United States v. Mitchell

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4481
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARTHA ALICE MITCHELL,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia at Charleston. John T. Copenhaver,
Jr., District Judge. (2:08-cr-00233-1)
Argued: March 26, 2010 Decided: July 21, 2010
Before TRAXLER, Chief Judge, and GREGORY and AGEE, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant. Blaire L.
Malkin, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee. ON BRIEF: Mary Lou Newberger, Federal
Public Defender, Christian M. Capece, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston,
West Virginia, for Appellant. Charles T. Miller, United States
Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Martha Alice Mitchell (“Mitchell”) pled guilty to one count
of being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1) (2006), and one count of possession of a
sawed-off shotgun, in violation of 26 U.S.C. § 5861(d) (2006).
Mitchell’s plea was conditional on her right to appeal the
district court’s order denying her motion to suppress the
evidence seized by police at the time of her arrest. For the
following reasons, we affirm the district court’s judgment.
I.
At the suppression hearing, former police officer Carl
Hammons (“Hammons”) testified that he received a radio dispatch
on November 3, 2004, informing him that a woman inside the West
Side Café (“the café”) had called 911 about a disturbance. The
caller reported to the 911 operator that a black female had
jumped in her car as though she were going to steal it, had a
sawed-off shotgun wrapped in a sweater, and that she was
threatening to kill her. When the call was initiated, the
caller stated that the suspect was currently sitting in the
caller’s car, a burgundy Camaro, outside of the café. As the
caller remained on the line, she informed the operator that the
suspect was coming inside the café.
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Further, the caller gave her name, Amy Stairn (“Stairn”),
to the 911 operator. However, the dispatcher did not relay the
caller’s name to Hammons, as this “would be unusual on the
initial call.” (J.A. 58). Stairn “remained on the telephone
line throughout the events.” (J.A. 111). The 911 operator had
the phone number of the open line with Stairn, which was an
unblocked landline.
Hammons and several other officers responded to the
dispatch, arriving at the café eight minutes after the 911
operator received the call from Stairn. As he arrived on the
scene, Hammons testified that he “observed what appeared to be a
maroon Camaro sitting in front of the establishment,” which was
“consistent with the [911] call,” although he “did not observe
anyone sitting in the [car].” (J.A. 50, 51).
Hammons proceeded toward the entrance of the café and
“observed [the inside of the café] for a short period of time.”
(J.A. 50). Two white males exited the café and Hammons spoke
briefly with each of the men, asking “if there was a disturbance
inside the establishment,” to which both men responded in the
negative. (J.A. 50).
While remaining outside the café but looking in through a
window, Hammons observed a black female, later identified as
Mitchell. Although Hammons acknowledged that he was not able to
see the entirety of the café’s interior from his vantage point,
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Mitchell was the only black female visible. Moments later,
Mitchell exited the café. Hammons and the other officers drew
their weapons and attempted to question her. Mitchell refused
to stop, and she also refused “several commands” for her to
“remove her hands from her pockets.” (J.A. 51).
After Mitchell disobeyed his commands, Hammons forcibly
placed her hands against the wall of the café and conducted a
pat down search. Another officer seized Mitchell’s backpack in
the interest of “officer safety,” and because it was “the most
logical place for her to conceal a shotgun.” (J.A. 53). That
officer conducted a pat down of the backpack, felt a shotgun
inside, and removed it from the backpack.
Based on the suppression hearing testimony, the district
court found:
Those circumstances, coupled with the officers’
suspicion that she was the subject of the call which
was enhanced by both her nervous demeanor and her
refusal to remove her hands from her pockets when she
was directed to do so for officer safety, caused the
officers at that time to draw their weapons. At that
point the officers were entitled for officer safety as
well to pat her down, including the backpack she was
wearing. In the course of the pat-down by Officer
Bass-Straughter, the officer felt an object consistent
with that of a sawed-off shotgun, which she then
pulled from the backpack. Shortly thereafter, a
single shell would also be found in the backpack.
