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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 13, 2003 Decided December 19, 2003

No. 03-3003

UNITED STATES OF AMERICA,

APPELLEE

v.

MICHAEL A. RILEY,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 02cr00288–01)

Cheryl D. Stein, appointed by the court, argued the cause

and filed the brief for appellant.

John P. Gidez, Assistant U.S. Attorney, argued the cause

for appellee. With him on the brief were Roscoe C. Howard,

Jr., U.S. Attorney, John R. Fisher, Roy W. McLeese, III, and

Kristina L. Ament, Assistant U.S. Attorneys.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

Before: RANDOLPH and ROBERTS, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS.

WILLIAMS, Senior Circuit Judge: Based on a tip from a

longtime informant, District of Columbia police searched Michael Riley and discovered that he possessed a large amount

of crack cocaine. Riley was charged with one count of

possession with intent to distribute five or more grams of

cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(B)(iii). His motion to suppress the evidence having

been denied, he entered a conditional guilty plea, reserving

the right to appeal the denial of the motion to suppress.

That appeal is now before us. We affirm.

* * *

We state the pertinent facts as found by the district court,

which control unless ‘‘clearly erroneous.’’ On June 5, 2002

Detective Kirk Delpo of the Metropolitan Police Department

received a tip from a confidential informant that one Michael

Riley was in the area of an apartment in the 1700 block of

West Virginia Avenue with a large amount of crack stored in

his sock. The informant described Riley’s appearance. The

informant believed Riley was heading towards his vehicle, a

van or limo.

Delpo and fellow officers went to the location and saw a

person matching the description, but with a red scooter or

moped rather than a van or limo. Because of the discrepancy

they staked out a van instead. The informant then phoned

again, asking if the police had seen the person, and adding

that he was with a red scooter or moped. Delpo and his

associates then saw a person matching the earlier description

and sitting on a parked moped.

The police approached the person and learned that his

name was in fact Michael Riley. They surrounded him and

ordered him to dismount from the moped. Delpo testified

that he was standing two inches away from Riley and that
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Riley could not move without touching him. Tr. 09/23/02 at

62. Another detective was approximately a foot away, and a

third officer was standing directly behind Riley. Id. at 61–62.

Delpo and the officer behind Riley were close enough that

Riley couldn’t have moved without actually making contact

with one or the other. Id. at 60, 62. While there is some

obscurity in the record as to exactly what followed, it seems

clear that by this point a reasonable person in Riley’s shoes

would have believed he was not free to leave, so that for

Fourth Amendment purposes a seizure of some kind had

occurred. United States v. Mendenhall, 446 U.S. 544, 554

(1980).

Thereafter Delpo bent down in front of Riley and at some

point saw a bulge in his sock. He searched the sock and

recovered what later proved to be crack cocaine. Delpo said

that Riley was wearing long shorts which left the ankle

exposed, and the district court accepted this testimony. Tr.

10/03/02 II at 25. Riley points to contradictory evidence,

which he claims shows that Delpo discovered the bulge itself

only by searching Riley, and that therefore the district court’s

acceptance of Delpo’s account was clearly erroneous. Because we think it clear that some sort of seizure occurred

before these events, whatever their exact sequence, we need

not resolve the issue. In any event, after the police extracted

the contents of the sock, they formally placed Riley under

arrest.

The seizure that occurred before the exploration of Riley’s

sock might be classified either as an investigative stop under

Terry v. Ohio, 392 U.S. 1 (1968), requiring only ‘‘reasonable

suspicion,’’ or as an arrest, requiring probable cause. At the

suppression hearing, for reasons that elude us, the government explicitly disavowed any view that the initial seizure was

a Terry stop. Tr. 10/03/02 I at 8. The stop and associated

search can therefore be upheld only if the police had probable

cause to arrest Riley at the moment when they converged on

the moped.

Given the timing of the stop, the only source of probable

cause is the confidential informant’s tip and the police’s later
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confirmation of innocent and more or less contemporaneous

details such as Riley’s appearance and name. There is no

precise formula for the probability required for probable

cause. ‘‘Somewhere between ‘less than evidence which would

justify TTT conviction’ and ‘more than bare suspicion,’ probable cause is satisfiedTTTT The precise point is indeterminate.’’ United States v. Prandy–Binett, 995 F.2d 1069, 1070

(D.C. Cir. 1993) (citation omitted). See also Draper v. United

States, 358 U.S. 307, 313 (1959). The standard is to be met

by applying a ‘‘totality-of-the-circumstances analysis.’’ Illinois v. Gates, 462 U.S. 213, 234 (1983). The phrase means

simply that the court considers all data relevant to the

probability of a crime being committed, without having to

satisfy the two independent requirements (or proverbial

‘‘prongs’’) of the Aguilar-Spinelli test, namely ‘‘[1] the informant’s ‘veracity’ or ‘reliability’ and [2] his ‘basis of knowledge.’ ’’ Id. at 233. Gates rejected any such ‘‘two-pronged

test’’ ‘‘as hypertechnical and divorced from ‘the factual and

practical considerations of everyday life on which reasonable

and prudent men, not legal technicians, act.’ ’’ Massachusetts

v. Upton, 466 U.S. 727, 732 (1984) (quoting Gates). Thus an

informant of singular reliability may supply tips amounting to

probable cause even though he gives no explicit ‘‘indication of

the basis for his information.’’ Gates, 462 U.S. at 242 (discussing Draper).

