ORAL ARGUMENT SCHEDULED FOR NOVEMBER 3, 2000



UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT





NO. xxxxxxxx





REPLY BRIEF OF APPELLANT



UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



TERRELL L. xxxxxxx, 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. xxxxxxxx (PLF)

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

NO. 99-3120

REPLY BRIEF OF APPELLANT



UNITED STATES OF AMERICA, Plaintiff-Appellee,





v.





TERRELL L. xxxxxxx, Defendant-Appellant.





SUMMARY OF ARGUMENT

Mr. xxxxxxx had a Fourth Amendment right not to be stopped and searched, without a warrant, on the basis of an anonymous tip that did not bear sufficient "indicia of reliability" to establish a reasonable suspicion that he was involved in illegal activity. In Florida v. J.L., 120 S. Ct. 1375 (2000), the Supreme Court unanimously held a search based on an anonymous telephone tip to be illegal. The government argues that J.L. does not apply to this case because the tip here was conveyed in person and asserted personal knowledge. These facts, however, did not give the police officer in this case sufficient information to assess the tipster's veracity or reliability. The officer was required to evaluate the "'quantity and quality'" of the information provided. Alabama v. White, 496 U.S. 325, 330 (1990) (citation omitted). Here, the officer had almost nothing on which to base an assessment of the information's quality and its quantity is almost identical to that provided by the anonymous informant in J.L.

Without a basis for determining the reliability of the tipster's information, the police officers might have been able to establish reasonable suspicion by investigating the information "through independent police work." Alabama v. White, 496 U.S. at 330; see also Illinois v. Gates, 462 U.S. 213, 226 (1983) (describing extensive police investigation to corroborate anonymous letter). In this case, for example, when the officers saw a person meeting the informant's description, they could have observed that individual for a reasonable period of time. Instead, Officer Holloway violated Mr. xxxxxxx's privacy rights by immediately seizing and searching him based exclusively on the tipster's information. The government argues that Mr. xxxxxxx behaved suspiciously because he appeared to be attempting to conceal himself from one direction. However, the officer did not search Mr. xxxxxxx because of that behavior, the district court did not uphold the search on that basis and, in any event, that fact is insufficient to establish reasonable suspicion in the totality of the circumstances here.

Other facts cited by the government, including evidence that the informant was "excited" and that the search occurred after 3:00 a.m., do not contribute to the informant's reliability or to reasonable suspicion. The tipster's excitement could have been caused by the risk of identification or the risk associated with lying to the police. Mr. xxxxxxx's presence in the neighborhood at that hour was not suspicious because there were eight or nine nightclubs within the surrounding two square blocks and many patrons were exiting the clubs at that time. Nothing showed that it was a high-crime neighborhood.

J.L. was not a close case, 120 S. Ct. at 1379, and the additional evidence cited by the government is not substantial enough to establish the informant's reliability or reasonable suspicion in this case. Based on all the facts, therefore, this Court should reverse the denial of suppression.

Both parties agree that the district court erred in sentencing Mr. xxxxxxx for possession of a stolen weapon under the Sentencing Guidelines. Accordingly, this case must be remanded for resentencing.

ARGUMENT

REASONABLE SUSPICION IS NOT ESTABLISHED BY AN UNRELIABLE ANONYMOUS TIP, COMMUNICATED IN PERSON AND STATING PERSONAL OBSERVATION, EVEN WHERE THE ALLEGED SUSPECT APPEARS TO BE ATTEMPTING TO CONCEAL HIMSELF



1. The Fact that An Anonymous Tip is Conveyed in Person Does Not Establish its Veracity or Reliability

In Florida v. J.L., the Supreme Court held that an anonymous telephone call describing a person with a gun, corroborated by police observation of innocent details such as clothing, physical description and location, does not provide reasonable suspicion under the Fourth Amendment. The government argues that the tip in this case was not "truly" anonymous because it was conveyed in person and the officer recalled that the tipster stated that he "saw" the suspect. Brief for Appellee ("Gov't Br.") at 11, 20, 23. However, the anonymity of the tip in J.L. turned on the facts in the record. As the Court explained, "[s]o far as the record reveals, there is no audio recording of the tip, and nothing is known about the informant." 120 S. Ct. at 1377. In this case, the record reveals only that the informant was a middle-aged African American man who approached the police officer in a car. Those facts do not, as the government asserts, make this tip "presumptively credible." Brief for Appellee ("Gov't Br.") at 19.

