PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 08-4045

ANTONIO BERNARD GRIFFIN,

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Robert J. Conrad, Jr., Chief District Judge.

(3:06-cr-00103-RJC-DCK-1)

Argued: September 22, 2009

Decided: December 17, 2009

Before TRAXLER, Chief Judge, and GREGORY and

SHEDD, Circuit Judges.

Affirmed by published opinion. Judge Shedd wrote the majority opinion, in which Chief Judge Traxler joined. Judge Gregory wrote a dissenting opinion.

COUNSEL

ARGUED: Matthew Segal, FEDERAL DEFENDERS OF

WESTERN NORTH CAROLINA, INC., Asheville, North

Carolina, for Appellant. Mark Andrew Jones, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Claire J. Rauscher, Executive Director, Kevin Tate, FEDERAL DEFENDERS OF

WESTERN NORTH CAROLINA, INC., Charlotte, North

Carolina, for Appellant. Gretchen C. F. Shappert, United

States Attorney, Charlotte, North Carolina, for Appellee.

OPINION

SHEDD, Circuit Judge:

Antonio Bernard Griffin appeals his conviction and sentence for being a felon in possession of a firearm. See 18

U.S.C. § 922(g). Griffin contends that the district court erred

in denying his motion to suppress the firearm by holding that

(1) the police officers who arrested him had reasonable suspicion to perform an investigatory stop of his vehicle under

Terry v. Ohio, 392 U.S. 1 (1968), and (2) the officers were

justified in conducting a protective search of his vehicle under

Michigan v. Long, 463 U.S. 1032 (1983). For the following

reasons, we reject these contentions and affirm. 

I.

In reviewing the denial of a suppression motion, we construe the facts in the light most favorable to the government.

United States v. Murphy, 552 F.3d 405, 409 (4th Cir. 2009).

The evidence presented during the suppression hearing establishes that the Value-Lodge Motel in Charlotte, North Carolina, was well known to officers of the CharlotteMecklenburg Police Department as a location for violent

crime and drug trafficking. On the evening of September 28,

2005, someone called 911 from a second floor room of the

Value-Lodge reporting a man in possession of a gun. The 911

call center relayed this information, including the caller’s

room number, to Officer Crystal Lee Clifton, and she

2 UNITED STATES v. GRIFFIN
responded to the call. Upon arriving at the Value-Lodge, Officer Clifton proceeded to the second floor room from which

the call was made and talked with one of the room’s occupants (the "informant") who was aware that the call had been

placed. Shortly thereafter, Officer Brian Carey, who was also

responding to the 911 call, arrived at the Value-Lodge.1 While

Officer Clifton was talking to the informant, a white Cadillac

drove past in the parking lot below, and the informant immediately pointed to the vehicle and identified the driver as the

man with the gun. Officer Carey returned to his patrol car and

pursued the Cadillac which was exiting the Value-Lodge

parking lot. He proceeded approximately 50 feet and then

entered a nearby parking lot where the Cadillac was turning

around. Officer Clifton remained with the informant.

Officer Carey then initiated a traffic stop of the vehicle and

its sole occupant, Antonio Griffin. When Griffin exited the

vehicle, he "started looking around" and "kept turning around

like he was going to take off running." J.A. 27, 43. Officer

1The dissent’s assertion that the informant was "gender-less" is factually

incorrect. Instead, Officer Carey testified that the informant was a "gentleman." J.A. 60, 25. Further, to the extent that the officers’ ability to recall

these details is pertinent, the district court found the officers’ testimony

credible. We defer to the district court’s credibility findings, as "it is the

role of the district court to observe witnesses and weigh their credibility

during a pre-trial motion to suppress." United States v. Abu Ali, 528 F.3d

210, 232 (4th Cir. 2008) (citing United States v. Murray, 65 F.3d 1161,

1169 (4th Cir. 1995)). See also United States v. Clark, 538 F.3d 803, 812-

13 (7th Cir. 2008) (upholding the district court’s reliance on the testimony

of a witness despite the fact that he was an admitted perjurer and drug user

who failed to recall specific details about his deals with the defendant).

