Offutt v. United States
Offutt v. United States
Opinion of the Court
After a trial by jury, appellant was convicted of possession of phencyclidine (PCP) and cannabis (marijuana) with intent to distribute. D.C. Code § 33-541(a)(l) (1987 Supp.). On appeal, appellant contends the trial court erred in its refusal to suppress the physical evidence found on his person. We affirm.
Evidence from a pretrial suppression hearing showed that a police station clerk in the Third District received a phone call at approximately 3:30 a.m., from an informant, who identified himself by a police informant identification number. The informant told the clerk a man named “Tree” was selling drugs on the ninth floor of Claridge Towers, 1221 M Street, N.W. The informant identified appellant as a black male, approximately 6 feet 3 inches tall, weighing about 240 pounds, and wearing a red “Georgetown” shirt and beige shorts underneath a brown apron. The informant said appellant had a .22 caliber automatic gun and narcotics hidden in the crotch of his shorts. The information provided by the informant was transmitted over the police radio, and Officer Kevin Loepere responded to the call at approximately 3:50 a.m.
Upon arrival in the lobby of the building, Officer Loepere met two officers in the backup unit. The three officers took the elevator to the ninth floor. When the elevator doors opened, appellant was seen standing in the hallway, but the three officers hesitated, fearing appellant was armed, and the elevator doors closed. The elevator returned to the lobby, where Officer Loepere remained while the other two officers went to check the rear and side exits to the apartment building. When the elevator doors opened again, appellant emerged. Officer Loepere drew his service revolver, instructed appellant to turn around and place his hands on the wall. Officer Wayne P. Walker, a member of the backup unit, returned and commenced the pat-down while Officer Loepere held appellant at bay. Officer Walker began the frisk at the top of appellant’s neck, working his way down the body. As Officer Walker started to check the lower body area, appellant moved his left hand “and started going down into the crotch” area of his shorts. Officer Walker tried to physically return appellant’s hand to the wall, but appellant refused. A brief struggle
In order to justify a limited investigative seizure, “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant” the intrusion. Curtis v. United States, 349 A.2d 469, 471 (D.C. 1975) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968)); see also Groves v. United States, 504 A.2d 602, 604 (D.C. 1986) (a lesser quantum of evidence is needed to create a reasonable suspicion to justify an investigative stop than to establish probable cause to arrest). The facts relied upon must be sufficient to allow the police officer to reasonably conclude in light of his experience “that criminal activity may be afoot.” Curtis v. United States, supra, 349 A.2d at 471; Terry v. Ohio, supra, 392 U.S. at 30, 88 S.Ct. at 1884. In assessing the reasonableness of a seizure, the police officer must be judged against an “objective standard,” that is, whether the facts available to the police officer at the moment of seizure warrant a man of reasonable caution in the belief that the seizure was reasonable. Curtis v. United States, supra, 349 A.2d at 471; Terry v. Ohio, supra, 392 U.S. at 21-22, 88 S.Ct. at 1880.
We conclude that the trial court properly denied appellant’s motion to suppress since, on the basis of the informant’s tip, and Officer Loepere’s subsequent observation, Officer Loepere had articulable grounds to suspect appellant possessed narcotics and a weapon.
Affirmed.
. Appellant does not raise any issue as to whether there was probable cause for his arrest following the disclosure of the plastic bottle and the smell of PCP.
. In comparable situations, we have consistently held that police can make an investigatory stop of an individual if they have reasonable articu-lable suspicion that criminal activity is afoot. See Lawson v. United States, 360 A.2d 38 (D.C. 1976) (opportunity for investigation might well evaporate in the delay if police are prohibited from acting upon reports of crime, except where citizen eyewitness identified himself, or if he seeks out police cruiser or presents himself at precinct house to make report); Davis v. United States, 284 A.2d 459, 460 (D.C. 1971) (when officers received information of man sitting in car with a gun, it was their duty to make an investigation of that report; and when description of car and license plates proved correct, they were justified in taking further investigative steps). See also United States v. Walker, 294 A.2d 376, 378 (D.C. 1972), after remand, 304 A.2d 290 (D.C.), cert. denied, 414 U.S. 1007, 94 S.Ct. 368, 38 L.Ed.2d 245 (1973); United States v. Frye, 271 A.2d 788, 789 (D.C. 1970); cf. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).
.Officer Loepere's observation of appellant matched the description given by the informant.
Dissenting Opinion
dissenting:
In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Supreme Court overruled the two-prong test they had previously enunciated in Aguilar
That is not our case. Here, an apparently paid informant, without giving any basis of knowledge, tells the police how Offutt is dressed, where he can be found, and that he is dealing drugs while armed with a pistol. The first two items were entirely innocent, i.e., mode of dress and location; it was only the third — selling drugs while armed, which was sinister. The police verified only that which was entirely innocent — mode of dress and location. There was nothing to corroborate the reported criminal conduct. Most important, keeping in mind Illinois v. Gates, the informant here had not predicted any significant future conduct which the police corroborated.
To sanction the search in this case is to say where an informant, anonymous or otherwise, without any demonstrated basis of knowledge, can accurately describe a person’s mode of dress and location, and couples that description with a claim of criminal conduct, the police, upon verifying the totally innocent elements of the report have probable cause to search. I refuse to join such a holding. The fourth amendment not only protects drug dealers. It protects you and me.
. Unlike my colleagues, I think there was an arrest, not a Terry stop.
Reference
- Full Case Name
- Eric A. OFFUTT, Appellant, v. UNITED STATES, Appellee
- Cited By
- 14 cases
- Status
- Published