United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 22, 2001 Decided February 27, 2001
No. 00-3039
United States of America,
Appellee
v.
Brad K. Edmonds,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 99cr00207-01)
Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was
A. J. Kramer, Federal Public Defender. Teresa Alva, Assis-
tant Federal Public Defender, entered an appearance.
Suzanne Grealy Curt, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Wilma A.
Lewis, U.S. Attorney, John R. Fisher, Thomas J. Tourish, Jr.
and Adam L. Rosman, Assistant U.S. Attorneys.
Before: Williams, Ginsburg and Sentelle, Circuit Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge: Based on evidence that police
officers discovered during a Terry stop and subsequent
searches, appellant Brad K. Edmonds was convicted of pos-
sessing cocaine base within 1,000 feet of a school in violation
of 21 U.S.C. s 860(a). Edmonds appeals that conviction,
arguing that the evidence introduced against him was ob-
tained in violation of the Fourth Amendment's guarantee
against unreasonable searches and seizures. Because we
conclude that, considering the totality of the circumstances,
the police officer reasonably suspected that appellant was
engaged in criminal activity, we hold that he obtained the
evidence lawfully. However, the United States introduced no
evidence that the school near which appellant was arrested
was one of the specific types of schools enumerated in the
statute, and we therefore vacate his conviction and remand
with instructions that his conviction for a lesser included
offense be reinstated.
I. BACKGROUND
A. Factual background
In the early evening of May 24, 1999, a group of Washing-
ton Metropolitan Police Department officers was patrolling
the 4600 block of Livingston Road, SE in Washington, DC.
The officers included Sergeant Bruce Feirson, a 21-year
veteran who had worked in that neighborhood intermittently
for some 14 years. Livingston Road is notorious as one of
the many "open air drug markets" infesting the nation's
capital and is additionally, in Feirson's words, home to "a
series of murders" and the site of "hundreds of arrests and
hundreds of incidents, violent incidents." Transcript of Mo-
tions Hearing at 6 ("Motion Tr.").
On that particular day, Feirson and his companions were
dressed in plainclothes and driving an unmarked car. But
according to his testimony, their vehicle--a black Crown
Victoria--is regularly used to patrol the neighborhood and is
easily identifiable by residents as a police cruiser. As the
officers made their way down Livingston Road, Feirson ob-
served a man (later identified as Antonio McFadden) standing
on the curb. When McFadden noticed the Crown Victoria,
"his eyes got pretty big, and he immediately pivoted, turned
away and he began to walk"--rapidly--towards a van located
in the parking lot of the nearby Patricia Harris school. Id. at
9. McFadden entered the van and seated himself in the front
passenger's seat. Appellant Edmonds occupied the driver's
seat.
McFadden had left the curb, Feirson believed, because he
had recognized him and his companions as police officers.
The sergeant's suspicions were further aroused because, he
testified, "it is not proper for--it would be illegal for cars to
be on school property after hours unless they have some
business at the school." Id. at 48. Moreover, the parking lot
to which McFadden retreated is well-known to officers as the
location of numerous drug transactions.
Sergeant Feirson decided to investigate. Exiting the
Crown Victoria, he approached Edmonds's van through the
parking lot with his police badge prominently hanging from
his neck. Id. at 21. Feirson could see both Edmonds and
McFadden through the van's windshield. As he drew nearer,
Edmonds began to make furtive movements: He "lean[ed]
forward in the vehicle, move[d] about in the car, and then
s[a]t upright, straight back upright in the vehicle." Id. at 11.
Feirson believed that Edmonds was attempting to hide some-
thing--he particularly suspected a weapon or drugs--under
the driver's seat.
After reaching the driver's-side door of the van, Feirson
asked Edmonds to show him his driver's license and vehicle
registration. Edmonds appeared to Feirson to be "extremely
nervous," as he was fidgeting in his seat and rapidly blinking
his eyes. Id. at 11-12. When he failed to produce his
registration, Feirson asked him to step out of the van.
