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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 13

- CF

- 1450
M ELVIN E. J ACKSON , A PPELLANT ,

v. U NITED S TATES , A PPELLEE
. Appeal from the Superior Court of the District of Columbia ( CF2

- 10019

- 13 ) (Hon. Robert I. Ri chter , Trial Judge) ( Submitted January 22, 2015 Decided February 12, 201 5 ) Sidney R. Bi

xler was on the brief for appellant. Ronald C. Machen Jr ., United States Attorney, Elizabeth Trosman , Elizabeth H. Danello , and Christian Nat i ello , Assistant United States Attorneys, and Rockne Chi ckinell , Special Assistant United States Attorney , were on the brief for appellee.
Before G LICKMAN and F ISHER , Associate Judges , and F ARRELL , Senior Judge

. F ARRELL , Senior Judge : Found guilty by the court of multiple firearms offenses on stipulated facts , appellant argues that his motion to suppress the loaded revolver seized from him during a pat

- down was wrongly denied , because in stopping him the police relied on an anonymous 911 telephone tip that, he2

contends, did not furnish the reasonable suspicion necessary for a l a wful stop

. Largely on the basis of Prado Navarette v. California , 572 U.S. ___, 134 S. Ct. 1683 (2014), we affirm

.

I.

Officer Lina of the Metropolitan Police Department testified that on June 13,
2013 , around 8:30 p.m. and as it was getting dark, he received a radio call about a man with a gun standing at the bus stop between Condon Terrace and Fourth Street, Southeast

. In the radio call the dispatcher d escribed the man as a black male with a brown shirt. Lina drove south on Fourth Street a nd, b etween Valley Avenue and Condon Terrace a minute or two after h e got the call, saw appellant standing in front of a church along Fourth Street, wearing a black wi ndbreaker. The officer drove on to the nearby b us stop, but when he arrived no one was there. Other than appellant, Lina saw no person s between appellant at the church and the bus stop.

Lina made a u - turn to drive back up Fourth Street , stopped at Val ley Avenue, and called the dispatcher for a better lookout while watching ap pellant , who was wearing a black skullcap and a black windbreaker poncho. The3

dispatcher called back with a description of a black man wearing a black hat and a windbreaker. Four minutes after first spott ing appellant in fro nt of the church, Lina and his partner approached appellant at the corner of Valley Avenue and Fourth Stre e t and directed him to turn around and submit to a protective pat

- down

. Du ring the pat

- down , Lina felt what he bel ieved to be a gun on appellant ‟ s right
side , and pulled a silver revolv e r out of appellant ‟ s right pocket

.

On the government ‟ s motion, the trial court admitted into evidence a 911 call and the radio dispatch, both recorded on Government E xhibit 4

. The 911 call was made by an anonymous female caller , 1 who stated that a man was walking near Fourth and Atlantic, down toward a church or elementary school, and had a silver gun on him. The caller had “ [seen the gun ] when [appellant] took it out of his pocket, ” explaining that she had been waiting for her friend to come off a bus when “ I see him bring out a silver pistol out of his pocket, ” and that she then made the 911 call . Se eing the gun, the caller said , “ scared the hell out of [her]

. ” She described the suspect as wearing a “ brown windbreaker, ” “ raincoat thing, ” and a

1 The call was recorded and has been provided to us in a compact

- disc copy. Although Officer Lina, of course, did not personally hear the 911 call, in situations like this it is the collective knowledge of the investigating officers that cou nts. See In re M.E.B. , 638 A.2d 1123, 1129 (D.C. 1993).4

black hat. When the 911 operator stated her own understanding that the suspect

was at Fourth Street and Condon Terrace, the caller corrected her , s tat ing that he

was “ not on Condon Terrace ” but was walking down Fourth Street ( “ not up ” ) toward the elementary school. Officer Lina confirmed that there was a school and church on Fourth Street, and that appellant was standing by the church when he first saw him, with no one els e around

.

The trial judge credited the testimony of Lina that , in responding to the radio call , he had seen only appellant walking on the block in question

. The 911 caller

was “ a concerned citizen who had just seen a defendant holding a gun and was

re porting it contemporaneously. ” The dispatcher , the judge noted, had initially erred in putting out a lookout for a man wearing a brown shirt, but then gave a more particular desc ription

– on which Officer Lina relie d

– of a man wearing a windbreaker and a black skull cap. The difference in the color description was not material, the judge found, consider ing that it was getting dark at the time and appellant was the only person on the block when observed

. Because , in the judge ‟ s view, the stop and frisk o f appellant was supported by reasonable, articulable suspicion based on the call , he denied the motion t o suppress.5 I I.