The tip in this case is no less anonymous than the tip reviewed by the Court in J.L. In neither case was there evidence of the informant's identity or any evidence that, through additional investigation, the police could have identified the informant if the tip turned out to be false. See J.L., 120 S. Ct. at 1381 (Kennedy, J., concurring) (agreeing with majority because, based on record, "there is a second layer of inquiry respecting the reliability of the informant that cannot be pursued."). Furthermore, in light of current technology, use of a telephone does not guarantee anonymity. As Justice Kennedy stated in his concurring opinion in J.L., "[i]nstant caller identification is widely available to police, . . . squad cars can be sent within seconds to the location of the telephone used by the informant . . . and the ability of the police to trace the identity of anonymous telephone informants may be a factor which lends reliability to what, years earlier, might have been considered unreliable anonymous tips." 120 S. Ct. at 1381 (Kennedy, J., concurring). In J.L., there was no reason for the Court to assume that the caller knew that his telephone call could not or would not be traced back to him, revealing his identity. Similarly, there is no reason in this case to assume that the informant was driving a car that could be traced back to him or that the police had any other means of identifying him. (1) Therefore, the few additional facts in the record here that are not present in J.L. do not provide a basis for determining the informant's reliability or veracity.

Applying J.L. to an anonymous tip conveyed in person, a Pennsylvania appellate court recently reversed a defendant's conviction for an illegal stop and search in a case presenting almost the same facts as those presented here. Commonwealth v. Hayward, No. 1396 EDA 1999, ___ A.2d ___, 2000 WL 898328 (Pa. Super. Ct. June 27, 2000). In that case, a uniformed university police officer on patrol was told by an "unidentified passerby" that a man in a park approximately 200 yards from the university was "brandishing a weapon." 2000 WL 898328, *1 & n.2. The informant described the person with the weapon as "tall" and stated that he was with a group of 6-8 men. Id. at *1. The police officer called for assistance, went to the park and saw a group of men of which the defendant was the tallest. The officers lined up the men on the sidewalk, asked if any of them had a weapon, and the defendant said that he did. Id. After finding that the defendant had been seized under the Fourth Amendment, the court reviewed J.L. and applicable Pennsylvania law and concluded that cases based on anonymous phone calls were "controlling." 2000 WL 898328, *12. The court further explained:

The mere fact that this particular tip of a man with a weapon was conveyed in person by an anonymous individual, rather than via telephone call, does not compel a different result. The informant who provided the initial information to the police officer was still an anonymous individual. It is the pedestrian informant's complete anonymity and corresponding lack of any indicia of his reliability that is a critical factor.

. . .



There is [no] inherent indicia of reliability in the work of an anonymous informer who has never cooperated with the police in the past or who does not disclose his or her identity to the police. Clearly if the police do not even know an informant's name, or have never had any dealings with the informer on prior occasions, then it cannot reasonably be said that they have any adequate basis to ascertain anything about the informant's reliability, veracity, or the accuracy of his or her tip.

Merely because the unknown tipster in the case at bar conveyed his information in person to the police as opposed to telephonically did not automatically endow the information contained within his tip with greater presumed accuracy and reliability. Nor did it establish that he was acting with veracity. The individual who approached the officer on the street was completely unknown to him. The officer had never seen this individual before or had any knowledge that this individual had provided accurate and reliable information to the police in the past. The individual did not identify himself to the officer, nor did he accompany the officer to the park to point out the individual who was "brandishing the weapon."