(J.A. 110-11).
The district court also found that the 911 call was
reliable even though Hammons did not know the caller’s name
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because “[t]he caller identified herself by name and remained on
the telephone line throughout . . . and indeed remained in the
[café] throughout that period from which her call was made.”
(J.A. 111). Thus, the “statements to the 911 operator were . .
. readily verifiable and attested to her credibility in her
assertion that the black female was in possession of a sawed-off
shotgun and had threatened the caller’s life.” (J.A. 111).
The district court concluded that:
[u]nder all these circumstances, the officers had an
articulable reasonable suspicion that the black female
who exited the café, and who was not only nervous in
demeanor, but refusing to remove her hands from her
pockets as directed, was the individual about whom the
caller had spoken to the 911 operator and was in
possession in her backpack of the sawed-off shotgun at
issue in this case.
(J.A. 111-12). The district court further emphasized that, “for
the safety of both the officers and the patrons at the café, as
well as any passersby in the area of the café, it would have
been imprudent for the officers to have acted other than they
did.” (J.A. 112).
Mitchell was sentenced to twenty-seven months in prison.
She timely filed an appeal from the judgment of the district
court and this Court has jurisdiction pursuant to 28 U.S.C.
§ 1291 (2006).
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II.
On appeal, Mitchell challenges the district court’s denial
of her motion to suppress. She argues first that the district
court “erred by concluding that the telephone call that
instigated the stop was not actually an anonymous tip.”
(Appellant’s Br. 8). Because Stairn’s name was not given to the
police by the 911 dispatcher and, therefore, the responding
officers considered the call to be from “an unknown location by
an unknown caller,” (Appellant’s Br. 10), Mitchell contends that
the call should have been considered an anonymous tip. She
asserts that, without sufficient corroboration, the anonymous
tip does not properly serve as a basis for reasonable suspicion
to support the stop. Mitchell also alleges that the district
court made a factual error when it relied on Hammons’ testimony
rather than the police reports prepared soon after Mitchell was
arrested.
This Court reviews the district court’s legal conclusions
de novo, United States v. Reaves, 512 F.3d 123, 126 (4th Cir.
2008), and its factual findings for clear error, giving “due
weight to inferences drawn from those facts by resident judges
and local law enforcement officers.” Ornelas v. United States,
517 U.S. 690, 699 (1996). “A factual finding is clearly
erroneous when we are left with the definite and firm conviction
that a mistake has been committed.” United States v. Stevenson,
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396 F.3d 538, 542 (4th Cir. 2005) (internal quotations omitted).
In reviewing the denial of a motion to suppress, this Court
construes “the facts in the light most favorable to the
government.” United States v. Griffin, 589 F.3d 148, 150 (4th
Cir. 2009).
Although Fourth Amendment “protections extend to brief
investigatory stops of persons or vehicles that fall short of
traditional arrest[,] . . . the balance between the public
interest and the individual’s right to personal security tilts
in favor of a standard less than probable cause in such cases .
. . .” United States v. Arvizu, 534 U.S. 266, 273 (2002)
(internal quotation omitted). Instead, pursuant to Terry v.
Ohio, 392 U.S. 1 (1968), a police officer may “conduct a brief,
investigatory stop when the officer has a reasonable,
articulable suspicion that criminal activity is afoot.” Illinois
v. Wardlow, 528 U.S. 119, 123 (2000). In order to satisfy this
standard, the officer “must be able to articulate something more
than [a] hunch,” and must have “some minimal level of objective
justification for making the stop.” United States v. Sokolow,
490 U.S. 1, 7 (1989) (internal quotation omitted).
In assessing whether an officer had a reasonable,
articulable suspicion to support a stop, the reviewing court
“must look at the ‘totality of the circumstances’ of each case
to see whether the detaining officer has a ‘particularized and
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objective basis’ for suspecting legal wrongdoing.” Arvizu, 534
U.S. at 273 (quoting United States v. Cortez, 449 U.S. 411, 417-
18 (1981)). The reviewing court should also “give due weight to
common sense judgments reached by officers in light of their
experience and training.” United States v. Perkins, 363 F.3d
317, 321 (4th Cir. 2004).
