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


UNITED STATES

v.

THOMPSON, TERRELL L.


99-3120a

D.C. Cir. 2000


*	*	*


Ginsburg, Circuit Judge: The question before the court is  whether the
district court properly admitted evidence police  obtained from a
search of the appellant. The district court  held that the police had
reasonable suspicion to search the  appellant because they had
received an anonymous tip that he  was carrying a gun -- the
possession of which is unlawful in  the District of Columbia -- and
because the tip was corrobo- rated to the extent of certain details,
which were in them- selves innocent. The Supreme Court subsequently
held that  a search based upon an anonymous tip, only innocent details
 of which have been corroborated, is not reasonable and the  evidence
it produces is not admissible. Florida v. J.L., 529  U.S. 266, 120 S.
Ct. 1375, 1379-80 (2000).


We nonetheless affirm the judgment in this case because  uncontradicted
evidence in the record shows that the tip at  issue bore indicia of
reliability not present in J.L. and because  the defendant's conduct
itself gave the police reasonable  cause to suspect that he was
engaged in unlawful activity.  We remand the case to the district
court for resentencing,  however, at the request of both parties.


I. Background


The facts surrounding the search of Terrell Thompson were  established
at an evidentiary hearing and are not in dispute.  At around 3:20 a.m.
Officers Holloway and Pope of the  Metropolitan Police Department had
just completed a traffic  stop near the intersection of "I" and Half
Streets, S.E.  Officer Holloway was in uniform, standing near his
marked  cruiser with Officer Pope when a middle-aged, Black man 
traveling southbound on Half Street drove up to them.


The motorist told the officers that he "just saw" a man  carrying a gun
get out of a sport-utility vehicle in the parking  lot of a Wendy's
restaurant some 100 yards from where the  officers stood. The
informant, who was anxious and agitated,  described the suspect as a
young Black man wearing dark  pants and a bright orange shirt. The
officers accepted what  he said as likely true and neither requested
nor acquired  specific information identifying him.


Officers Holloway and Pope then drove in their separate  cars to the
Wendy's, which was closed. As the two officers  entered the parking
lot from "K" Street, they saw a dark- colored sport-utility vehicle
leaving the lot. Because the  officers had been told the suspect had
exited the vehicle,  however, they did not stop it. Officer Holloway
then saw a  Black man, who turned out to be Thompson, wearing a bright
 orange shirt and standing by himself at the far end of the  parking
lot with his back against a fence. There was no one  else in the
parking lot. Thompson was looking around the  edge of the fence toward
a nightclub called the Mirage. He  was, the district court found,
"sort of peeking around as if he  was trying to keep his position


Fearing, based upon the tip, that Thompson was armed,  Officer Holloway
exited his cruiser with his weapon drawn  and approached Thompson.
Thompson spotted Officer Hollo- way over his left shoulder when
Holloway was within five to  seven feet of him. Thompson stepped away
from the fence  and, without trying to flee, took five steps toward
"I" Street.  Holloway instructed him to raise his hands in the air and
to  stop, and Thompson complied. Thompson at that point said 
something to the effect of "you got me" and indicated that he  would
not put up a fight. At Holloway's instruction he  dropped to his
knees. As Holloway assisted him to the  ground, the officer felt a
weapon toward the front of Thomp- son's person. At that point Officer
Pope arrived and helped  to handcuff Thompson. The two officers then
rolled Thomp- son over and retrieved a nine-millimeter semiautomatic
pistol,  loaded and cocked, that was sticking out of his waistband.


A federal grand jury indicted Thompson for unlawful pos- session of a
firearm by a convicted felon. The district court  denied Thompson's
motion to suppress the gun and certain  statements he made to the
police, ruling that the anonymous  tip together with certain
corroborating details, such as  Thompson's attire, race, sex, and
location, gave the police  reasonable ground to suspect that Thompson
had a gun.  Thompson then entered a conditional plea of guilty,
reserving  his right to appeal the court's denial of his motion to
sup- press. The court sentenced Thompson to 37 months in  prison,
reflecting a two-point enhancement under the United  States Sentencing
Guidelines for possession of a stolen weap- on.