The nameless pedestrian did not appear at the Appellant's hearing to testify as to his observation that he saw the Appellant "brandishing a weapon." The pedestrian was and is, in all respects, a completely anonymous individual, and as such, his reliability is equivalent to that of an unknown individual who telephones an anonymous tip to the police that there is a man with a gun in a particular location.



2000 WL 898328, *12; see also Felton v. State, 753 So.2d 640, 643 (Fla. Dist. Ct. App. 2000) (J.L. applies to anonymous voice in crowd stating "'the guy with the box has a gun'"); Woodson v. State, 747 So.2d 965, 965-66 (Fla. Dist. Ct. App. 1999) (invalidating search by officer who, while conducting traffic stop, "was approached by an individual who identified himself as Frank," and who told the officer that a man named Cedric, wearing certain clothing, had a handgun).

The cases cited by the government do not show otherwise. In support of its argument that a face-to-face tip is presumptively credible, the government cites Adams v. Williams, 407 U.S. 143 (1972). Gov't Br. at 19-20. That case, however, involved an informant known to the police officer who had provided information to the officer in the past. 407 U.S. at 146. In addition, the informant "came forward personally to give information that was immediately verifiable at the scene." Id. The informant identified the particular suspect, who was seated in a car "nearby," apparently within view. Id. at 145. The Court explained that informant's tips vary in their reliability and that some tips "would either warrant no police response or require further investigation . . . ." Id. at 147. The Court also hypothesized that "the victim of a street crime" or "a credible informant" might have information justifying "an appropriate police response." Id. There is no evidence here, however, that the tipster was a crime victim or a credible informant.

The government also relies on Justice Kennedy's concurrence in Florida v. J.L. Along with the unanimous Court, Justice Kennedy recognized that the detention in J.L. could not be upheld because of the lack of a record that the telephone call was recorded or traced. 120 S. Ct. at 1381. He went on, however, to suggest hypothetical scenarios that might show additional indicia of reliability, including one involving an "unnamed person driving a car." Id. Justice Kennedy cites United States v. Sierra-Hernandez, 581 F.2d 760 (9th Cir. 1978), as an example of this scenario, but that case is factually distinguishable from this one. See Brief for Appellant at 18-19 n.11. There, the informant pointed to a specific truck in the process of driving away and stated that the truck had obtained drugs from a site known to the police for drug smuggling, in a neighborhood known for drug smuggling. 581 F.2d at 762. Here, the informant did not specifically identify the defendant, the defendant was not driving away, and there is no evidence that the neighborhood was a high-crime area. Furthermore, as dicta in a concurring opinion, Justice Kennedy's scenario does not control this case or distinguish J.L. from the facts here. The fact that the informant in this case approached the police in a car is not a strong enough record to hold that he could not, like the caller in J.L., have "lie[d] with impunity." 120 S. Ct. at 1381.

The government also relies on United States v. Canfield, 212 F.3d 713, 719 (2d Cir. 2000), and United States v. Blount, 123 F.3d 831, 836 (5th Cir. 1997). Gov't Br. at 19. Although the courts in both of those cases stated that face-to-face tips are more reliable than anonymous telephone tips, neither case in fact involved an anonymous face-to-face informant. Instead, both cases involved informants known to the police. In addition, the informants in both cases provided a significantly greater quantity of information than the informant in this case. In Canfield, the informant gave the police detailed information in at least two separate interviews and turned over physical evidence, and the police had additional incriminating information from a second informant. 212 F.3d at 715. Although the informant was not publicly identified, the court and the police clearly knew his or her identity, having reviewed his or her criminal history. Id. at 716, 720.

