PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-4045
ANTONIO BERNARD GRIFFIN,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert J. Conrad, Jr., Chief District Judge.
(3:06-cr-00103-RJC-DCK-1)
Argued: September 22, 2009
Decided: December 17, 2009
Before TRAXLER, Chief Judge, and GREGORY and
SHEDD, Circuit Judges.
Affirmed by published opinion. Judge Shedd wrote the major-
ity opinion, in which Chief Judge Traxler joined. Judge Greg-
ory wrote a dissenting opinion.
COUNSEL
ARGUED: Matthew Segal, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Asheville, North
Carolina, for Appellant. Mark Andrew Jones, OFFICE OF
2 UNITED STATES v. GRIFFIN
THE UNITED STATES ATTORNEY, Charlotte, North Car-
olina, for Appellee. ON BRIEF: Claire J. Rauscher, Execu-
tive Director, Kevin Tate, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, Charlotte, North Carolina, for Appellee.
OPINION
SHEDD, Circuit Judge:
Antonio Bernard Griffin appeals his conviction and sen-
tence for being a felon in possession of a firearm. See 18
U.S.C. § 922(g). Griffin contends that the district court erred
in denying his motion to suppress the firearm by holding that
(1) the police officers who arrested him had reasonable suspi-
cion to perform an investigatory stop of his vehicle under
Terry v. Ohio, 392 U.S. 1 (1968), and (2) the officers were
justified in conducting a protective search of his vehicle under
Michigan v. Long, 463 U.S. 1032 (1983). For the following
reasons, we reject these contentions and affirm.
I.
In reviewing the denial of a suppression motion, we con-
strue the facts in the light most favorable to the government.
United States v. Murphy, 552 F.3d 405, 409 (4th Cir. 2009).
The evidence presented during the suppression hearing estab-
lishes that the Value-Lodge Motel in Charlotte, North Caro-
lina, was well known to officers of the Charlotte-
Mecklenburg Police Department as a location for violent
crime and drug trafficking. On the evening of September 28,
2005, someone called 911 from a second floor room of the
Value-Lodge reporting a man in possession of a gun. The 911
call center relayed this information, including the caller’s
room number, to Officer Crystal Lee Clifton, and she
UNITED STATES v. GRIFFIN 3
responded to the call. Upon arriving at the Value-Lodge, Offi-
cer Clifton proceeded to the second floor room from which
the call was made and talked with one of the room’s occu-
pants (the "informant") who was aware that the call had been
placed. Shortly thereafter, Officer Brian Carey, who was also
responding to the 911 call, arrived at the Value-Lodge.1 While
Officer Clifton was talking to the informant, a white Cadillac
drove past in the parking lot below, and the informant imme-
diately pointed to the vehicle and identified the driver as the
man with the gun. Officer Carey returned to his patrol car and
pursued the Cadillac which was exiting the Value-Lodge
parking lot. He proceeded approximately 50 feet and then
entered a nearby parking lot where the Cadillac was turning
around. Officer Clifton remained with the informant.
Officer Carey then initiated a traffic stop of the vehicle and
its sole occupant, Antonio Griffin. When Griffin exited the
vehicle, he "started looking around" and "kept turning around
like he was going to take off running." J.A. 27, 43. Officer
1
The dissent’s assertion that the informant was "gender-less" is factually
incorrect. Instead, Officer Carey testified that the informant was a "gentle-
man." J.A. 60, 25. Further, to the extent that the officers’ ability to recall
these details is pertinent, the district court found the officers’ testimony
credible. We defer to the district court’s credibility findings, as "it is the
role of the district court to observe witnesses and weigh their credibility
during a pre-trial motion to suppress." United States v. Abu Ali, 528 F.3d
210, 232 (4th Cir. 2008) (citing United States v. Murray, 65 F.3d 1161,
1169 (4th Cir. 1995)). See also United States v. Clark, 538 F.3d 803, 812-
13 (7th Cir. 2008) (upholding the district court’s reliance on the testimony
of a witness despite the fact that he was an admitted perjurer and drug user
who failed to recall specific details about his deals with the defendant).
