United States v. Davis, Curnell

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 14, 2000 Decided December 29, 2000

No. 00-3016

United States of America,
Appellee

v.

Curnell L. Davis,
Appellant

Appeal from the United States District Court
for the District of Columbia
(No. 99cr00222-01)

A. J. Kramer, Federal Public Defender, argued the cause
and filed the briefs for appellant. Gregory L. Poe 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 Ricardo Nunez, Assistant U.S. Attorneys.

 Before: Williams, Rogers and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Tatel:

Tatel, Circuit Judge: After police conducting a Terry stop-
and-frisk discovered a shotgun hidden in his clothing, appel-
lant pled guilty to possession of a firearm by a felon. He
appeals the district court's denial of his motion to suppress,
arguing, among other things, that the court erred by relying
on information police obtained from a citizen 911 call describ-
ing a man fleeing the scene of a shooting even though the
government failed to produce a tape of the call. Finding that
appellant waived this argument, and that his similarity to the
911 caller's description and to witness accounts of the shooter
gave police a "reasonable, articulable suspicion" sufficient to
justify the stop, see Illinois v. Wardlow, 528 U.S. 119, 123
(2000), we affirm.

I

At 11:33 PM on May 31, 1999, a 911 caller reported gunfire
and screaming in the 2300 block of North Capitol Street.
Minutes later, a police dispatcher sent units to 2308 North
Capitol to investigate a "shooting." As police arrived at the
scene, the dispatcher relayed additional citizen reports de-
scribing two men, one with blood on his clothes and another
in khaki shorts and a white t-shirt. At 11:40, the police unit
that had arrived at the North Capitol address broadcast its
first account of witness reports. Known as a "lookout," the
broadcast described the suspect as a man on a bike, dressed
all in black, heading north on North Capitol. The unit also
relayed witness reports that the "subjects" were in a four-
door sedan and that "there seem[ed] to be a grey, small
weapon." Updating the lookout two minutes later, the unit
described the suspect as a "black male, light skinned, black
[unclear], all black, or possibly on a bike, [unclear] carrying a
small weapon."

At midnight, about thirty minutes after the shooting, the
dispatcher reported that "we have a citizen that's on landline,
says the subject is wearing all black, that appears to be
running away from 2308 North Capitol. He's on foot, possi-

bly now in the unit block of Channing." Police Lieutenant
Taliaferro and his partner investigated and within thirty
seconds noticed appellant Curnell Davis, a black man wearing
dark blue coveralls, walking with a companion just a block
away from where the midnight 911 caller had reported seeing
the fleeing man. Stopping and frisking Davis, Taliaferro
found a sawed-off shotgun hidden in Davis's clothing. Davis
told the police that "it was [his] boy that got shot" and that he
needed a gun for protection because the neighborhood was so
dangerous. A grand jury indicted Davis for unlawful posses-
sion of a firearm by a felon. See 18 U.S.C. s 922(g)(1).

Arguing that the police lacked a reasonable suspicion for
the stop-and-frisk, see Terry v. Ohio, 392 U.S. 1, 30 (1968),
Davis moved to suppress both the shotgun and his statements
to the police. In response, the government pointed to Davis's
similarity to the lookouts and to the midnight 911 caller's
description of the man fleeing the crime scene. Although at a
status conference the government apparently promised (the
record does not contain the transcript) to search for the tape
of the midnight 911 call, it failed to produce it at the
evidentiary hearing on the suppression motion. Davis's coun-
sel, however, never mentioned the tape's absence at the
hearing, focusing both his cross-examination of Taliaferro (the
only witness) and his closing argument on ways in which
Davis failed to match the descriptions of the shooting suspect.
Finding Taliaferro's suspicion of Davis reasonable, the district
court denied the suppression motion. Davis pled guilty,
reserving his right to appeal. We review the district court's
findings of fact for clear error and its conclusions of law de
novo. See Ornelas v. United States, 517 U.S. 690, 699 (1996).

II

Investigative stops do not run afoul of the Fourth Amend-
ment if they are based on "reasonable, articulable suspicion"
of criminal conduct. Wardlow, 528 U.S. at 123. Requiring
considerably less than probable cause, Terry stops are consti-
tutional if the police can show a "minimal level of objective
justification." INS v. Delgado, 466 U.S. 210, 217 (1984).

 Davis argues that in defending the constitutionality of the
stop, the government cannot rely on the information supplied
by the midnight 911 caller and relayed by the dispatcher to
the arresting officer because the government failed to pro-
duce the tape of the call. In Whiteley v. Warden, Wyo. State
Penitentiary, 401 U.S. 560, 568 (1971), the Supreme Court
held unlawful an arrest based on a radio bulletin where the
government failed to prove that the bulletin was itself based
on probable cause. Later, in United States v. Hensley, 469
U.S. 221 (1985), the Court described Whiteley as standing for
the proposition that "when evidence is uncovered during a
search incident to an arrest in reliance merely on a flyer or
bulletin, its admissibility turns on whether the officers who
issued the flyer possessed probable cause to make the ar-
rest," id. at 231; see also Whiteley, 401 U.S. at 568 ("An
otherwise illegal arrest cannot be insulated from challenge by
the decision of the instigating officer to rely on fellow officers
to make the arrest."). Hensley also extended Whiteley to
reasonable suspicion cases. 469 U.S. at 232. Following
Hensley, in United States v. Cutchin we overturned a district
court's exclusion of a 911 tape, saying: "What the tape itself
revealed went directly to the issue whether the dispatcher
had a reasonable, articulable suspicion, without which [the
officer's] stop of [the suspect's] car might not have been
legal." 956 F.2d 1216, 1217-18 (D.C. Cir. 1992).

