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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 21, 2003 Decided March 9, 2004
No. 02-3043
UNITED STATES OF AMERICA,
APPELLEE
v.
WENDELL P. HOLMES, JR.,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 01cr00271–01)
Beverly G. Dyer, Assistant Federal Public Defender, ar-
gued the cause for the appellant. A. J. Kramer, Federal
Public Defender was on brief. Neil H. Jaffee, Sandra G.
Roland, and Tony W. Miles, Assistant Federal Public De-
fenders, entered appearances.
David B. Goodhand, Assistant United States Attorney,
argued the cause for the appellee. Roscoe C. Howard, Jr.,
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
United States Attorney, and John R. Fisher, Roy W.
McLeese, III, and Darryl B. Brooks, Assistant United States
Attorneys were on brief.
Before: EDWARDS, SENTELLE and HENDERSON, Circuit
Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: The appellant,
Wendell P. Holmes, Jr., was indicted on one count of felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).1
He pleaded guilty after the district court denied his motion to
suppress the evidence against him—a Lorcin .38–caliber
semi-automatic pistol with a live .38–caliber round in the
chamber and three more in the magazine—but reserved his
right to appeal the court’s ruling. On appeal, he challenges
the police search that uncovered the firearm and ammunition,
contending the police had no reasonable suspicion to search
him and therefore violated his Fourth Amendment right
against unreasonable search and seizure. For the reasons
discussed below, we disagree and affirm the judgment of the
district court.
I. BACKGROUND
Shortly before two o’clock a.m. on July 1, 2001, a pedestrian
flagged down Metropolitan Police Department (MPD) Officer
Walter Fleming while he was patrolling the 900 block of
Bellevue Street in Southeast Washington, D.C. in a marked
police cruiser.2 The pedestrian claimed to have seen a man in
the area of 869 Bellevue Street brandishing a handgun. He
reported that the man wore an orange shirt and tan pants,
appeared intoxicated and, once aware of the pedestrian, con-
cealed the weapon. Fleming immediately broadcast a lookout
1 ‘‘It shall be unlawful for any person TTT who has been convicted
in any court of[ ] a crime punishable by imprisonment for a term
exceeding one year TTT to TTT possess in or affecting commerce,
any firearm or ammunitionTTTT’’ 18 U.S.C. § 922(g)(1).
2The facts are based on the evidence presented during the
suppression hearing.
3
for the man and requested assistance before investigating
further.
MPD Officer Julian Lamb responded within approximately
two minutes of Fleming’s radio broadcast. Lamb knew the
area as a high crime area, including robberies, burglaries,
assaults and shootings. Lamb did not speak to the pedestri-
an upon arriving on the scene, but overheard him speaking
with Fleming. Lamb did observe that the pedestrian was
‘‘upset’’ and ‘‘afraid’’ and noticed ‘‘how he was dressed,’’ which
observations led Lamb to conclude that he was ‘‘a reliable
person.’’ Joint Appendix (JA) tab A at 6. After completing
his interview of the pedestrian, Fleming told Lamb that the
pedestrian said the armed man appeared intoxicated or high.
Fleming and Lamb then began canvassing the 800 block of
Bellevue Street for the man the pedestrian described.
Lamb first drove approximately 200 feet to an alleyway
where the pedestrian claimed to have seen the man. After
searching for approximately five minutes, Lamb observed a
man—later identified as Wendell Holmes—‘‘crouched down’’3
on the porch of the house at 873 Bellevue Street. JA tab A
at 8–9. Holmes was wearing a ‘‘reddish orange shirt [and]
tan pants.’’4 JA tab A at 10. Lamb was about 10 feet away
from Holmes when he spotted Holmes but he could not see
Holmes (and, in particular, Holmes’s hands) clearly, as the
lighting in the area was poor, there were no lights on in the
house and Holmes was crouching ‘‘right at the door’’ of the
house. JA tab A at 9. Apart from Holmes, the pedestrian
and Fleming, Lamb did not see anyone else in the 800 block
of Bellevue Street during their search.
