CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES


Parties


The appellant, Roland xxxxxxx, and the appellee, the United States, are the only parties in this Court and were the only parties in the District Court. Footnote

Ruling Under Review

This appeal presents a single issue. The defendant contends that the District Court, J. Pratt, erred in denying his motion to suppress evidence seized as a result of a search conducted in violation of the Fourth Amendment. The relevant rulings are the District COurt's oral denial of the motion to suppress (V.1, 56) and his oral denial of the defendant's motion for reconsideration. (V.2, 3). The District Court did not issue a written opinion.

Related Cases

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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TABLE OF AUTHORITIES

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ISSUES PRESENTED FOR REVIEW

1. Did reasonable suspicion exist to support the forcible seizure of the defendant, where the police responded one hour after receiving an anonymous tip that an individual matching the defendant's description was selling drugs in the street?

 

2. Was the defendant subjected to an unlawful search where police officers approached him, asked him what was in his pocket, and after receiving no response, forcibly removed the defendant's hands from his pocket?

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT


                                                                  


                                                                  

No. 93-3061


                                                                  

UNITED STATES OF AMERICAAppellee

v.

ROLAND ANTONIO xxxxxxxAppellant


                                                                  


BRIEF FOR APPELLANT


                                                                  


JURISDICTION

Jurisdiction of this appeal from the final judgment of conviction entered by the district court is conferred by 28 U.S.C. 1291. The appellant filed a timely notice of appeal.

STATEMENT OF THE CASE

I. THE PROCEEDINGS BELOW

On September 15, 1992 a grand jury sitting in the District of Columbia returned a two count indictment, charging the defendant in count one with the unlawful possession with intent to distribute in excess of 50 grams of cocaine base and in count two with the commission of the same offense within 1000 feet of a school. (A. ). On October 9, 1992 the defendant filed a motion to suppress. The defendant contended that the cocaine base was seized in violation of the Fourth Amendment. (A. ).

The district court heard evidence concerning the motion to suppress on January 12, 1993. At the conclusion of the evidentiary hearing and after extended argument, the district court, calling it a "close case", orally denied the motion to suppress. (V1,56; A. ). A few minutes later, after additional information was discovered relative to the search, the district court again denied the defendant's motion to reconsider. (V2,3; A. ). Footnote

Shortly after denial of the motion to suppress, the defendant entered a conditional plea to possession of cocaine base, a lesser-included offense of count one. The defendant reserved his right to appeal the denial of the motion to suppress. (A. ; Docket entries 13-14). The defendant appeared before Judge Pratt for sentencing on April 7, 1993. He received a sentence of sixty (60) months, followed by three (3) years supervised release. (A. ). The defendant filed his notice of appeal on April 13, 1993.


II. The Evidence at the Suppression Hearing

The testimony at the suppression hearing established that on October 16, 1992 Metropolitan Police Officer Anthony Haythe was dispatched to the vicinity of 429 20th St. N.E. The dispatcher had received an anonymous call stating that a young man wearing a green flowery shirt and white pants was on the street selling drugs. After receiving the dispach Officer Haythe proceeded to 20th Street N.E. Although Officer Haythe arrived at the location within 5 minutes of receiving the call from the dispatcher (V. 1.21-22; A. ), 54 minutes elapsed from the time the dispatcher received the anonymous call to when he put out the call to which Officer Haythe responded. ( ). Thus, Officer Haythe arrived at the scene aproximately an hour after the dispatcher received the anonymous call.

When Officer Haythe arrived in the area he was accompanied by another officerin a second patrol car. Both cars parked within 15-20 feet of 429 20th St. N.E. Officer Hayhthe immediately saw an individual who he believed fit the description broadcast by the dispatcher. (Tr. 15-16). He and Officer Rorie approached the defendant, who was standing near the porch area of number 429. As Haythe approached, the defendant placed his hands, in what Haythe described as a "quick motion", in his pocket. (Tr. 16). Haythe, who did not have his gun drawn, continued towards the defendant and "asked him what did he have in his pocket." Id. Footnote The defendant neither did or said nothing in response. (Tr. 16). Officer Haythe did not ask the defendant to remove his hand from his pocket. Instead, Haythe simply grabbed the defendant's hand and removed it from his pocket. (tr. 16, 28). He was assisted at the time by Officer Rorie, who had also placed his hands on the defendant. (Tr. 29). As he pulled the defendant's hand from his pocket, Officer Haythe saw a white bag and a single ziplock protruding from the defendant's balled-up hand. (Tr. 17). Officer Haythe then forced the defendant's hand open and recovered six ziplocks containing a white substance. (Tr, 17). When the defendant was later searched at the station, an additional amount of cocaine base was recovered. (Tr. 17).