“ The Fourth Amendment permits brief investigative stops . . . when a law enforcement officer has „ a particularized and objective basis f or suspecting the particular person stopped of criminal activ ity

. ‟” Prado Navarette , 134 S. Ct. at 1687 ( quoting United States v. Cortez , 449 U.S. 411, 417

- 18 (1981) )

. When, as here, th e basis for the stop is an anonymous tip , the tip must “be rel iable in its assertion of illegality” and “in its tendency to identify a determinate person .” Florida v. J. L ., 529 U.S. 266, 272 (2000). Tips regarding “unlawful carriage of a gun” enjoy no privileged Fourth Amendment status, id . at 272; they too have to “bear standard indicia of reliability in order to justify a stop.” Id . at 274. Prado
Navarette is the Supreme Court‟s latest treatment of anonymous tips, and the reliability features it cited in upholding the investigative stop there persuade u s t hat the police had the requi red justification for the stop here

.

The Court began by reaffirming that “under appropriate circumstances, an anonymous tip can demonstrate „ sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop. ‟” Id . at 1688 (quoting Alabama v. White , 496 U.S. 325, 327 (1990)). T he caller in Prado Navarette had6

reported that her vehicle was run off the road by a truck shortly before , a report that , i f reliable , gave the police reason to susp ect the truck driver “ of an ongoing
crime such as drunk driving. ” Id

. at 1690

- 91. The Court then explain ed why “ the [911] call bore adequate indicia of reliability for the officer to credit the caller ‟ s
account ” of what happened to her. Id

. at 1688.

First, u nlike in Florida v. J. L. , supra , on which appellant mainly relies, the 911 caller in Prado Navarette “ claimed eyewitness knowledge ” of th e conduct yielding suspicion . 1 34 S. Ct. at 1689 . That “ basis of knowledge len[t] significant support to the tip ‟ s reliability, ” in contrast to J. L. where “ the tip provided no basis for concluding that the tipster had actually seen the gun. ” Id. 2 Moreover, the

“ timeline of events [in Prado Navarette ] suggest[ed] that the caller reported the
incid e nt soon after she was run off the road , ” and this “ sort of contemporaneous report has long been treated as especially reliable. ” Id

. Whereas “ [t] here was no indication that the tip in J. L. (or even in White ) was contemporaneous with the observation of criminal activity or made under the stress of excitement caused by a

2 Even in Alabama v. White , supra , the Prado Navarette Court said, “ where we upheld the stop, there was scant evidence that the tipster had actually observed cocaine in the station wagon. ” 134 S. Ct. at 1689.7

startling event , . . . those considerations weigh in favor of the caller ‟ s veracity here , ” the Court reasoned

.

Finally, a nother “ indicator of veracity is the caller ‟ s use of the 911 emergency system, ” the Court said , because “ [a] 911 call has some features that allow for identifying and tracing callers. ” Id

. The Court arrayed th o se features of a standa r d 911 call, including Federal Communications Commis s ion (FCC) regulations that “ permi t [] law enforcement to verify important information about the caller. ” Id

. at 1690. “Given [these] technological and regulatory developments, ” it explained , “ a reasonable officer c ould conclude that a false tipster would think twice before using such a system.” Id

. “None of this is to suggest that tips in 911 calls are per se reliable,” the Court added, but “[t]he caller‟s use of the 911 system is . . . one of the relevant circums tances that, taken together, justified the officer‟s reliance on the information reported in the 911 call.” Id

.

Appellant scarcely challenges the application of these reliability features to his case

– where the caller‟s report was made just after seeing the suspect pull out a gun “scared the hell out of her”

– except to argue that the caller‟s use of the 9118

system has n o relevance here . That is so, he says, because there is no indication that the 911 operator tried to trace the caller or call her back after she hung up or , if she did try , was successful in doing so

. T h ose uncertainties , however, do not change the presumed application of the cited FCC regulations to the District ‟s 911 system. Moreover, although the trial court and the parties undertook no examination of the capabilities of th e District‟s system for tracking 911 callers ( understandably, since this case was tried before Prado Navarette ) , n either was the local (or California) 911 system closely examined in Prado Navarette

. See id . at 1689

- 90. 3 That record gap gives us no reason here , any more than in Prado
Navarette , to discount the fact that “ a reasonable officer could conclude that a false tipster would think twice before using such a system

. ” 134 S. Ct. a t 1690.

