HERMAN EDWARD LANE, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-6076

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Sixth Circuit

   Brief For The United States In Opposition

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. A895-A903) is
reported at 909 F.2d 895.  The memorandum opinion of the district
court (Pet. App. B1-B4) is not reported.

                             JURISDICTION

   The judgment of the court of appeals was entered on July 31, 1990.
The petition for a writ of certiorari was filed on October 26, 1990.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether the police officer who detained petitioner had a
reasonable suspicion, sufficient to support an investigative stop,
that petitioner was involved in criminal activity.

   2. Whether the measures the officer employed in the course of the
stop -- which included the display of the officer's weapon and a
pat-down search of petitioner's clothing -- exceeded the scope of a
lawful investigative stop.

                               STATEMENT

   Following the denial of his motion to suppress evidence in the
United States District Court for the Northern District of Ohio,
petitioner entered a conditional guilty plea to a charge of possession
of a firearm by a previously convicted felon, in violation of 18
U.S.C. 922(g)(1).  He was sentenced to 15 years' imprisonment, to be
followed by three years' supervised release.  The court of appeals
affirmed.  Pet. App. A895-A903.

   1. Near noon on February 23, 1989, Cuyahoga Metropolitan Housing
Authority (CMHA) police officer Nickolas Barry and three other CMHA
police officers responded to a dispatcher's request to investigate an
anonymous complaint about an unauthorized person and possible drug
trafficking at a three-story CMHA apartment building in Cleveland,
Ohio.  The officers knew that this apartment building had a history of
problems with drug trafficking and unauthorized occupants.  Pet. App.
A896.

   After arriving at the building, two of the officers entered the
front door while Barry and another officer used the rear entrance.
The front and rear entrances led to separate stairways which rose to
opposite ends of hallways on the second and third floors.  As Officer
Barry and the officer accompanying him climbed the rear stairway, they
met a man descending from the third level to the second level.  The
officer accompanying Barry detained this individual, and Barry
continued up the stairs toward the third floor.  As he climbed the
stairway, he received a radio message from one of the other officers
that a man was running up the front stairs to the third floor in an
attempt to leave the building through the rear exit.  Pet. App. A896;
Tr. 3-4, 14-17.  /1/

   When Barry arrived at the third floor landing, he saw petitioner
running up the front stairway to the third floor.  Pet. App. A897;
Tr. 4.  Barry, who was in uniform and had his gun drawn and pointed at
a 45-degree angle toward the ground, ordered petitioner to put his
hands up and face the wall.  Petitioner put his hands on the wall, but
subsequently removed his right hand from the wall and tried to reach
into his left coat pocket.  Barry placed petitioner's hand back on the
wall and told him to leave it there.  Petitioner again attempted to
reach inside his left coat pocket, and Barry again ordered him to
leave his hands on the wall.  Barry then conducted a pat-down search
of petitioner's outer clothing, and discovered what felt like a
weapon.  Barry reached inside petitioner's coat and removed a .12
gauge sawed-off shotgun.  Pet. App. A897.

   Following his indictment on various weapons charges, petitioner
moved to suppress the gun.  The district court denied the motion,
concluding that the gun had been discovered in the course of a lawful
investigatory stop.  Pet. App. B1-B4.

   2. The court of appeals affirmed.  The court found that
petitioner's detention by Officer Barry constituted an investigatory
stop, not an arrest, and that the stop was supported by a reasonable
and articulable suspicion that petitioner was engaged in criminal
activity.  Pet. App. A898-A899.  The court found it unnecessary to
decide whether the informant's tip by itself would have been
sufficient to establish reasonable suspicion, concluding that there
were "other specific and articulable facts which support a reasonable
suspicion of criminal activity." Id. at A898.  The court also
concluded -- based upon petitioner's "flight from the other officers
and his attempts to reach into his coat pocket" -- that Officer
Barry's pat-down search was supported by a reasonable belief that
petitioner was armed and dangerous.  Pet. App. A899-A900.

                               ARGUMENT

   Petitioner contends that the sawed-off shotgun should have been
suppressed on three grounds.  He argues that his detention was an
arrest unsupported by probable cause;  that, even if the detention
amounted only to an investigatory stop, it was not supported by
reasonable suspicion;  and that Officer Barry conducted the pat-down
search without any basis for believing that petitioner might be armed
and dangerous.  The court of appeals correctly rejected these
contentions, and they involve only the application of settled legal
principles to the facts of this case.

