# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 17, 2008 Decided March 11, 2008

No. 06-3075

U NITED S TATES OF A MERICA

, A PPELLEE

v.

J AMAL A BDUS -P RICE

, A PPELLANT

Appeal from the United States District Court

for the District of Columbia (No. 05cr00123-01)

Rita B. Bosworth , Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.

J. Kramer , Federal Public Defender.

Stratton C. Strand , Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jeffrey A. Taylor , U.S. Attorney, and Roy W. McLeese, III and Mary B.

McCord , Assistant U.S. Attorneys.

Before: G INSBURG , R OGERS , and G RIFFITH

, Circuit Judges

.

Opinion for the Court filed by Circuit Judge G RIFFITH

.2

G RIFFITH

, Circuit Judge : Can the target of a Terry stop defeat the legality of his seiz ure by pointing to a slight color discrepancy between the car in which he was traveling and a crime victim’s description of th at vehicle? We hold that he cannot, so long as the remaining points of similarity support a reasonable suspicion that the ta rget was involved in criminal activity. The investigative seiz ure and subsequent protective

frisk at issue in this case did not violate the Fourth

Amendment.

I.

On the evening of March 9, 2005, Sergeant Dennis Hance and other Metropolitan Police Department (“MPD”) officers heard the following radio broadcast:

Lookout for an armed robbery that occurred on Today’s date 19:35 hours, 1300 bloc k of Florida Avenue NE. Lookout for a Number One black male, 19 years of age 5’ 11’ 200 lbs, dark-complect ed. He’se wearing a black North Face jacket, black pants, black shoes. This individual had a light mustache. Number two black male was a pasanger; he’se about a 16, 17 years of age, 150 lbs, medium complexion. He has a black and red North Face,

a new one with North Face on the sleeve and on the backof the jacket. This individual is armed with a silvercolored hand gun. Stolen from one of the complainants was a black (inaudible) blue North Face jacket, black Nike’s, and a CD player. Suspect s were last seen inside a Crown Vic Ford model, tan on the side, black on top with smoked-out windows, year be tween 94 and 97. Last seen

Westbound on Florida and Northbound on Trinidad. Radio Run Tr. (Mar. 9, 2005) (errors in original).3

At 8:14 p.m., less than forty minutes after the robbery, Sergeant Hance spotted a Ford Crown Victoria with darktinted windows, dark blue in color with a white driver’s-side rear door, roughly two blocks fr om the scene of the crime. Reasoning that the car basically matched the lookout description and was in the ge neral area where the robbery occurred, Sergeant Hance pulled over the car. MPD Officer Milner quickly arrived at the scene in response to Sergeant Hance’s call for backup, and MPD Officers Monk and Gaumond appeared shortly thereafter.

Traveling in the stopped car were Jamal Abdus-Price, the passenger, and Jamaal Harris, the driver. Officers later

described Abdus-Price as a da rk-skinned black male between 18 and 30 years old, weighing about 200 pounds, and wearing a black North Face jacket. Harris was described as a stocky, light-skinned black male wearing a North Face jacket. Sergeant Hance and Officer Mi lner asked Abdus-Price and Harris to exit the vehicle, explaining that they had been stopped because their car fit a description from a radio lookout for an armed robbery. When the officers informed the occupants that they would be patted down for officer safety, Harris complied but Abdus-Price ’s “eyes got big.” Motions Hearing Tr. at 7:21–25 (Oct. 24, 2005). Abdus-Price tried to run away, prompting Officer Milner to grab him in a bear hug. In so restraining the suspec t, Officer Milner felt the handle of a gun in the pocket of Abdus-Price’s jacket and warned his colleagues. A scuffle ensued. The officers eventually subdued Abdus-Price and, in an effort to avoid accidentally discharging the lo aded and cocked weapon, cut open his jacket to retrieve a .22-caliber Beretta handgun. 1

1 Harris told a different story, but the district court credited the officers’ testimony over Harris’s. Abdus-Price does not challenge

the district court’s factual determination.4

Officer Monk arrested Abdus-P rice for carrying a pistol without a license. Before depar ting with their prisoner, the officers conducted a show-up pr ocedure to determine whether the victims of the armed robbery that had occasioned the stop could identify Harris or A bdus-Price as the robbers. The victims could not, and Harris was allowed to leave.

