UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

DAVIS, CURNELL


00-3016a

D.C. Cir. 2000


*	*	*


Tatel, Circuit Judge: After police conducting a Terry stop- and-frisk
discovered a shotgun hidden in his clothing, appel- lant pled guilty
to possession of a firearm by a felon. He  appeals the district
court's denial of his motion to suppress,  arguing, among other
things, that the court erred by relying  on information police
obtained from a citizen 911 call describ- ing a man fleeing the scene
of a shooting even though the  government failed to produce a tape of
the call. Finding that  appellant waived this argument, and that his
similarity to the  911 caller's description and to witness accounts of
the shooter  gave police a "reasonable, articulable suspicion"
sufficient to  justify the stop, see Illinois v. Wardlow, 528 U.S.


I


At 11:33 PM on May 31, 1999, a 911 caller reported gunfire  and
screaming in the 2300 block of North Capitol Street.  Minutes later, a
police dispatcher sent units to 2308 North  Capitol to investigate a
"shooting." As police arrived at the  scene, the dispatcher relayed
additional citizen reports de- scribing two men, one with blood on his
clothes and another  in khaki shorts and a white t-shirt. At 11:40,
the police unit  that had arrived at the North Capitol address
broadcast its  first account of witness reports. Known as a "lookout,"
the  broadcast described the suspect as a man on a bike, dressed  all
in black, heading north on North Capitol. The unit also  relayed
witness reports that the "subjects" were in a four- door sedan and
that "there seem[ed] to be a grey, small  weapon." Updating the
lookout two minutes later, the unit  described the suspect as a "black
male, light skinned, black  [unclear], all black, or possibly on a
bike, [unclear] carrying a  small weapon."


At midnight, about thirty minutes after the shooting, the  dispatcher
reported that "we have a citizen that's on landline,  says the subject
is wearing all black, that appears to be  running away from 2308 North
Capitol. He's on foot, possi-


bly now in the unit block of Channing." Police Lieutenant  Taliaferro
and his partner investigated and within thirty  seconds noticed
appellant Curnell Davis, a black man wearing  dark blue coveralls,
walking with a companion just a block  away from where the midnight
911 caller had reported seeing  the fleeing man. Stopping and frisking
Davis, Taliaferro  found a sawed-off shotgun hidden in Davis's
clothing. Davis  told the police that "it was [his] boy that got shot"
and that he  needed a gun for protection because the neighborhood was
so  dangerous. A grand jury indicted Davis for unlawful posses- sion
of a firearm by a felon. See 18 U.S.C. s 922(g)(1).


Arguing that the police lacked a reasonable suspicion for  the
stop-and-frisk, see Terry v. Ohio, 392 U.S. 1, 30 (1968),  Davis moved
to suppress both the shotgun and his statements  to the police. In
response, the government pointed to Davis's  similarity to the
lookouts and to the midnight 911 caller's  description of the man
fleeing the crime scene. Although at a  status conference the
government apparently promised (the  record does not contain the
transcript) to search for the tape  of the midnight 911 call, it
failed to produce it at the  evidentiary hearing on the suppression
motion. Davis's coun- sel, however, never mentioned the tape's absence
at the  hearing, focusing both his cross-examination of Taliaferro
(the  only witness) and his closing argument on ways in which  Davis
failed to match the descriptions of the shooting suspect.  Finding
Taliaferro's suspicion of Davis reasonable, the district  court denied
the suppression motion. Davis pled guilty,  reserving his right to
appeal. We review the district court's  findings of fact for clear
error and its conclusions of law de  novo. See Ornelas v. United


II


Investigative stops do not run afoul of the Fourth Amend- ment if they
are based on "reasonable, articulable suspicion"  of criminal conduct.
Wardlow, 528 U.S. at 123. Requiring  considerably less than probable
cause, Terry stops are consti- tutional if the police can show a
"minimal level of objective  justification." INS v. Delgado, 466 U.S.
210, 217 (1984).


Davis argues that in defending the constitutionality of the  stop, the
government cannot rely on the information supplied  by the midnight
911 caller and relayed by the dispatcher to  the arresting officer
because the government failed to pro- duce the tape of the call. In
Whiteley v. Warden, Wyo. State  Penitentiary, 401 U.S. 560, 568
(1971), the Supreme Court  held unlawful an arrest based on a radio
bulletin where the  government failed to prove that the bulletin was
itself based  on probable cause. Later, in United States v. Hensley,
469  U.S. 221 (1985), the Court described Whiteley as standing for 
the proposition that "when evidence is uncovered during a  search
incident to an arrest in reliance merely on a flyer or  bulletin, its
admissibility turns on whether the officers who  issued the flyer
possessed probable cause to make the ar- rest," id. at 231; see also
Whiteley, 401 U.S. at 568 ("An  otherwise illegal arrest cannot be
insulated from challenge by  the decision of the instigating officer
to rely on fellow officers  to make the arrest."). Hensley also
extended Whiteley to  reasonable suspicion cases. 469 U.S. at 232.
Following  Hensley, in United States v. Cutchin we overturned a
district  court's exclusion of a 911 tape, saying: "What the tape
itself  revealed went directly to the issue whether the dispatcher 
had a reasonable, articulable suspicion, without which [the 
officer's] stop of [the suspect's] car might not have been  legal."