In Blount, the informant was identified as a Ms. Dorothy Cooksey who lived at 2312 Bleker, two houses away from the crack house where the challenged search took place. 123 F.3d at 833, 836-37. Ms. Cooksey gave information that was consistent with an ongoing police investigation and identified one suspect by name. Id. In addition, 15 minutes prior to the challenged search, the suspect had attempted to force his way into Ms. Cooksey's home to hide from the police while fleeing from the search of another nearby house conducted pursuant to a valid search warrant. Id. Neither Canfield nor Blount is remotely comparable to this case.

In addition, the government cites State v. Sibilia, 750 A.2d 149 (N.J. Super. Ct. App. Div. 2000), and Giles v. Commonwealth, 529 S.E.2d 327 (Va. Ct. App. 2000). Gov't Br. at 21. In Sibilia, an off-duty policeman working as a security guard at a methadone clinic was told by three women he knew as clinic patients that the defendant, who was outside, was trying to buy methadone from clinic patients. 750 A.2d at 498. One of the women described the defendant and went outside with the officer to identify him specifically. Id. The court upheld the search because the third informant was known to the officer, she would probably return to the clinic, she pointed out the defendant to the officer, her story was confirmed by the two other informants, and "as she must have known, her identification was certainly available from the clinic." Id. at 151-52. These facts distinguish that case from this one.

In Giles, two women informed a police officer that they heard a man say "that he had a gun and was 'looking to hurt someone'" and then saw him get into his car. 529 S.E.2d at 329. The women identified the car, which was exiting a restaurant parking lot across the street. Id. The court upheld the officer's stop and search because (1) the tip was given face-to-face; (2) both women had personally seen and heard the defendant say he had a gun and intended to hurt someone; (3) the women were able to identify the defendant and his car; (4) "the nature of the women's reports suggested the imminence of serious and perhaps lethal danger;" and (5) the defendant was leaving the scene. Id. at 329-330. In addition, in Giles, the two informants "were in their twenties or thirties, showed no sign of being under the influence of alcohol or of any drug, were visibly frightened, and presented their reports cogently." Id. at 330. Thus, Giles involved several facts not present in this case, including apparently exigent circumstances, specific identification of the suspect, the fact that the suspect was in the process of driving away, and a greater quantity of information about the informants and from the informants. In addition, both Sibilia and Giles involved more than one informant.

The government states that "Officer Holloway noted that, while making his report, the citizen was excited and anxious, giving the impression that he was 'reliable.'" Gov't Br. at 22. However, Officer Holloway did not testify to -- nor did his testimony suggest -- a connection between the informant's excitement or anxiety and the officer's conclusion that the informant was reliable. The officer gave no reason for his conclusory opinion that the informant was reliable. (6/14/99 Tr. 9). Furthermore, it is not reasonable to assume that excitement or anxiety is evidence of reliability, since excitement and anxiety could also be caused by the risk of identification, the fear of being caught giving false information, or a recent altercation with Mr. xxxxxxx that could have prompted the informant to harass him with a false report.

The government also argues that the informant personally observed the person with a gun, making his information more reliable, since the officer recalled that the informant stated "I just saw a guy . . . ." (6/14/99 Tr. 8); Gov't Br. at 22-23. This statement is not a sufficient basis on which to find that the informant was credible and reliable. See, e.g., Commonwealth v. Lubiejewsi, 729 N.E.2d 288, 291 (Mass. Ct. App. 2000) (invalidating search based on anonymous telephone tip despite informant's personal knowledge). Here, the informant did not accompany the officers to the Wendy's restaurant to identify Mr. xxxxxxx, he is not available, nothing is known about him, and he did not provide predictive information. Without additional information about his veracity, the informant's statement that he saw the person he described is no more reliable than his statement that that person had a gun. Cf. Maynard v. State, 742 So.2d 315, 317 (Fla. Dist. Ct. App. 1999) ("We do not find that an informant is any more credible because she identifies herself as the suspect's mother. The possibility remains that any person could call the police and claim to be related to the suspect. The informant's motive is unknown until the police verify the informant's credibility."); Johnson v. State, 741 So.2d 1223, 1224 (Fla. Dist. Ct. App. 1999) (invalidating search and finding informant to be anonymous where police did not verify name, address and telephone number provided by telephone informant). The officer did not testify that the informant explicitly stated that he saw the gun. Furthermore, unlike Sierra-Hernandez and Giles, the informant in this case did not point to and identify a specific individual within sight of the officer and in the process of driving away at the time. (2)

