United States v. Copening

FILED
United States Court of Appeals
Tenth Circuit

PUBLISH
October 31, 2007
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff/Appellee,
v. No. 06-5232
DAVID LERONE COPENING, a/k/a
Devonta Carpenter, a/k/a David D.
Copening, a/k/a Michael D. Copening,

Defendant/Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. No. 06-CR-92-HE)

Robert A. Ridenour, Assistant Federal Public Defender (John V. Butcher, Federal Public
Defender, and Barry L. Derryberry, Research & Writing Specialist, Office of the Federal
Public Defender, with him on the brief), Tulsa, Oklahoma.

Leena Alam, Assistant United States Attorney (David E. O’Meilia, United States
Attorney, with her on the brief), Tulsa, Oklahoma.

Before LUCERO, BALDOCK, and GORSUCH, Circuit Judges.

BALDOCK, Circuit Judge.

Based on a series of calls to 911 from an anonymous tipster, a Tulsa, Oklahoma

police officer initiated an investigatory stop of a truck in which Defendant David Lerone
Copening was a passenger. Thereafter, police detained Defendant via a “felony

takedown.” A grand jury indicted Defendant with being a felon in possession of a firearm

and ammunition, in violation of 18 U.S.C. § 922(g)(1). Following the district court’s

denial of his motion to suppress, Defendant entered a conditional guilty plea. See Fed. R.

Crim. P. 11(a)(2). On appeal, Defendant challenges the underlying stop and detention

under the two-prong analysis set forth in Terry v. Ohio, 392 U.S. 1 (1968). We have

jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.

I.

We derive the following undisputed facts from Tulsa Police Department Dispatch

(“911 dispatch”) transcripts, as well as the suppression hearing transcript. On April 8,

2006, 911 dispatch received a series of calls from phone number 378-2000. The first call

came in at 9:30 p.m. An anonymous male caller reported that he “just saw” a bald,

African-American man, later identified as Defendant: (1) exit a vehicle – “tag VKQ833”

– at the QuikTrip at “31st and 129th” streets; (2) drop a pistol outside the convenience

store; (3) pick up the pistol; (4) return to the vehicle; (5) “stash” the pistol in the vehicle’s

seat; and (6) enter the QuikTrip.1 The caller described the vehicle as a 1500 Chevy,

extended-cab, short-bed truck, “probably a 95 model,” that was “silver/goldish” in color

1
Oklahoma law allows an individual to openly transport an unloaded pistol in a
motor vehicle. 21 Okla. Stat. § 1289.7. “‘[O]pen’ means the firearm is transported in
plain view, in a case designed for carrying firearms, which case is wholly or partially
visible, in a gun rack mounted in the vehicle, in an exterior locked compartment or a
trunk of a vehicle.” Id.

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and had “silver chrome bars on top of the bed.” The caller declined to identify himself.

After the dispatcher stated “someone” would “check it out,” the call ended.

Dispatch received a second call from 378-2000, again from an anonymous male

caller, who stated he had just called regarding a truck – tag VKQ833 – at the “31st and

129th” QuikTrip. The caller provided additional information about the QuikTrip

incident, stating: (1) the man exited the truck; (2) a “gun fell out of his pants” as he

approached the convenience store’s entrance; (3) the man “picked up the gun [and] stuck

it in his pants;” (4) he walked back to the vehicle and “stuck it underneath the seat;” and

(5) the man then entered the QuikTrip. Again, the male caller declined to identify

himself. The caller stated he was calling a second time to report that the “two black men”

in the truck were leaving the QuikTrip. Before the connection dropped, the caller told

dispatch he was following behind the vehicle, heading west on 31st Street.

Shortly thereafter, dispatch received a third call from 378-2000. The male caller

referenced having “just called in twice” about a pickup with tag VKQ833. The caller

again stated he: (1) was following the truck westbound on 31st Street; and (2) had just

seen “a policeman go eastbound.” The caller continued to update dispatch on the caller’s

location: (1) “we’re about 30 yards behind them,” headed westbound on 31st Street

“toward 169;” (2) “they’re still headed” west on 31st, “towards Mingo;” (3) they “[j]ust

went underneath 169;” (4) “[t]hey’re picking up their speed;” (5) “they’re almost to

Mingo right now;” (6) “[they’re about] 3/4 mile from Memorial;” and (7) they turned

north. The connection dropped and the call ended. When 911 dispatch called 378-2000,

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a voice-mail recording for “Ashley” played.