Abdus-Price was indicted for unlawful possession of a firearm and ammunition by a fel on, a violation of 18 U.S.C. § 922(g)(1). He moved to suppr ess the weapon seized during the stop that led to his arrest, arguing that the officers violated

the Fourth Amendment. Afte r two days of evidentiary hearings, the district court de nied the suppression motion in an oral ruling, finding that the car “basically met the description of the vehicle used by the robbery suspects” and concluding that Sergeant Hance thus had reasonable articulable suspicion under Terry v. Ohio , 392 U.S. 1 (1968), to justify his decision to pull over the vehicle. Plea Hearing Tr. at 15:5–10 (Jan. 26, 2006).

Abdus-Price subsequently entered a conditional plea of guilty, reserving his right to appeal the denial of his suppression motion. The district court sentenced him to fortysix months’ incarceration followe d by three years’ supervised release, and imposed fines and special assessments totaling $1,100. Abdus-Price appeals the de nial of his suppression motion. We have jurisdiction under 28 U.S.C. § 1291.

II.

The Fourth Amendment pr otects against unreasonable seizures of the person. U.S. C ONST . amend. IV (“The right of the people to be secure in their persons . . . against unreasonable . . . seizures, shall not be violated . . . .”).5

Stopping the car in which Abdus-Price was traveling was a seizure within the meaning of the Fourth Amendment. Brendlin v. California , 127 S. Ct. 2400, 2406–07 (2007). Abdus-Price argues that there was not reasona ble suspicion

under Terry to justify the stop. We consider the issue de novo.

United States v. Brown , 334 F.3d 1161, 1164 (D.C. Cir. 2003) (citing Ornelas v. United States , 517 U.S. 690, 699 (1996)).

Under the Fourth Amendment, a police officer may effect a brief seizure for investigative purposes — a Terry stop — if he has “a reasonable suspici on, grounded in specific and articulable facts, that a person . . . was involved in or is wanted in connection with a completed felony.” United States v. Hensley , 469 U.S. 221, 229 (1985); see also United States

v. Sokolow , 490 U.S. 1, 7 (1989) (“In Terry v. Ohio , 392 U.S. 1, 30 (1968), we held that the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot ,’ even if the officer lacks probable cause.”). Reasonable suspic ion exists if “the totality of the circumstances” presents “a particularized and objective basis for suspecting the particul ar person stopped of criminal activity.” United States v. Cortez , 449 U.S. 411, 417–18 (1981). This is not a pa rticularly high bar: “a Terry stop requires only a ‘minimal level of objective justification.’ ”

United States v. Edmonds , 240 F.3d 55, 59 (D.C. Cir. 2001) (quoting INS v. Delgado , 466 U.S. 210, 217 (1984)).

The facts that led Sergeant Hance to stop Abdus-Price

were sufficient to “warrant a man of reasonable caution in the belief that the action taken was appropriate.” Terry , 392 U.S. at 22 (citation and quot ation marks omitted); see also United

States v. Smart , 98 F.3d 1379, 1384 (D.C. Cir. 1996) (asking

“whether a reasonable officer in those circumstances would have been suspicious”) (citation omitted). An MPD radio6

lookout implicated the occupants of a particular automobile in an armed robbery. There were several points of similarity

between the car described in that lookout and the car in which Abdus-Price was traveling. The lookout referred to a Ford Crown Victoria with “smoked-out windows,” two occupants, and a top that was darker in color than the side. Sergeant Hance pulled over a Ford Crown Victoria with tinted windows, two occupants, and a do or that was lighter in color than the top of the car, and did so less than forty minutes after the robbery within a few bloc ks of the crime scene. To borrow a phrase from our opinion in United States v. Simpson , “a confluence of such factors will be sufficient to justify a Terry stop.” 992 F.2d 1224, 1226 (D.C. Cir. 1993) (upholding stop of suspect who “w as wearing clothing similar to that described by the victim , was of the same general age group . . . , was of the same race and physical build of the alleged rapist, and was in th e vicinity of the crime”).