Upon discovering Holmes, Lamb testified that he was
‘‘scared’’ and ‘‘had a real heightened safety concern’’ for
3 Holmes was either crouching or sitting on the porch. The
district court credited Lamb’s statement that Holmes was crouching
on the porch.
4 Holmes was wearing either tan shorts or tan pants. The
district court credited Lamb’s statement that Holmes wore either
tan pants or long shorts.
4
Fleming and himself and for the ‘‘general public.’’ JA tab A
at 10. Both officers, who were in uniform, pointed their guns
at him and told him to stand up and put his hands where they
could be seen. Holmes did not respond until the officers had
repeated the command ‘‘roughly’’ five times. JA tab A at 13–
14. When Holmes finally complied, he did so slowly, from
which Lamb concluded that he was intoxicated or high.
While Fleming conducted a ‘‘protective pat-down’’ of
Holmes’s person for weapons, JA tab A at 16, Lamb alerted
Fleming that he saw the outline of a gun handle beneath
Holmes’s shirt. Fleming lifted Holmes’s shirt and discovered
a loaded Lorcin .38–caliber semi-automatic pistol tucked in his
pants near his right hip.
On July 31, 2001 Holmes was indicted on a single count:
felon in possession of a firearm. See 18 U.S.C. § 922(g)(1).
Holmes moved to suppress the evidence against him, i.e., the
Lorcin semi-automatic pistol and the live rounds. The dis-
trict court denied his motion, concluding that Holmes’s case
was on all fours with our decision in United States v. Thomp-
son, 234 F.3d 725 (D.C. Cir. 2000), cert. denied, 532 U.S. 1000
(2001). Holmes then entered a conditional guilty plea, re-
serving his right to appeal. See FED. R. CRIM. P. 11(a)(2)
(‘‘With the consent of the court and the government, a
defendant may enter a conditional plea of guilty TTT, reserv-
ing in writing the right to have an appellate court review an
adverse determination of a specified pretrial motion.’’). The
district court sentenced Holmes to 33 months’ incarceration.
Holmes now appeals.
II. ANALYSIS
Our review of the district court’s ruling is de novo. United
States v. Davis, 235 F.3d 584, 586 (D.C. Cir. 2000), cert.
denied, 534 U.S. 860 (2001). We examine the findings of fact
that underlie the trial court’s determination for clear error
and ascribe ‘‘due weight to inferences drawn from those facts
by [the] resident judge[ ] and local law enforcement officers.’’
Ornelas v. United States, 517 U.S. 690, 699 (1996).
5
Following the United States Supreme Court’s decision in
Terry v. Ohio, 392 U.S. 1 (1968), and its progeny, the law is
well-established that a law enforcement officer acting on a
‘‘reasonable, articulable suspicion that criminal activity is
afoot’’ may, consistent with the Fourth Amendment, briefly
detain a suspect for investigation and conduct a limited
search of the suspect’s outer clothing for weapons. Illinois v.
Wardlow, 528 U.S. 119, 123–24 (2000); see Terry, 392 U.S. at
27, 30. Reasonable suspicion is not a ‘‘ ‘finely-tuned stan-
dard[ ],’ ’’ Ornelas, 517 U.S. at 696 (quoting Illinois v. Gates,
462 U.S. 213, 235 (1983)); instead it is a ‘‘fluid concept[ ]’’ that
derives ‘‘substantive content from the particular context[ ] in
which [it is] being assessed.’’ Ornelas, 517 U.S. at 696. The
standard is dependent on ‘‘both the content of information
possessed by police and its degree of reliability,’’ Alabama v.
White, 496 U.S. 325, 330 (1990), and ‘‘requires a showing
considerably less than preponderance of the evidence.’’
Wardlow, 528 U.S. at 123; see also White, 496 U.S. at 330.