There is no constitutional requirement that police record the identifying
information of an informant, particularly in such rapidly evolving circum-
stances as occurred here. As we have observed, "We cannot afford to read
the Fourth Amendment to require officers to wait . . . perhaps until inno-
cent bystanders are physically harmed, before taking reasonable, preven-
tive measures." United States v. Perkins, 363 F.3d 317, 328 (4th Cir.
2004). See also United States v. Sanchez, 519 F.3d 1208, 1211 (10th Cir.
2008) ("We do not fault the officer’s choice to forgo extensive credibility
checking in order to quickly respond.").
4 UNITED STATES v. GRIFFIN
Carey conducted a Terry frisk of Griffin and, out of concern
for his safety, handcuffed Griffin and placed him in the back-
seat of the patrol car. While Officer Carey was speaking with
Griffin, Officer Clifton and another officer arrived on the
scene. At this time, an individual approached the officers
claiming to know Griffin, and onlookers from the motel gath-
ered at the scene. Officer Clifton thereafter performed a
search of the passenger compartment of Griffin’s car, finding
a pistol on the driver’s side floorboard. Officer Clifton seized
the weapon, and Officer Carey placed Griffin under arrest for
carrying a concealed weapon.
Griffin was subsequently indicted for possessing the pistol
after having been previously convicted of a felony, in viola-
tion of section 922(g). Griffin moved to suppress the pistol
and other evidence not relevant to his appeal. Following a
suppression hearing during which Officers Carey and Clifton
testified, the district court ruled that the officers did not vio-
late Griffin’s Fourth Amendment rights. Relying on our deci-
sions in United States v. Perkins and United States v.
Christmas, 222 F.3d 141 (4th Cir. 2000), the district court
concluded that Officer Carey had reasonable suspicion to con-
duct a traffic stop based upon the face-to-face encounter
between Officer Clifton and the informant. The district court
also concluded that the protective search of Griffin’s vehicle
was justified. Thereafter, Griffin conditionally pled guilty,
retaining the right to appeal the district court’s order denying
the suppression motion. After accepting this plea, the district
court sentenced Griffin to 40 months of imprisonment.
Griffin filed a timely notice of appeal, and we possess juris-
diction under 28 U.S.C. § 1291. On appeal, Griffin argues that
both the stop of his vehicle and the protective search of his
vehicle were unconstitutional.
II.
We review the district court’s factual findings for clear
error and its legal conclusions de novo. Murphy, 552 F.3d at
UNITED STATES v. GRIFFIN 5
409. The district court’s ultimate conclusion that the traffic
stop and protective search are constitutional is a legal conclu-
sion which we review de novo. United States v. Reaves, 512
F.3d 123, 126 (4th Cir. 2008).
A.
A law enforcement officer may initiate a brief investigatory
stop if the officer has reasonable suspicion to believe that
"criminal activity may be afoot." Terry v. Ohio, 392 U.S. 1,
30 (1968). In determining whether an officer had reasonable
suspicion, we view the totality of the circumstances to deter-
mine whether the officer had "a particularized and objective
basis for suspecting the particular person stopped of criminal
activity." United States v. Cortez, 449 U.S. 411, 417-418
(1981). Although the reasonable suspicion standard "defies
precise definition," United States v. McCoy, 513 F.3d 405,
411 (4th Cir. 2008), it is less demanding than probable cause,
Alabama v. White, 496 U.S. 325, 330 (1990), and falls "con-
siderably short of satisfying a preponderance of the evidence
standard," United States v. Arvizu, 534 U.S. 266, 274 (2002).
In cases such as this, where the officer met with the infor-
mant in a face-to-face encounter,2 we have considered numer-
ous factors to determine whether the officer had reasonable
suspicion to effect a Terry stop. For example, we have exam-
2
Florida v. J.L., 529 U.S. 266, 270 (2000) (holding that an anonymous
tip in a 911 call must bear additional "indicia of reliability" to create rea-
sonable suspicion), on which Griffin relies, is inapplicable here because
face-to-face tips are "altogether different from anonymous tips." Christ-
mas, 222 F.3d at 143. See also United States v. DeQuasie, 373 F.3d 509,
523 (2004) (distinguishing anonymous tips from face-to-face encounters);
United States v. Heard, 367 F.3d 1275, 1279 (11th Cir. 2004) ("A face-to-
face anonymous tip is presumed to be inherently more reliable than an
anonymous telephone tip . . . ."). Even assuming that the original 911 call
can be deemed anonymous, Officer Clifton followed up on the call and
met face-to-face with the informant at the motel room from which the call
was placed. During this meeting, the informant identified the driver of a
white Cadillac as the man with a gun, initiating the pursuit of the vehicle.