In sum, the anonymous informant's tip was not reliable and is not a basis for reasonable suspicion to stop and search Mr. xxxxxxx.

2. Even When Considered in Conjunction with the Anonymous Tip, the Officer's Observation of Mr. xxxxxxx Does Not Establish Reasonable Suspicion

The government argues that reasonable suspicion is also supported in this case based on Officer Holloway's observation of suspicious behavior by Mr. xxxxxxx. Gov't Br. at 25-27. However, when he arrived at the Wendy's Restaurant parking lot and saw Mr. xxxxxxx, Officer Holloway did not see a gun or suspicious bulge and did not see Mr. xxxxxxx move or act suspiciously. Although the officer testified that there was only one car with occupants in the parking lot and no other individuals standing in the parking lot, the neighborhood was highly populated and there was a 24-hour McDonald's Restaurant across the street. (6/14/99 Tr. 7, 38).

When Officer Holloway first saw him, Mr. xxxxxxx had his back against a fence and was looking to the east on I Street. (6/14/99 Tr. 11). Officer Holloway testified: "As soon as I saw him, I parked my car. My car was partially blocked by the Wendy's . . . So I don't think he saw me at that point. I immediately drew my weapon and I hastily walked towards him with my gun out." (6/14/99 Tr. 12). Mr. xxxxxxx turned and saw Officer Holloway rapidly approaching when the officer was five to seven feet away. Id. (3) When he saw the officer, Mr. xxxxxxx took a step or some steps onto an adjacent sidewalk. (4/7/99 Tr. 14 (one or two steps); 6/14/99 Tr. 12, 24 (five steps)). The officer did not state whether Mr. xxxxxxx was facing forwards or backwards when he stepped away but, in either case, the step or steps indicate an instinctive response to being surprised by the armed, uniformed police officer. Therefore, they were not suspicious. (4)

Officer Holloway also testified that Mr. xxxxxxx appeared to be trying to conceal himself. (6/14/99 Tr. 11). The government argues that this testimony shows "objectively suspicious" behavior. Gov't Br. at 27. Even considered in conjunction with the tip, however, this fact does not establish reasonable suspicion in this case. Mr. xxxxxxx was at the end of a fence looking east on I Street but was clearly visible to anyone in the Wendy's parking lot and to anyone on the sidewalks and streets adjacent to the parking lot. In light of the fact that many people were exiting the clubs, there were probably pedestrians and drivers who could have seen Mr. xxxxxxx both before and after he stepped from the parking lot onto the sidewalk. For example, even behind the fence, he must have been visible to anyone to the west of him on I Street and at the intersection between I Street and South Capitol Street, where the Wendy's is located. (6/14/99 Tr. 8). Thus, he could still be seen from three directions. Even if he were trying to watch people coming out of the Mirage nightclub without being seen by them, that fact is not enough to establish reasonable suspicion here. Cf. United States v. Johnson, 212 F.3d 1313, 1316 (D.C. Cir. 2000) ("we doubt very much whether" police officer would have had reasonable suspicion for search based on presence in high-crime area, officer's observation of woman handing object into car window and "'shoving down'" motion by passenger of car). The fact that there are other innocent explanations for Mr. xxxxxxx's conduct may not "deprive an officer of the capacity to entertain reasonable suspicion," Gov't Br. at 27, but this Court clearly considers that fact to be relevant. See Johnson, 212 F.3d at 1316 (exchange of objects is "a common occurrence for which there could be many innocent explanations").