“In cases where an informant’s tip supplies part of the
basis for reasonable suspicion, we must ensure that the tip
possesses sufficient indicia of reliability.” Id. at 323.
“Where the informant is known . . ., an officer can judge the
credibility of the tipster firsthand and thus confirm whether
the tip is sufficiently reliable to support reasonable
suspicion.” Id. However, “[w]here a tip is anonymous, it must
be accompanied by some corroborative elements that establish the
tip’s reliability.” Id.A.
To resolve this appeal, we need not determine whether the
tip in this case was either categorically anonymous or non-
anonymous, as a matter of law, since the view that “tips fall
into two stark categories that are wholly anonymous or wholly
non-anonymous is inconsistent both with reality and with Fourth
Amendment law. For in reality, tips fall somewhere on a
spectrum of reliability . . . .” Id. at 324. Instead we find
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that, considering the totality of the circumstances, reasonable
suspicion existed to search Mitchell as the tip was “accompanied
by some corroborative elements that establish[ed] the tip’s
reliability,” Id. at 323, and was based on the officers’
personal observations at the scene.
Although this Court has declined to categorically answer
the question of “whether a 911 call is anonymous when only the
911 operator knows the caller’s identity,” United States v.
Elston, 479 F.3d 314, 318 n.2 (4th Cir. 2007), this Court’s
decisions in United States v. Quarles, 330 F.3d 650 (4th Cir.
2003), and Elston are instructive. In Quarles, an informant
called 911 with information about possible illegal activity.
Although he remained on the line, the caller did not identify
himself by name to the 911 operator or to the investigating
officers until the end of the call, after the Terry stop in that
case had been conducted. Id. at 652. The Quarles Court held
that the call was not anonymous, because “[r]egardless of when
the caller gave his name, the caller did identify himself to the
dispatcher . . . .” Id. at 655. The caller also “stayed on the
911 line . . ., watching the defendant and providing the
dispatcher with on-going information regarding the defendant and
even witnessing the police approaching the defendant.” Id. The
caller also gave personal information which “provided sufficient
information to the police that he could have been held
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accountable for his statements.” Id. at 656. Thus, the Court
found that “there was sufficient information given to accurately
identify the caller,” which “lends support to his credibility
and reliability.” Id. at 655.
This Court’s subsequent decision in Elston cited and
expanded upon the factors in Quarles. The Elston Court noted
that “factors that can indicate the reliability of anonymous
information” include whether the call “discloses the basis of
the informant’s knowledge,” whether “the informant indicates
that her report is based on her contemporaneous personal
observation of the call’s subject,” and whether the informant
“disclos[es] information that would enable authorities to
identify her if they deem it necessary to do so.” Elston, 479
F.3d at 318.
In this case, Stairn’s call satisfies the factors put forth
in Quarles and Elston. First, while the caller in Quarles only
gave his name to the 911 operator after the stop had been made,
Stairn gave her name to the 911 operator at the beginning of the
call. Furthermore, Stairn “provided sufficient information . .
. [so] that [she] could have been held accountable for [her]
statements;” namely, she gave her name, information about “the
color and make of [her] own car,” and her physical location to
the 911 operator. Quarles, 330 F.3d at 656. Stairn also “stayed
on the 911 line . . ., watching the defendant and providing the
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dispatcher with on-going information regarding the defendant.”
Id. at 655. Finally, Stairn was calling from an unblocked,
identifiable landline, instead of a mobile cell phone as in
Quarles. Therefore, “the caller in this instance provided
enough information to ‘test [her] knowledge or credibility.’”
Id. (quoting Florida v. J.L., 529 U.S. 266, 271 (2000)).
B.