6 UNITED STATES v. GRIFFIN
ined whether the officer had the opportunity to observe the
informant’s credibility and demeanor and whether the officer
could later hold the informant accountable for making false
accusations. See, e.g., Christmas, 222 F.3d at 144.3 We have
also considered whether the informant reported to the police
in public, exposing himself to retaliation from the suspect and
increasing the informant’s reliability. See, e.g., id. We also
have looked to the informant’s proximity to the reported
activity as a factor in determining his reliability. See, e.g., id.;
Perkins, 363 F.3d at 322. Additionally, we have placed
importance on the officer’s personal experience in investigat-
ing similar activity at the reported location in justifying the
stop. See, e.g., Perkins, 363 F.3d at 322. Finally, the Supreme
Court has stated that less scrutiny is required as to an infor-
mant’s basis of knowledge where a citizen whose honesty has
not been questioned reports criminal activity "which if fabri-
cated would subject him to criminal liability." Illinois v.
Gates, 462 U.S. 213, 233-34 (1983).
Here, Officer Clifton spoke with the informant and
remained with the informant when Officer Carey left in pur-
suit of Griffin, giving her further opportunity to observe the
informant’s credibility and demeanor. Having observed the
informant’s physical appearance and location, the officers
could have returned to the Value-Lodge and tracked him
down to hold him accountable if his accusations had proven
false. The informant met with Officer Clifton in public,
thereby exposing himself to retaliation from Griffin. In addi-
tion, the informant was in close proximity to Griffin’s vehicle
when he spoke with Officer Clifton. Further, Officer Carey
was familiar with the Value-Lodge and had taken numerous
calls reporting dangerous weapons from that motel, thereby
contributing to his reasonable suspicion for the stop. Finally,
3
In Christmas, we found reasonable suspicion on facts similar to those
here. In that case, the officers relied on a face-to-face tip from an unidenti-
fied neighborhood resident who reported men with guns and drugs at an
address two doors down from her residence. Id. at 143-45.
UNITED STATES v. GRIFFIN 7
there are no facts in the record that call into question the
informant’s honesty or motivation. In short, we agree with the
district court that the circumstances of the face-to-face
encounter between the informant and Officer Clifton provided
sufficient reasonable suspicion to justify the Terry stop of
Griffin’s vehicle.4
B.
Griffin also challenges the actual search of his vehicle
which resulted in the seizure of the pistol. When officers con-
duct a Terry stop of an automobile,
the search of the passenger compartment of an auto-
mobile, limited to those areas in which a weapon
may be placed or hidden, is permissible if the police
officer possesses a reasonable belief based on spe-
cific and articulable facts which, taken together with
the rational inferences from those facts, reasonably
warrant the officer in believing that the suspect is
dangerous and the suspect may gain immediate con-
trol of weapons.
Long, 463 U.S. at 1049 (internal quotation marks omitted). In
order to conduct a lawful protective search of a stopped vehi-
cle under Long, an officer must possess a reasonable belief of
both (1) the suspect’s dangerousness and (2) the possibility
that the suspect might gain immediate control of any weapons
inside the vehicle. United States v. Holmes, 376 F.3d 270, 276
(4th Cir. 2004).
4
A contrary holding would prevent a police officer in a high-crime area
from stopping a person who, according to an informant via a face-to-face
conversation with police, has a gun. As we explained in Christmas, "[a]
community might quickly succumb to a sense of helplessness if police
were constitutionally prevented from responding to the face-to-face pleas
of neighborhood residents for assistance." 222 F.3d at 145.