The reasonable suspicion standard requires us, then, to deter-
mine whether Officers Lamb and Fleming had ‘‘a minimal
level of objective justification,’’ Wardlow, 528 U.S. at 123; see
also White, 496 U.S. at 329–30, for the Terry stop of Holmes
based on ‘‘ ‘the totality of the circumstances—the whole pic-
ture.’ ’’ White, 496 U.S. at 330 (quoting United States v.
Cortez, 449 U.S. 411, 417 (1981)). We give ‘‘due weight’’ not
to the officers’ ‘‘inchoate and unparticularized suspicion’’ but
to the ‘‘specific reasonable inferences which [they are] enti-
tled to draw from the facts in light of [their] experience.’’
Terry, 392 U.S. at 27. Moreover, we view the matter from
the perspective of ‘‘ ‘an objectively reasonable police officer’ ’’
without regard to ‘‘the actual motivations of the individual
officers involved.’’ United States v. Hill, 131 F.3d 1056, 1059
(D.C. Cir. 1997) (quoting Ornelas, 517 U.S. at 696).
Holmes contends that the district court was obligated,
under the Supreme Court’s decision in Florida v. J.L., 529
U.S. 266 (2000), to suppress the gun and ammunition. In that
case, the Miami–Dade County police received a telephone call
from an anonymous tipster who reported that ‘‘a young black
male standing at a particular bus stop and wearing a plaid
6
shirt was carrying a gun.’’ Id. at 268. When police officers
arrived at the bus stop, they saw three black men, one of
whom, J.L., was wearing a plaid shirt. Id. One of the
officers then frisked J.L. and found a gun in his pocket. Id.
On these facts, the Court held that the unknown caller’s
‘‘bare-boned’’ tip did not provide sufficient ‘‘indicia of reliabili-
ty’’ to justify a Terry stop-and-frisk because ‘‘[a]ll the police
had to go on TTT was the bare report of an unknown,
unaccountable informant who neither explained how he knew
about the gun nor supplied any basis for believing he had
inside information about J.L.’’ Id. at 269, 271. That the tip
accurately described J.L.’s location and appearance did not
suffice, according to the Court, because those benign details
failed to reveal ‘‘that the tipster ha[d] knowledge of concealed
criminal activity.’’ Id. at 272. The Court explained that
‘‘[t]he reasonable suspicion here at issue requires that a tip be
reliable in its assertion of illegality, not just in its tendency to
identify a determinate person.’’ Id.
Following J.L., we decided United States v. Thompson, 234
F.3d 725 (2000), cert. denied, 532 U.S. 1000 (2001), which the
district court here found to be a closer fit with Holmes’s case.
See id. at 727–30. In Thompson, two police officers were
approached by an ‘‘anxious and agitated’’ motorist who relat-
ed that he ‘‘just saw’’ a man who was wearing ‘‘dark pants
and a bright orange shirt’’ and carrying a gun exit a sport-
utility vehicle in the nearby parking lot of a closed restaurant.
Id. at 726–27. The officers drove to the parking lot, where
they discovered a man who fit the motorist’s description. Id.
at 727. According to the officers, the suspect was ‘‘looking
around the edge of [a] fence toward a night club.’’ Id.
Fearing that the suspect was armed, one of the officers—his
weapon drawn—approached and stopped him. Id. Upon
frisking him, the officer found a cocked and loaded nine-
millimeter semi-automatic pistol jammed in his waistband.
Id.