Abdus-Price urges us to fo cus on the difference between

the car described in the lookoutand the car in which AbdusPrice was traveling. The lookout specifically referred to a

Ford Crown Victoria that was “t an on the side, black on top,” while Sergeant Hance pulled over a Ford Crown Victoria that

was dark blue with a white driver’s-side re ar door. AbdusPrice contends that a reas onable officer would have abandoned pursuit of the two-tone d Crown Victoria in which he was riding upon noticing this discrepancy. But this is not what the law requires. In United States v. Davis , 235 F.3d 584 (D.C. Cir. 2000), police receiv ed a radio lookout describing a shooting suspect “dressed all in black.” Id. at 586. Responding to this cue, officers stopped a man in dark blue coveralls. A subsequent frisk uncovered a sawed-off shotgun, leading to a conviction under 18 U.S.C. § 922(g)(1). Despite the color discrepancy between bl ack and dark blue clothing, we held there was reasonable suspicion to support the stop7

and frisk that uncovered the shotgun. Davis , 235 F.3d at 588.

The lesson of Davis is that a precise color match to a lookout is not an indispensable elem ent of reasonable suspicion.

In the matter before us, it is easy to imagine confusing a

dark-blue-and-white car for a bl ack-and-tan car af ter night has

fallen. Cf. Motions Hearing Tr. at 22:21–25 (Nov. 3, 2005) (noting statement by the district court to this effect). This much will be obvious to anyone who has dressed before daybreak and arrived at the office wearing mismatched socks. And the usual morning routin e does not involve getting dressed at gunpoint. As Officer Milner testified, “if you are interviewing complainants, and there’s a gun involved, they’re not going to give you an accurate description.” Motions Hearing Tr. at 20: 7–9 (Oct. 24, 2005). A reasonable

officer would be entitled to infe r, on the basis of his or her experience, that the victim of an armed robbery might not exercise perfect recall of the color of the robbers’ getaway

car. See United States v. Arvizu , 534 U.S. 266, 273–74 (2002) (noting that officers are enti tled to draw on specialized experience and training in arri ving at reasonable suspicion).

Given the other matches betw een the lookout description and the stopped car (i.e., make and model, tinted windows, number of occupants, dark-col ored top with light-colored side), the one near-miss invol ving a detail of color was not enough to dispel Sergeant Han ce’s reasonable suspicion that he had spotted the robbers described in the lookout. Reasonable suspicion can survive in the face of discrepancies between the vehicle described and the vehicle stopped. See,

e.g. , United States v. Hurst , 228 F.3d 751, 756–57 (6th Cir. 2000) (finding reasonable suspic ion supported stop of dark blue Mercury Cougar, where re port described dark-colored Ford Thunderbird); Umanzor v. United States , 803 A.2d 983, 993 (D.C. 2002) (finding reason able suspicion supported stop8

of blue Honda, where lookout described gray Honda); cf. Bailey v. United States , 389 F.2d 305, 309 (D.C. Cir. 1967) (holding probable cause supporte d stop of 1954 Chevrolet,

where lookout described 1953 Ch evrolet). As noted in a leading treatise, “investigating officers must be allowed to

take account of the possibility that some of the descriptive factors supplied by victims or witnesses may be in error.” 4

W AYNE R. L A F AVE

, S EARCH AND S EIZURE : A T REATISE ON

THE F OURTH A MENDMENT § 9.5(g) at 557 (4th ed. 2004).

In demanding a perfect matc h to a lookout description, Abdus-Price is asking us to fast -forward the criminal process to the jury trial phase. This we cannot do. Terry ’s reasonable suspicion standard demands less of the government than the preponderance standard, see Illinois v. Wardlow , 528 U.S. 119, 123 (2000), which in turn demands less than the reasonable-doubt standard, see Addington v. Texas , 441 U.S. 418, 423–24 (1979). Abdus-Price pr obably could not have been convicted of an armed robbery based solely on the appearance of the car in which he was traveling — “[f]rom a hundred rabbits you can’t make a horse, a hundred suspicions don’t make a proof.” F YODOR D OSTOEVSKY

, C RIME AND
P UNISHMENT 399 (Constance Garnett trans., Heritage Club1938) (1866). But Sergeant Hance was not convicting AbdusPrice, nor even arresting him, when he pulled him over. “[A] Terry stop requires only a minimal level of objective justification, and an officer may initiate one based not on certainty, but on the need to check out a reasonable suspicion.” United States v. Edmonds , 240 F.3d 55, 59 (D.C. Cir. 2001) (citations and quotat ion marks omitted). Based on its similarity to the car de scribed in the armed-robbery lookout, Sergeant Hance had reas onable suspicion that the occupants of the two-toned Crow n Victoria were “involved in or [were] wanted in connection with a completed felony.” Hensley , 469 U.S. at 229. Therefore, Sergeant Hance’s9

decision to stop that car did not violate Abdus-Price’s Fourth Amendment right against unreasonable seizures. Id.