8 UNITED STATES v. GRIFFIN
The Supreme Court has observed that, where an officer
concludes that a suspect is armed, the suspect "pose[s] a seri-
ous and present danger to the safety of the officer." Pennsyl-
vania v. Mimms, 434 U.S. 106, 112 (1977) (per curiam); see
also J.L., 529 U.S. at 272 (recognizing "the serious threat that
armed criminals pose to public safety"). Officers may also
consider a suspect’s evasive behavior in analyzing the exis-
tence of reasonable suspicion to believe that an individual is
armed and dangerous. United States v. Mayo, 361 F.3d 802,
807-08 (4th Cir. 2004). Furthermore, officers may consider
"the relevant characteristics of a location in determining
whether the circumstances are sufficiently suspicious to war-
rant further investigation." Illinois v. Wardlow, 528 U.S. 119,
124 (2000). As to the first prong of the Holmes test, the cir-
cumstances of the stop justified a reasonable belief in Grif-
fin’s dangerousness. First, once the officers arrived on the
scene, an informant met face-to-face with Officer Clifton and
pointed out the driver of Griffin’s vehicle as the man with the
gun. Second, at the time of the protective search of the vehi-
cle, Officer Carey was responding to a firearm call in a high-
crime neighborhood where he had personally taken numerous
calls reporting dangerous weapons.5 Third, Griffin’s evasive
behavior when Officer Carey stopped his vehicle heightened
the officers’ concern that Griffin was armed and dangerous.6
5
The dissent’s reliance on United States v. Neely, 564 F.3d 346 (4th Cir.
2009), is misplaced. In that case, the officer stopped Neely for a minor
traffic infraction and had no suspicion that Neely possessed a firearm or
was otherwise dangerous at all. Id. at 352. Even so, we described the issue
as "close." Id. Here, of course, the officers stopped Griffin because they
suspected that he possessed a firearm in a high crime area.
6
In viewing the search for reasonableness, the presence of onlookers
mingling around this stop in a high-crime area, including one individual
purporting to know Griffin who approached the scene, also contributed to
danger posed to the officers, even though this does not add to the danger
posed by Griffin acting alone. See Mora v. City of Gaithersburg, 519 F.3d
216, 222 (4th Cir. 2008) ("We are to approach the Fourth Amendment . . .
with at least some measure of pragmatism.").
UNITED STATES v. GRIFFIN 9
These factors, taken together, gave the officers reasonable
suspicion to believe that Griffin could be dangerous.7
The second prong, concerning the possibility that the sus-
pect might gain immediate control of any weapons inside the
vehicle, is also satisfied. Although Griffin was restrained in
the backseat of the police vehicle at the time of the search, he
was being detained at that time solely pursuant to the Terry
stop. If Griffin had been released after the brief detention, as
he presumably would have been, he would have regained
access to his vehicle and any weapon inside. See United
States v. Elston, 479 F.3d 314, 320 (4th Cir. 2007) ("[A] pro-
tective search is authorized even if the suspect is under police
restraint at the time the search is conducted, because the sus-
pect may be able to escape such restraint, or may later regain
access to the vehicle if he is not arrested.").8 Therefore, given
the circumstances confronting the officers, the brief protective
search of Griffin’s vehicle was proper.
7
We note that to the extent that the district court relied on the discovery
of the pistol as a justification for the search, this was error. See J.L., 529
U.S. at 271 ("The reasonableness of official suspicion must be measured
by what the officers knew before they conducted their search."). Such
error, however, was harmless in this case because the court’s other find-
ings were sufficient to justify the search.
8
Because Griffin was not yet arrested at the time of the search, Arizona
v. Gant, 129 S.Ct. 1710 (2009), is inapposite. That case held that police
may search a vehicle incident to a recent occupant’s arrest as authorized
by Chimel v. California, 395 U.S. 752 (1969) "only when the arrestee is
unsecured and within reaching distance of the passenger compartment at
the time of the search." Gant, 129 S.Ct. at 1719. This reasoning does not
extend to protective searches under Long because in a Terry stop where
the suspect has not been arrested, "the possibility of access to weapons in
the vehicle always exists, since the driver or passenger will be allowed to
return to the vehicle when the interrogation is completed." Id. at 1724
(Scalia, J., concurring).