During the fourth call from 378-2000, the anonymous caller noted he was the

person who had “reported a pickup,” with license plate VKQ833, “at 31st and 129th.”

The caller updated the 911 dispatcher on the truck’s location: (1) “right now we’re

[behind the truck] at 11th Street going northbound on Memorial;” (2) the truck turned

right on 21st Street and was “going east . . . . from Memorial;” (3) we are “about 200

yards” behind the truck; and (4) we just passed “under I-44” and are going “through

101st.” The caller told dispatch a police cruiser “turned around behind [the caller’s

vehicle].” At the dispatcher’s request, the caller noted businesses and landmarks along

the route. The connection dropped. The 911 dispatch called 378-2000 and, again, the

same voice-mail recording for “Ashley” played.

The final communication transpired when 911 dispatch placed another call to 378-

2000. A female voice answered. When the dispatcher asked “[a]re you the guy who’s

following that truck,” a male voice could be heard saying “[t]he police got him.” The

female voice then stated that “six police officers were running that way” and had

“got[ten] a hold of him.” The call ended.

At the suppression hearing, Tulsa Police Officer Daniel Bean testified he was on

patrol in the vicinity of 31st and 129th when he heard dispatch relay the anonymous

caller’s 9:30 p.m. tip. Accordingly, the officer was aware the caller had reported that one

of the two men: (1) dropped a gun on the ground outside the 31st and 129th QuikTrip; (2)

picked up the gun; and (3) stuck the gun under a seat in the vehicle. Further, the officer

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was aware the suspects were driving a silver Chevy extended-cab truck with a specified

tag number. After receiving this information, Officer Bean proceeded to the 31st and

129th QuikTrip. When he arrived at that location, however, no vehicle matched the

caller’s description. Dispatch, in turn, informed Officer Bean that the caller was: (1) still

speaking to dispatch; and (2) following the truck, west on 31st Street. The officer turned

west on 31st street. Dispatch relayed that – according to the caller – the truck had: (1)

traveled “west on 31st through Mingo;” (2) “turned northbound on Memorial from 31st;”

and, later (3) turned “east on 21st Street from Memorial Road.” Officer Bean testified he

first encountered the truck at 21st and 104th streets (i.e., where other officers had stopped

the truck). Officer Bean testified this location was consistent with the truck’s direction of

travel as reported by the anonymous caller.

Meanwhile, Tulsa Police Officer Josh Dupler had also heard the 9:30 p.m. dispatch

call. At that time, Officer Dupler was on patrol, headed south near the 10100 block of

21st Street. The officer testified he was aware, via dispatch, that the caller: (1) reported

the individual in question “had the gun in their possession;” (2) “was following the

vehicle” and “kept giving updates [to dispatch regarding] where the vehicle was;” and (3)

had described the vehicle in question as a “silver Chevy . . . Extended Cab pickup truck”

and provided its tag number. Officer Dupler testified that dispatch did not inform him,

and he was not otherwise aware, that the call was anonymous.

When dispatch updated the truck’s location as being “eastbound on 21st Street [in

the] 9500 block area,” Officer Dupler realized he was quite close to that location. Officer

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Dupler testified he believed dispatch was relaying information received from the caller.

When the officer reached the 9700 block of 21st Street he “saw a vehicle that matched

[the] description [relayed by dispatch].” He updated dispatch accordingly. Dispatch

replied that the caller had “just passed an officer.” Officer Dupler, due to his location,

assumed the caller had seen his cruiser. The officer turned around, heading east on 21st

street, and approached the vehicle ahead of him.

Officer Dupler testified that, after following the truck for approximately three

blocks, he confirmed the vehicle’s description and tag number matched the tag number

relayed by dispatch. At that point, the officer decided to stop the vehicle. Once two other

officers arrived, Officer Dupler activated his cruiser’s safety lights. The truck responded

by turning into a parking lot. The three police cruisers turned into the parking lot, near

10400 21st Street, and stopped their vehicles approximately thirty-five to forty feet

behind the truck, parallel to one another.