The court in Thompson explained that ‘‘the tip in this case
bears indicia of reliability beyond those of the anonymous tip
in J.L.; and the police themselves observed [the suspect]
engaging in suspicious conduct.’’ Id. at 729. The court found
7
the motorist’s tip more reliable than the one supplied by the
unknown caller in J.L., first, because the motorist informed
the police in person, ‘‘making his report inherently more
trustworthy.’’ Id. The motorist claimed to have just seen
the armed man which, the court concluded, signaled not only
that his knowledge involved first-hand observation but that
the ‘‘recency and the proximity’’ of the observation indicated
it would ‘‘prove accurate’’ as well. Id. The court also found
the motorist more accountable than the unknown caller in
J.L. because he ‘‘subjected himself to ready identification by
the police when he approached them in his car.’’ Id. Be-
cause the officers had only to ask the motorist for identifica-
tion or record his license plate number, the motorist risked
possible criminal prosecution had he fabricated his report.
Id. (citing D.C. CODE ANN. § 4–151).
The court in Thompson further distinguished J.L. based on
the officers’ own observations of the suspect’s ‘‘clearly suspi-
cious’’ behavior. Id. The officers saw the suspect ‘‘conceal-
ing himself behind the fence and peering out toward the
street’’ in the parking lot of a closed restaurant at three
o’clock in the morning, all of which, viewed from the perspec-
tive of an objectively reasonable police officer, was ‘‘furtive
conduct TTT not merely consistent with the tip that he had a
weapon; it would have signaled a reasonable police officer
that [he] was positioning himself to use it.’’ Id. at 729–30.
We believe the Thompson scenario closely resembles the
one under review. First, the pedestrian approached Fleming
in order to offer his tip in person, thus making it ‘‘inherently
more trustworthy,’’ id. at 729, than the ‘‘bare report of an
unknown, unaccountable informant who neither explained
how he knew about the gun nor supplied any basis for
believing he had inside information.’’ J.L., 529 U.S. at 271.
The pedestrian also supplied the police with an eye-witness
account of criminal activity. See Thompson, 234 F.3d at 729.
He made clear to Fleming that his knowledge was ‘‘based
upon firsthand observation’’ by telling Fleming that he ‘‘had
observed a man with a gun.’’ Id.; see also Gates, 462 U.S. at
234 (informant’s ‘‘explicit and detailed description of alleged
wrongdoing, along with a statement that the event was ob-
8
served first-hand, entitles his tip to greater weight than
might otherwise be the case’’). Furthermore, because the
pedestrian was still present when Lamb arrived on the scene,
Lamb also had an opportunity to assess his demeanor and
concluded that he was a reliable source of information.5 Cf.
United States v. Valentine, 232 F.3d 350, 355 (3d Cir. 2000)
(‘‘[A] court may deduce that the officers thought the tipster’s
demeanor, voice, and perhaps a host of other factors sup-
ported the reliability of the tip.’’), cert. denied, 532 U.S. 1014
(2001).
Holmes argues that, unlike in Thompson, where the ‘‘re-
cency and the proximity of [the motorist’s] claimed observa-
tion further suggested that it would prove accurate,’’ 234 F.3d
at 729, the record here does not indicate that the pedestrian
told the police ‘‘when he saw a man with a gun.’’ Appellant’s
Br. at 11 (emphasis added). According to Holmes, the dis-
trict court clearly erred in finding that the ‘‘temporal proximi-
ty between the observation and the tip was very strong in this
case[,] as it was in Thompson.’’ Appellant’s Br. at 11. We do
not agree. While the record does not reveal the precise
length of time between when the pedestrian saw Holmes with
a gun and when he reported it to Fleming, the record does
contain details from which we can infer that the pedestrian’s
observation occurred only a short time before he reported it.
First, Lamb appeared on the scene—only two minutes after
Fleming broadcast the lookout—to find a witness who was
noticeably upset and afraid; that the pedestrian remained
shaken from his encounter with Holmes when Lamb arrived
suggests that the encounter had occurred only a short time
earlier. Second, Lamb began searching where the pedestrian
reported he had seen Holmes and found Holmes only a few
doors away from where the pedestrian had reported seeing
him.
5 Holmes claims that the district court ‘‘improperly placed the
burden of proving reliability on [him] in finding that [his] counsel
‘did not cross-examine’ regarding’’ Lamb’s statement that the pe-
destrian was reliable. Appellant’s Br. at 14. The district court’s
comment, however, simply reflected its view that Holmes had not
adduced any evidence undermining the officer’s conclusion.
