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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 13, 2003 Decided December 19, 2003
No. 03-3003
UNITED STATES OF AMERICA,
APPELLEE
v.
MICHAEL A. RILEY,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 02cr00288–01)
Cheryl D. Stein, appointed by the court, argued the cause
and filed the brief for appellant.
John P. Gidez, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Roscoe C. Howard,
Jr., U.S. Attorney, John R. Fisher, Roy W. McLeese, III, and
Kristina L. Ament, Assistant U.S. Attorneys.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: RANDOLPH and ROBERTS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: Based on a tip from a
longtime informant, District of Columbia police searched Mi-
chael Riley and discovered that he possessed a large amount
of crack cocaine. Riley was charged with one count of
possession with intent to distribute five or more grams of
cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B)(iii). His motion to suppress the evidence having
been denied, he entered a conditional guilty plea, reserving
the right to appeal the denial of the motion to suppress.
That appeal is now before us. We affirm.
* * *
We state the pertinent facts as found by the district court,
which control unless ‘‘clearly erroneous.’’ On June 5, 2002
Detective Kirk Delpo of the Metropolitan Police Department
received a tip from a confidential informant that one Michael
Riley was in the area of an apartment in the 1700 block of
West Virginia Avenue with a large amount of crack stored in
his sock. The informant described Riley’s appearance. The
informant believed Riley was heading towards his vehicle, a
van or limo.
Delpo and fellow officers went to the location and saw a
person matching the description, but with a red scooter or
moped rather than a van or limo. Because of the discrepancy
they staked out a van instead. The informant then phoned
again, asking if the police had seen the person, and adding
that he was with a red scooter or moped. Delpo and his
associates then saw a person matching the earlier description
and sitting on a parked moped.
The police approached the person and learned that his
name was in fact Michael Riley. They surrounded him and
ordered him to dismount from the moped. Delpo testified
that he was standing two inches away from Riley and that
3
Riley could not move without touching him. Tr. 09/23/02 at
62. Another detective was approximately a foot away, and a
third officer was standing directly behind Riley. Id. at 61–62.
Delpo and the officer behind Riley were close enough that
Riley couldn’t have moved without actually making contact
with one or the other. Id. at 60, 62. While there is some
obscurity in the record as to exactly what followed, it seems
clear that by this point a reasonable person in Riley’s shoes
would have believed he was not free to leave, so that for
Fourth Amendment purposes a seizure of some kind had
occurred. United States v. Mendenhall, 446 U.S. 544, 554
(1980).
Thereafter Delpo bent down in front of Riley and at some
point saw a bulge in his sock. He searched the sock and
recovered what later proved to be crack cocaine. Delpo said
that Riley was wearing long shorts which left the ankle
exposed, and the district court accepted this testimony. Tr.
10/03/02 II at 25. Riley points to contradictory evidence,
which he claims shows that Delpo discovered the bulge itself
only by searching Riley, and that therefore the district court’s
acceptance of Delpo’s account was clearly erroneous. Be-
cause we think it clear that some sort of seizure occurred
before these events, whatever their exact sequence, we need
not resolve the issue. In any event, after the police extracted
the contents of the sock, they formally placed Riley under
arrest.
The seizure that occurred before the exploration of Riley’s
sock might be classified either as an investigative stop under
Terry v. Ohio, 392 U.S. 1 (1968), requiring only ‘‘reasonable
suspicion,’’ or as an arrest, requiring probable cause. At the
suppression hearing, for reasons that elude us, the govern-
ment explicitly disavowed any view that the initial seizure was
a Terry stop. Tr. 10/03/02 I at 8. The stop and associated
search can therefore be upheld only if the police had probable
cause to arrest Riley at the moment when they converged on
the moped.
Given the timing of the stop, the only source of probable
cause is the confidential informant’s tip and the police’s later
4
confirmation of innocent and more or less contemporaneous
details such as Riley’s appearance and name. There is no
precise formula for the probability required for probable
cause. ‘‘Somewhere between ‘less than evidence which would
justify TTT conviction’ and ‘more than bare suspicion,’ proba-
ble cause is satisfiedTTTT The precise point is indetermi-
nate.’’ United States v. Prandy–Binett, 995 F.2d 1069, 1070
(D.C. Cir. 1993) (citation omitted). See also Draper v. United
States, 358 U.S. 307, 313 (1959). The standard is to be met
by applying a ‘‘totality-of-the-circumstances analysis.’’ Illi-
nois v. Gates, 462 U.S. 213, 234 (1983). The phrase means
simply that the court considers all data relevant to the
probability of a crime being committed, without having to
satisfy the two independent requirements (or proverbial
‘‘prongs’’) of the Aguilar-Spinelli test, namely ‘‘[1] the infor-
mant’s ‘veracity’ or ‘reliability’ and [2] his ‘basis of knowl-
edge.’ ’’ Id. at 233. Gates rejected any such ‘‘two-pronged
test’’ ‘‘as hypertechnical and divorced from ‘the factual and
practical considerations of everyday life on which reasonable
and prudent men, not legal technicians, act.’ ’’ Massachusetts
v. Upton, 466 U.S. 727, 732 (1984) (quoting Gates). Thus an
informant of singular reliability may supply tips amounting to
probable cause even though he gives no explicit ‘‘indication of
the basis for his information.’’ Gates, 462 U.S. at 242 (dis-
cussing Draper).