The officers proceeded to detain the truck’s two occupants via a “felony

takedown.” Officer Dupler explained that he employed this standard procedure because,

at the time he stopped the vehicle, he believed the occupants had a loaded gun. Officer

Dupler described the felony takedown procedure as follows: the officers (1) exit their

cruisers, staying behind their driver’s-side door, with their guns drawn; (2) obtain a view

of the occupants’ hands; (3) direct the driver to throw the vehicle’s keys on the ground,

using only their left hand; (4) order the occupants to exit the vehicle, one at a time, with

their hands above their head; (5) tell the suspects to back up, i.e., facing away from the

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officers, toward the police cruisers; and (6) handcuff the suspects, either standing,

kneeling, or in a prone position, from behind. Throughout the takedown officers keep

guns fixed on both the vehicle and the suspects.

In this case, at least six officers participated in the felony takedown. Police

handcuffed Defendant and the driver standing. The officers recovered a loaded gun from

the truck’s back seat and the underlying prosecution ensued. The district court made

factual findings consistent with this summary of events.

II.

Defendant challenges the district court’s denial of his suppression motion, arguing

the officers’ stop of the truck and subsequent detention of his person violated his Fourth

Amendment rights. Specifically, Defendant contends: (1) the police impermissibly

stopped the truck based on an anonymous tip; and (2) officers used excessive force in

detaining him.2 Both arguments present questions of law that we review de novo. United

States v. Samuels, 493 F.3d 1187, 1191 (10th Cir. 2007); see also United States v. Moran,

No. 06-2175, 2007 WL 2775083, at *2 (10th Cir. Sept. 25, 2007). For Fourth

2
Defendant also argues the district court’s finding that the QuikTrip is located in a
“high-crime area” was clearly erroneous. Our review of the record reveals that, despite
Officer Dupler’s testimony that portions of the area did not have “any problems” with
crime, the Government introduced sufficient evidence at the suppression hearing to
support the district court’s finding. United States v. Romero, No. 06-3092, 2007 WL
2694242, at *3 (10th Cir. Sept. 11, 2007) (“A finding is clearly erroneous when it is
without factual support in the record or we are left with the definite and firm conviction
that a mistake has been made.”). In any event, a contrary conclusion would not alter the
ultimate conclusion we reach here, i.e., that the stop and detention did not contravene the
Fourth Amendment.

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Amendment purposes, traffic stops are analogous to investigatory detentions; their

lawfulness is governed by Terry and its progeny. See United States v. Stephenson, 452

F.3d 1173, 1176 (10th Cir. 2006). Under Terry, we assess investigatory detentions’

reasonableness by asking: (1) “whether the officer’s action was justified at its inception;”

and (2) “whether it was reasonably related in scope to the circumstances which justified

the interference in the first place.” Terry, 392 U.S. at 20.

A.

We first address Defendant’s claim, under Terry’s first prong, that the officers

lacked reasonable suspicion to initiate the investigatory stop. Defendant argues that,

however elaborate, the 911 calls – the only basis for the stop – constituted nothing more

than an uncorroborated anonymous tip. Defendant contends the caller’s efforts are

wholly consistent with those of a nefarious informant, bent on bolstering the effectiveness

of his fabricated claims. As such, Defendant contends the 911 calls are analogous to

those found unreliable in Florida v. J.L., 529 U.S. 266 (2000).3

Under Terry’s strictures, the police may initiate a traffic stop if they have

reasonable suspicion that criminal activity “is, has, or is about to occur.” Samuels,

3
In J.L., the Supreme Court considered whether an anonymous, unrecorded
caller’s tip – that a “young black male standing at a particular bus stop and wearing a
plaid shirt was carrying a gun” – was, without more, sufficiently reliable to lawfully
initiate a Terry stop. J.L., 529 U.S. at 268, 270. The Court held that it was not. Id. at
271. The J.L. Court reasoned the tip lacked the requisite reliability because, inter alia, it:
(1) “provided no predictive information and therefore left the police without means to test
the informant’s knowledge or credibility;” and (2) did not explain “how [the caller] knew
about the gun nor supplied any basis for believing he had inside information on J.L.” Id.

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493 F.3d at 1191 (internal quotations omitted); see also Illinois v. Wardlow, 528 U.S.