10 UNITED STATES v. GRIFFIN
III.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
GREGORY, Circuit Judge, dissenting:
The majority opinion brings the Fourth Amendment two
steps closer to a death by a thousand cuts. Today’s decision
leaves us teetering on the brink of a per se rule that any face-
to-face dialogue between the police and an informant, how-
ever scant, is sufficient to create the reasonable suspicion nec-
essary for a Terry stop in a "man with a gun" case. It then
gives expansive meaning to Michigan v. Long’s limited
authorization for conducting vehicle searches in connection
with a Terry stop. Because I believe that today’s decision
relies on an overbroad reading of this Court’s precedent and
contravenes the spirit, if not the letter, of Florida v. J.L., 529
U.S. 266, 270 (2000), I respectfully dissent.
I.
When officers reported to the Value Lodge Motel on Sep-
tember 28, 2005, they knew only that an anonymous tipster
had called 911 from that location to report "a man with a
gun." (J.A. 55.) Officer Clifton testified at the suppression
hearing that she was the first to arrive on the scene and that
she proceeded to the second-floor room number noted by the
police dispatchers and spoke with someone in that room ("the
informant"). She did not inquire whether the informant was
the person who had placed the anonymous 911 call, and she
could not even recall whether the informant was a man or a
woman. (J.A. 60.)
The testimony of Officer Carey, the next officer to arrive
on the scene, does little more to clarify Officer Clifton’s
UNITED STATES v. GRIFFIN 11
admittedly vague recollections of the informant. At one point
in his testimony, Officer Carey did refer to the informant as
"the gentleman with whom we were speaking." (J.A. 25.)
However, the reliability of this gender identification is highly
questionable given that Officer Carey later indicated that he
could not recall whether he ever spoke with the informant and
that he had "no knowledge about this person [the informant]."
(J.A. 38.) In fact, Officer Clifton testified that Officer Carey
remained on the ground floor level at all times that she was
upstairs speaking with the informant.1
At some point, the nameless, gender-less informant pointed
to a vehicle in the motel parking lot and said "That’s the car;
that’s him inside." (J.A. 61.) The informant provided no addi-
tional identifying information about the man in the car, and
the officers had no independent information about him. None-
theless, the officers believed this sufficed to create a reason-
able suspicion to conduct a Terry stop and patdown of Mr.
Griffin. The district court and now the panel majority have
agreed.
The majority reasons that because Officer Clifton met face
to face with the informant, the information gleaned from that
encounter was not an anonymous tip that would require addi-
tional "indicia of reliability" in order to provide the basis for
a Terry stop, J.L., 529 U.S. at 270. Face-to-face encounters
are undeniably more reliable as a general matter than purely
anonymous tips. See United States v. Christmas, 222 F.3d
141, 144 (4th Cir. 2000). But neither this Court nor the
Supreme Court has ever created a rule that an encounter
between a police officer and an informant is a per se reliable
basis for creating reasonable suspicion simply because that
encounter occurred face-to-face. This case illustrates precisely
why such a rule would be improper.
1
The district court also acknowledged these inconsistencies in Officer
Carey’s testimony. (See J.A. 71-72.)
12 UNITED STATES v. GRIFFIN
The Supreme Court’s concern with the anonymous tip at
issue in J.L. was that "[a]ll the police had to go on . . . 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." 529 U.S.
at 271. In Christmas, we were able to distinguish J.L.
because, by obtaining their tip in a face-to-face encounter
with the informant, the Christmas officers were able to assess
the informant’s credibility and were in a position to hold the
informant accountable for any false statements she might have
made. 222 F.3d at 144.
Here, the face-to-face encounter had none of the indicia of
reliability that normally inhere in such circumstances. In fact,
this encounter may as well have been a purely anonymous
one. Neither Officer Clifton nor Officer Carey could provide
any reliable identifying information about the informant—no
name, no gender. Neither officer could say what the infor-
mant’s basis for his or her knowledge was. While the infor-
mant may have been "in close proximity to Griffin’s vehicle
when he spoke with Officer Clifton" (Maj. Op. at 6), it does
not appear that the informant ever stated that he or she per-
sonally saw the defendant with a gun. In short, this face-to-
face encounter did not result in anything even close to the
kind of assessment of "credibility and demeanor" that
occurred in Christmas. 222 F.3d at 144.
