UNITED STATES оf America, Plaintiff-Appellee, v. Antonio Bernard GRIFFIN, Defendant-Appellant.
No. 08-4045.
United States Court of Appeals, Fourth Circuit.
Decided: Dec. 17, 2009.
Argued: Sept. 22, 2009.
First, as discussed above, there was a previous merits determination by this Court in Walker II on Walker‘s Brady claim. Second, Walker‘s argument does not shift the burden of proof. Rather, Walker simрly sets out an application of the law of the case doctrine, which the majority does not address. Instead, the majority charts a new course and concludes that the findings and decision of the district court were fully supported by the record.
In essence, Walker‘s argument is a specific application of the law of the case doctrine. Other circuits, relying on the law of the case doctrine, have held that a district court is not free to depart from a circuit court‘s legal conclusions where the evidence developed at the district court level was “substantially similar” to the evidence considered by the circuit court in a previous appeal. See, e.g., Africа v. City of Philadelphia (In re City of Philadelphia Litig.), 158 F.3d 711, 720–22 (3d Cir.1998); Williams v. City of Dothan, 818 F.2d 755, 757-58 (11th Cir.1987). Based on the Fourth Circuit‘s application of the law of the case doctrine as I set out above, this Court should adopt this particular holding as well. Because the evidence before this Court and the district court was “substantially similar” and undoubtedly established all elements of Walker‘s Brady claim, the district court erred in denying Walker‘s habeas petition. In finding otherwise, the majority advances several arguments which I need not address because each relies on evidence that was considered and rejected by this Court in Walker II.
III.
In this case, the district court violated the mandate rule and erred in its conclusions as to all elements of Walker‘s Brady claim. I would, accordingly, reverse the decision of the district court and remand with instructions to issue the writ of habeas corpus and grant Walker a new trial. I am troubled by the majority‘s choice to reject the conclusions previously made by this Court in Walker II. When, as here, actual innocence is at issue in a capital case involving such scant physical corroboration, justice requires that we adhere to the well-established law of the case doctrine and specifically, the mandate rule. Thus, I dissent.
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.
OPINION
SHEDD, Circuit Judge:
Antonio Bernard Griffin appeals his conviction and sentence for being a felon in possession of a firearm. See
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 Charlotte-Mecklenburg 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 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 Cadillaс 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 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 clаiming 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
Griffin filed a timely notice of appeal, and we possess jurisdiction under
II.
We review the district court‘s factual findings for clear error and its legal conclusions de novo. Murphy, 552 F.3d at 409. The district court‘s ultimate conclu
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, 88 S.Ct. 1868, 20 L.Ed.2d 889 (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, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Although the rеasonable 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, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), and falls “considerably short of satisfying a preponderance of the evidence standard,” United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (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 examined 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 infоrmant 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, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
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, 103 S.Ct. 3469 (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).
The Supreme Court has observed that, where an officer concludes that a suspect is armed, the suspeсt “pose[s] a serious and present danger to the safety of the officer.” Pennsylvania v. Mimms, 434 U.S. 106, 112, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam); see also J.L., 529 U.S. at 272, 120 S.Ct. 1375 (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, 120 S.Ct. 673, 145 L.Ed.2d 570 (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 Cliftоn and pointed out the
The second prong, concerning the possibility that the suspect might gain immediate control of any weapons inside the vehicle, is alsо 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.
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 face-to-face dialogue between the
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 Cаrey, the next officer to arrive on the scene, does little more to clarify Officer Clifton‘s 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 рarking 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 pat-down 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, 120 S.Ct. 1375. 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.
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
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 vеhicle when he spoke with Officer Clifton” (Maj. Op. at 153), it does not appear that the informant ever stated that he or she personally saw the defendant with a gun. In short, this face-to-face 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 152-53.) 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 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 doеs 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
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 speсies 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.
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 153 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, 120 S.Ct. 1375. 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
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, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (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 immediate control оf weapons.” Id. at 1049, 103 S.Ct. 3469. On this first requirement, the majority points to three factors that it feels support the officer‘s search: first, the officers received a face-to-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, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990) (emphasis added). So, while “thе fact that [a] stop occurred in a ‘high crime area’ [is] among the relevant contextual considerations,” Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (quoting Adams v. Williams, 407 U.S. 143, 144, 147-48, 92 S.Ct. 1921, 32 L.Ed.2d 612 (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 dangerous-ness 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 source of their information—not even the person‘s gender. As for Griffin‘s so-called “evasive” behavior (Maj. Op. at 153-54), 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
A closer factual analogue in many ways comes from our decision in United States v. Neely, 564 F.3d 346 (4th Cir.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 351-52. The Neely panel admittedly termed it a “close case” and suggested that “several facts present here, under differеnt circumstances, might counsel a different result.” Id. at 352. 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 motion to suppress should have been granted on both grounds, and I therefore dissent.