Edmonds did so--and promptly began sprinting away. As he
fled, one of Sergeant Feirson's fellow officers spotted a pistol
lying in plain view on the van's floorboard, and shouted out
"gun" or "he has got a gun." Id. at 13.
Feirson, who after catching Edmonds by the waistband of
his pants was dragged several feet, finally tackled him with
the assistance of another officer. Because he noticed "a
bulge in Mr. Edmonds' left-front-pants pocket" and conse-
quently believed that he was armed, id., Feirson conducted a
pat-down search that yielded 40 ziploc bags of crack cocaine
and a fully loaded 9mm clip. Officers also recovered a fully
loaded 9mm pistol "sticking out" from underneath the van's
driver's seat. Id. at 16.
B. Procedural background
Edmonds stood trial on a five-count indictment, charging
him with: (1) unlawful possession of a firearm by a convicted
felon in violation of 18 U.S.C. s 922(g); (2) unlawful posses-
sion of ammunition by a convicted felon in violation of 18
U.S.C. s 922(g); (3) unlawful possession with intent to dis-
tribute five grams or more of cocaine base in violation of 21
U.S.C. s 841(a)(1) and (b)(1)(B)(iii); (4) unlawful possession
with intent to distribute cocaine base within 1,000 feet of a
school in violation of 21 U.S.C. s 860(a); and (5) carrying and
possessing a firearm during a drug trafficking offense in
violation of 18 U.S.C. s 924(c)(1).
Before trial, Edmonds moved to suppress the evidence on
the grounds that it had been seized during an unconstitutional
search. The United States District Court for the District of
Columbia heard Edmonds's motion on September 2, 1999, and
several days later denied it, concluding that the officers' stop
of Edmonds was supported by a reasonable suspicion and
hence was justified under Terry v. Ohio, 392 U.S. 1 (1968).
The court found, as a general matter, that the testimony of
Sergeant Feirson, who was the United States' principal wit-
ness, was credible. It also found that neighborhood residents
could easily identify the officers' unmarked Crown Victoria as
a police cruiser. See Transcript of Pretrial and Voir Dire,
9/13/99, at 15 ("9/13/99 Tr.").
The court concluded that Edmonds was "seized" within the
meaning of the Fourth Amendment at the moment Feirson
asked him for his license and registration. See id. at 17. It
further held that the seizure was a reasonable one. Consid-
ering the totality of the circumstances, it was reasonable for
an experienced police officer to have suspected that criminal
activity was afoot when (1) he was patrolling a neighborhood
known for drug trafficking; (2) a man observed him and then
fled to a parked van; (3) the van was parked in a school
parking lot after school hours; and (4) another person in the
van made "furtive gestures" while the officer approached him.
See id. at 15-17. Because the initial seizure was lawful, the
court held, Feirson was entitled to order Edmonds to exit the
van after he failed to produce his vehicle registration. And
the officers had probable cause to arrest Edmonds, and to
conduct a search incident to arrest, because they discovered a
gun lying in plain view of the floor of the van. See id. at 20-
21. All evidence therefore was deemed admissible.
Edmonds's trial commenced on September 13, 1999. On
September 20, the jury returned a guilty verdict on counts
three and four (possessing and intending to distribute cocaine
base, and possessing and intending to distribute within 1,000
feet of a school, respectively). Because the jury was unable
to reach a verdict on counts one, two, and five, the court
declared a mistrial as to those counts. At the close of the
evidence, Edmonds had moved for judgment of acquittal on
count four, arguing that the government had not proved that
the school near which he was arrested was one of the types
enumerated in 21 U.S.C. s 860(a). See Transcript of Testi-
mony, 9/15/99, at 170, 196. His motion was denied but, on
March 7, 2000, the court vacated his conviction under count
three, finding that it was a lesser, included offense of count
four. The court then sentenced Edmonds to a 60-month jail
term, from which he now appeals.