In addition, Officer Holloway stated that Mr. xxxxxxx "looked like he was going to shoot someone." (6/14/99 Tr. 11). The government argues that this conclusion is supported by Mr. xxxxxxx's presence in the Wendy's parking lot shortly after the restaurant closed, unidentified "problems" in the neighborhood, and the officer's experience as a police officer. Gov't Br. at 25-26. To the contrary, these circumstances provide no support for the officer's conclusion. It is clear that Officer Holloway believed the tipster without questioning his veracity or credibility. The officer did not, as he should have, stop to observe Mr. xxxxxxx for a reasonable period of time. See, e.g., Alabama v. White, 496 U.S. at 330 ("indicia of reliability" may be established through "independent police work"); Commonwealth v. Wimbush, 750 A.2d 807, 811-12 (Pa. 2000) ("When the police receive unverified information that a person is engaged in illegal activity, the police may observe the suspect and conduct an investigation. If police surveillance produces a reasonable suspicion of criminal conduct, the suspect may be stopped and questioned."); Hayward, 2000 WL 898328, *16-17 ("anonymous tips . . . serve as the basis and starting point of further investigation"). Without even waiting for his partner to arrive seconds later, (6/14/99 Tr. 27-29), Officer Holloway rushed in to seize and search Mr. xxxxxxx immediately. The officer's search and seizure violated Mr. xxxxxxx's Fourth Amendment right to privacy. (5)

CONCLUSION

For the reasons stated above and in his brief on appeal, Mr. xxxxxxx respectfully requests that this Court reverse the denial of his motion to suppress evidence and his conviction or, in the alternative, remand this case for reconsideration by the district court in light of Florida v. J.L. As the government agrees, unless the conviction is reversed, this case must be remanded for 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 COMPLIANCE WITH RULE 32(a)(7)(B)

I hereby certify that this brief contains 4,359 words in compliance with Fed. R. App. P. 32(a)(7)(B) and D.C. Circuit Rule 32(a)(2).





Beverly G. Dyer







CERTIFICATE OF SERVICE

I hereby certify that on August 3, 2000, two copies of the foregoing reply brief for appellant Terrell L. xxxxxxx, and one copy of the accompanying Appendix were served by hand on John R. Fisher, Chief, and 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. Furthermore, just as a telephone caller could hang up at any time, an individual could walk or drive away. It is unclear why the government states that the informant in this case "was not in a position to respond to [requests that he identify himself] by simply unilaterally terminating the encounter." Gov't Br. at 20. Certainly, the police had no right to detain him.

2. The government claims that the location described by the informant was visible from where the informant spoke with the police. Gov't Br. at 19. However, Officer Holloway stated that he could see the Wendy's but he could not see the restaurant's parking lot when he received the tip. (6/14/99 Tr. 8). The government also argues that the informant's tip is more credible because the informant approached the police from the direction of the Wendy's Restaurant. Gov't Br. at 23. That fact, however, is also consistent with the possibility that the informant intended to harass Mr. xxxxxxx after an altercation with him.

3. Thus, the record does not support the government's statement that the officer "parked his cruiser approximately six feet from appellant's position." Gov't Br. at 5.

4. Officer Holloway testified at the preliminary hearing that Mr. xxxxxxx did not attempt to flee. (4/7/99 Tr. 17). At the suppression hearing, the officer described the step or steps as an "attempt" but not "a sudden gesture of running or anything like that," and he did not dispute his preliminary hearing testimony that Mr. xxxxxxx did not attempt to flee. (6/14/99 Tr. 31).

5. If this Court does not reverse Mr. xxxxxxx's conviction, it should remand this case to the district court for reconsideration in light of Florida v. J.L. See, e.g, United States v. Williams, 951 F.2d 1287, 1291 (D.C. Cir. 1991) (endorsing remand if district court did not "ask[ ] the right legal questions in making its ruling").