PD-163, Officer Pope apparently misread the printout and reported information from both listings, stating that the weapon was "reported stolen from Martin County, FL" but citing the California origination code ("ORI CA0331320") and apparently referring to the California date ("10/28"). (App. 11). This misreading is confirmed by review of the more complete NCIC report attached by the government to its motion to vacate filed in connection with this appeal. (App. 31). In that report, each entry is separate and the California and Florida entries are more easily distinguishable, each starting with "MKE/STOLEN GUN" or "MKE/RECOVERED GUN." Id.

Moreover, the final entry for a recovered gun in that report almost certainly refers to the gun recovered in this case. That entry originated from the D.C. Metropolitan Police Department. (App. 31). Its date of recovery ("DOR/19990403") is the same as Mr. xxxxxxx's arrest date, April 3, 1999. Id. The reference to "MAK/GAA," refers to Gabilondo v Cia, which manufactures Llama weapons. (See App. 29). The police entered this listing into the NCIC on April 14, 1999, less than two weeks after Mr. xxxxxxx's arrest. The only purpose for reporting a weapon as "recovered" in the NCIC is to inform other law enforcement agencies that D.C. authorities have custody of the weapon in case it is later reported stolen elsewhere. Accordingly, the police knew the weapon had not been stolen shortly after this case but did not correct the record or the PD-163, which continued to reflect the information that the weapon was stolen until Mr. xxxxxxx's sentencing on September 1, 1999. That report was relied on by the probation office, the government and the district court at sentencing.

Thus, none of the three items cited by the government and relied on by the district court at sentencing was based in fact. Therefore, the district court clearly erred in enhancing Mr. xxxxxxx's sentenced based on a stolen weapon.

CONCLUSION

For the reasons stated above, Mr. xxxxxxx respectfully requests that this Court reverse the denial of his motion to suppress evidence or, in the alternative, remand this case for reconsideration of that denial and/or resentencing.

Respectfully submitted,

A.J. KRAMER,

FEDERAL PUBLIC DEFENDER







Beverly G. Dyer

ASSISTANT FEDERAL PUBLIC DEFENDER

Counsel for Appellant

625 Indiana Avenue, NW

Suite 550

Washington, D.C. 20004



(202) 208-7500





CERTIFICATE OF SERVICE

I hereby certify that on June 19, 2000, two copies of the foregoing brief for appellant Terrell L. xxxxxxx, and one copy of the accompanying Appendix were served by hand on Marc E. Rindner, Assistant United States Attorney, Appellate Division, United States Attorney's Office, 555 Fourth Street, N.W., Room 8104, Washington, D.C. 20001.







Beverly G. Dyer

1. "App." refers to the Appendix of Appellant filed with this brief. Copies of the relevant transcripts are contained in the Appendix behind Tab A, and are cited by original date and page number (e.g., "6/14/99 Tr. ___"). The presentence report is filed in a separate appendix under seal and is cited by original page numbers (e.g., "PSR ___").

2. In an initial brief on appeal filed on February 17, 2000, Mr. xxxxxxx raised only the sentencing issue. On March 1, 2000, Mr. xxxxxxx filed an unopposed motion to supplement that appeal with the suppression issue in the event that Florida v. J.L. were decided for the respondent. On March 10, 2000, essentially conceding the sentencing issue, the government moved to vacate the judgment and remand for resentencing. On March 28, 2000, the Supreme Court decided Florida v. J.L., 120 S. Ct. 1375 (2000), and Mr. xxxxxxx filed an unopposed motion to supplement the appeal and set a briefing schedule. On May 5, 2000, the court issued an order directing the parties to submit new briefs including all issues and directing the clerk to set oral argument.

3. Officer Holloway was in full uniform and a marked police car and had just completed a traffic stop. (6/14/99 Tr. 6, 17-18, 26). He was with another police officer, Officer Pope, who was driving a separate vehicle and followed him in that vehicle to investigate the tip. (6/14/99 Tr. 6, 9, 17, 22).

4. Officer Holloway also testified that the informant described the shirt as "bright orange and white." (6/14/99 Tr. 21). At the preliminary hearing, the officer testified that the informant told him the suspect was wearing "an orange shirt and blue jeans." (4/7/99 Tr. 6).

5. At the suppression hearing the officer testified that Mr. xxxxxxx took five steps away. (6/14/99 Tr. 12). At the preliminary hearing, the officer testified that Mr. xxxxxxx took one or two steps away. (4/7/99 Tr. 14).

6. The NCIC report provided to the court at sentencing was not offered into evidence or filed in official court files. The copy included in the appendix was provided to undersigned counsel by the government. (App. 17). The government attached a more complete NCIC printout to its motion to vacate judgment, showing three separate NCIC listings for the same serial number. (App. 31).