There is no constitutional requirement that police record the identifying

information of an informant, particularly in such rapidly evolving circumstances as occurred here. As we have observed, "We cannot afford to read

the Fourth Amendment to require officers to wait . . . perhaps until innocent bystanders are physically harmed, before taking reasonable, preventive measures." United States v. Perkins, 363 F.3d 317, 328 (4th Cir.

2004). See also United States v. Sanchez, 519 F.3d 1208, 1211 (10th Cir.

2008) ("We do not fault the officer’s choice to forgo extensive credibility

checking in order to quickly respond."). 

UNITED STATES v. GRIFFIN 3
Carey conducted a Terry frisk of Griffin and, out of concern

for his safety, handcuffed Griffin and placed him in the backseat of the patrol car. While Officer Carey was speaking with

Griffin, Officer Clifton and another officer arrived on the

scene. At this time, an individual approached the officers

claiming to know Griffin, and onlookers from the motel gathered at the scene. Officer Clifton thereafter performed a

search of the passenger compartment of Griffin’s car, finding

a pistol on the driver’s side floorboard. Officer Clifton seized

the weapon, and Officer Carey placed Griffin under arrest for

carrying a concealed weapon.

Griffin was subsequently indicted for possessing the pistol

after having been previously convicted of a felony, in violation of section 922(g). Griffin moved to suppress the pistol

and other evidence not relevant to his appeal. Following a

suppression hearing during which Officers Carey and Clifton

testified, the district court ruled that the officers did not violate Griffin’s Fourth Amendment rights. Relying on our decisions in United States v. Perkins and United States v.

Christmas, 222 F.3d 141 (4th Cir. 2000), the district court

concluded that Officer Carey had reasonable suspicion to conduct a traffic stop based upon the face-to-face encounter

between Officer Clifton and the informant. The district court

also concluded that the protective search of Griffin’s vehicle

was justified. Thereafter, Griffin conditionally pled guilty,

retaining the right to appeal the district court’s order denying

the suppression motion. After accepting this plea, the district

court sentenced Griffin to 40 months of imprisonment. 

Griffin filed a timely notice of appeal, and we possess jurisdiction under 28 U.S.C. § 1291. On appeal, Griffin argues that

both the stop of his vehicle and the protective search of his

vehicle were unconstitutional. 

II.

We review the district court’s factual findings for clear

error and its legal conclusions de novo. Murphy, 552 F.3d at

4 UNITED STATES v. GRIFFIN
409. The district court’s ultimate conclusion that the traffic

stop and protective search are constitutional is a legal conclusion which we review de novo. United States v. Reaves, 512

F.3d 123, 126 (4th Cir. 2008). 

A.

A law enforcement officer may initiate a brief investigatory

stop if the officer has reasonable suspicion to believe that

"criminal activity may be afoot." Terry v. Ohio, 392 U.S. 1,

30 (1968). In determining whether an officer had reasonable

suspicion, we view the totality of the circumstances to determine whether the officer had "a particularized and objective

basis for suspecting the particular person stopped of criminal

activity." United States v. Cortez, 449 U.S. 411, 417-418

(1981). Although the reasonable suspicion standard "defies

precise definition," United States v. McCoy, 513 F.3d 405,

411 (4th Cir. 2008), it is less demanding than probable cause,

Alabama v. White, 496 U.S. 325, 330 (1990), and falls "considerably short of satisfying a preponderance of the evidence

standard," United States v. Arvizu, 534 U.S. 266, 274 (2002).