II. DISCUSSION
Edmonds's appeal presents two issues, but only one of
them is contested: whether a police officer has a reasonable
suspicion sufficient to support a Terry stop when (1) he is
patrolling a neighborhood known for narcotics trafficking; (2)
a man observes him, flees, and enters a van in which the
suspect is seated; (3) the van is parked in a school parking
lot--where drugs often are sold--after school hours; and (4)
the suspect makes "furtive gestures," apparently attempting
to conceal an item under the driver's seat, while the officer
approaches the van. As to the second issue, whether a
defendant can be convicted of violating 21 U.S.C. s 860(a),
which criminalizes the distribution of drugs within 1,000 feet
of, among others, "a public or private elementary, vocational,
or secondary school," when the government fails to introduce
any evidence that the school near which he was arrested was
one of the specific types of schools enumerated in the statute,
the parties are in accord. Edmonds's conviction on count
four must be vacated and his case remanded with instructions
that his conviction on count three--a lesser included of-
fense--be reinstated.
A. Constitutionality of the search
We define the scope of our inquiry. Edmonds does not
challenge the district court's determination that he was not
seized until Sergeant Feirson asked to see his license and
registration. Nor does he contend that the seizure of the
pistol lying in plain view on the van's floorboard and of the
cocaine and 9mm clip found during a pat-down was unlawful
on any other ground than the asserted unconstitutionality of
the initial Terry stop. Edmonds's entire appeal hangs on the
proposition that, in light of the circumstances on the evening
of May 24, 1999, it was unreasonable for Sergeant Feirson to
suspect that criminal activity was afoot. It was not.
In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court
carved out an exception to the warrant requirement of the
Fourth Amendment. The Fourth Amendment's prohibition
on unreasonable searches and seizures ordinarily requires all
such encounters to be conducted pursuant to a judicially
issued warrant--that is, the criterion by which the reason-
ableness of a given search or seizure typically is measured is
whether it was authorized by a warrant. See California v.
Acevedo, 500 U.S. 565, 582 (1991) (Scalia, J., concurring in the
judgment) ("Although the Fourth Amendment does not ex-
plicitly impose the requirement of a warrant, it is of course
possible to consider that implicit within the requirement of
reasonableness."). But the Terry Court made an exception
for "brief encounter[s] between a citizen and a police officer
on a public street," Illinois v. Wardlow, 120 S. Ct. 673, 675
(2000), which involve "necessarily swift action predicated upon
the on-the-spot observations of the officer on the beat."
Terry, 392 U.S. at 20.
In the same way that such encounters--"Terry stops," as
they have come to be known--need not proceed pursuant to a
warrant, neither must they be supported by probable cause.
Instead, an officer may briefly detain a citizen if he has a
reasonable, articulable suspicion that "criminal activity may
be afoot." Id. at 30. "The officer need not be absolutely
certain that the individual" is engaged in an unlawful enter-
prise; "the issue is whether a reasonably prudent man in the
circumstances would be warranted in his belief" that the
suspect is breaking, or is about to break, the law. Id. at 27.
As the Supreme Court recently explained, reasonable suspi-
cion "is a less demanding standard than probable cause and
requires a showing considerably less than preponderance of
the evidence." Wardlow, 120 S. Ct. at 675-76. Hence a
Terry stop requires only a "minimal level of objective justifi-
cation," INS v. Delgado, 466 U.S. 210, 217 (1984), and an
officer may initiate one "based not on certainty, but on the
need to 'check out' a reasonable suspicion." United States v.
Clark, 24 F.3d 299, 303 (D.C. Cir. 1994).
When determining whether a Terry stop was supported by
reasonable suspicion, this Court does not separately scruti-
nize each factor relied upon by the officer conducting the
search. See United States v. Sokolow, 490 U.S. 1, 8-9 (1989).