Thompson initially filed a notice of appeal challenging only  his
sentence, but he has since filed an unopposed motion to  add the
suppression issue in light of the decision of the  Supreme Court in
Florida v. J.L., 120 S. Ct. 1375.


II. Analysis


Under the Fourth Amendment to the Constitution of the  United States,
the police may not stop and search a person  unless they have reason
to suspect he is engaged in wrongdo- ing. See Terry v. Ohio, 392 U.S.
1, 27-28 (1968) (police may  stop and frisk persons walking up and
down street and  peering into window of store, apparently casing it
for rob- bery). As applied to the facts of this case, the fourth 
amendment requires that Officer Holloway have had a "rea- sonable fear
for his own or others' safety" before frisking  Thompson. Id. at 30.


Specifically, "[t]he officer ... must be able to articulate  something
more than an 'inchoate and unparticularized suspi- cion or hunch.' "
United States v. Sokolow, 490 U.S. 1, 7  (1989) (quoting Terry, 392
U.S. at 27). Whether that stan- dard is met must be determined " 'from
the standpoint of an  objectively reasonable police officer,' "
without reference to  "the actual motivations of the individual
officers involved."  United States v. Hill, 131 F.3d 1056, 1059 (D.C.
Cir. 1997)  (quoting Ornelas v. United States, 517 U.S. 690, 696


In this case the district court determined that Officer  Holloway had
reasonable suspicion to search Thompson based  upon the tip he got
from the motorist and the corroboration  of certain of the details of
that tip:


[A]n anonymous tip from an anonymous citizen can be  the basis for a
Terry stop provided that there is some  corroboration to provide the
police officers with legiti- mate reasons to believe that the tip was
reliable. And  the cases have held that the corroboration can be that 
when they go to the scene they're confronted with what  the tipster
told them he saw. And so the corroboration  in this case ... is
exactly what the Government says it is.  The citizen tipster said
black male, bright orange shirt,  blue jeans or dark pants. And he's
in a parking lot at  Wendy's .... And he's got a gun .... They [then] 
found what they were told they were going to find.


The district court's reasoning was based solidly upon the  holdings of
this court in United States v. Clipper, 973 F.2d  944, 947-51 (1992),
and United States v. McClinnhan, 660  F.2d 500, 502-03 (1981), in
which we deemed the same type of  combination sufficient to support a
stop and frisk.


The decision of the Supreme Court in Florida v. J.L. casts  new light
upon this recurring situation. In that case an  anonymous caller had
told the Miami-Dade police that a  young Black man, standing at a
particular bus stop and  wearing a plaid shirt, had a gun. When the
police went to  investigate they saw three Black males there, one of
whom,  15 year-old J.L., was wearing a plaid shirt. Upon frisking 
him, the police discovered a gun. See 120 S. Ct. at 1377.


The Supreme Court, upon those facts, held that the police  did not have
reason to believe that the suspect had an illegal  firearm nor, hence,
reason to stop and frisk him. Id. at 1380.  The police cannot rely
upon "the bare report of an unknown,  unaccountable informant who
neither explained how he knew  about the gun nor supplied any basis
for believing he had  inside information about [the suspect]." Id. at
1379. The  Court dismissed the argument that "the tip was reliable 


because its description of the suspect's visual attributes  proved
accurate: There really was a young black male wear- ing a plaid shirt
at the bus stop." The Court explained that  "[s]uch a tip ... does not
show that the tipster has knowledge  of concealed criminal activity.
The reasonable suspicion here  at issue requires that a tip be
reliable in its assertion of  illegality, not just in its tendency to
identify a determinate  person." Id. Finally, the Court rejected any
suggestion that  the putative possession of a firearm, and the danger
that  poses, might alter the inquiry into reasonable suspicion. Id. 


Thus, the Supreme Court has now rejected the district  court's
reasoning in admitting the evidence against Thomp- son. Ordinarily we
would remand for further proceedings a  case in which the district
court did not "ask[ ] the right legal  questions in making its
ruling," United States v. Williams,  951 F.2d 1287, 1291 (D.C. Cir.
1991); to do so here is  unnecessary, however, because uncontested
facts in the rec- ord still warrant our affirming the ruling. See
United States  v. Caballero, 936 F.2d 1292, 1297 (D.C. Cir. 1991). The
tip in  this case bears indicia of reliability beyond those of the 
anonymous tip in J.L.; and the police themselves observed  Thompson
engaging in suspicious conduct.