In cases such as this, where the officer met with the informant in a face-to-face encounter,2

 we have considered numerous factors to determine whether the officer had reasonable

suspicion to effect a Terry stop. For example, we have exam2Florida v. J.L., 529 U.S. 266, 270 (2000) (holding that an anonymous

tip in a 911 call must bear additional "indicia of reliability" to create reasonable suspicion), on which Griffin relies, is inapplicable here because

face-to-face tips are "altogether different from anonymous tips." Christmas, 222 F.3d at 143. See also United States v. DeQuasie, 373 F.3d 509,

523 (2004) (distinguishing anonymous tips from face-to-face encounters);

United States v. Heard, 367 F.3d 1275, 1279 (11th Cir. 2004) ("A face-toface anonymous tip is presumed to be inherently more reliable than an

anonymous telephone tip . . . ."). Even assuming that the original 911 call

can be deemed anonymous, Officer Clifton followed up on the call and

met face-to-face with the informant at the motel room from which the call

was placed. During this meeting, the informant identified the driver of a

white Cadillac as the man with a gun, initiating the pursuit of the vehicle.

UNITED STATES v. GRIFFIN 5
ined whether the officer had the opportunity to observe the

informant’s credibility and demeanor and whether the officer

could later hold the informant accountable for making false

accusations. See, e.g., Christmas, 222 F.3d at 144.3 We have

also considered whether the informant reported to the police

in public, exposing himself to retaliation from the suspect and

increasing the informant’s reliability. See, e.g., id. We also

have looked to the informant’s proximity to the reported

activity as a factor in determining his reliability. See, e.g., id.;

Perkins, 363 F.3d at 322. Additionally, we have placed

importance on the officer’s personal experience in investigating similar activity at the reported location in justifying the

stop. See, e.g., Perkins, 363 F.3d at 322. Finally, the Supreme

Court has stated that less scrutiny is required as to an informant’s basis of knowledge where a citizen whose honesty has

not been questioned reports criminal activity "which if fabricated would subject him to criminal liability." Illinois v.

Gates, 462 U.S. 213, 233-34 (1983). 

Here, Officer Clifton spoke with the informant and

remained with the informant when Officer Carey left in pursuit of Griffin, giving her further opportunity to observe the

informant’s credibility and demeanor. Having observed the

informant’s physical appearance and location, the officers

could have returned to the Value-Lodge and tracked him

down to hold him accountable if his accusations had proven

false. The informant met with Officer Clifton in public,

thereby exposing himself to retaliation from Griffin. In addition, the informant was in close proximity to Griffin’s vehicle

when he spoke with Officer Clifton. Further, Officer Carey

was familiar with the Value-Lodge and had taken numerous

calls reporting dangerous weapons from that motel, thereby

contributing to his reasonable suspicion for the stop. Finally,

3

In Christmas, we found reasonable suspicion on facts similar to those

here. In that case, the officers relied on a face-to-face tip from an unidentified neighborhood resident who reported men with guns and drugs at an

address two doors down from her residence. Id. at 143-45. 

6 UNITED STATES v. GRIFFIN
there are no facts in the record that call into question the

informant’s honesty or motivation. In short, we agree with the

district court that the circumstances of the face-to-face

encounter between the informant and Officer Clifton provided

sufficient reasonable suspicion to justify the Terry stop of

Griffin’s vehicle.4

B.

Griffin also challenges the actual search of his vehicle

which resulted in the seizure of the pistol. When officers conduct a Terry stop of an automobile,

the search of the passenger compartment of an automobile, limited to those areas in which a weapon

may be placed or hidden, is permissible if the police

officer possesses a reasonable belief based on specific and articulable facts which, taken together with

the rational inferences from those facts, reasonably

warrant the officer in believing that the suspect is

dangerous and the suspect may gain immediate control of weapons. 

Long, 463 U.S. at 1049 (internal quotation marks omitted). In

order to conduct a lawful protective search of a stopped vehicle under Long, an officer must possess a reasonable belief of

both (1) the suspect’s dangerousness and (2) the possibility

that the suspect might gain immediate control of any weapons

inside the vehicle. United States v. Holmes, 376 F.3d 270, 276

(4th Cir. 2004). 

4A contrary holding would prevent a police officer in a high-crime area

from stopping a person who, according to an informant via a face-to-face

conversation with police, has a gun. As we explained in Christmas, "[a]

community might quickly succumb to a sense of helplessness if police

were constitutionally prevented from responding to the face-to-face pleas

of neighborhood residents for assistance." 222 F.3d at 145. 