For these reasons, although the issue as in Prado Navarette is a “close” one,
id . at 1692, we are satisfied that when the police sa w appellant standing in front of a church on Fourth St r eet (the caller had said he was walking near Fourth and Atlantic down past a school and church ) wearing a black skullcap and black

3 The Court did note that “9ll calls can be recorded, which provides victims the opportunity to identify the false tipster‟s voice and subject him to prosecution,” citing Cal. Penal Code Ann. § 653x (West 2010). See 134 S. Ct. at 1690. But the same is true in the District of Columbia. See D.C. Code § 22

- 1319 (a

- 1) (201 2 Repl. )

.9

windbreaker poncho (the caller had reported him wearing a black hat and “ brown windbreaker, ” “ raincoat thing ” ) , 4 and with no one else visible between the church
and t he bus stop where appellant was first s potted , they had sufficient , particularized reason to suspect that he was the m an referred to in the caller‟s tip and was carrying a gun. The tip was reliable both “in its assertion of illegality” and “in its tendency to identify a determinate person.” J. L. , 529 U.S. at 272.

In arguing to the contrary, appellant relies also o n our decisions in In re
S.B ., 44 A.3d 948 (D.C. 2012), and Plummer v. U nited States , 983 A.2d 323 (D.C. 2009) , b oth d ecided before Prado Navarette

. S.B

. is readily distinguishable on its facts , because while the citizen ‟ s tip there was “ sufficiently reliable ”

– mainly because it “ was based on firsthand knowledge, ” S.B. , 44 A.3d at 954

– it wholly
failed the test of “ particular[ity] as to the in dividual sto p ped. ” 5 Id

. (citation and

4 Like the trial court , we consider this difference in color immaterial in the circumstances.
5 The police in S.B. had no “ information that isolated [the] criminal activity [ i.e. , the tip of gun possession] to a particular street corner or particular address ”; rather, the tip “ indicated that the individual . . . was on a playground that was part of a larger park area which included a field area and a „ whole bunch of sports courts, ‟ including basketball and tennis courts .” Id . at 956. Thus t he description conveyed

– of a black male with white jeans, possibly a juvenile

– “w as poten tially applicable to a large number of individuals” frequenting th o se places

. Id

. Indeed, (continued...)10

internal quotation marks omitted)

. The broad clothing and locational tip in S.B. enabled the kin d of “„ dragnet seizure of . . . youths

. . . resembl[ing] a generalized description ‟” that th is court had previously condemned

. Id . at 956 (quoting In re
A.S. , 614 A.2d 534, 540 (D.C. 1992) ) . That situation differs markedly from th is

case, where the 911 caller took pains

– even correcting the dispatcher

– to narr ow the gun

- beare r ‟ s location to a specific school and church on Fourth Street near the bus stop where she first s aw him wearing a “windbreaker” or “raincoat thing” and dark hat, and no o ne else was visible between the bus s top and the c hurch. See
S.B. , 44 A.3d at 955 ( distinguishing the affirmance in Nixon v. United States , 87 0 A.2d 100 (D.C. 2005), where “[t]here was no one else in the area” where the drug users were said to be).

(...continued) the police successively encountered two groups of black juveniles in the area, each including a n individual with white

- colored pants or clothing ; t he first group “ w ere not even in the playground ,” and no member, w hen all were patted down , had weapons. Id . at 956

- 57. Consequently , w hen the second group appeared, including the defendant wearing white pants, the police not only had no “ rational basis for differentiating [ him] from the individual in white clothing

. . . they had just searched (or any other juvenile in white pants who might come along), but ”

– given the initial fruitless search

– “the officers now had reasons to doubt the accuracy of the information provided by the citizen inform ant

. ” Id . at 957

.11

Finally, appellant reads P lummer , supra , as dictating that for reasonable suspicion to ripen here , “ the police officers had to have seen something ” such as suspicious movements on his part “ that confirmed the presence of a gun prior to his seizure. ” Reply Br ief for Appellant at 6. Plummer announced no such fixed rule, as we made clear in S.B

. , holding that “ the tip [there] was sufficiently reliable
such th a t independent corroboration of the illegality was not necessary before making [an investigative] stop.

. . . ” 44 A.3d at 954. Prado Navarette is to the

same effect

. S ee 134 S. Ct. at 1691 ( “ Nor did the absence of addit i onal su s picious conduct, after the vehicle was first spotted by an officer, dispel the reasonable suspicion of drunk driving ” furnished by the citizen‟s tip.). In Prado Nav a rett e , the Court cited its prior “ recogni[tion] that an informant who is proved to tell the truth about some thing s is more likely to tell the truth about other things, „ including the claim that the object of the tip is engaged in criminal activity. ‟ ” I d . at 1688 (citation omitted)

. H ere , too, the caller‟s tip became “ reliable in its assertion of illegality, ” Plummer , 983 A.2d at 333 (citation omitted) , when the police saw appellant alone in the immediate area at the location and dressed i n the manner the caller described shortly after she had b een frightened seeing him take out a gun.

Affirmed

.