   1. Even in the absence of probable cause sufficient to sustain an
arrest, a law enforcement officer may stop and briefly detain an
individual for investigative purposes if the officer reasonably
suspects that the individual is involved in criminal activity.  See
e.g., Florida v. Rodriquez, 469 U.S. 1, 5 (1984) (per curiam);
Florida v. Royer, 460 U.S. 491, 502 (1983) (plurality opinion).  In
determining whether a stop is supported by reasonable suspicion, the
totality of the circumstances must be taken into account.  Alabama v.
White, 110 S. Ct. 2412, 2416 (1990);  United States v. Sokolow, 109 S.
Ct. 1581, 1585 (1989);  United States v. Cortez, 449 U.S. 411, 417
(1981).

   In this case, when Officer Barry detained petitioner, he had
reasonable grounds for believing that petitioner might be involved in
criminal activity.  Officer Barry and the other officers were asked to
investigate an anonymous report of an unauthorized person and possible
drug trafficking in a building with a history of those problems.  As
he climbed the rear stairway, Officer Barry received a radio report
from an officer who had entered through the front entrance that a man
was fleeing up the front stairway in an attempt to escape through the
rear entrance.  /2/ Shortly thereafter, Officer Barry saw petitioner
running up the front stairs to the third floor.  Petitioner's flight,
coupled with other circumstances suggestive of a crime, was more than
sufficient to justify a reasonable suspicion that petitioner was
involved in criminal activity.  See United States v. Sharpe, 470 U.S.
675, 682 & n.3 (1985);  id. at 705-706 & n.2 (Brennan, J.,
dissenting);  3 W. LaFave, Search and Seizure Section 9.3(c), at
448-450 (1987).  See also 2 id. Section 3.6(e) (flight as basis for
probable cause).  The court of appeals was correct in its
determination that petitioner's flight "invited pursuit, and along
with the background facts, supplied (Officer Barry) with a reasonable
basis for conducting an investigative stop" (Pet. App. A899).  /3/

   2. When he encountered petitioner fleeing up the front staircase,
Officer Barry had his gun drawn and pointed at a 45-degree angle to
the ground.  He ordered petitioner to put his hands up and face the
wall.  When petitioner twice tried to reach into his pocket, Officer
Barry physically stopped petitioner from doing so and conducted a
pat-down search which led to the discovery of a sawed-off shotgun.
Officer Barry's actions were reasonably justified by the facts
available to him and were thus within the scope of a lawful
investigative stop.

   a. Citing the fact that he reasonably believed that he was not free
to leave and that Officer Barry displayed a weapon, petitioner argues
(Pet. 8-35) that his stop was an arrest requiring probable cause.
Neither circumstance is inconsistent with the lower courts'
determination that petitioner's detention was a lawful Terry stop.

   Any suspect who is detained in an investigative stop pursuant to
Terry v. Ohio, 392 U.S. 1 (1968), is not free to leave until the
officer has had an opportunity to dispel or verify his suspicion.
That is why the detention constitutes a seizure within the meaning of
the Fourth Amendment and must be supported by reasonable suspicion.
See United States v. Jones, 759 F.2d 633, 637 (8th Cir.), cert.
denied, 474 U.S. 837 (1985).  The fact that a suspect is not free to
leave, therefore, is entirely consistent with a lawful Terry stop.

   Officers effecting an investigative stop are entitled to employ
procedures that are reasonably justified under the circumstances for
that purpose.  As this Court noted in Terry (392 U.S. at 24):

      (W)e cannot blind ourselves to the need for law enforcement
      officers to protect themselves and other prospective victims of
      violence in situations where they may lack probable cause for an
      arrest.  When an officer is justified in believing that the
      individual whose suspicious behavior he is investigating at
      close range is armed and presently dangerous to the officer or
      to others, it would appear to be clearly unreasonable to deny
      the officer the power to take necessary measures to determine
      whether the person is in fact carrying a weapon and to
      neutralize the threat of physical harm.