UNITED STATES v. GRIFFIN 7
The Supreme Court has observed that, where an officer

concludes that a suspect is armed, the suspect "pose[s] a serious and present danger to the safety of the officer." Pennsylvania v. Mimms, 434 U.S. 106, 112 (1977) (per curiam); see

also J.L., 529 U.S. at 272 (recognizing "the serious threat that

armed criminals pose to public safety"). Officers may also

consider a suspect’s evasive behavior in analyzing the existence of reasonable suspicion to believe that an individual is

armed and dangerous. United States v. Mayo, 361 F.3d 802,

807-08 (4th Cir. 2004). Furthermore, officers may consider

"the relevant characteristics of a location in determining

whether the circumstances are sufficiently suspicious to warrant further investigation." Illinois v. Wardlow, 528 U.S. 119,

124 (2000). As to the first prong of the Holmes test, the circumstances of the stop justified a reasonable belief in Griffin’s dangerousness. First, once the officers arrived on the

scene, an informant met face-to-face with Officer Clifton and

pointed out the driver of Griffin’s vehicle as the man with the

gun. Second, at the time of the protective search of the vehicle, Officer Carey was responding to a firearm call in a highcrime neighborhood where he had personally taken numerous

calls reporting dangerous weapons.5 Third, Griffin’s evasive

behavior when Officer Carey stopped his vehicle heightened

the officers’ concern that Griffin was armed and dangerous.6

5The dissent’s reliance on United States v. Neely, 564 F.3d 346 (4th Cir.

2009), is misplaced. In that case, the officer stopped Neely for a minor

traffic infraction and had no suspicion that Neely possessed a firearm or

was otherwise dangerous at all. Id. at 352. Even so, we described the issue

as "close." Id. Here, of course, the officers stopped Griffin because they

suspected that he possessed a firearm in a high crime area. 

6

In viewing the search for reasonableness, the presence of onlookers

mingling around this stop in a high-crime area, including one individual

purporting to know Griffin who approached the scene, also contributed to

danger posed to the officers, even though this does not add to the danger

posed by Griffin acting alone. See Mora v. City of Gaithersburg, 519 F.3d

216, 222 (4th Cir. 2008) ("We are to approach the Fourth Amendment . . .

with at least some measure of pragmatism."). 

8 UNITED STATES v. GRIFFIN
These factors, taken together, gave the officers reasonable

suspicion to believe that Griffin could be dangerous.7

The second prong, concerning the possibility that the suspect might gain immediate control of any weapons inside the

vehicle, is also satisfied. Although Griffin was restrained in

the backseat of the police vehicle at the time of the search, he

was being detained at that time solely pursuant to the Terry

stop. If Griffin had been released after the brief detention, as

he presumably would have been, he would have regained

access to his vehicle and any weapon inside. See United

States v. Elston, 479 F.3d 314, 320 (4th Cir. 2007) ("[A] protective search is authorized even if the suspect is under police

restraint at the time the search is conducted, because the suspect may be able to escape such restraint, or may later regain

access to the vehicle if he is not arrested.").8 Therefore, given

the circumstances confronting the officers, the brief protective

search of Griffin’s vehicle was proper. 

7We note that to the extent that the district court relied on the discovery

of the pistol as a justification for the search, this was error. See J.L., 529

U.S. at 271 ("The reasonableness of official suspicion must be measured

by what the officers knew before they conducted their search."). Such

error, however, was harmless in this case because the court’s other findings were sufficient to justify the search. 

8Because Griffin was not yet arrested at the time of the search, Arizona

v. Gant, 129 S.Ct. 1710 (2009), is inapposite. That case held that police

may search a vehicle incident to a recent occupant’s arrest as authorized

by Chimel v. California, 395 U.S. 752 (1969) "only when the arrestee is

unsecured and within reaching distance of the passenger compartment at

the time of the search." Gant, 129 S.Ct. at 1719. This reasoning does not

extend to protective searches under Long because in a Terry stop where

the suspect has not been arrested, "the possibility of access to weapons in

the vehicle always exists, since the driver or passenger will be allowed to

return to the vehicle when the interrogation is completed." Id. at 1724

(Scalia, J., concurring). 

