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United States v. Holmes

March 09, 2004

UNITED STATES OF AMERICA, APPELLEE
v.
WENDELL P. HOLMES, JR., APPELLANT



Appeal from the United States District Court for the District of Columbia (No. 01cr00271-01)

Before: Edwards, Sentelle and Henderson, Circuit Judges.

The opinion of the court was delivered by: Karen Lecraft Henderson, Circuit Judge

Argued November 21, 2003

The appellant, Wendell P. Holmes, Jr., was indicted on one count of felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).*fn1 He pleaded guilty after the district court denied his motion to suppress the evidence against him -- a Lorcin.38-caliber semi-automatic pistol with a live.38-caliber round in the chamber and three more in the magazine -- but reserved his right to appeal the court's ruling. On appeal, he challenges the police search that uncovered the firearm and ammunition, contending the police had no reasonable suspicion to search him and therefore violated his Fourth Amendment right against unreasonable search and seizure. For the reasons discussed below, we disagree and affirm the judgment of the district court.

I. BACKGROUND

Shortly before two o'clock a.m. on July 1, 2001, a pedestrian flagged down Metropolitan Police Department (MPD) Officer Walter Fleming while he was patrolling the 900 block of Bellevue Street in Southeast Washington, D.C. in a marked police cruiser.*fn2 The pedestrian claimed to have seen a man in the area of 869 Bellevue Street brandishing a handgun. He reported that the man wore an orange shirt and tan pants, appeared intoxicated and, once aware of the pedestrian, concealed the weapon. Fleming immediately broadcast a lookout for the man and requested assistance before investigating further.

MPD Officer Julian Lamb responded within approximately two minutes of Fleming's radio broadcast. Lamb knew the area as a high crime area, including robberies, burglaries, assaults and shootings. Lamb did not speak to the pedestrian upon arriving on the scene, but overheard him speaking with Fleming. Lamb did observe that the pedestrian was "upset" and "afraid" and noticed "how he was dressed," which observations led Lamb to conclude that he was "a reliable person." Joint Appendix (JA) tab A at 6. After completing his interview of the pedestrian, Fleming told Lamb that the pedestrian said the armed man appeared intoxicated or high. Fleming and Lamb then began canvassing the 800 block of Bellevue Street for the man the pedestrian described.

Lamb first drove approximately 200 feet to an alleyway where the pedestrian claimed to have seen the man. After searching for approximately five minutes, Lamb observed a man -- later identified as Wendell Holmes -- "crouched down"*fn3 on the porch of the house at 873 Bellevue Street. JA tab A at 8-9. Holmes was wearing a "reddish orange shirt [and] tan pants."*fn4 JA tab A at 10. Lamb was about 10 feet away from Holmes when he spotted Holmes but he could not see Holmes (and, in particular, Holmes's hands) clearly, as the lighting in the area was poor, there were no lights on in the house and Holmes was crouching "right at the door" of the house. JA tab A at 9. Apart from Holmes, the pedestrian and Fleming, Lamb did not see anyone else in the 800 block of Bellevue Street during their search.

Upon discovering Holmes, Lamb testified that he was "scared" and "had a real heightened safety concern" for Fleming and himself and for the "general public." JA tab A at 10. Both officers, who were in uniform, pointed their guns at him and told him to stand up and put his hands where they could be seen. Holmes did not respond until the officers had repeated the command "roughly" five times. JA tab A at 13- 14. When Holmes finally complied, he did so slowly, from which Lamb concluded that he was intoxicated or high. While Fleming conducted a "protective pat-down" of Holmes's person for weapons, JA tab A at 16, Lamb alerted Fleming that he saw the outline of a gun handle beneath Holmes's shirt. Fleming lifted Holmes's shirt and discovered a loaded Lorcin.38-caliber semi-automatic pistol tucked in his pants near his right hip.

On July 31, 2001 Holmes was indicted on a single count: felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). Holmes moved to suppress the evidence against him, i.e., the Lorcin semi-automatic pistol and the live rounds. The district court denied his motion, concluding that Holmes's case was on all fours with our decision in United States v. Thompson, 234 F.3d 725 (D.C. Cir. 2000), cert. denied, 532 U.S. 1000 (2001). Holmes then entered a conditional guilty plea, reserving his right to appeal. See FED. R. CRIM. P. 11(a)(2) ("With the consent of the court and the government, a defendant may enter a conditional plea of guilty ..., reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion."). The district court sentenced Holmes to 33 months' incarceration. Holmes now appeals.

II. ANALYSIS

Our review of the district court's ruling is de novo. United States v. Davis, 235 F.3d 584, 586 (D.C. Cir. 2000), cert. denied, 534 U.S. 860 (2001). We examine the findings of fact that underlie the trial court's determination for clear error and ascribe "due weight to inferences drawn from those facts by [the] resident judge[ ] and local law enforcement officers." Ornelas v. United States, 517 U.S. 690, 699 (1996).

Following the United States Supreme Court's decision in Terry v. Ohio, 392 U.S. 1 (1968), and its progeny, the law is well-established that a law enforcement officer acting on a "reasonable, articulable suspicion that criminal activity is afoot" may, consistent with the Fourth Amendment, briefly detain a suspect for investigation and conduct a limited search of the suspect's outer clothing for weapons. Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000); see Terry, 392 U.S. at 27, 30. Reasonable suspicion is not a " 'finely-tuned standard[ ],' " Ornelas, 517 U.S. at 696 (quoting Illinois v. Gates, 462 U.S. 213, 235 (1983)); instead it is a "fluid concept[ ]" that derives "substantive content from the particular context[ ] in which [it is] being assessed." Ornelas, 517 U.S. at 696. The standard is dependent on "both the content of information possessed by police and its degree of reliability," Alabama v. White, 496 U.S. 325, 330 (1990), and "requires a showing considerably less than preponderance of the evidence." Wardlow, 528 U.S. at 123; see also White, 496 U.S. at 330. The reasonable suspicion standard requires us, then, to determine whether Officers Lamb and Fleming had "a minimal level of objective justification," Wardlow, 528 U.S. at 123; see also White, 496 U.S. at 329-30, for the Terry stop of Holmes based on " 'the totality of the circumstances -- the whole picture.' " White, 496 U.S. at 330 (quoting United States v. Cortez, 449 U.S. 411, 417 (1981)). We give "due weight" not to the officers' "inchoate and unparticularized suspicion" but to the "specific reasonable inferences which [they are] entitled to draw from the facts in light of [their] experience." Terry, 392 U.S. at 27. Moreover, we view the matter from the perspective of " 'an objectively reasonable police officer' " without regard to "the actual motivations of the individual officers involved." United States v. Hill, 131 F.3d 1056, 1059 (D.C. Cir. 1997) (quoting Ornelas, 517 U.S. at 696).

Holmes contends that the district court was obligated, under the Supreme Court's decision in Florida v. J.L., 529 U.S. 266 (2000), to suppress the gun and ammunition. In that case, the Miami-Dade County police received a telephone call from an anonymous tipster who reported that "a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun." Id. at 268. When police officers arrived at the bus stop, they saw three black men, one of whom, J.L., was wearing a plaid shirt. Id. One of the officers then frisked J.L. and found a gun in his pocket. Id. On these facts, the Court held that the unknown caller's "bare-boned" tip did not provide sufficient "indicia of reliability" to justify a Terry stop-and-frisk because "[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 about J.L." Id. at 269, 271. That the tip accurately described J.L.'s location and appearance did not suffice, according to the Court, because those benign details ...


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