Relying on these cases, Davis urges us to find that without
the 911 tape, the dispatcher's report of the call cannot provide
the basis for reasonable suspicion. According to the govern-
ment, Davis waived this argument because he failed to make
it in the district court. See Fed. R. Crim. P. 12(f) ("Failure by
a party to raise defenses or objections ... at the time set by
the court ... shall constitute waiver thereof."). The govern-
ment's point is well taken. Not once in the district court did
defense counsel cite Whiteley, Hensley, or Cutchin, much less
the propositions for which they stand, nor did he complain
about the government's failure to produce the 911 tape at the
suppression hearing. Counsel focused his entire argument on
trying to persuade the district court that Davis did not match
the suspect's description. Contrary to Davis's argument, we

do not consider the filing of a general suppression motion
sufficient to preserve the 911 tape objection for appeal just
because the government bears the burden of proving reason-
able suspicion. Neither defense counsel's motion nor his
argument could have given the government notice of the
importance counsel apparently ascribed to the tape.

Given the waiver, we will consider the information provided
by the 911 caller in determining whether the police had a
reasonable suspicion sufficient to justify the stop. For start-
ers, we agree with Davis that the call, by itself, provides
insufficient justification. In Florida v. J.L., 120 S.Ct. 1375
(2000), the Supreme Court considered the validity of a Terry
stop based on an anonymous tip that a young man standing
on a street corner possessed an illegal weapon. Because
nothing corroborated the anonymous caller's accusation of
criminal activity, the Court held the tip insufficiently reliable
to justify the stop. Id. at 1380. In this case, the midnight
911 caller made no accusation of criminal activity, reliable or
otherwise, reporting only that a subject dressed all in black
appeared to be running from 2308 North Capitol. In view of
J.L., the information supplied by the call falls far short of
what Terry requires.

The 911 call, however, was not Taliaferro's only source of
information, and we have made it clear that "in judging the
reasonableness of the actions of the officer the circumstances
before him are not to be dissected and viewed singly; rather
they must be considered as a whole." United States v. Hall,
525 F.2d 857, 859 (D.C. Cir. 1976). Taliaferro knew that a
shooting had just occurred at 2308 North Capitol and that
witnesses had described the shooter as a black male dressed
all in black heading north from the crime scene. He also
knew that a man matching the description of the suspect in
two respects--his clothing and his approximate location (just
north of 2308 North Capitol)--had been seen fleeing the
crime scene. So when Taliaferro saw Davis, he saw a man
heading away from the nearby crime scene who not only
matched the 911 caller's description (according to the district
court, Davis's dark blue coveralls likely appeared black in the
dark) but also matched the police lookouts in yet another

respect: his race. This case is thus quite like United States
v. Smart, 98 F.3d 1379, 1384 (D.C. Cir. 1997), where we found
sufficient justification for a Terry stop based on the criminal
suspect's sex, race, clothing, and location. Taliaferro had
precisely the same information about the shooting suspect in
this case, albeit aggregated from two different sources. To
be sure, Davis was with a companion, a fact mentioned in
none of the descriptions; he was not riding a bicycle as the
lookouts said he might "possibly" be; nor was a "grey, small
weapon" visible. Setting aside these minor inconsistencies
involving mutable characteristics, however, Davis matched
the lookouts and the 911 caller's description sufficiently to
supply the reasonable suspicion required by Terry.

Davis next argues that Taliaferro's focus on him was unrea-
sonable because the dispatcher provided information about
other suspects: a man with blood on his clothes, another in
khaki shorts, and several individuals in a four-door sedan.
We disagree. Terry requires only that the police have a
reasonable suspicion of the person actually stopped. In
assessing this suspicion, the fact that police have greater
reason to suspect a different person is of course relevant.
But in this case, the best information the police had--eyewit-
ness accounts of the shooter and a man seen fleeing the
scene--pointed to Davis.

While we recognize the need to guard against authorizing
broad police sweeps of an undeniably high crime area, see
Brown v. Texas, 443 U.S. 47, 52 (1979) ("The fact that
appellant was in a neighborhood frequented by [criminals],
standing alone, is not a basis for concluding that appellant
himself was engaged in criminal conduct."), we need not
address that concern here--the police found Davis within a
block of a shooting that occurred just thirty minutes earlier
and Davis matched the primary suspect in several critical
respects. Because Davis makes no independent challenge to
the frisk, the district court's denial of the motion to suppress
is affirmed.

So ordered.