Importantly, unlike in Florida v. J.L., 529 U.S. 266(2000), the officers in the case at hand also had substantial
corroboration of the information provided in the tip. In J.L.,
officers stopped a man based solely on an anonymous caller’s
description that “a young black male standing at a particular
bus stop and wearing a plaid shirt was carrying a gun.” 529 U.S.
at 266. The officers stopped a man matching that description,
even though they “had no reason to suspect [him] of illegal
conduct,” as they “did not see a firearm or observe any unusual
movements.” Id. The J.L. Court held that the stop violated the
defendant’s rights because “the officers’ suspicion that J.L.
was carrying a weapon arose not from any observations of their
own but solely from a call made from an unknown location by an
unknown caller.” Id. at 270 (emphasis added).
The case at bar is clearly distinguishable from J.L.
First, this is not a case where the tip call to police is “from
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an unknown location by an unknown caller.” Id. at 270. Stairn
was calling from a known location with a fixed telephone number.
She “revealed her general location and her basis of knowledge,
as the nature and substance of her tip made clear that she was
in close proximity to the [criminal activity] and that she was
observing [it] while she was on the phone.” Perkins, 363 F.3d at
324. Also unlike in J.L., Stairn “explained how [s]he knew
about the [criminal activity] [and] supplied a[] basis for
believing [s]he had inside information about [Mitchell].” J.L.,
529 U.S. at 271. Therefore, “[t]he tipster’s basis of
knowledge—a contemporaneous viewing of the suspicious activity—
enhanced the tip’s reliability.” Perkins, 363 F.3d at 322.
Hammons also properly relied on his own personal
observations of the scene and his knowledge and experiences as a
police officer. The café was in a high-crime area. See United
States v. Mayo, 361 F.3d 802, 805 (4th Cir. 2004) (citing
“whether the stop occurred in a high-crime area” as a factor
“traditionally relied upon by police officers”). The burgundy
Camaro outside of the café corroborated information given by
Stairn. Although Hammons was not able to see the entirety of
the inside of the café, Mitchell was the only person he saw in
the café who matched the description given by Stairn. Mitchell
was also wearing a backpack, which could have contained a sawed-
off shotgun.
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Finally, we note that it is “[o]f additional significance”
that Stairn “was reporting an imminent threat to public safety—
an individual who had expressly threatened to shoot someone in
the very near future. . . . The imminent threat faced by these
officers carries substantial weight in assessing the
reasonableness of their actions . . . .” Elston, 479 F.3d at
319.
Thus, even if the tip were anonymous, there existed
“[]sufficient indicia of reliability to support the tip,”
Perkins, 363 F.3d at 324, and therefore the stop was “authorized
by a reasonable suspicion that criminal activity [was] afoot.”
Mayo, 361 F.3d at 807. Consequently, Hammons and the other
officers on the scene were entitled to protect themselves during
the stop “by conducting a search for weapons,” both on
Mitchell’s person and inside her backpack. United States v.
Burton, 228 F.3d 524, 528 (4th Cir. 2000).
C.
Nor did the district court clearly err when it relied on
the testimony given by Hammons during the suppression hearing.
Although there were some discrepancies between Hammons’
testimony and the written report, as well as additional details
given, this Court “defer[s] to the district court’s credibility
findings, as ‘it is the role of the district court to observe
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witnesses and weigh their credibility during a pretrial motion
to suppress.’” United States v. Griffin, 589 F.3d 148, 150-51
n.1 (4th Cir. 2009) (quoting United States v. Abu Ali, 528 F.3d
210, 232 (4th Cir. 2008)). Consequently, because “the district
court’s account of the evidence is plausible in light of the
record viewed in its entirety,” Anderson v. City of Bessemer
City, 470 U.S. 564, 573-74 (1985), we defer to the district
court’s credibility determination.
III.
For the foregoing reasons, we hold that the district court
did not err in denying Mitchell’s motion to suppress.
Accordingly, the judgment of the district court is
AFFIRMED.
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