First, the tipster here informed the police in person, mak- ing his
report inherently more trustworthy than that of the  unidentified
caller in J.L. The informant stated that he "just  saw" Thompson,
indicating that his knowledge was based  upon firsthand observation,
see Illinois v. Gates, 462 U.S. 213,  234 (1983); the recency and the
proximity of his claimed  observation further suggested that it would
prove accurate,  see Adams v. Williams, 407 U.S. 143, 147 (1972).


In addition, the informant in this case was more accounta- ble, and
therefore more reliable, than was the anonymous  caller in J.L. The
precise situation here was anticipated by  Justice Kennedy, concurring
in J.L.:


If an informant places his anonymity at risk, a court can  consider
this factor in weighing the reliability of the tip.  An instance where
a tip might be considered anonymous 


but nevertheless sufficiently reliable to justify a propor- tionate
police response may be when an unnamed person  driving a car the
police officer later describes stops for a  moment and, face to face,
informs the police that criminal  activity is occurring.


120 S. Ct. at 1381. The informant in this case subjected  himself to
ready identification by the police when he ap- proached them in his
car; the police need only have asked for  his identification or simply
noted the license plate on his car.  Cf. United States v. Valentine,
___ F.3d ___, 2000 WL  1648972 *1, *3 (3d Cir. 2000) (face-to-face tip
supports reason- able suspicion, notwithstanding informant's refusal
to identify  himself, in light of informant's accountability and
claimed  immediate, firsthand basis for knowledge). Had the informa-
tion he provided proved false, he would have been subject to 
potential criminal prosecution. See D.C. Code Ann. s 4-151 
(misdemeanor to "make or cause to be made to the Metropoli- tan Police
... a false or fictitious report of the commission of  any criminal


Thompson argues that the ability of the police to identify  an
otherwise anonymous telephone caller and the prospect of  a prompt
police response make the anonymous caller in J.L.  no less accountable
than the face-to-face informant in this  case. For this he relies upon
Justice Kennedy's observation  in his separate opinion, that as their
technology improves,  "the ability of the police to trace the identity
of anonymous  telephone informants may be a factor which lends
reliability  to what, years earlier, might have been considered
unreliable  anonymous tips." 120 S. Ct. at 1381. Justice Kennedy's 
point, however, is not that face-to-face tips lack the requisite 
reliability but that even anonymous calls might one day have  it.


Second, what the police themselves observed of Thompson's  conduct was
clearly suspicious. Although the district court  erroneously relied
upon innocent corroborating details in  upholding the search, it also
found, based upon undisputed  police testimony, that the officers
observed Thompson con- cealing himself behind the fence and peering
out toward the 


street. Moreover, he was doing so in the parking lot of a  closed
restaurant at three o'clock in the morning.* Review- ing these facts
objectively, that is, from the perspective of a  reasonable police
officer, Thompson's apparent effort to con- ceal himself behind the
fence must be regarded as suspicious,  much as was the defendants'
apparent casing of the store in  Terry. See 392 U.S. at 28. Thompson's
furtive conduct was  not merely consistent with the tip that he had a
weapon; it  would have signaled a reasonable police officer that
Thomp- son was positioning himself to use it, perhaps against some-
one exiting the nightclub toward which he was looking. To  ask more of
the police in these circumstances -- to require  them to investigate
still further or to watch from a dis- tance -- might well preclude
them from interceding before  the suspect has accomplished his
violent, perhaps lethal,  purpose. The requirement of reasonable
suspicion does not  necessitate such forbearance.


III. Conclusion


For the foregoing reasons, we affirm Thompson's convic- tion. We also
vacate his sentence, however, because as the  Government concedes, the
evidence does not support the  conclusion that the gun he had was
stolen. This matter is  therefore remanded to the district court for
resentencing  consistent with the opinion.


So ordered.


* We disregard Officer Holloway's observation that Thompson  "looked
like he was going to shoot someone" because Holloway also  testified
that his belief that Thompson had a gun was based solely  upon the
tip, as opposed to Thompson's own conduct.