United States v. Abdus-Price

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 17, 2008 Decided March 11, 2008

No. 06-3075

UNITED STATES OF AMERICA,
APPELLEE

v.

JAMAL ABDUS-PRICE,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 05cr00123-01)

Rita B. Bosworth, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was A.
J. Kramer, Federal Public Defender.

Stratton C. Strand, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jeffrey A.
Taylor, U.S. Attorney, and Roy W. McLeese, III and Mary B.
McCord, Assistant U.S. Attorneys.

Before: GINSBURG, ROGERS, and GRIFFITH, Circuit
Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.
 2
GRIFFITH, Circuit Judge: Can the target of a Terry stop
defeat the legality of his seizure by pointing to a slight color
discrepancy between the car in which he was traveling and a
crime victim’s description of that vehicle? We hold that he
cannot, so long as the remaining points of similarity support a
reasonable suspicion that the target was involved in criminal
activity. The investigative seizure and subsequent protective
frisk at issue in this case did not violate the Fourth
Amendment.

I.

On the evening of March 9, 2005, Sergeant Dennis
Hance and other Metropolitan Police Department (“MPD”)
officers heard the following radio broadcast:

Lookout for an armed robbery that occurred on Today’s
date 19:35 hours, 1300 block of Florida Avenue NE.
Lookout for a Number One black male, 19 years of age
5’ 11’ 200 lbs, dark-complected. He’se wearing a black
North Face jacket, black pants, black shoes. This
individual had a light mustache. Number two black male
was a pasanger; he’se about a16, 17 years of age, 150 lbs,
medium complexion. He has a black and red North Face,
a new one with North Face on the sleeve and on the back
of the jacket. This individual is armed with a silver-
colored hand gun. Stolen from one of the complainants
was a black (inaudible) blue North Face jacket, black
Nike’s, and a CD player. Suspects were last seen inside a
Crown Vic Ford model, tan on the side, black on top with
smoked-out windows, year between 94 and 97. Last seen
Westbound on Florida and Northbound on Trinidad.
Radio Run Tr. (Mar. 9, 2005) (errors in original).
 3
At 8:14 p.m., less than forty minutes after the robbery,
Sergeant Hance spotted a Ford Crown Victoria with dark-
tinted windows, dark blue in color with a white driver’s-side
rear door, roughly two blocks from the scene of the crime.
Reasoning that the car basically matched the lookout
description and was in the general area where the robbery
occurred, Sergeant Hance pulled over the car. MPD Officer
Milner quickly arrived at the scene in response to Sergeant
Hance’s call for backup, and MPD Officers Monk and
Gaumond appeared shortly thereafter.

Traveling in the stopped car were Jamal Abdus-Price, the
passenger, and Jamaal Harris, the driver. Officers later
described Abdus-Price as a dark-skinned black male between
18 and 30 years old, weighing about 200 pounds, and wearing
a black North Face jacket. Harris was described as a stocky,
light-skinned black male wearing a North Face jacket.
Sergeant Hance and Officer Milner asked Abdus-Price and
Harris to exit the vehicle, explaining that they had been
stopped because their car fit a description from a radio
lookout for an armed robbery. When the officers informed the
occupants that they would be patted down for officer safety,
Harris complied but Abdus-Price’s “eyes got big.” Motions
Hearing Tr. at 7:21–25 (Oct. 24, 2005). Abdus-Price tried to
run away, prompting Officer Milner to grab him in a bear
hug. In so restraining the suspect, Officer Milner felt the
handle of a gun in the pocket of Abdus-Price’s jacket and
warned his colleagues. A scuffle ensued. The officers
eventually subdued Abdus-Price and, in an effort to avoid
accidentally discharging the loaded and cocked weapon, cut
open his jacket to retrieve a .22-caliber Beretta handgun.1

1
Harris told a different story, but the district court credited the
officers’ testimony over Harris’s. Abdus-Price does not challenge
the district court’s factual determination.
 4

Officer Monk arrested Abdus-Price for carrying a pistol
without a license. Before departing with their prisoner, the
officers conducted a show-up procedure to determine whether
the victims of the armed robbery that had occasioned the stop
could identify Harris or Abdus-Price as the robbers. The
victims could not, and Harris was allowed to leave.