 

SUMMARY OF ARGUMENT

The facts necessary to resolution of this appeal are quite simple. Responding to an anonymous tip that an individual wearing was selling drugs in the block of , patrol officers Anthony Haythe and , in separate cars, went to the block. On entering the block, Officer Haythe observed an individual who matched the description standing in front of . Parking thier cars nearby, both officers approached the defendant. Observing the defendant place his hands in his pocket, Officer Haythe asked him what was in his pocket. When the defendant did not respond, Officer Haythe, assisted by Officer , forcibly removed the defendant's hand from his pocket and thereby discovered a quantity of crack cocaine.

Functionally it appears that the officers simply approched the defendant and conducted a nonconsensual search by forcibly removing the defendant's hands from his pocket. While the gist of the defendant's argument is that this nonconsensual search of his person was conducted in violation the the Fourth Amendment, when the officers physically placed their hands on the defendant to forcibly remove his hands from his pocket, they also "seized" him. Thus, analysis of the officer's actions separates into two components - the seizure of the defendant by placing their hands on him and nonconsensual search of the defendant by forcibly removing his hands from his pocket.

Although the gravamen of the officer's conduct was the immediate search of the defendant upon their approach, when the officers touched the defendant to commence the search, they seized him within the meaning of the Fourth Amendment. The circumstnaces of this case did not support the nonconsensual seizure of the defendant under any standard approved by the Supreme Court. In other words reasonable suspicion did not exist to justify even a momentary seizure of the defendant. See Terry. The officers were acting only on the basis of an anonymous tip that was corroborated only in the sense of . The tip gave no indication of the basis of the tipster's conclusion that the described individual was selling drugs; neither did it give any basis for inferring the reliability of the person providing the tip. Equally important, the facts of this case fall to establish the funamental underpinning justifying a prompt investigatory seizure, in that an hour passed from the time the anonymous tip was received until the police responsded.

While a brief investigatory seizure of an individual may be accompanied by a protective frisk for weapons where the police articulate a basis for believing the suspect is armed, here the police officer conducted no such frisk. Indeed, Officer Haythe did not even attempt to make such a claim. He did not articulate any basis for believing the defendant was armed. Indeed, he did not even testify that he thought the defendant was armed, regardless of whether any basis existed for such an assumption. Instead, Officer Haythe merely ssearched the defendant because a dispatch had been received that a person matching the defendant's description was selling drugs in the area and because he saw the defendant put his hand in his pocket. There was never a claim that Officer Haythe was conducting a frisk for weapons and indeed such an explanation would have been implausible under the facts. The search conducted by Officer Haythe was conducted without a warrant and was not justified under any exception to the warrant requirement.

 

 

ARGUMENT

I. THE DEFENDANT WAS ILLEGALLY SEIZED IN VIOLATION OF THE FOURTH AMENDMENT

The Fourth Amendment provides that:

 

 

When Officer Haythe, assisted by Officer Roroie, approached the defendant and forcibly removed the defendant's hands from his pocket, he clearly "seized" the defendant within the meaning of the Fourth Amendment. [Cite]. Although the gravamen of the police officer's actions was the forcible search of the defendant's pocket, the threshhold issue presented is whether the seizure of the defendant by placing their hands on him constituted an unlawful seizure in violation of the Fourth Amendment.

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 Footnote 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.

THE TIP IN THIS CASE

In the District Court the government essentially argued that two factors supported the seizure of the defendant. Fist, in the government's view the tip was reliable because it contained details showing the caller's familiarity with the defendant. (Tr. 50-51; A. ). Second, the government pointed to the defendant's "thrusting" his hand into his pocket allegedly upon the approach of the officers. (Tr. 51-52; A. ). In the circumstances of this case, neither of these factors, standing alone or in combination, provided the requisite degree of reasonable suspicion to justify a non-consensual seizure of the defendant. Footnote

The analysis here must begin with the tip. The caller stated that she had seen a young "bown-skinned" man, who she described as no more than 17 years old Footnote and wearing a yellow and green top and white pants, selling drugs "with two men". (Tr. 13-15; A. ). The caller further stated that the young man "hangs" at 429 20th St., N.E. whenever he makes a sale. (Tr. 15; A. ). According to the caller, the young man was "dealing with this girl" who lived at that address. (Tr. 14; A. ). The caller purported to know that the young man's aunt had died. Id.

The government mistakenly argued that this Court's decision in United States v. Clipper controls this case (Tr. 49-50;A. ). While Clipper, held that Alabama v. White was merely a specific application of the "totality of the circumstnaces" announced in Gates v. Illinois, , nonetheless it is clea, as discussed below, that the result in Clipper depended on the fact that the tip there involved a firearm. Equally clear is the proposition that the analysis used in Alabama v. White guides the decision in this case.