9
Holmes also claims that the pedestrian was not as account-
able (and therefore not as reliable) as the motorist in Thomp-
son because he ‘‘approached the police in person but not in a
car, so that the officers would not have been able to identify
him by writing down a license plate number.’’ Appellant’s
Br. at 12. While the officers in Thompson could have learned
the motorist’s identity from a source unavailable here—the
license plate number—the pedestrian similarly ‘‘place[d] his
anonymity at risk,’’ J.L., 529 U.S. at 276 (Kennedy, J.,
concurring), by ‘‘subject[ing] himself to ready identification
by the police.’’ Thompson, 234 F.3d at 729. The pedestrian
approached Fleming and remained on the scene until Lamb
arrived; thus, either officer could easily have asked him for
identification. That they apparently chose not to do so does
not negate the fact that by personally supplying information
‘‘immediately verifiable at the scene,’’ Adams v. Williams, 407
U.S. 143, 146 (1972), the pedestrian faced some risk had the
tip proved bogus. See D.C. CODE. ANN. § 5–117.05 (false or
fictitious report regarding commission of crime made know-
ingly punishable by fine ‘‘not exceeding $300 or by imprison-
ment not exceeding 30 days’’); see also Thompson, 234 F.3d
at 729; see generally Gates, 462 U.S. at 233–34 (‘‘[I]f an
unquestionably honest citizen comes forward with a report of
criminal activity—which if fabricated would subject him to
criminal liability—we have found rigorous scrutiny of the
basis of his knowledge unnecessary.’’); Adams, 407 U.S. at
146–47 (‘‘The informant here came forward personally to give
information that was immediately verifiable at the scene TTT
[and] might have been subject to immediate arrest for making
a false complaint had [the officer’s] investigation proved the
tip incorrect.’’); United States v. Christmas, 222 F.3d 141,
144 (4th Cir. 2000) (‘‘[A] witness who directly approaches a
police officer can also be held accountable for false state-
ments.’’), cert. denied, 531 U.S. 1098 (2001).
In a final effort to distinguish Thompson, Holmes chal-
lenges the district court’s conclusion that the officers inde-
pendently observed Holmes engaged in suspicious behavior.
Appellant’s Br. at 14. Holmes contends that the court’s con-
clusion is without support once its clearly erroneous finding
10
that Holmes was ‘‘peering around or through TTT the fence
rail or something,’’ JA tab A at 40, is removed from the
‘‘totality of the circumstances.’’ White, 496 U.S. at 330
(quoting Cortez, 449 U.S. at 417). Holmes is correct that
there is no evidence in the record that he was peering around
or through anything when Lamb spotted him. The district
court appears simply to have inadvertently uprooted this fact
from Thompson and transplanted it here. See Thompson,
234 F.3d at 727, 729. The district court clearly erred in so
doing.6
Without this particular detail, Holmes’s conduct—as ob-
served by Lamb and Fleming—was less suspicious than the
suspect’s in Thompson. See id. at 729–30. When Lamb
located Holmes, Holmes was crouched down ‘‘right at the
door’’ of a darkened residence at approximately two o’clock in
the morning in a neighborhood where Lamb had personally
responded in the past to violent crimes. JA tab A at 7–9, 35.
These facts, without more, would not necessarily arouse the
suspicion of an ‘‘objectively reasonable police officer.’’ Orne-
las, 517 U.S. at 696; cf. Wardlow, 528 U.S. at 124 (that stop
occurs in high crime area is ‘‘among the relevant contextual
considerations in a Terry analysis’’ (citing Adams, 407 U.S. at
144, 147–48)). But Holmes’s failure to obey the officers’
repeated command, while tending to corroborate the pedestri-
an’s report that Holmes was inebriated, could also have been
viewed as suspicious, and even dangerous, by a reasonable
officer. See Thompson, 234 F.3d at 729–30; see also United
States v. Johnson, 212 F.3d 1313, 1317 (D.C. Cir. 2000) (‘‘[B]y
the time the stop actually took place, it was supported by [the
suspect’s] continued furtive gestures in response to being
confronted by a police officer, and that was suspicious enough
to support a reasonable belief that [the suspect] may have
been engaged in criminal activity.’’).