   Here, Officer Barry was investigating a complaint of possible drug
trafficking by an unauthorized person in an apartment building that
had a history of unauthorized persons and drug trafficking.  When he
encountered petitioner, petitioner was fleeing from other officers and
Officer Barry was alone.  In these circumstances, Officer Barry was
fully justified in taking steps to halt and immobilize petitioner.  In
similar cases, the courts of appeals consistently have recognized that
safety measures, including the display of weapons, may be necessary
for the protection of officers conducting an investigative stop and
that reasonable exhibitions of force do not convert a stop into an
arrest.  See United States v. Alvarez, 899 F.2d 833, 838-839 (9th Cir.
1990), cert. denied, No. 90-420 (Jan. 7, 1991);  United States v.
Ocampo, 890 F.2d 1363, 1369 (7th Cir. 1989);  United States v. Laing,
889 F.2d 281, 285-286 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 1306
(1990);  United States v. Hardnett, 804 F.2d 353, 357 (6th Cir. 1986),
cert. denied, 479 U.S. 1097 (1987);  United States v. Pantoja-Soto,
768 F.2d 1235, 1236 (11th Cir. 1985);  United States v. Jones, 759
F.2d at 637-641;  United States V. Manbeck, 744 F.2d 360, 377 (4th
Cir. 1984), cert. denied, 469 U.S. 1217 (1985);  United States v.
Aldridge, 719 F.2d 368, 371-372 (11th Cir. 1983);  United States v.
Merritt, 695 F.2d 1263, 1272-1274 (10th Cir. 1982), cert. denied, 461
U.S. 916 (1983).

   b. For similar reasons, there is no merit to petitioner's
contention that Officer Barry lacked a sufficient basis for believing,
when he conducted the pat-down search, that petitioner was armed and
dangerous.  Under Terry v. Ohio, 392 U.S. at 27, an officer "need not
be absolutely certain that the individual is armed" in order to
justify a pat-down for weapons.  An officer may conduct such a
pat-down if "a reasonably prudent man in the circumstances would be
warranted in the belief that his safety or that of others was in
danger." Ibid.  As the court of appeals found, given petitioner's
flight from uniformed officers and his attempts to reach into his coat
pocket after being ordered to keep his hands up, Officer Barry had a
reasonable belief that petitioner was armed and dangerous.  That
belief justified a pat-down search that, in this case, confirmed the
officer's suspicions.  /4/

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Assistant Attorney General

   DEBORAH WATSON

      Attorney

   JANUARY 1991

   /1/ "Tr." refers to the transcript of the September 7, 1989
suppression hearing.

   /2/ In its opinion, the court of appeals observed (Pet. App. A899):

      When two uniformed officers entered the front door of the
      apartment building, they encountered four males in the front
      hallway, and the four men began running up the stairway leading
      to the second floor.  * * * (T)he four males broke into a run
      when the uniformed officers entered the apartment building.

Petitioner correctly notes (Pet. 36-37) that the only evidence of
flight at the suppression hearing was Officer Barry's testimony that
he received a radio call from another officer that a suspect had fled
up the front stairway to the third floor landing and was attempting to
escape through the rear entrance.  See Tr. 3-4, 13, 17.  But the fact
that the evidence at the suppression hearing did not demonstrate that
four people had fled from the officers at the front entrance is
immaterial to the validity of petitioner's detention.  The record
establishes that Officer Barry was justified in believing that
petitioner had fled, and only his detention is at issue.  Further, the
court of appeals did not rely on other findings by the district court
that were unsupported by the evidence (see Pet. 37), and those
findings are not necessary to uphold the validity of the stop.

   /3/ Petitioner also complains (Pet. 41) that "(t)he court of
appeals declined to decide whether, as required by (Alabama v. White,
110 S. Ct. 2412 (1990)), the anonymous tip in this case was
sufficiently corroborated (to provide the requisite reasonable
suspicion to justify a temporary detention of petitioner)." In White,
the police stopped the defendant on the basis of an anonymous
telephone tip that she would be in possession of cocaine at a
particular time.  This Court held that by the time the officers
stopped White, the tip had been sufficiently corroborated to furnish
reasonable suspicion that she was engaged in criminal activity.  110
S. Ct. at 2416.  In the instant case, however, the court of appeals
found it unnecessary to determine whether the anonymous tip would have
sustained petitioner's detention, since Officer Barry was justified in
relying, in addition, on petitioner's flight and other circumstances.

   /4/ In this case, officers were asked to investigate an anonymous
tip of drug trafficking in a building with a history of that problem.
The courts have noted that drug traffickers often carry weapons.  See,
e.g., United States v. Gilliard, 847 F.2d 21, 27 (1st Cir. 1988),
cert. denied, 488 U.S. 1033 (1989);  United States v. Nersesian, 824
F.2d 1294, 1317 (2d Cir.), cert. denied, 484 U.S. 957 (1987);  United
States v. Pajari, 715 F.2d 1378, 1383-1384 (8th Cir. 1983).