UNITED STATES v. GRIFFIN 9
III.

For the foregoing reasons, we affirm the judgment of the

district court. 

AFFIRMED

GREGORY, Circuit Judge, dissenting:

The majority opinion brings the Fourth Amendment two

steps closer to a death by a thousand cuts. Today’s decision

leaves us teetering on the brink of a per se rule that any faceto-face dialogue between the police and an informant, however scant, is sufficient to create the reasonable suspicion necessary for a Terry stop in a "man with a gun" case. It then

gives expansive meaning to Michigan v. Long’s limited

authorization for conducting vehicle searches in connection

with a Terry stop. Because I believe that today’s decision

relies on an overbroad reading of this Court’s precedent and

contravenes the spirit, if not the letter, of Florida v. J.L., 529

U.S. 266, 270 (2000), I respectfully dissent.

I.

When officers reported to the Value Lodge Motel on September 28, 2005, they knew only that an anonymous tipster

had called 911 from that location to report "a man with a

gun." (J.A. 55.) Officer Clifton testified at the suppression

hearing that she was the first to arrive on the scene and that

she proceeded to the second-floor room number noted by the

police dispatchers and spoke with someone in that room ("the

informant"). She did not inquire whether the informant was

the person who had placed the anonymous 911 call, and she

could not even recall whether the informant was a man or a

woman. (J.A. 60.)

The testimony of Officer Carey, the next officer to arrive

on the scene, does little more to clarify Officer Clifton’s

10 UNITED STATES v. GRIFFIN
admittedly vague recollections of the informant. At one point

in his testimony, Officer Carey did refer to the informant as

"the gentleman with whom we were speaking." (J.A. 25.)

However, the reliability of this gender identification is highly

questionable given that Officer Carey later indicated that he

could not recall whether he ever spoke with the informant and

that he had "no knowledge about this person [the informant]."

(J.A. 38.) In fact, Officer Clifton testified that Officer Carey

remained on the ground floor level at all times that she was

upstairs speaking with the informant.1

At some point, the nameless, gender-less informant pointed

to a vehicle in the motel parking lot and said "That’s the car;

that’s him inside." (J.A. 61.) The informant provided no additional identifying information about the man in the car, and

the officers had no independent information about him. Nonetheless, the officers believed this sufficed to create a reasonable suspicion to conduct a Terry stop and patdown of Mr.

Griffin. The district court and now the panel majority have

agreed.

The majority reasons that because Officer Clifton met face

to face with the informant, the information gleaned from that

encounter was not an anonymous tip that would require additional "indicia of reliability" in order to provide the basis for

a Terry stop, J.L., 529 U.S. at 270. Face-to-face encounters

are undeniably more reliable as a general matter than purely

anonymous tips. See United States v. Christmas, 222 F.3d

141, 144 (4th Cir. 2000). But neither this Court nor the

Supreme Court has ever created a rule that an encounter

between a police officer and an informant is a per se reliable

basis for creating reasonable suspicion simply because that

encounter occurred face-to-face. This case illustrates precisely

why such a rule would be improper.

1The district court also acknowledged these inconsistencies in Officer

Carey’s testimony. (See J.A. 71-72.) 

UNITED STATES v. GRIFFIN 11
The Supreme Court’s concern with the anonymous tip at

issue in J.L. was that "[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." 529 U.S.

at 271. In Christmas, we were able to distinguish J.L.

because, by obtaining their tip in a face-to-face encounter

with the informant, the Christmas officers were able to assess

the informant’s credibility and were in a position to hold the

informant accountable for any false statements she might have

made. 222 F.3d at 144.

Here, the face-to-face encounter had none of the indicia of

reliability that normally inhere in such circumstances. In fact,

this encounter may as well have been a purely anonymous

one. Neither Officer Clifton nor Officer Carey could provide

any reliable identifying information about the informant—no

name, no gender. Neither officer could say what the informant’s basis for his or her knowledge was. While the informant may have been "in close proximity to Griffin’s vehicle

when he spoke with Officer Clifton" (Maj. Op. at 6), it does

not appear that the informant ever stated that he or she personally saw the defendant with a gun. In short, this face-toface encounter did not result in anything even close to the

kind of assessment of "credibility and demeanor" that

occurred in Christmas. 222 F.3d at 144.