Given that the officers had already drawn their weapons
and therefore accomplished the Terry stop before Holmes’s
6 The government concedes the error. See Appellee’s Br. at 21 &
n.7 (‘‘It is true that there is no evidence that [Holmes] was ‘peering
around’ anything when Lamb came upon him.’’).
11
suspicious behavior,7 that behavior cannot be relied upon to
support the stop. See Ornelas, 517 U.S. at 696 (‘‘The princi-
pal components of a determination of reasonable suspicion or
probable cause will be the events which occurred leading up
to the stop or searchTTTT’’); Terry, 392 U.S. at 21–22 (reason-
ableness of seizure must be evaluated in light of ‘‘the facts
available to the officer at the moment of the seizure’’). But
neither is such reliance necessary. See, e.g., J.L., 529 U.S. at
272 (reasonable suspicion ‘‘requires that a tip be reliable in its
assertion of illegality’’); White, 496 U.S. at 332; Adams, 407
U.S. at 146–47. In White, the Supreme Court upheld the
stop based on the reasonable suspicion resulting from a
reliable tip with no suggestion that there was any further
suspicious behavior on the defendant’s part. 496 U.S. at 332.
Similarly, even J.L., which suppressed the evidence because
of an invalid Terry stop, did so because of a lack of indicia of
reliability regarding the tip, not because of the lack of any
further suspicious behavior by the defendant. See 529 U.S. at
271–72. Accordingly, even if Thompson is distinguishable,
the distinction makes no difference.
Finally, Holmes contends that the police acted unreason-
ably in failing to investigate the pedestrian’s tip further
before stopping Holmes. Appellant’s Br. at 14–15. Holmes
speculates that had the officers only observed him longer or
simply questioned him, they might have learned that his
‘‘presence outside a residence at that date and hour’’ resulted
from ‘‘a lack of air conditioning, TTT an inability to sleep, or a
desire to enjoy a summer Saturday night outside.’’ Id. at 15.
Following a reliable report in their late-night investigation of
an inebriated man with a gun in a high crime neighborhood,
however, the officers had ample cause to act as they did. See
Thompson, 234 F.3d at 729–30. Nothing in the reasonable
suspicion standard requires a law enforcement officer to
7 But see California v. Hodari D., 499 U.S. 621, 625–29 (1991)
(seizure not effected until officer tackled suspect, despite officer’s
prior show of authority); Johnson, 212 F.3d at 1316–17 (seizure not
effected where officer made show of authority but suspect continued
to make ‘‘shoving down’’ motions, ‘‘gestures that were the very
opposite of complying with’’ officer’s order).
12
perform his duties in a way that risks his safety and that of
the community he serves in the hope that all is well despite
reliable information to the contrary. See Adams, 407 U.S. at
147–48 (‘‘While properly investigating the activity of a person
who was reported to be carrying narcotics and a concealed
weapon and who was sitting alone in a car in a high-crime
area at 2:15 in the morning, [the officer] had ample reason to
fear for his safety.’’); see also Christmas, 222 F.3d at 145
(‘‘Officers TTT are entitled to investigate [citizens’] reports
without jeopardizing their personal safety.’’); cf. Thompson,
234 F.3d at 730 (‘‘To ask more of the police in these circum-
stances TTT might well preclude them from interceding before
the suspect has accomplished his violent, perhaps lethal,
purpose.’’).
* * *
For the foregoing reasons, the judgment of the district
court is
Affirmed.