The majority dismisses Griffin’s arguments about the
accountability of the informant because, in their view, the
officers could always return to the motel room where the
informant was originally found. (Maj. Op. at 6.) But the path
to accountability that the majority sketches is clearly more
tenuous than that in Christmas. Unlike in Christmas where the
informant was an unnamed neighbor of the defendant, 222
F.3d at 143, the informant here was but a transient motel
guest. While we know little about the personal circumstances
of the informant —how long he or she had been at the motel
or how long he or she planned to stay—he or she certainly
UNITED STATES v. GRIFFIN 13
could pack up and leave a motel room much more easily than
one could a home. Any suggestion that the informant could
easily be held accountable is further undermined by the fact
that the police had no idea what the informant looked like. Cf.
United States v. Valentine, 232 F.3d 350, 355 (3d Cir. 2000)
("[T]he officers could assess the informant’s credibility as he
spoke, knew what the informant looked like, and had some
opportunity to find the informant if the tip did not pan out.").
As a result, I find the majority’s blithe comparisons of this
case to Christmas and similar cases in other circuits alarming.
This case does not fall in squarely with these other prece-
dents; at best, it strains their outer boundaries. In Christmas,
officers investigating a homicide were approached by a neigh-
borhood resident, who gave her address and reported that
drugs were being dealt at the home two doors down from her.
222 F.3d at 143. The police proceeded to that home and
observed a group of people on the porch, one of whom—the
defendant—was recognized as a gang member from another
part of town. Id. at 143, 145. This independent recognition
and awareness of the defendant provided sufficient indicia of
the reliability of the informant’s tip because the officers could
reasonably surmise that Christmas’ presence on the porch was
odd and "created a potential for violence." Id. at 145. Here,
the officers knew nothing about the informant except that he
or she was found in the same motel room from which the 911
call was placed and they had no independent information
about the defendant to support the informant’s tip.
The officers in United States v. Romain, 393 F.3d 63 (1st
Cir. 2004), similarly had much more than a tip from an
unknown informant to justify their pat-down of the defendant.
Officers responded to a 911 call in which a woman, who
sounded as if she were in danger, told the emergency operator
that there was a man with a gun at her location. Id. at 66.
When they arrived, two women answered the door, and one
nodded affirmatively when asked if there was someone in the
apartment with a gun. Id. When officers entered, the defen-
14 UNITED STATES v. GRIFFIN
dant emerged from a bedroom acting aggravated, flailing his
arms and shouting, and moved threateningly towards one of
the officers. Id. After seizing the defendant and placing him
against the wall, one of the officers spoke with the woman
who had indicated there was a gun in the apartment and asked
if she had placed the 911 call. Id. at 66-67. She admitted to
being the caller and told the officers that the gun was in the
defendant’s waistband. Id. Only then did officers conduct a
pat-down. Id.; cf. United States v. Heard, 367 F.3d 1275 (11th
Cir. 2004) (finding reasonable suspicion for stop and frisk
after officer observed and helped to end public dispute
between defendant and unknown informant who left before
she could be questioned); Valentine, 232 F.3d at 352, 357
(finding reasonable suspicion for stop and frisk where officers
first obtained detailed description from unknown informant
with personal knowledge and then observed defendant acting
evasively).
In each of these cases, officers had an opportunity to
observe the credibility and demeanor of an informant in a
face-to-face dialogue—and they actually took advantage of
that opportunity. More importantly, in each of these cases, the
officers made independent observations that corroborated the
suspicions raised by the informants. This is a far cry from the
facts before us in this appeal. I take no issue with the majori-
ty’s well-supported point that face-to-face dialogues generally
result in a very different species of tip than that offered by a
purely anonymous informant. But, even if nine out of ten
face-to-face encounters with an informant provide the neces-
sary indicia of reliability to create a reasonable suspicion, this
case is plainly the unreliable tenth. Officers Clifton and Carey
had no independent information to corroborate the unidenti-
fied informant’s incriminating statements against Griffin and
they cannot plausibly be said to have assessed the informant’s
credibility and demeanor, such that the tip itself might suffice
to provide a reasonable suspicion. Thus, though perhaps tech-
nically not an "anonymous tip" case, this case is much closer
to J.L. in its facts than it is to either Christmas or Romain.