Relying on these cases, Davis urges us to find that without  the 911
tape, the dispatcher's report of the call cannot provide  the basis
for reasonable suspicion. According to the govern- ment, Davis waived
this argument because he failed to make  it in the district court. See
Fed. R. Crim. P. 12(f) ("Failure by  a party to raise defenses or
objections ... at the time set by  the court ... shall constitute
waiver thereof."). The govern- ment's point is well taken. Not once in
the district court did  defense counsel cite Whiteley, Hensley, or
Cutchin, much less  the propositions for which they stand, nor did he
complain  about the government's failure to produce the 911 tape at
the  suppression hearing. Counsel focused his entire argument on 
trying to persuade the district court that Davis did not match  the
suspect's description. Contrary to Davis's argument, we 


do not consider the filing of a general suppression motion  sufficient
to preserve the 911 tape objection for appeal just  because the
government bears the burden of proving reason- able suspicion. Neither
defense counsel's motion nor his  argument could have given the
government notice of the  importance counsel apparently ascribed to


Given the waiver, we will consider the information provided  by the 911
caller in determining whether the police had a  reasonable suspicion
sufficient to justify the stop. For start- ers, we agree with Davis
that the call, by itself, provides  insufficient justification. In
Florida v. J.L., 120 S.Ct. 1375  (2000), the Supreme Court considered
the validity of a Terry  stop based on an anonymous tip that a young
man standing  on a street corner possessed an illegal weapon. Because 
nothing corroborated the anonymous caller's accusation of  criminal
activity, the Court held the tip insufficiently reliable  to justify
the stop. Id. at 1380. In this case, the midnight  911 caller made no
accusation of criminal activity, reliable or  otherwise, reporting
only that a subject dressed all in black  appeared to be running from
2308 North Capitol. In view of  J.L., the information supplied by the
call falls far short of  what Terry requires.


The 911 call, however, was not Taliaferro's only source of 
information, and we have made it clear that "in judging the 
reasonableness of the actions of the officer the circumstances  before
him are not to be dissected and viewed singly; rather  they must be
considered as a whole." United States v. Hall,  525 F.2d 857, 859
(D.C. Cir. 1976). Taliaferro knew that a  shooting had just occurred
at 2308 North Capitol and that  witnesses had described the shooter as
a black male dressed  all in black heading north from the crime scene.
He also  knew that a man matching the description of the suspect in 
two respects--his clothing and his approximate location (just  north
of 2308 North Capitol)--had been seen fleeing the  crime scene. So
when Taliaferro saw Davis, he saw a man  heading away from the nearby
crime scene who not only  matched the 911 caller's description
(according to the district  court, Davis's dark blue coveralls likely
appeared black in the  dark) but also matched the police lookouts in


respect: his race. This case is thus quite like United States  v.
Smart, 98 F.3d 1379, 1384 (D.C. Cir. 1997), where we found  sufficient
justification for a Terry stop based on the criminal  suspect's sex,
race, clothing, and location. Taliaferro had  precisely the same
information about the shooting suspect in  this case, albeit
aggregated from two different sources. To  be sure, Davis was with a
companion, a fact mentioned in  none of the descriptions; he was not
riding a bicycle as the  lookouts said he might "possibly" be; nor was
a "grey, small  weapon" visible. Setting aside these minor
inconsistencies  involving mutable characteristics, however, Davis
matched  the lookouts and the 911 caller's description sufficiently to
 supply the reasonable suspicion required by Terry.


Davis next argues that Taliaferro's focus on him was unrea- sonable
because the dispatcher provided information about  other suspects: a
man with blood on his clothes, another in  khaki shorts, and several
individuals in a four-door sedan.  We disagree. Terry requires only
that the police have a  reasonable suspicion of the person actually
stopped. In  assessing this suspicion, the fact that police have
greater  reason to suspect a different person is of course relevant. 
But in this case, the best information the police had--eyewit- ness
accounts of the shooter and a man seen fleeing the  scene--pointed to


While we recognize the need to guard against authorizing  broad police
sweeps of an undeniably high crime area, see  Brown v. Texas, 443 U.S.
47, 52 (1979) ("The fact that  appellant was in a neighborhood
frequented by [criminals],  standing alone, is not a basis for
concluding that appellant  himself was engaged in criminal conduct."),
we need not  address that concern here--the police found Davis within
a  block of a shooting that occurred just thirty minutes earlier  and
Davis matched the primary suspect in several critical  respects.
Because Davis makes no independent challenge to  the frisk, the
district court's denial of the motion to suppress  is affirmed.


So ordered.