III.

Abdus-Price further contends that even if the stop was legal at its inception, the o fficers violated his Fourth Amendment rights by conducting a protective frisk of his person. We decide de novo whether there was reasonable suspicion supporting this Terry frisk. United States v. Brown

, 334 F.3d 1161, 1164 (D.C. Cir. 2003) (citing Ornelas v.

United States , 517 U.S. 690, 699 (1996)).

Before an officer may conduc t a protective frisk of a suspect, “he must first have a ri ght not to avoid him but to be in his presence.” Terry , 392 U.S. at 32 (Harlan, J., concurring). But once he has la wfully engaged a person for investigative purposes, “the policeman making a reasonable investigatory stop should not be denied the opportunity to protect himself from attack by a hostile suspect.” Adams v.

Williams , 407 U.S. 143, 146 (1972). The cases describe an officer’s permissible protective steps. He may compel stopped motorists to step out of the car to prevent their surreptitious retrieval of weapons. See Pennsylvania v. Mimms , 434 U.S. 106, 111 n.6 (1977) (regarding drivers); Maryland v. Wilson

, 519 U.S. 408, 410, 415 (1997) (regarding passengers). He may then conduct a protective frisk for weapons if he has reasonable suspicion that the stopped individuals are armed and dangerous. See Terry , 392 U.S. at 30; United States v.

Holmes , 385 F.3d 786, 789 (D.C. Cir. 2004). His reasonable suspicion may be based on reliable reports from others. See

Adams , 407 U.S. at 147–48; United States v. Diggs , 522 F.2d 1310, 1313–14 (D.C. Cir. 1975).10

Sergeant Hance and his MPD colleagues prudently employed such protective measures. The officers, believing that they had stopped the car used in a recent armed robbery

and aware that one of the robbers had been armed with a silver handgun, approached th e situation with caution. The

officers asked Abdus-Price and Ha rris to exit the vehicle for safety reasons, as was their prerogative. See United States v.

Bullock , 510 F.3d 342, 344–45 (D.C. Cir. 2007) (describing the “bright-line rule” allowing officers to order drivers and passengers to exit a stopped vehicle). Armed with reasonable suspicion of danger by the very nature of the suspected crime of armed robbery, the officers in itiated protective frisks of

both men. See id. at 345–48 (holding th at a person suspected

of a violent crime is necessar ily suspect as being armed and dangerous). Upon learning that a frisk was forthcoming, Abdus-Price added to the officers’ reasonable suspicion by attempting to escape. There can be no doubt that, at the moment they frisked Abdus-Pri ce and discovered his illegal weapon, the MPD officers had reasonable suspicion to

support a Terry frisk of his person. Terry , 392 U.S. at 30.

Without seriously contesting any of the foregoing, Abdus-Price nevertheless urges that the protective frisk was unlawful. He argues that the officers should have released him and Harris without frisking them, due to the dissipation of whatever reasonable suspicion may have initially justified the stop. In this idealized rete lling of the ni ght’s events, Sergeant Hance would have stopped the Crown Victoria,

realized that these were not the armed robbers described in the lookout, and immediately ende d the interaction. In support of this theory, Abdus-Price poin ts to facts in the record suggesting that he and Harris were not the robbers. First, the

lookout described stolen items like a CD player and black Nike shoes, but the o fficers did not look to see if these were

visible within the car. S econd, the lookout described the11

passenger as a 150-pound teenager with a black-and-redNorth Face jacket and medium complexion, while AbdusPrice was described by Officer Milner as a dark-skinned, 200- pound man between 18 and 30 year s of age and without any red on his North Face jacket. Third, despite a nearly fortyminute lapse between the robbery and the stop, Harris and

Abdus-Price were found in a ca r within a two-minute radius

of the scene of the crime.