An officer on the beat does not encounter discrete, hermeti-
cally sealed facts. Rather, as we repeatedly have cautioned,
the question of whether reasonable suspicion existed can only
be answered by considering the totality of the circumstances
as the officer on the scene experienced them. See Clark, 24
F.3d at 301-02 ("The evidence giving rise to suspicion must
not be 'dissected and viewed singly,' but taken as a whole;
and it must be 'viewed through the eyes of a reasonable and
cautious police officer on the scene, guided by his experience
and training.' " (quoting United States v. Hall, 525 F.2d 857,
859 (D.C. Cir. 1976))). An officer's training and experiences
enable him to "draw[ ] inferences and make[ ] deductions"
from seemingly innocuous facts--"inferences and deductions
that might well elude an untrained person." United States v.
Cortez, 449 U.S. 411, 418 (1981). Hence even though a single
factor might not itself be sufficiently probative of wrongdoing
to give rise to a reasonable suspicion, the combination of
several factors--especially when viewed through the eyes of
an experienced officer--may.
In this case, the district court identified four factors that,
when considered in their totality, established the reasonable-
ness of Sergeant Feirson's suspicion that Edmonds was en-
gaging in criminal activity: (1) Livingston Road's notoriety as
an "open air drug market"; (2) Edmonds's presence in a van
parked after hours in a school lot known to be the site of
numerous drug transactions; (3) the "furtive gestures" made
by Edmonds as Feirson approached the van; and (4) the
perception that McFadden, Edmonds's companion, began to
flee when he noticed the officers' unmarked car. We find
that the first three factors are sufficient to amount to reason-
able suspicion, especially in light of McFadden's apparent
attempt to evade the officers.
As for the first factor, the probative value of a neighbor-
hood's reputation as a high-crime area is firmly established.
Of course, the fact that a given locale is well known for
criminal activity will not by itself justify a Terry stop; but it
is among the various factors that officers may take into
account. See, e.g., Wardlow, 120 S. Ct. at 676 (emphasizing
that an "individual's presence in an area of expected criminal
activity, standing alone, is not enough to support a reason-
able, particularized suspicion that the person is committing a
crime," but stressing that "officers are not required to ignore
the relevant characteristics of a location in determining
whether the circumstances are sufficiently suspicious to war-
rant further investigation"); United States v. Johnson, 212
F.3d 1313, 1316 (D.C. Cir. 2000) ("While obviously insufficient
by itself to amount to reasonable suspicion, this is among the
relevant contextual considerations in a Terry analysis." (cita-
tion omitted)). Edmonds simply misstates the law when he
asserts that Livingston Road's disproportionately high crime
rate "adds little" to the reasonable-suspicion calculus. Brief
for Appellant at 21.
In this case, the United States submitted evidence to the
district court that the 4600 block of Livingston Road suffers
from a high incidence of crime. Sergeant Feirson testified
that, in the last five years, he has been involved in "15 or 20
arrests" in the neighborhood, and described it as "an ex-
tremely high crime area." Motion Tr. at 6. The government
introduced evidence that the neighborhood is particularly
known for its prevalence of narcotics trafficking and violent
crime. Feirson more than once described Livingston Road as
an "open air drug market[ ]," and elaborated that "[p]rimarily
cocaine, but marijuana is also sold up there." He also
testified that "there has been a series of murders that I am
familiar with up in that area and shootings. There have been
hundreds of arrests and hundreds of incidents, violent inci-
dents up there." Id. In other words, the government estab-
lished not just that Livingston Road suffers from general,
undifferentiated "crime," but that it is home to the precise
type of infractions--drug and firearm offenses--that Feirson
suspected Edmonds of committing.
The second factor is equally probative of criminal activity
as courts recognize that a car parked in the lot of a closed
establishment can contribute to an officer's reasonable suspi-
cions. For example, in an Eighth Circuit case closely paral-
leling this one, United States v. Dawdy, 46 F.3d 1427 (8th Cir.