119, 123 (2000); Terry, 392 U.S. at 30. Here, the officers’ belief that Defendant

possessed a gun stemmed exclusively from an unknown caller in an unknown location,

rather than their own observations. See J.L., 529 U.S. at 270. Anonymous tips raise

difficult Fourth Amendment questions. In contrast to information obtained from a known

informant, an anonymous tip rarely allows authorities to assess the informant’s veracity,

reliability, or basis of knowledge. Id.; see also United States v. Johnson, 364 F.3d 1185,

1190-91 (10th Cir. 2004) (stating that an informant’s desire to safeguard anonymity raises

questions about the individual’s motives, e.g., whether they are “trying to use the police

to harass another citizen”). Nevertheless, “there are situations in which an anonymous

tip, suitably corroborated, exhibits sufficient indicia of reliability to provide reasonable

suspicion to make the investigatory stop.” J.L., 529 U.S. at 270. Indeed, we have

recognized that “[a] confidential tip may justify an investigatory stop if under the totality

of the circumstances the tip furnishes both sufficient indicia of reliability and sufficient

information to provide reasonable suspicion . . . .” Samuels, 493 F.3d at 1191 (internal

quotations omitted).

We are convinced the five calls placed to 911 dispatch possessed the requisite

“indicia of reliability” to justify officers’ stop of the truck in which Defendant was

riding on a suspected weapons violation. Contrary to Defendant’s position, the tip at

issue in this case is readily distinguishable from the anonymous, unrecorded, and

uncorroborated tip deemed unreliable in J.L. See J.L., 529 U.S. at 270. Multiple facts,

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known to Officer Dupler when he initiated the stop, bolstered the tip’s reliability.

See United States v. Brown, 496 F.3d 1070, 1075 (10th Cir. 2007) (noting that “‘[a]ll

the police had to go on [in J.L.] . . . 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.’” (quoting J.L., 529 U.S. at 271)

(additional internal quotations omitted)).

First, though the caller declined to provide his name, he called 911 from an

unblocked telephone number. The caller should have expected that 911 dispatch tracks

incoming calls and that the originating phone number could be used to investigate the

caller’s identity. Cf. Johnson, 364 F.3d at 1191 (finding J.L.’s concerns partially

mitigated by the fact that the anonymous caller “g[a]ve police his cell phone number”).

The fact the caller provided authorities some basis for discovering his identity makes it

is less likely his tip was phony. See United States v. Jenkins, 313 F.3d 549, 554 (10th

Cir. 2002) (reasoning that jeopardizing one’s anonymity creates “disincentive for

making false allegations”). Second, the caller told dispatch he saw the QuikTrip

weapons incident, i.e., he “claimed firsthand knowledge of the alleged conduct.”

Brown, 496 F.3d at 1076. Third, the caller’s detailed description of the QuikTrip

events and the individuals involved, as well as their vehicle and its tag number, further

bolstered the tip’s reliability. Jenkins, 313 F.3d at 554-55. Though the caller described

the QuikTrip incident in slightly different terms each time he phoned dispatch, his

accounts did not differ materially. Id. Fourth, taken together, the caller’s unusual

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efforts in reporting the QuikTrip events to 911 dispatch, detailing what he observed,

following the vehicle, and updating dispatch regarding the truck’s location, bespeak an

ordinary citizen acting in good faith. Indeed, the 911 transcripts provide no indication

that the caller had iniquitous intentions. For instance, during the third call, the

anonymous individual stated: “I just, just hate to see that kind of stuff going on, you

know? I mean there’s a lot of things I can tolerate; but I can’t tolerate dudes running

around with guns . . . in QuikTrips, . . . you know what I mean?”

Fifth, Officer Dupler corroborated the caller’s real-time account of the truck’s

travel route before he initiated the stop. See Brown, 496 F.3d at 1076 (“the officers

knew that the caller's information was based on firsthand knowledge and that it was

contemporaneous”). That is, by verifying the caller’s account of the truck’s constantly-

changing location, the officer “test[ed] the informant's knowledge and credibility.” See

United States v. Hauk, 412 F.3d 1179, 1188 (10th Cir. 2005). As detailed above, the

caller claimed knowledge of: (1) the alleged criminal activity; and (2) the truck’s

position. The officer’s corroboration of the latter information, lent credibility to the

former. This is particularly true where, as here, the caller’s asserted basis of

knowledge – as to both types of information – was first-hand and real-time

observation. See id.

Accordingly, the detailed nature of the tip “significantly circumscribed the

number of people police could have stopped in reliance on it.” Johnson, 364 F.3d at

1191; cf. J.L., 529 U.S. at 272 (“An accurate description of a subject’s readily

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observable location and appearance . . . . does not show that the tipster has knowledge

of concealed criminal activity.” (emphasis added)). Indeed, we can not imagine the

police could have stopped any other vehicle based on these calls. See Johnson, 364

F.3d at 1191 n.3.