UNITED STATES v. GRIFFIN 15
The majority’s efforts to square this case with Christmas
seem motivated, at least in part, by their concerns about the
ramifications of "a contrary holding." (Maj. Op. at 7 n.4.)
Undoubtedly, "man with a gun" tips put officers in an espe-
cially dangerous position that might "sometimes justify
unusual precautions." J.L., 529 U.S. at 272. Yet, the Supreme
Court has already considered and rejected the idea that "an
automatic firearm exception to our established reliability anal-
ysis" is warranted. Id.
The majority’s opinion comes dangerously close to flouting
this and creating a per se rule of reliability for face-to-face
dialogues with informants in "man with a gun" cases. With
this case as precedent, an officer provided with a "man with
a gun" tip in a high-crime area by an unknown, unaccountable
informant may now, without any other indicia of reliability,
conduct a Terry stop. This clearly undermines at least the
spirit of J.L., and it relies on an overbroad reading of our pre-
cedent in Christmas. In fact, this decision "enable[s] any per-
son seeking to harass another to set in motion an intrusive,
embarrassing police search of the targeted person simply by
. . . falsely reporting the target’s unlawful carriage of a gun."
J.L., 529 U.S. at 272.
II.
Even assuming the Terry stop and accompanying pat-down
were proper, it is undisputed that they yielded no evidence of
criminal conduct on the part of Mr. Griffin. Nonetheless, Offi-
cer Carey decided to handcuff Griffin and place him in the
back of a patrol car. He then instructed Officer Clifton to
search Griffin’s vehicle. The majority finds this vehicle
search to be proper under Michigan v. Long, 463 U.S. 1032
(1983).
Long imposes a two-part test for vehicle searches pursuant
to a Terry stop: an officer must have a "reasonable belief" that
(1) "the suspect is dangerous," and (2) "the suspect may gain
16 UNITED STATES v. GRIFFIN
immediate control of weapons." Id. at 1049. On this first
requirement, the majority points to three factors that it feels
support the officer’s search: first, the officers received a face-
to-face tip that Griffin had a gun; next, the defendant was in
a "high crime area;" and, finally, Griffin acted evasive during
the pat-down. However, none of these suffice, alone or taken
together, to create a reasonable belief that Griffin was danger-
ous.
Standing as a hallmark of our investigatory stop jurispru-
dence is the principle that such stops are only justified where
officers have a "reasonable, individualized suspicion" of crim-
inal activity before a frisk or protective search takes place.
Maryland v. Buie, 494 U.S. 325, 334 n.2 (1990) (emphasis
added). So, while "the fact that [a] stop occurred in a ‘high
crime area’ [is] among the relevant contextual consider-
ations," Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (quot-
ing Adams v. Williams, 407 U.S. 143, 144, 147-48 (1972)), it
cannot be an endpoint for a Terry or Long analysis. Other-
wise, we relegate those unfortunate enough to have to live in
such "high crime areas" to second-class citizenship for pur-
poses of the Fourth Amendment.