The majority dismisses Griffin’s arguments about the

accountability of the informant because, in their view, the

officers could always return to the motel room where the

informant was originally found. (Maj. Op. at 6.) But the path

to accountability that the majority sketches is clearly more

tenuous than that in Christmas. Unlike in Christmas where the

informant was an unnamed neighbor of the defendant, 222

F.3d at 143, the informant here was but a transient motel

guest. While we know little about the personal circumstances

of the informant —how long he or she had been at the motel

or how long he or she planned to stay—he or she certainly

12 UNITED STATES v. GRIFFIN
could pack up and leave a motel room much more easily than

one could a home. Any suggestion that the informant could

easily be held accountable is further undermined by the fact

that the police had no idea what the informant looked like. Cf.

United States v. Valentine, 232 F.3d 350, 355 (3d Cir. 2000)

("[T]he officers could assess the informant’s credibility as he

spoke, knew what the informant looked like, and had some

opportunity to find the informant if the tip did not pan out.").

As a result, I find the majority’s blithe comparisons of this

case to Christmas and similar cases in other circuits alarming.

This case does not fall in squarely with these other precedents; at best, it strains their outer boundaries. In Christmas,

officers investigating a homicide were approached by a neighborhood resident, who gave her address and reported that

drugs were being dealt at the home two doors down from her.

222 F.3d at 143. The police proceeded to that home and

observed a group of people on the porch, one of whom—the

defendant—was recognized as a gang member from another

part of town. Id. at 143, 145. This independent recognition

and awareness of the defendant provided sufficient indicia of

the reliability of the informant’s tip because the officers could

reasonably surmise that Christmas’ presence on the porch was

odd and "created a potential for violence." Id. at 145. Here,

the officers knew nothing about the informant except that he

or she was found in the same motel room from which the 911

call was placed and they had no independent information

about the defendant to support the informant’s tip.

The officers in United States v. Romain, 393 F.3d 63 (1st

Cir. 2004), similarly had much more than a tip from an

unknown informant to justify their pat-down of the defendant.

Officers responded to a 911 call in which a woman, who

sounded as if she were in danger, told the emergency operator

that there was a man with a gun at her location. Id. at 66.

When they arrived, two women answered the door, and one

nodded affirmatively when asked if there was someone in the

apartment with a gun. Id. When officers entered, the defenUNITED STATES v. GRIFFIN 13
dant emerged from a bedroom acting aggravated, flailing his

arms and shouting, and moved threateningly towards one of

the officers. Id. After seizing the defendant and placing him

against the wall, one of the officers spoke with the woman

who had indicated there was a gun in the apartment and asked

if she had placed the 911 call. Id. at 66-67. She admitted to

being the caller and told the officers that the gun was in the

defendant’s waistband. Id. Only then did officers conduct a

pat-down. Id.; cf. United States v. Heard, 367 F.3d 1275 (11th

Cir. 2004) (finding reasonable suspicion for stop and frisk

after officer observed and helped to end public dispute

between defendant and unknown informant who left before

she could be questioned); Valentine, 232 F.3d at 352, 357

(finding reasonable suspicion for stop and frisk where officers

first obtained detailed description from unknown informant

with personal knowledge and then observed defendant acting

evasively).

In each of these cases, officers had an opportunity to

observe the credibility and demeanor of an informant in a

face-to-face dialogue—and they actually took advantage of

that opportunity. More importantly, in each of these cases, the

officers made independent observations that corroborated the

suspicions raised by the informants. This is a far cry from the

facts before us in this appeal. I take no issue with the majority’s well-supported point that face-to-face dialogues generally

result in a very different species of tip than that offered by a

purely anonymous informant. But, even if nine out of ten

face-to-face encounters with an informant provide the necessary indicia of reliability to create a reasonable suspicion, this

case is plainly the unreliable tenth. Officers Clifton and Carey

had no independent information to corroborate the unidentified informant’s incriminating statements against Griffin and

they cannot plausibly be said to have assessed the informant’s

credibility and demeanor, such that the tip itself might suffice

to provide a reasonable suspicion. Thus, though perhaps technically not an "anonymous tip" case, this case is much closer

to J.L. in its facts than it is to either Christmas or Romain.