Abdus-Price was indicted for unlawful possession of a
firearm and ammunition by a felon, a violation of 18 U.S.C.
§ 922(g)(1). He moved to suppress the weapon seized during
the stop that led to his arrest, arguing that the officers violated
the Fourth Amendment. After two days of evidentiary
hearings, the district court denied the suppression motion in
an oral ruling, finding that the car “basically met the
description of the vehicle used by the robbery suspects” and
concluding that Sergeant Hance thus had reasonable
articulable suspicion under Terry v. Ohio, 392 U.S. 1 (1968),
to justify his decision to pull over the vehicle. Plea Hearing
Tr. at 15:5–10 (Jan. 26, 2006).

Abdus-Price subsequently entered a conditional plea of
guilty, reserving his right to appeal the denial of his
suppression motion. The district court sentenced him to forty-
six months’ incarceration followed by three years’ supervised
release, and imposed fines and special assessments totaling
$1,100. Abdus-Price appeals the denial of his suppression
motion. We have jurisdiction under 28 U.S.C. § 1291.

II.

The Fourth Amendment protects against unreasonable
seizures of the person. U.S. CONST. amend. IV (“The right of
the people to be secure in their persons . . . against
unreasonable . . . seizures, shall not be violated . . . .”).
 5
Stopping the car in which Abdus-Price was traveling was a
seizure within the meaning of the Fourth Amendment.
Brendlin v. California, 127 S. Ct. 2400, 2406–07 (2007).
Abdus-Price argues that there was not reasonable suspicion
under Terry to justify the stop. We consider the issue de novo.
United States v. Brown, 334 F.3d 1161, 1164 (D.C. Cir. 2003)
(citing Ornelas v. United States, 517 U.S. 690, 699 (1996)).

Under the Fourth Amendment, a police officer may effect
a brief seizure for investigative purposes — a Terry stop — if
he has “a reasonable suspicion, grounded in specific and
articulable facts, that a person . . . was involved in or is
wanted in connection with a completed felony.” United States
v. Hensley, 469 U.S. 221, 229 (1985); see also United States
v. Sokolow, 490 U.S. 1, 7 (1989) (“In Terry v. Ohio, 392 U.S.
1, 30 (1968), we held that the police can stop and briefly
detain a person for investigative purposes if the officer has a
reasonable suspicion supported by articulable facts that
criminal activity ‘may be afoot,’ even if the officer lacks
probable cause.”). Reasonable suspicion exists if “the totality
of the circumstances” presents “a particularized and objective
basis for suspecting the particular person stopped of criminal
activity.” United States v. Cortez, 449 U.S. 411, 417–18
(1981). This is not a particularly high bar: “a Terry stop
requires only a ‘minimal level of objective justification.’ ”
United States v. Edmonds, 240 F.3d 55, 59 (D.C. Cir. 2001)
(quoting INS v. Delgado, 466 U.S. 210, 217 (1984)).

The facts that led Sergeant Hance to stop Abdus-Price
were sufficient to “warrant a man of reasonable caution in the
belief that the action taken was appropriate.” Terry, 392 U.S.
at 22 (citation and quotation marks omitted); see also United
States v. Smart, 98 F.3d 1379, 1384 (D.C. Cir. 1996) (asking
“whether a reasonable officer in those circumstances would
have been suspicious”) (citation omitted). An MPD radio
 6
lookout implicated the occupants of a particular automobile in
an armed robbery. There were several points of similarity
between the car described in that lookout and the car in which
Abdus-Price was traveling. The lookout referred to a Ford
Crown Victoria with “smoked-out windows,” two occupants,
and a top that was darker in color than the side. Sergeant
Hance pulled over a Ford Crown Victoria with tinted
windows, two occupants, and a door that was lighter in color
than the top of the car, and did so less than forty minutes after
the robbery within a few blocks of the crime scene. To
borrow a phrase from our opinion in United States v.
Simpson, “a confluence of such factors will be sufficient to
justify a Terry stop.” 992 F.2d 1224, 1226 (D.C. Cir. 1993)
(upholding stop of suspect who “was wearing clothing similar
to that described by the victim, was of the same general age
group . . . , was of the same race and physical build of the
alleged rapist, and was in the vicinity of the crime”).