The informant in this case was particularly reliable. First,

his track record was long and error-free. The district court

accepted Detective Delpo’s testimony that the informant had

provided reliable information over 60 times since the start of

their relationship in 1995 or even earlier, Tr. 10/03/02 II at 15,

and that he (Detective Delpo) knew of no occasion on which

the informant had provided false information, id.; see also Tr.

09/23/02 at 7. Thus the informant was the very opposite of an

anonymous caller of the sort involved in Gates. And Delpo

had regularly paid the informant for his information. Tr.

09/23/02 at 7–8. In the past we have seen the fact of an

informant’s being known to the police as supplying ‘‘accountability’’ because the known tipster necessarily risked possible

criminal prosecution for giving the police false information.

See United States v. Thompson, 234 F.3d 725, 729 (D.C. Cir.
5

2000). Here the tipster was subject to a more readily enforceable sanction: a reduction in the income he obtained

from his tipping activity. Although the continual receipt of

money for information may make the informant morally

unattractive, it supplies him with a sharp incentive to be

accurate.

Although police observed behavior confirming information

supplied by the informant before stopping Riley (information

suggesting that the informant had Riley under real-time

observation), none of Riley’s behavior appears to have been

illicit, and none of the information required advanced knowledge on the part of the informant. The latter would shore up

his tip, as accurate prediction would tend to show special

access to the plans and activities of the suspect. We have

held that a tipster’s strong incentives to be truthful, alone,

provided ‘‘ample’’ ‘‘reasonable suspicion’’ for a Terry stop,

United States v. Clark, 24 F.3d 299, 302–03 (D.C. Cir. 1994),

but in our published decisions on probable cause the police

seem always to have had more than a reliable informant and

the confirmation of contemporaneous innocent details. See

United States v. Warren, 42 F.3d 647, 649 (D.C. Cir. 1994)

(probable cause provided by a tip from a reliable informant

combined with a controlled drug purchase); United States v.

Lincoln, 992 F.2d 356, 358 (D.C. Cir. 1993) (probable cause

provided by a tip from a reliable informant combined with

suspicious behavior by the suspects); United States v. Thomas, 989 F.2d 1252, 1254 (D.C. Cir. 1993) (search warrant

properly issued when reliable tip was combined with controlled drug purchase); United States v. Chin, 981 F.2d 1275,

1278 (D.C. Cir. 1992) (probable cause provided by a tip from a

reliable informant combined with suspicious behavior by the

suspects and conformance to a drug-courier profile).

On the other hand, none of the above cases held that the

additional factor was necessary; they said only that in combination with the reliable tip it was sufficient. Thus our

holding here is consistent with, though not compelled by, our

precedent. In addition, in an unpublished opinion we found

probable cause in a reliable informant’s tip, with corroboration limited to contemporaneous innocent details. United
6

States v. Jones, 1994 WL 245568 (D.C. Cir. 1994). We

distinguished prior cases that rejected comparable tips on the

ground that in them the tipster had been anonymous. Jones

of course has no precedential value, see D.C. Cir. R. 28(c);

see also Slinger Drainage, Inc. v. EPA, 244 F.3d 967, 968

(D.C. Cir. 2001), but we find some assurance in the fact that a

prior panel in fact ruled the same way on very similar

circumstances. With all factors being relevant to a unitary

inquiry under the ‘‘totality-of-the-circumstances analysis,’’ a

high degree of reliability makes it unnecessary to demand

confirmation of illicit or predictive details.

Given that the police had probable cause to arrest Riley,

the search was valid as one incident to arrest. It is of no

import that the search came before the actual arrest. In

Rawlings v. Kentucky, 448 U.S. 98, 111 (1980), the Supreme

Court held in the context of a search ‘‘incident to TTT formal

arrest’’ that ‘‘[w]here formal arrest follow[s] quickly on the

heels of the challenged search of petitioner’s person, we do

not believe it particularly important that the search preceded

the arrest rather than vice versa.’’ Here the police arrested

Riley almost immediately on discovering the cocaine on his

person. See Tr. 09/23/02 at 16 (‘‘Q: What did you [Detective

Delpo] and the other officers do as a result of [discovering

‘chunks of hard white rock matter’] in the defendant’s sock?

A: He was placed under arrest.’’). Under these circumstances the exact sequence of events poses no problem.

The judgment of the district court is

Affirmed.