1995), an officer "observed Dawdy and his passenger parked
after 10:00 pm on a Sunday night at the back of the otherwise
deserted pharmacy parking lot," a pharmacy that was known
to have been burglarized several times in the recent past. Id.
at 1430. That court held that "the presence of two men
sitting in a parked automobile at night," when coupled with
the possibility that the suspect may have attempted to drive
away, "was sufficient to lead a trained law enforcement officer
to suspect that a crime was being committed and to justify
the initial stop." Id.
We need not--and do not today--adopt the Dawdy court's
apparent suggestion that the parked car scenario is by itself
sufficient to justify a Terry stop. See id. at 1432 (Lay, J.,
dissenting) ("This Court has now, for the first time in this or
any other circuit, determined that police can seize, detain, and
question an individual (or individuals) knowing nothing more
than the fact that the person's car is parked legally in a
mixed commercial/residential area at night."). But we do
recognize that a car parked in the lot of a then-closed
establishment that is the site of occasional criminal activity is
a factor that may strongly support an officer's reasonable
suspicions.
In this case, Sergeant Feirson observed Edmonds and
McFadden parked in the school's lot at around 7:00 PM, a
time when the school was known to be closed, as was the
pharmacy in Dawdy. And, again as in Dawdy, Sergeant
Feirson knew that crimes--in this case, drug transactions--
often were committed in the school's parking lot. It is
unclear whether vehicles in addition to Edmonds's van were
parked at the school. As Edmonds points out, Feirson
initially testified that it is "unusual" for cars to park in the
school lot after hours, but admitted on cross-examination that
"I am sure that there are [other] cars that park on that
parking lot after hours, yes." Motion Tr. at 10, 49. But it is
difficult to see why this matters. What triggered Feirson's
suspicion was not simply the after-hours presence of a parked
van, but of a parked van with two men sitting in it--one of
whom had already drawn the officer's notice by his suspicious
behavior. There is no evidence that any of the other cars
parked at the school--if indeed other cars were parked at the
school--also contained passengers. The presence of other
cars would not inherently have led Feirson to be any less
suspicious of Edmonds's van, especially given the approach by
its passenger from the street rather than from the direction
of the school, which could reasonably heighten the suspicion
that the occupants had no legitimate after-hours business
with the educational institution.
Third, this Court recognizes that "furtive" gestures in
response to the presence of the police can serve as the basis
of an officer's reasonable suspicion. In United States v.
Green, 465 F.2d 620 (D.C. Cir. 1972), we held that officers
were justified in conducting a Terry stop when they halted a
car for a traffic infraction and "observed the driver making
furtive movements as though pulling something out of his belt
and placing it under his seat." Id. at 623. Here, Sergeant
Feirson testified that he could see Edmonds through the
van's windshield as he approached the vehicle, and that he
noticed Edmonds reaching under the driver's seat as though
he were attempting to conceal something. "I saw the Defen-
dant lean all of the way forward," he recalled, "almost duck-
ing out of my sight. I could see his head above the dash-
board, and then I saw him lean back, up, seated upright in
the vehicle." Motion Tr. at 11.
Of course, a suspect's movements are not by themselves
enough to support a reasonable suspicion of criminal wrong-
doing; furtive gestures "are significant only if they were
undertaken in response to police presence." Johnson, 212
F.3d at 1316. And a suspect can respond to the presence of a
police officer only if he has recognized him as an officer. In
this case, there can be no serious doubt that Edmonds
recognized Sergeant Feirson as an officer. Feirson testified
that he was prominently wearing his police badge on his
chest. Motion Tr. at 21. Since Feirson further testified that
he could observe Edmonds through the van's windshield, it is
a fair inference that Edmonds in turn saw Feirson, perceived
his badge, recognized him as a police officer, and reacted by
making furtive gestures. Indeed, during cross-examination,
in an attempt to establish that Edmonds was "seized" before
Feirson demanded his license and registration, Edmonds's
attorney asked the officer "And it was a police badge, anyone
could tell that you were a police officer with a badge; right?"