Abdus-Price urges us to focus on the difference between
the car described in the lookout and the car in which Abdus-
Price was traveling. The lookout specifically referred to a
Ford Crown Victoria that was “tan on the side, black on top,”
while Sergeant Hance pulled over a Ford Crown Victoria that
was dark blue with a white driver’s-side rear door. Abdus-
Price contends that a reasonable officer would have
abandoned pursuit of the two-toned Crown Victoria in which
he was riding upon noticing this discrepancy. But this is not
what the law requires. In United States v. Davis, 235 F.3d 584
(D.C. Cir. 2000), police received a radio lookout describing a
shooting suspect “dressed all in black.” Id. at 586.
Responding to this cue, officers stopped a man in dark blue
coveralls. A subsequent frisk uncovered a sawed-off shotgun,
leading to a conviction under 18 U.S.C. § 922(g)(1). Despite
the color discrepancy between black and dark blue clothing,
we held there was reasonable suspicion to support the stop
 7
and frisk that uncovered the shotgun. Davis, 235 F.3d at 588.
The lesson of Davis is that a precise color match to a lookout
is not an indispensable element of reasonable suspicion.

In the matter before us, it is easy to imagine confusing a
dark-blue-and-white car for a black-and-tan car after night has
fallen. Cf. Motions Hearing Tr. at 22:21–25 (Nov. 3, 2005)
(noting statement by the district court to this effect). This
much will be obvious to anyone who has dressed before
daybreak and arrived at the office wearing mismatched socks.
And the usual morning routine does not involve getting
dressed at gunpoint. As Officer Milner testified, “if you are
interviewing complainants, and there’s a gun involved,
they’re not going to give you an accurate description.”
Motions Hearing Tr. at 20:7–9 (Oct. 24, 2005). A reasonable
officer would be entitled to infer, on the basis of his or her
experience, that the victim of an armed robbery might not
exercise perfect recall of the color of the robbers’ getaway
car. See United States v. Arvizu, 534 U.S. 266, 273–74 (2002)
(noting that officers are entitled to draw on specialized
experience and training in arriving at reasonable suspicion).

Given the other matches between the lookout description
and the stopped car (i.e., make and model, tinted windows,
number of occupants, dark-colored top with light-colored
side), the one near-miss involving a detail of color was not
enough to dispel Sergeant Hance’s reasonable suspicion that
he had spotted the robbers described in the lookout.
Reasonable suspicion can survive in the face of discrepancies
between the vehicle described and the vehicle stopped. See,
e.g., United States v. Hurst, 228 F.3d 751, 756–57 (6th Cir.
2000) (finding reasonable suspicion supported stop of dark
blue Mercury Cougar, where report described dark-colored
Ford Thunderbird); Umanzor v. United States, 803 A.2d 983,
993 (D.C. 2002) (finding reasonable suspicion supported stop
 8
of blue Honda, where lookout described gray Honda); cf.
Bailey v. United States, 389 F.2d 305, 309 (D.C. Cir. 1967)
(holding probable cause supported stop of 1954 Chevrolet,
where lookout described 1953 Chevrolet). As noted in a
leading treatise, “investigating officers must be allowed to
take account of the possibility that some of the descriptive
factors supplied by victims or witnesses may be in error.” 4
WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON
THE FOURTH AMENDMENT § 9.5(g) at 557 (4th ed. 2004).

In demanding a perfect match to a lookout description,
Abdus-Price is asking us to fast-forward the criminal process
to the jury trial phase. This we cannot do. Terry’s reasonable
suspicion standard demands less of the government than the
preponderance standard, see Illinois v. Wardlow, 528 U.S.
119, 123 (2000), which in turn demands less than the
reasonable-doubt standard, see Addington v. Texas, 441 U.S.
418, 423–24 (1979). Abdus-Price probably could not have
been convicted of an armed robbery based solely on the
appearance of the car in which he was traveling — “[f]rom a
hundred rabbits you can’t make a horse, a hundred suspicions
don’t make a proof.” FYODOR DOSTOEVSKY, CRIME AND
PUNISHMENT 399 (Constance Garnett trans., Heritage Club
1938) (1866). But Sergeant Hance was not convicting Abdus-
Price, nor even arresting him, when he pulled him over. “[A]
Terry stop requires only a minimal level of objective
justification, and an officer may initiate one based not on
certainty, but on the need to check out a reasonable
suspicion.” United States v. Edmonds, 240 F.3d 55, 59 (D.C.
Cir. 2001) (citations and quotation marks omitted). Based on
its similarity to the car described in the armed-robbery
lookout, Sergeant Hance had reasonable suspicion that the
occupants of the two-toned Crown Victoria were “involved in
or [were] wanted in connection with a completed felony.”
Hensley, 469 U.S. at 229. Therefore, Sergeant Hance’s
 9
decision to stop that car did not violate Abdus-Price’s Fourth
Amendment right against unreasonable seizures. Id.