Exercising the significant “skepticism and careful scrutiny” required in the

anonymous-informant context, see Easton v. City of Boulder, 776 F.2d 1441, 1449

(10th Cir. 1985), we conclude that, under the totality of the circumstances, the

anonymous caller’s tip, relayed by dispatch to the officers, bore “sufficient indicia of

reliability to provide reasonable suspicion to make the investigatory stop.” J.L., 529

U.S. at 270. We underscore, however, that this outcome is wholly driven by the

collective facts at bar and that no single factor dictated this result. Brown, 496 F.2d at

1078-79 (anonymous caller’s “story and the surrounding facts possessed an internal

coherence that gave weight to the whole”).

B.

Defendant also challenges the district court’s denial of his suppression motion

under Terry’s second prong. Specifically, Defendant argues the officers exceeded the

scope of the stop and transformed it into an impermissible arrest when they detained

him by “felony takedown.” Terry, 392 U.S. at 20. Where police exceed the limits of a

Terry stop, the detention “becomes an arrest that must be supported by probable

cause.” United States v. Neff, 300 F.3d 1217, 1220 (10th Cir. 2002). At the same

time, bright-line rules do not govern the permissible scope of an investigative

12
detention. “‘[C]ommon sense and ordinary human experience’” trump “‘rigid

criteria.’” Id. (quoting United States v. Sharpe, 470 U.S. 675, 685 (1985)). Because

police officers need not take unnecessary risks in the line of duty, they may take

precautionary measures that are reasonably necessary to safeguard their personal

safety, and to “maintain the status quo,” during a Terry stop. United States v. Shareef,

100 F.3d 1491, 1495 (10th Cir. 1996) (internal quotations omitted).

Defendant concedes that a Terry stop is not rendered unlawful, per se, by

officers’ use of handcuffs and weapons. We have upheld police officers’ use of

handcuffs and guns during a Terry stop where they “reasonably believe” such measures

are necessary to ensure officer safety. See Neff, 300 F.3d at 1220; see also Shareef,

100 F.3d at 1495. Defendant maintains, however, the facts at bar did not justify

officers’ use of the “felony takedown” procedure because: (1) the stop was based on

suspicion of a “technical offense,” not a violent crime; (2) the weapon reportedly in the

vehicle was not “inherently dangerous;” and (3) nothing indicated that “any violence or

threat was afoot.” We disagree.

Officer Dupler testified he believed that a loaded gun – by any measure an

inherently dangerous weapon – was in the truck’s passenger compartment. The vehicle

obviously had two occupants. Maryland v. Wilson, 519 U.S. 408, 414 (1997) (“danger

to an officer from a traffic stop is likely to be greater when there are passengers in

addition to the driver in the stopped car”). The safety risk attendant to detaining the

truck’s occupants on a suspected weapons violation alone justified the use of

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handcuffs; the “need to detain multiple defendants made the use of handcuffs all the

more reasonable.” Cf. Muehler v. Mena, 544 U.S. 93, 100 (2005) (during execution of

a lawful search warrant for guns and gang-related evidence, authorities’ detention and

handcuffing of a premises’ occupant, at gun point, did not violate the Fourth

Amendment). “[T]he facts available to the officer[s] would warrant a man of

reasonable caution” to believe that “the action taken was appropriate.” Shareef, 100

F.3d at 1502 (internal quotations omitted). As such, the “felony takedown” procedure,

as detailed by Officer Dupler’s testimony, was not unnecessarily forceful or intrusive,

but rather an appropriate “precautionary measure,” under these circumstances. See id.

at 1506.

We, therefore, conclude the officers did not use excessive force in detaining

Defendant and, thus, did not convert his detention into an unlawful arrest. See

United States v. Perdue, 8 F.3d 1455, 1463 (10th Cir. 1993) (pointing gun at suspects

during a Terry stop did not elevate a seizure into an arrest given, inter alia, that the

officers reasonably believed the individuals to be armed and dangerous); United States

v. Merritt, 695 F.2d 1263, 1274 (10th Cir. 1982) (“Whenever the police confront an

individual reasonably believed to present a serious and imminent danger to the safety

of the police and public, they are justified in taking reasonable steps to reduce the risk

that anyone will get hurt.”).

AFFIRMED.

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