United States v. Willis , 533 F. App'x 849 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS October 4, 2013
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 12-5166
v.
(D.C. No. 4:12-CR-00043-CVE-1)
(N.D. Okla.)
JERMICO DAJUAN WILLIS, a/k/a
Jermico D. Willis,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, Chief Judge, KELLY, and GORSUCH, Circuit Judges.
Tulsa police officers Barry Hamm and Tracy Zeller were out serving a
warrant when they got a call from dispatch reporting a “disturbance with a gun.”
The officers were nearby — only a few minutes away from the spot of the
disturbance — and they headed straight there. On arriving, they searched the
area, quickly found a man fitting the description they received, and they stopped
*
After examining the briefs and appellate record, this panel has
determined unanimously to grant the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument. This order and
judgment is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
him for a brief investigative detention. Almost immediately the officers learned
that the man they had stopped — Jermico Willis — indeed had a gun and a felony
record, too, so they arrested him for being a felon unlawfully in possession of a
firearm. Once in court, Mr. Willis sought to suppress the evidence found during
the stop, arguing that the officers initiated the stop in violation of the Fourth
Amendment. When the district court demurred, Mr. Willis brought this appeal.
The Fourth Amendment requires officers to possess particularized and
objective grounds for detaining anyone, even briefly to ask questions. At the
same time, when a detention is just that — brief and investigative, rather than a
full blown arrest — officers don’t need probable cause or even a preponderance
of the evidence to support their stop. See United States v. Esquivel-Rios, 725
F.3d 1231, 1236 (10th Cir. 2013). In this case, Mr. Willis argues that the stop
should have never taken place — that the officers lacked any particularized and
objective basis to detain him even for a moment.
We cannot agree. The caller left her name and address. She described the
man with the gun outside her house as black and wearing a grey shirt. No one
disputes her reliability and, though her description was pretty generic, the
responding officers soon had more to go on. They arrived at the house within
minutes, noticed no one standing outside, and saw only two roads leading away
from the home: one headed North, the other East. Having traveled from the
North, and having seen no one matching the caller’s description, the officers
-2-
turned East. Within a block they saw two men walking away from the direction
of the home. One of them was Mr. Willis. He is a black man and he was wearing
a grey shirt. The district court additionally found that the stop took place in a
residential neighborhood, an area that isn’t highly trafficked by pedestrians. Mr.
Willis replies that there’s nothing in the record to support the district court’s
finding about the neighborhood’s quiet character — and, as far as that goes, he’s
right. But district courts may take judicial notice of facts “generally known
within the trial court’s territorial jurisdiction.” Fed. R. Evid. 201(b). Neither
does Mr. Willis dispute the accuracy of the district court’s description of the area.
Taking all this together, the facts here are enough to support reasonable
suspicion. Not only do we have a description (albeit admittedly generic) from a
caller whose reliability isn’t challenged, we have the possibility of easy
pedestrian travel in only one direction away from the scene, the fact the officers
quickly encountered someone meeting the caller’s description along that line of
travel, the fact they responded so quickly that it seemed reasonable to think the
suspect would still be nearby, and the fact that not many people could be expected
walking in the area at the time. As a whole, this is enough.
In Terry v. Ohio, perhaps the paradigmatic investigative detention case,
Officer McFadden only saw men hovering around a store window, gathering in
small groups, walking away, and rejoining a couple blocks away. 392 U.S. 1, 23
(1968). Equivocal though the situation surely was, the Court concluded that “[i]t
-3-
would have been poor police work indeed for an officer of 30 years’ experience in
the detection of thievery from stores in this same neighborhood to have failed to
investigate this behavior further.” Id. Much the same might be said here: it
would seem odd to expect law enforcement not to follow up a citizen’s complaint
as the officers did in this case.
Mr. Willis says our decision in United States v. Jones, 998 F.2d 883 (10th
Cir. 1993), compels a different conclusion, but we cannot see how. In Jones,
officers received a tip about a disturbance by two men, one with a gun, driving a
black Mercedes. We found a Fourth Amendment violation because a reasonable
officer should’ve known the car they stopped wasn’t the one they were looking
for. The car they stopped had a child in it (something the tipster hadn’t reported),
the car wasn’t headed away from the disturbance, the car was on a street that
could be reached from the scene of the disturbance only by a circuitous route, and
the car the officers saw independently stopped in front of a grocery store — and
few would venture that a stop for groceries is exactly consistent with a quick
getaway. Id. at 885. We have no facts like these to undermine the officers’ cause
in this case. More nearly the opposite. In our case, all of the facts — from the
description of the suspect to the short time elapsed between the citizen’s
complaint and the officers’ investigative detention, from the limited number of
escape routes from the area of the disturbance to the nature of the neighborhood
itself — they all point in one direction, one consistent with reasonable suspicion.
-4-
The other authorities Mr. Willis seeks to rely on — United States v. Fisher,
597 F.3d 1156 (10th Cir. 2010) and United States v. Sanchez, 519 F.3d 1208 (10th
Cir. 2008) — prove even less helpful to his cause. Both upheld investigative
detentions based on pretty generic descriptions of suspects. And both did so
because other facts — including close proximity in time and space between a
citizen’s tip and the officers’ stop of a suspect — tended to confirm that the
officers had the right man. Very much as here.
The district court’s denial of Mr. Willis’s motion to suppress is affirmed.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
-5-