7. However, the record does not demonstrate that the SUV seen by the officer was the same vehicle as the SUV reported by the informant. Presumably, many of the patrons of the neighborhood's nightclubs drive SUVs.

As explained above, the officer's testimony was inconsistent regarding both the informant's description of the SUV and his own observation of the vehicle in the parking lot. The officer stated at the suppression hearing that the informant's "exact words" were "a Jimmy or a Blazer" and at the preliminary hearing that the informant's "exact words" were "a Jeep Cherokee." (6/14/99 Tr. 20; 4/7/99 Tr. 10). In addition, the officer's testimony at the preliminary hearing that he drove past a Suburban but did not observe whether it was occupied or not, (4/7/99 Tr. 10-11), suggests that the Suburban was parked. That testimony is not consistent with the officer's testimony at the suppression hearing that he did not know the type of SUV but that it was driving out of the parking lot as he drove in. (6/14/99 Tr. 9, 22-23).

The officer's testimony at the preliminary hearing that he was unsure whether the Suburban was occupied would make no sense if the vehicle had been moving when he saw it. Furthermore, it is unclear why, at the time he passed the SUV without stopping it, the officer would have assumed the SUV would be leaving the parking lot without the person who, according to the informant, had gotten out of it with a gun.

8. The statements should be suppressed as "fruit of a poisonous tree." See, e.g., United States v. Jordan, 951 F.3d 1278, 1283 n.3 (D.C. Cir. 1991) (citing Wong Sun v. United States, 371 U.S. 471 (1963)).

9. Justice Kennedy cites United States v. Sierra-Hernandez, 581 F.2d 760 (9th Cir. 1978). 120 S. Ct. at 1381. In that case, a man dressed in overalls and a baseball cap driving a Mercedes Benz approached a federal officer, pointed to a black pickup truck in motion 100 yards away, and told the officer that the truck had "just loaded with weed at the canebreak." 581 F.2d at 762. The officer "knew that the general neighborhood and the canebrake in particular were the sites of previous incidents of drug smuggling and illegal entry of aliens." Id. The officer immediately began following the truck and radioed for assistance, without asking the man to identify himself, and stopped the truck several miles away. Id. That case is distinguishable from this one because there, the officer knew the specific site had been used for drug smuggling in the past and the informant identified the truck in question, which was in view and in the process of driving away.

10. Although some courts have cited the fact that a tip was provided in person instead of by telephone in upholding Terry stops, most of the cases decided prior to J.L. relied on corroboration of innocent details. Most of those cases also involved additional grounds for reasonable suspicion not present here. See, e.g., United States v. Salazar, 945 F.2d 47, 50-51 (2d Cir. 1991) (upholding stop based on tip that drugs were being sold from apartment and on street nearby and describing individual by "height, coloring, gender and ethnicity," as well as fact that individual had access to apartment but was not legal tenant and that he became visibly nervous upon learning officers were police); Ware v. United States, 672 A.2d 557, 563-64 (D.C. 1996) (upholding stop based on face-to-face tip that male individual on bicycle was selling drugs from women's purse, describing clothing, and stating that he was "out there every day selling drugs," relying in large part on corroboration of innocent details as well as defendant's statement "I bet you're wondering why I got a female's purse"); see also Sarver v. State, 2000 WL 728869, *4 (Tex. App. June 8, 2000) (upholding stop based on face-to-face tip that "men [the police] were looking for were around the corner" as well as fact that men fled when officers approached); United States v. Canfield, 2000 WL 633389, *6 (2d Cir. May 17, 2000) (finding probable cause based on extensive interviews with unidentified informant who visited police department, gave specific, detailed information about counterfeit operation and presence of drugs based on firsthand knowledge, and provided physical evidence).

11. There are a number of possible innocent explanations why Mr. xxxxxxx could have been observing people coming out of the Mirage nightclub from a position where he could not be easily seen by those persons.

12. If this Court does not reverse the district court's ruling, it should remand this case for a decision by the district court in the first instance whether, consistent with Florida v. J.L., the record in this case supports a finding of reasonable suspicion. This case must be remanded because the district court's ruling was based on an incorrect application of law. See, e.g., United States v. Hill, 131 F.3d 1056, 1060-61 (D.C. Cir. 1997) (remand required where district court applied subjective, rather than objective, test to determine reasonableness of search); United States v. Williams, 951 F.2d 1287, 1291 (D.C. Cir. 1991) (remand required where there is reason to doubt whether "district court asked the right legal questions in making its ruling").

13. Serial numbers are not unique with respect to different gun manufacturers and therefore, NCIC can contain multiple reports of weapons by different manufacturers for one serial number. Information regarding the meaning of various terms used in the report, such as "NIC," "DOT" AND "OCA" were obtained from the NCIC Operating Manual.