14 UNITED STATES v. GRIFFIN
The majority’s efforts to square this case with Christmas

seem motivated, at least in part, by their concerns about the

ramifications of "a contrary holding." (Maj. Op. at 7 n.4.)

Undoubtedly, "man with a gun" tips put officers in an especially dangerous position that might "sometimes justify

unusual precautions." J.L., 529 U.S. at 272. Yet, the Supreme

Court has already considered and rejected the idea that "an

automatic firearm exception to our established reliability analysis" is warranted. Id.

The majority’s opinion comes dangerously close to flouting

this and creating a per se rule of reliability for face-to-face

dialogues with informants in "man with a gun" cases. With

this case as precedent, an officer provided with a "man with

a gun" tip in a high-crime area by an unknown, unaccountable

informant may now, without any other indicia of reliability,

conduct a Terry stop. This clearly undermines at least the

spirit of J.L., and it relies on an overbroad reading of our precedent in Christmas. In fact, this decision "enable[s] any person seeking to harass another to set in motion an intrusive,

embarrassing police search of the targeted person simply by

. . . falsely reporting the target’s unlawful carriage of a gun."

J.L., 529 U.S. at 272.

II.

Even assuming the Terry stop and accompanying pat-down

were proper, it is undisputed that they yielded no evidence of

criminal conduct on the part of Mr. Griffin. Nonetheless, Officer Carey decided to handcuff Griffin and place him in the

back of a patrol car. He then instructed Officer Clifton to

search Griffin’s vehicle. The majority finds this vehicle

search to be proper under Michigan v. Long, 463 U.S. 1032

(1983).

Long imposes a two-part test for vehicle searches pursuant

to a Terry stop: an officer must have a "reasonable belief" that

(1) "the suspect is dangerous," and (2) "the suspect may gain

UNITED STATES v. GRIFFIN 15
immediate control of weapons." Id. at 1049. On this first

requirement, the majority points to three factors that it feels

support the officer’s search: first, the officers received a faceto-face tip that Griffin had a gun; next, the defendant was in

a "high crime area;" and, finally, Griffin acted evasive during

the pat-down. However, none of these suffice, alone or taken

together, to create a reasonable belief that Griffin was dangerous.

Standing as a hallmark of our investigatory stop jurisprudence is the principle that such stops are only justified where

officers have a "reasonable, individualized suspicion" of criminal activity before a frisk or protective search takes place.

Maryland v. Buie, 494 U.S. 325, 334 n.2 (1990) (emphasis

added). So, while "the fact that [a] stop occurred in a ‘high

crime area’ [is] among the relevant contextual considerations," Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (quoting Adams v. Williams, 407 U.S. 143, 144, 147-48 (1972)), it

cannot be an endpoint for a Terry or Long analysis. Otherwise, we relegate those unfortunate enough to have to live in

such "high crime areas" to second-class citizenship for purposes of the Fourth Amendment.

Whatever individualized suspicion of Griffin’s dangerousness the officers could have had, it had to rest on the information provided by the informant and on Griffin’s conduct

during the Terry pat-down. At the risk of beating a dead

horse, I must emphasize again the flimsiness of the informant’s tip. The only information the informant gave to implicate Griffin was his or her statement, "That’s the car; that’s