Whatever individualized suspicion of Griffin’s dangerous-
ness the officers could have had, it had to rest on the informa-
tion provided by the informant and on Griffin’s conduct
during the Terry pat-down. At the risk of beating a dead
horse, I must emphasize again the flimsiness of the infor-
mant’s tip. The only information the informant gave to impli-
cate Griffin was his or her statement, "That’s the car; that’s
him inside." (J.A. 61.) The informant gave no indication about
the basis of his or her knowledge, and the officers themselves
had failed to confirm that the informant was the same person
who placed the 911 call. The informant’s statement might
have been more of a "smoking gun" if, as in most face-to-face
encounters, the officers had actually taken the opportunity to
assess the informant’s credibility and demeanor. Instead, the
officers could tell the district court virtually nothing about the
UNITED STATES v. GRIFFIN 17
source of their information—not even the person’s gender. As
for Griffin’s so-called "evasive" behavior (Maj. Op. at 8), this
occurred not prior to the Terry stop, but during the patdown,
and it consisted simply of his "turning around" (J.A. 27), a
reaction that seems a natural and instinctive response to being
frisked by a police officer.2
Not one of the factors cited by the majority could by itself
support a finding that Griffin was a danger of the kind needed
to justify a protective search of his vehicle. In combination,
these factors fare no better. The majority once again finds that
the search rests comfortably within the boundaries of our pre-
cedent, specifically United States v. Elston, 479 F.3d 314 (4th
Cir. 2007) and United States v. Holmes, 376 F.3d 270 (4th
Cir. 2004). But, in fact, both cases are readily and signifi-
cantly distinguishable. In Holmes, we found that officers
could reasonably believe that the defendant was dangerous
given their particularized suspicion that he was a gang mem-
ber who had previously been involved in a number of armed,
violent felonies. 376 F.3d at 277. In Elston, a Long search was
upheld where a named informant provided a 911 operator
with a detailed description of the defendant, who had left her
home in his truck, highly intoxicated and with a loaded hand-
gun and extra ammunition that he had threatened to "let[ ] . . .
off in somebody." 479 F.3d at 315 (alteration in original). The
factual dissimilarities between Holmes and Elston on the one
2
The majority further factors in its Long analysis the fact that some
onlookers, including someone who may have known Griffin (Maj. Op. at
8 n.5), were present at the scene of the Terry stop. The district court relied
heavily on this reasoning to justify its ruling on the protective search, and
the government has urged us also to consider this factor. Yet, neither the
district court, the government, nor the majority cites any law to support the
proposition that concerns about danger from people other than the suspect,
and who have no clear connection to the suspect, can justify a protective
search of the suspect’s vehicle. Long itself takes the position that officers
must have a reasonable belief "that the suspect is dangerous and the sus-
pect may gain immediate control of weapons." 463 U.S. at 1049 (emphasis
added).
18 UNITED STATES v. GRIFFIN
hand and this case on the other are patent enough that I need
not linger on them.
A closer factual analogue in many ways comes from our
decision in United States v. Neely, No. 08-4257, 2009 U.S.
App. LEXIS 9111 (4th Cir. Apr. 29, 2009). In Neely, we
found that acting nervous and stumbling, even in a high crime
area, was not enough to create a reasonable belief that the
defendant posed the kind of danger needed to justify a search
under Long. Id. at *13-15. The Neely panel admittedly termed
it a "close case" and suggested that "several facts present here,
under different circumstances, might counsel a different
result." Id. at *15. But the only evidence here that might sug-
gest circumstances different from those present in Neely is the
informant’s incriminating, but limited and wholly unreliable,
tip. Thus, a reasoned application of our precedent leads to the
conclusion that, as in Neely, this search was not protected by
Long.3
III.
Today’s decision effectively holds that anytime someone
provides officers with a face-to-face "man with a gun" tip, at
least in a "high crime area," the officer has been given both
a sufficiently reasonable suspicion of criminal activity to jus-
tify a Terry stop and a sufficiently reasonable belief of the
suspect’s dangerousness to justify a protective search under
Long. This troubling result is cleverly cloaked in overbroad
readings of this Court’s precedent—Christmas, Holmes, and
Elston —but it plainly undermines the Supreme Court’s deci-
sion in J.L. A fair reading of the case law shows that Griffin’s
3
Having concluded that the first prong of the Long analysis is not met,
it is not necessary to decide whether an officer had a "reasonable belief"
that "the suspect may gain immediate control of weapons." Long, 463 U.S.
at 1049. While the majority’s dismissive view of the implications of Ari-
zona v. Gant, 129 S. Ct. 1710 (2009) on today’s case gives me pause, I
do agree that the Court in Gant did not decide the issues now before us.
UNITED STATES v. GRIFFIN 19
motion to suppress should have been granted on both grounds,
and I therefore dissent.