The informant in this case was particularly reliable. First,
his track record was long and error-free. The district court
accepted Detective Delpo’s testimony that the informant had
provided reliable information over 60 times since the start of
their relationship in 1995 or even earlier, Tr. 10/03/02 II at 15,
and that he (Detective Delpo) knew of no occasion on which
the informant had provided false information, id.; see also Tr.
09/23/02 at 7. Thus the informant was the very opposite of an
anonymous caller of the sort involved in Gates. And Delpo
had regularly paid the informant for his information. Tr.
09/23/02 at 7–8. In the past we have seen the fact of an
informant’s being known to the police as supplying ‘‘accounta-
bility’’ because the known tipster necessarily risked possible
criminal prosecution for giving the police false information.
See United States v. Thompson, 234 F.3d 725, 729 (D.C. Cir.
5
2000). Here the tipster was subject to a more readily en-
forceable sanction: a reduction in the income he obtained
from his tipping activity. Although the continual receipt of
money for information may make the informant morally
unattractive, it supplies him with a sharp incentive to be
accurate.
Although police observed behavior confirming information
supplied by the informant before stopping Riley (information
suggesting that the informant had Riley under real-time
observation), none of Riley’s behavior appears to have been
illicit, and none of the information required advanced knowl-
edge on the part of the informant. The latter would shore up
his tip, as accurate prediction would tend to show special
access to the plans and activities of the suspect. We have
held that a tipster’s strong incentives to be truthful, alone,
provided ‘‘ample’’ ‘‘reasonable suspicion’’ for a Terry stop,
United States v. Clark, 24 F.3d 299, 302–03 (D.C. Cir. 1994),
but in our published decisions on probable cause the police
seem always to have had more than a reliable informant and
the confirmation of contemporaneous innocent details. See
United States v. Warren, 42 F.3d 647, 649 (D.C. Cir. 1994)
(probable cause provided by a tip from a reliable informant
combined with a controlled drug purchase); United States v.
Lincoln, 992 F.2d 356, 358 (D.C. Cir. 1993) (probable cause
provided by a tip from a reliable informant combined with
suspicious behavior by the suspects); United States v. Thom-
as, 989 F.2d 1252, 1254 (D.C. Cir. 1993) (search warrant
properly issued when reliable tip was combined with con-
trolled drug purchase); United States v. Chin, 981 F.2d 1275,
1278 (D.C. Cir. 1992) (probable cause provided by a tip from a
reliable informant combined with suspicious behavior by the
suspects and conformance to a drug-courier profile).
On the other hand, none of the above cases held that the
additional factor was necessary; they said only that in combi-
nation with the reliable tip it was sufficient. Thus our
holding here is consistent with, though not compelled by, our
precedent. In addition, in an unpublished opinion we found
probable cause in a reliable informant’s tip, with corrobora-
tion limited to contemporaneous innocent details. United
6
States v. Jones, 1994 WL 245568 (D.C. Cir. 1994). We
distinguished prior cases that rejected comparable tips on the
ground that in them the tipster had been anonymous. Jones
of course has no precedential value, see D.C. Cir. R. 28(c);
see also Slinger Drainage, Inc. v. EPA, 244 F.3d 967, 968
(D.C. Cir. 2001), but we find some assurance in the fact that a
prior panel in fact ruled the same way on very similar
circumstances. With all factors being relevant to a unitary
inquiry under the ‘‘totality-of-the-circumstances analysis,’’ a
high degree of reliability makes it unnecessary to demand
confirmation of illicit or predictive details.
Given that the police had probable cause to arrest Riley,
the search was valid as one incident to arrest. It is of no
import that the search came before the actual arrest. In
Rawlings v. Kentucky, 448 U.S. 98, 111 (1980), the Supreme
Court held in the context of a search ‘‘incident to TTT formal
arrest’’ that ‘‘[w]here formal arrest follow[s] quickly on the
heels of the challenged search of petitioner’s person, we do
not believe it particularly important that the search preceded
the arrest rather than vice versa.’’ Here the police arrested
Riley almost immediately on discovering the cocaine on his
person. See Tr. 09/23/02 at 16 (‘‘Q: What did you [Detective
Delpo] and the other officers do as a result of [discovering
‘chunks of hard white rock matter’] in the defendant’s sock?
A: He was placed under arrest.’’). Under these circum-
stances the exact sequence of events poses no problem.
The judgment of the district court is
Affirmed.