III.

Abdus-Price further contends that even if the stop was
legal at its inception, the officers violated his Fourth
Amendment rights by conducting a protective frisk of his
person. We decide de novo whether there was reasonable
suspicion supporting this Terry frisk. United States v. Brown,
334 F.3d 1161, 1164 (D.C. Cir. 2003) (citing Ornelas v.
United States, 517 U.S. 690, 699 (1996)).

Before an officer may conduct a protective frisk of a
suspect, “he must first have a right not to avoid him but to be
in his presence.” Terry, 392 U.S. at 32 (Harlan, J.,
concurring). But once he has lawfully engaged a person for
investigative purposes, “the policeman making a reasonable
investigatory stop should not be denied the opportunity to
protect himself from attack by a hostile suspect.” Adams v.
Williams, 407 U.S. 143, 146 (1972). The cases describe an
officer’s permissible protective steps. He may compel stopped
motorists to step out of the car to prevent their surreptitious
retrieval of weapons. See Pennsylvania v. Mimms, 434 U.S.
106, 111 n.6 (1977) (regarding drivers); Maryland v. Wilson,
519 U.S. 408, 410, 415 (1997) (regarding passengers). He
may then conduct a protective frisk for weapons if he has
reasonable suspicion that the stopped individuals are armed
and dangerous. See Terry, 392 U.S. at 30; United States v.
Holmes, 385 F.3d 786, 789 (D.C. Cir. 2004). His reasonable
suspicion may be based on reliable reports from others. See
Adams, 407 U.S. at 147–48; United States v. Diggs, 522 F.2d
1310, 1313–14 (D.C. Cir. 1975).
 10
Sergeant Hance and his MPD colleagues prudently
employed such protective measures. The officers, believing
that they had stopped the car used in a recent armed robbery
and aware that one of the robbers had been armed with a
silver handgun, approached the situation with caution. The
officers asked Abdus-Price and Harris to exit the vehicle for
safety reasons, as was their prerogative. See United States v.
Bullock, 510 F.3d 342, 344–45 (D.C. Cir. 2007) (describing
the “bright-line rule” allowing officers to order drivers and
passengers to exit a stopped vehicle). Armed with reasonable
suspicion of danger by the very nature of the suspected crime
of armed robbery, the officers initiated protective frisks of
both men. See id. at 345–48 (holding that a person suspected
of a violent crime is necessarily suspect as being armed and
dangerous). Upon learning that a frisk was forthcoming,
Abdus-Price added to the officers’ reasonable suspicion by
attempting to escape. There can be no doubt that, at the
moment they frisked Abdus-Price and discovered his illegal
weapon, the MPD officers had reasonable suspicion to
support a Terry frisk of his person. Terry, 392 U.S. at 30.

Without seriously contesting any of the foregoing,
Abdus-Price nevertheless urges that the protective frisk was
unlawful. He argues that the officers should have released
him and Harris without frisking them, due to the dissipation
of whatever reasonable suspicion may have initially justified
the stop. In this idealized retelling of the night’s events,
Sergeant Hance would have stopped the Crown Victoria,
realized that these were not the armed robbers described in
the lookout, and immediately ended the interaction. In support
of this theory, Abdus-Price points to facts in the record
suggesting that he and Harris were not the robbers. First, the
lookout described stolen items like a CD player and black
Nike shoes, but the officers did not look to see if these were
visible within the car. Second, the lookout described the
 11
passenger as a 150-pound teenager with a black-and-red
North Face jacket and medium complexion, while Abdus-
Price was described by Officer Milner as a dark-skinned, 200-
pound man between 18 and 30 years of age and without any
red on his North Face jacket. Third, despite a nearly forty-
minute lapse between the robbery and the stop, Harris and
Abdus-Price were found in a car within a two-minute radius
of the scene of the crime.