This dissipation argument fails because reasonable suspicion supporting the stop did not dissipate until after the frisk had occurred. We begin by rejecting the frivolous argument concerning the stolen items; without x-ray vision,

the officers could not rule out th e possibility that the loot was hidden in the car. Next, we reject the argument concerning physical descriptions because both men broadly resembled

the robbers in the lookout de scription; Abdus-Price, in particular, almost completely matched the description of the driver. Finally, it is not clear that a reasonable officer necessarily would assume that the robbers, upon completing their crime, would make a run for the border. Perhaps these plunderers were working a par ticular neighborhood? Perhaps they thought their victim had refused to speak to the police and that, after almost forty minutes, the danger of apprehension had passed?

The facts of this case are thus distinguishable from those

of United States v. Edgerton , 438 F.3d 1043 (10th Cir. 2006), upon which Abdus-Price principally relies. In Edgerton , an officer stopped a driver because her temporary license tag was illegible to the officer, a potential violation of state traffic

laws. Once the officer left his car, however, he was able to read the tag and confirm that no violation had occurred. The

officer nevertheless took the driv er’s license and registration,

obtained her consent to search the car, and eventually found12

cocaine. The Tenth Circuit supp ressed the drugs, holding that the officer should have sent the motorist on her way upon realizing that the temporary license tag was valid. Id. at 1051 (citing United States v. McSwain , 29 F.3d 558 (10th Cir. 1994)). Unlike Edgerton , in which the justification for the stop clearly dissipated upon read ing a license tag, our case is murky. Even if some details from the MPD officers’ stop did not square with the lookout, there was nothing about the

interaction with A bdus-Price and Harris that dispelled the officers’ reasonable suspicion they were the robbers. This is in part attributable to the natu re of the crimes at issue in Edgerton and in this case. The en tirety of the crime of unlicensed driving exists within the borders of a car’s license tag, while the indicia of armed r obbery are not confined to the vehicle. Reasonable suspicion did not dissipate until the show-up failed to implicate Ha rris and Abdus-Price in the robbery, by which time the lawful frisk had already uncovered a weapon.

Abdus-Price also suggests that, even if the officers’ suspicion did not dissipate when he exited the car, the officers should have conducted a thorough investigation — complete with questioning, peering through car windows, and analyzing complexion — before taking steps to ensure officer safety. Abdus-Price gets it backwards. An officer with a reasonable fear that his suspect is armed can take reasonable steps to protect himself, and s hould do so before he sets about investigating the crime that occasioned a stop. On crossexamination, Sergeant Hance u nderstandably balked at defense counsel’s suggestion that further invest igation was in order: “Well, I don’t usually walk up to the car and stick my head in the car and try to find out whether they match a perfect description when I am dealing with a robbery suspect. . . . And for my safety, I don’ t — whether or not he was a white male or a green male, it doesn’t make any difference —13

or a black male. That car fit the description, basically, and I was protecting myself.” Moti ons Hearing Tr. at 26:5–7, 26:19–22 (Nov. 3, 2005). That a protective frisk takes precedence over such investigatio n of criminal activity is encapsulated in Justice Harlan’s memorable phrase: “There is no reason why an officer, rightfu lly but forcibly confronting a person suspected of a serious crime, should have to ask one question and take the risk that the answer might be a bullet.” Terry , 392 U.S. at 33 (Harla n, J., concurring).

Finally, Abdus-Price claims that the Terry stop at issue in this case “was the functional equivalent of a full-blown arrest.” Appellant’s Br. at 21 n.2. We need not consider this suggestion, as it was not presen ted to the district court. See District of Columbia v. Air Fla., Inc. , 750 F.2d 1077, 1084 (D.C. Cir. 1984) (“It is well settled that issues and legal

theories not asserted at the Dist rict Court level ordinarily will not be heard on appeal.”).

IV.

Officers had reasonable suspicion to support the Terry stop of Abdus-Price and furt her reasonable suspicion to support the Terry frisk of his person. Accordingly, there was no Fourth Amendment violation and no reason to grant a motion to suppress. The judgmen t of the district court is

Affirmed.