To which Feirson replied "Right." Id. at 22.
This case thus is easily distinguishable from Johnson, in
which we doubted that the suspect's initial attempt to conceal
an object under his car seat gave rise to a reasonable
suspicion of wrongdoing (although we held that his later
movements did). See Johnson, 212 F.3d at 1316 ("If the
seizure had taken place at that point, we doubt very much
whether it would have been valid."). The reason why John-
son's first round of furtive gestures did not justify a Terry
stop was because "[i]t is not clear that Johnson was aware
that [the observing officer] was a police officer; [the officer]
was after all in an unmarked car." Id. In this case, by way
of crucial contrast, Feirson had his police badge prominently
displayed on his chest as he approached the van.
These three factors, when considered in their totality and
through the eyes of an experienced police officer on the
street, are sufficient to have led Sergeant Feirson reasonably
to suspect that Edmonds was engaged in unlawful activity.
Moreover, it was reasonable for Feirson's suspicions to be
aroused in the first instance by McFadden's apparent flight
and retreat to Edmonds's van. As we noted above, the
district court found that Feirson was aware that his Crown
Victoria was readily recognizable as a police vehicle. That
McFadden, immediately upon observing that vehicle, has-
tened to the van to join its driver, could at least raise a
suspicion that whatever was going on in the van had nothing
to do with legitimate presence in the parking lot, raising the
strong possibility, given the other facts discussed above, that
it was criminal activity.
The Supreme Court recently held that "[h]eadlong flight
... is not necessarily indicative of wrongdoing, but it certain-
ly is suggestive of such." Wardlow, 120 S. Ct. at 676; see
also California v. Hodari D., 499 U.S. 621, 623 n.1 (1991)
(" 'The wicked flee when no man pursueth.' " (quoting Prov-
erbs 28:1)). This case is not like United States v. Johnson,
496 A.2d 592 (D.C. Ct. App. 1985), in which the Court of
Appeals of the District of Columbia stated that "one person's
flight is imputable to another only if other circumstances
indicate that the flight from authority implies another per-
son's consciousness of guilt as well," before holding that three
suspects' joint presence in a vehicle enabled officers to "con-
clude that all three were associated in a venture of some
sort." Id. at 597. Rather, in this case the flight of McFad-
den to the van contributed to a reasonable suspicion that
criminal activity might be afoot in the vehicle. This case
involves direct, not transferred, suspicion. Acting upon that
reasonable suspicion, the investigating officer approached the
van and observed the other factors which we have enumerat-
ed above, further contributing to his reasonable suspicion and
supporting his Terry stop of Edmonds.
In sum, it was reasonable for Sergeant Feirson to suspect
that Edmonds was engaged in illegal activity. Because Feir-
son had a reasonable suspicion that "criminal activity may
[have] be[en] afoot," Terry, 392 U.S. at 30, the initial stop was
justified, and the evidence the officers subsequently obtained
was lawfully introduced. The district court did not err in
refusing to suppress the evidence.
B. Sufficiency of the evidence
Besides challenging the Terry stop, Edmonds argues alter-
natively that the United States introduced no evidence at trial
that the school near which he committed a drug offense was
one of the specific types of schools enumerated in 21 U.S.C.
s 860(a). Both parties agree that the government failed to
lay a factual foundation that would have enabled the jury to
conclude that "the Patricia Harris school," Opening State-
ments and Testimony, 9/14/99, at 36, was one of the statutori-
ly specified schools. They further agree that Edmonds's
conviction on count four--possessing and intending to distrib-
ute cocaine base within 1,000 feet of a school--must be
vacated, and that the case should be remanded with instruc-
tions to reinstate his conviction on count three--possessing
and intending to distribute cocaine base--a lesser included
offense.
