United States v. Davis, Curnell

235 F.3d 584, 344 U.S. App. D.C. 212, 2000 U.S. App. LEXIS 33959, 2000 WL 1860518
CourtCourt of Appeals for the D.C. Circuit
DecidedDecember 29, 2000
Docket00-3016
StatusPublished
Cited by18 cases

This text of 235 F.3d 584 (United States v. Davis, Curnell) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Davis, Curnell, 235 F.3d 584, 344 U.S. App. D.C. 212, 2000 U.S. App. LEXIS 33959, 2000 WL 1860518 (D.C. Cir. 2000).

Opinion

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, appellant 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 describing 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, articula-ble suspicion” sufficient to justify the stop, see Illinois v. Wardlow, 528 U.S. 119, 123, *586 120 S.Ct. 673, 145 L.Ed.2d 570 (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 describing 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 2808 North Capitol. He’s on foot, possibly now in the unit block of Charming.” 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, Taliaf-erro 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 possession of a firearm by a felon. See 18 U.S.C. § 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, 88 S.Ct. 1868, 20 L.Ed.2d 889 (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 evidentia-ry hearing on the suppression motion. Davis’s counsel, 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, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

II

Investigative stops do not run afoul of the Fourth Amendment if they are based on “reasonable, articulable suspicion” of criminal conduct. Wardlow, 528 U.S. at 123, 120 S.Ct. 673. Requiring considerably less than probable cause, Terry stops are constitutional if the police can show a “minimal level of objective justification.” INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 80 L.Ed.2d 247 (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 produce the tape of the call. In Whiteley v. Warden, Wyo. *587 State Penitentiary, 401 U.S. 560, 568, 91 S.Ct. 1031, 28 L.Ed.2d 306 (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, 105 S.Ct. 675, 83 L.Ed.2d 604 (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 arrest,” id. at 231, 105 S.Ct. 675; see also Whiteley, 401 U.S. at 568, 91 S.Ct. 1031 (“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, 105 S.Ct. 675. 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 government, Davis waived this argument because he failed to make it in the district court. See Fed. R.CRimJP. 12(f) (“Failure by a party to raise defenses or objections ... at the time set by the court ... shall constitute waiver thereof.”). The government’s point is well taken.

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Bluebook (online)
235 F.3d 584, 344 U.S. App. D.C. 212, 2000 U.S. App. LEXIS 33959, 2000 WL 1860518, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-davis-curnell-cadc-2000.