This dissipation argument fails because reasonable
suspicion supporting the stop did not dissipate until after the
frisk had occurred. We begin by rejecting the frivolous
argument concerning the stolen items; without x-ray vision,
the officers could not rule out the possibility that the loot was
hidden in the car. Next, we reject the argument concerning
physical descriptions because both men broadly resembled
the robbers in the lookout description; Abdus-Price, in
particular, almost completely matched the description of the
driver. Finally, it is not clear that a reasonable officer
necessarily would assume that the robbers, upon completing
their crime, would make a run for the border. Perhaps these
plunderers were working a particular neighborhood? Perhaps
they thought their victim had refused to speak to the police
and that, after almost forty minutes, the danger of
apprehension had passed?

The facts of this case are thus distinguishable from those
of United States v. Edgerton, 438 F.3d 1043 (10th Cir. 2006),
upon which Abdus-Price principally relies. In Edgerton, an
officer stopped a driver because her temporary license tag
was illegible to the officer, a potential violation of state traffic
laws. Once the officer left his car, however, he was able to
read the tag and confirm that no violation had occurred. The
officer nevertheless took the driver’s license and registration,
obtained her consent to search the car, and eventually found
 12
cocaine. The Tenth Circuit suppressed the drugs, holding that
the officer should have sent the motorist on her way upon
realizing that the temporary license tag was valid. Id. at 1051
(citing United States v. McSwain, 29 F.3d 558 (10th Cir.
1994)). Unlike Edgerton, in which the justification for the
stop clearly dissipated upon reading a license tag, our case is
murky. Even if some details from the MPD officers’ stop did
not square with the lookout, there was nothing about the
interaction with Abdus-Price and Harris that dispelled the
officers’ reasonable suspicion they were the robbers. This is
in part attributable to the nature of the crimes at issue in
Edgerton and in this case. The entirety of the crime of
unlicensed driving exists within the borders of a car’s license
tag, while the indicia of armed robbery are not confined to the
vehicle. Reasonable suspicion did not dissipate until the
show-up failed to implicate Harris and Abdus-Price in the
robbery, by which time the lawful frisk had already
uncovered a weapon.

Abdus-Price also suggests that, even if the officers’
suspicion did not dissipate when he exited the car, the officers
should have conducted a thorough investigation — complete
with questioning, peering through car windows, and
analyzing complexion — before taking steps to ensure officer
safety. Abdus-Price gets it backwards. An officer with a
reasonable fear that his suspect is armed can take reasonable
steps to protect himself, and should do so before he sets about
investigating the crime that occasioned a stop. On cross-
examination, Sergeant Hance understandably balked at
defense counsel’s suggestion that further investigation was in
order: “Well, I don’t usually walk up to the car and stick my
head in the car and try to find out whether they match a
perfect description when I am dealing with a robbery suspect.
. . . And for my safety, I don’t — whether or not he was a
white male or a green male, it doesn’t make any difference —
 13
or a black male. That car fit the description, basically, and I
was protecting myself.” Motions Hearing Tr. at 26:5–7,
26:19–22 (Nov. 3, 2005). That a protective frisk takes
precedence over such investigation of criminal activity is
encapsulated in Justice Harlan’s memorable phrase: “There is
no reason why an officer, rightfully but forcibly confronting a
person suspected of a serious crime, should have to ask one
question and take the risk that the answer might be a bullet.”
Terry, 392 U.S. at 33 (Harlan, J., concurring).

Finally, Abdus-Price claims that the Terry stop at issue in
this case “was the functional equivalent of a full-blown
arrest.” Appellant’s Br. at 21 n.2. We need not consider this
suggestion, as it was not presented to the district court. See
District of Columbia v. Air Fla., Inc., 750 F.2d 1077, 1084
(D.C. Cir. 1984) (“It is well settled that issues and legal
theories not asserted at the District Court level ordinarily will
not be heard on appeal.”).

IV.

Officers had reasonable suspicion to support the Terry
stop of Abdus-Price and further reasonable suspicion to
support the Terry frisk of his person. Accordingly, there was
no Fourth Amendment violation and no reason to grant a
motion to suppress. The judgment of the district court is

Affirmed.