21 U.S.C. s 860(a) makes it unlawful for a person to
participate in a drug transaction within 1,000 feet of an
"elementary, vocational, or secondary school or a ... college,
junior college, or university." Section 860(a) does not apply
to all types of schools, but only to the ones that are specifical-
ly enumerated in the statute's text. Hence to prove a viola-
tion of s 860(a), the United States must establish beyond
reasonable doubt that the school near which the defendant
committed a drug crime is one of the statutorily specified
types. Cf. United States v. Hawkins, 104 F.3d 437, 440 (D.C.
Cir. 1997) (holding that s 860(a) is not violated where a drug
offense is committed within 1,000 feet of a "school building
that is no longer (or not yet) in use as a school").
In other words, the character of the school is an element of
the offense that, like all elements, must be proved beyond a
reasonable doubt. See United States v. Gaudin, 515 U.S.
506, 510 (1993) (stressing that the Sixth and Fourteenth
Amendments guarantee a criminal defendant the right to "a
jury determination that [he] is guilty of every element of the
crime with which he is charged, beyond a reasonable doubt");
see also Apprendi v. New Jersey, 120 S. Ct. 2348, 2368 (2000)
(Thomas, J., concurring) (arguing that "every fact that is by
law a basis for imposing or increasing punishment" is an
element of the offense).
Here, the only evidence the United States submitted at
trial was that Edmonds had committed a drug offense in the
vicinity of "the Patricia Harris school." 9/13/99 Tr. at 36.
During the pretrial hearing on Edmonds's motion to sup-
press, a government witness had described the school alter-
nately as "a local high school" and a "junior high school,"
Motion Tr. at 9--either of which seemingly would meet
s 860(a)'s definition of a "secondary school." But during the
trial itself, the government made no effort to show that "the
Patricia Harris school" is indeed one of the types of schools
specified in 21 U.S.C. s 860(a). Because the United States
failed to introduce any evidence that Edmonds committed
that element of the offense, no jury properly could have found
beyond a reasonable doubt that he violated s 860(a).
A similar issue was presented in United States v. Smith, 13
F.3d 380 (10th Cir. 1993), where the Tenth Circuit applied a
statute making it unlawful to sell drugs within 1,000 feet of a
"playground." The statute further defined "playground" as
"any outdoor facility ... intended for recreation, open to the
public, and with any portion thereof containing three or more
separate apparatus intended for the recreation of chil-
dren...." 21 U.S.C. s 860(d). At trial, the only evidence
introduced by the government was that Crawford Park, the
location of defendant's drug sale, had "playgrounds, walking
paths, [and] gazebos." Smith, 13 F.3d at 382. It produced
no evidence that Crawford Park had three or more recreation
apparatus. "Because the testimony does not meet the re-
quirements of the definition of a playground set forth in 21
U.S.C. s 860(d), a reasonable jury could not convict Mr.
Smith beyond a reasonable doubt of an offense which requires
activity 'within 1,000 feet of a ... playground' as an element."
Id. Just so here.
We therefore vacate Edmonds's conviction for violating 21
U.S.C. s 860(a), and remand with instructions that the dis-
trict court reinstate his conviction for violating 21 U.S.C.
s 841(a)(1) and (b)(1)(B)(iii), a lesser included offense. The
prosecution might well have avoided this additional stage of
litigation by doing before the jury what it did at the suppres-
sion hearing: simply asking its witness to fully describe "the
Patricia Harris school."
III. CONCLUSION
The district court properly concluded that the police offi-
cers had a reasonable suspicion to conduct a Terry stop of
Edmonds, since they were patrolling in a high-crime area,
observed Edmonds sitting in a van parked after hours in a
school lot, and saw him conceal an object under his seat.
Because the initial stop was lawful, the evidence obtained in
subsequent searches need not be suppressed. However, the
district court erred in refusing to grant Edmonds's motion for
judgment of acquittal, as the United States introduced no
evidence that the school near which he was arrested was one
of the specific types of schools enumerated in 21 U.S.C.
s 860(a). Edmonds's conviction on count four therefore is
vacated, and the case is remanded with instructions that his
conviction on count three be reinstated.