Regardless of whether Alabama v. White requires that an anonymous tip contain verifiable information concerning the subject's future behavior, the type of circumstances which established the reliability of the information in White are absent here. There the caller purported to know the name of the woman who would be leaving the apartment at described time and in the described car, as well as the particular route she would be taking. It seems clear that this particularized information, standing alone, would not have supported the seizure without the corroboration of many of these details by the officers. In support of its conclusion that "the anonymous tip had been sufficiently corroborated to furnish reasonable suspicion", 110 S.Ct. at 2416, the Court noted that a woman did leave the described building and get in the described car at the time which the caller had predicted and proceed by the described route. Id. at 2416-17.

Here, the officers really only corroborated the fact that an individual fitting the description given was in the 400 block of 20th St. N.E. aproximately an hour later. They caller had related no information leading to the conclusion that she had some peculiar "insider information" as to the defendant's future activities. While the caller said she saw the defendant sell drugs "with two men", she gave no indication as to how she knew that a drug sale had taken place, as opposed to the defendant merely having transferred an object to someone. (CASE re no pc from mere transfer). When the officers arrived the defendant was not in the street. He did not appear to be engaging in any transaction. Indeed, he was not at 429 20th St., N.W. as suggested by the caller, but was instead standing on the proch of . While the caller indicated that the person she described (with a woman), there was not indication that a woman was present when the officers arrived. Further, an hour had passed from the time the call had been received by the dispatcher until the officers arrived in the 400 block of 20th St., N.E. ( case re delay). In sum, unlike White, the only aspect of the tip corroborated by the officers was that there was indeed an individual matching the description given by the caller on the named block. That a described person is standing in the street at a particular time is precisely the type of information that is possessed by the general public, and when unaccompanied by other indicia of reliability, gives the citizen little protection from those who would make him "the target of a prank" or those who might "harbor a grudge" against him. Footnote Id. at 2418 (J. Stevens, dissenting). Indeed, a result sanctioning the seizure of a citizen on the basis of an "anonymous" call relating merely the caller's conclusion that a described person was committing an offense would allow an unscrupulous policeman tp place such a call based on his otherwise unarticulable "hunch" that a person was engaged in criminal conduct. Id.

The government attaches significance to the fact that the defendant allegedly "thrust" his hand in his pocket as Officer Haythe approached. Footnote However, Officer Haythe, who was standing a few feet away, did not testify that he saw anything in the defendant's hand or that there appeared to be any transaction in progress at the time. Indeed, testified (another person present, but just sitting). Regardless of whether the "thrust" description was merely a self-serving ...this factor adds little to the Clipper adds little or is not applicable..govt attempted to rely on Clipper

             

 

II. THE DEFENDANT WAS ILLEGALLY SEARCHED

The gravamen of the invasion of the defendant's personal security was the forcible removal of the defendant's hand from hsi pocket against his will. Although Haythe "seized" the defendant when he first placed his hands on him, what Haythe essentially did was to search the defendant when

   When the defendant failed to immediately remove his hand(s)? from his pocket on Officer's Haythe's command, Haythe forcibly removed them. Officer's Haythe's actions plainly and simply amounted to a search of the defendant against his will. Conceding, in effect, that there was no probable cause to arrest the defendant at that point and thus that Haythe's actions could not be justified as a search incident to an arrest, the government took the position in the District Court that Haythe's actions were "tantamount" to a frisk, which, of course, could be sustained on the basis of reasonable suspicion rather than probable cause. (Tr. ). The government's "frisk" theory can be justified neither factually nor legally.

a. Officer Haythe did not conduct a frisk

Despite the government's characterization, there was no evidence that Officer Haythe conducted a "protective frisk". Law---Terry definition or whatever. There is no indication whatsoever that Hathe's actions were motivated by anything other than a desire to see if the defendant had "thrust" drugs in his pocket. Haythe did not testify that his view of the situation led him to conclude there was reason to believe the defendant might be armed in some manner. The Court need not reach the issue as to whether any such belief, if held by Haythe, was reasonable under the circumstances, as the officer never claimed . That Haythe's actions were not animated by a feeling that a protective frisk for weapons was necessary is further evidenced by the fact that neither he nor Officer Rorie patted the defendant down after the drugs were found in his hand. As a result the officers did not disocver that the defendant had other drugs on him until he produced them at the police station. If the officers had felt a need to conduct a protective frisk, then logic would dicate that they would have continued the patdown after discovery of the drugs in the defendant's hand. See United States v. Clipper, supra, ( ). Footnote

The government's argument that Officer Haythe's actions were tantamount to a "frisk" is simply not supported by the record. Freudian...

b. The requirement of an articulable suspicion

Terry requires . ???????

CONCLUSION

For the reasons stated herein, the defendant requests that the judgment of the District Court be reversed and that this case be remanded for further proceedings.