him inside." (J.A. 61.) The informant gave no indication about

the basis of his or her knowledge, and the officers themselves

had failed to confirm that the informant was the same person

who placed the 911 call. The informant’s statement might

have been more of a "smoking gun" if, as in most face-to-face

encounters, the officers had actually taken the opportunity to

assess the informant’s credibility and demeanor. Instead, the

officers could tell the district court virtually nothing about the

16 UNITED STATES v. GRIFFIN
source of their information—not even the person’s gender. As

for Griffin’s so-called "evasive" behavior (Maj. Op. at 8), this

occurred not prior to the Terry stop, but during the patdown,

and it consisted simply of his "turning around" (J.A. 27), a

reaction that seems a natural and instinctive response to being

frisked by a police officer.2

Not one of the factors cited by the majority could by itself

support a finding that Griffin was a danger of the kind needed

to justify a protective search of his vehicle. In combination,

these factors fare no better. The majority once again finds that

the search rests comfortably within the boundaries of our precedent, specifically United States v. Elston, 479 F.3d 314 (4th

Cir. 2007) and United States v. Holmes, 376 F.3d 270 (4th

Cir. 2004). But, in fact, both cases are readily and significantly distinguishable. In Holmes, we found that officers

could reasonably believe that the defendant was dangerous

given their particularized suspicion that he was a gang member who had previously been involved in a number of armed,

violent felonies. 376 F.3d at 277. In Elston, a Long search was

upheld where a named informant provided a 911 operator

with a detailed description of the defendant, who had left her

home in his truck, highly intoxicated and with a loaded handgun and extra ammunition that he had threatened to "let[ ] . . .

off in somebody." 479 F.3d at 315 (alteration in original). The

factual dissimilarities between Holmes and Elston on the one

2The majority further factors in its Long analysis the fact that some

onlookers, including someone who may have known Griffin (Maj. Op. at

8 n.5), were present at the scene of the Terry stop. The district court relied

heavily on this reasoning to justify its ruling on the protective search, and

the government has urged us also to consider this factor. Yet, neither the

district court, the government, nor the majority cites any law to support the

proposition that concerns about danger from people other than the suspect,

and who have no clear connection to the suspect, can justify a protective

search of the suspect’s vehicle. Long itself takes the position that officers

must have a reasonable belief "that the suspect is dangerous and the suspect may gain immediate control of weapons." 463 U.S. at 1049 (emphasis

added). 

UNITED STATES v. GRIFFIN 17
hand and this case on the other are patent enough that I need

not linger on them.

A closer factual analogue in many ways comes from our

decision in United States v. Neely, No. 08-4257, 2009 U.S.

App. LEXIS 9111 (4th Cir. Apr. 29, 2009). In Neely, we

found that acting nervous and stumbling, even in a high crime

area, was not enough to create a reasonable belief that the

defendant posed the kind of danger needed to justify a search

under Long. Id. at *13-15. The Neely panel admittedly termed

it a "close case" and suggested that "several facts present here,

under different circumstances, might counsel a different

result." Id. at *15. But the only evidence here that might suggest circumstances different from those present in Neely is the

informant’s incriminating, but limited and wholly unreliable,

tip. Thus, a reasoned application of our precedent leads to the

conclusion that, as in Neely, this search was not protected by

Long.

3

III.

Today’s decision effectively holds that anytime someone

provides officers with a face-to-face "man with a gun" tip, at

least in a "high crime area," the officer has been given both

a sufficiently reasonable suspicion of criminal activity to justify a Terry stop and a sufficiently reasonable belief of the

suspect’s dangerousness to justify a protective search under

Long. This troubling result is cleverly cloaked in overbroad

readings of this Court’s precedent—Christmas, Holmes, and

Elston —but it plainly undermines the Supreme Court’s decision in J.L. A fair reading of the case law shows that Griffin’s

3Having concluded that the first prong of the Long analysis is not met,

it is not necessary to decide whether an officer had a "reasonable belief"

that "the suspect may gain immediate control of weapons." Long, 463 U.S.

at 1049. While the majority’s dismissive view of the implications of Arizona v. Gant, 129 S. Ct. 1710 (2009) on today’s case gives me pause, I

do agree that the Court in Gant did not decide the issues now before us.

18 UNITED STATES v. GRIFFIN
motion to suppress should have been granted on both grounds,

and I therefore dissent.

UNITED STATES v. GRIFFIN 19