HERMAN EDWARD LANE, PETITIONER V. UNITED STATES OF AMERICA No. 90-6076 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. A895-A903) is reported at 909 F.2d 895. The memorandum opinion of the district court (Pet. App. B1-B4) is not reported. JURISDICTION The judgment of the court of appeals was entered on July 31, 1990. The petition for a writ of certiorari was filed on October 26, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the police officer who detained petitioner had a reasonable suspicion, sufficient to support an investigative stop, that petitioner was involved in criminal activity. 2. Whether the measures the officer employed in the course of the stop -- which included the display of the officer's weapon and a pat-down search of petitioner's clothing -- exceeded the scope of a lawful investigative stop. STATEMENT Following the denial of his motion to suppress evidence in the United States District Court for the Northern District of Ohio, petitioner entered a conditional guilty plea to a charge of possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. 922(g)(1). He was sentenced to 15 years' imprisonment, to be followed by three years' supervised release. The court of appeals affirmed. Pet. App. A895-A903. 1. Near noon on February 23, 1989, Cuyahoga Metropolitan Housing Authority (CMHA) police officer Nickolas Barry and three other CMHA police officers responded to a dispatcher's request to investigate an anonymous complaint about an unauthorized person and possible drug trafficking at a three-story CMHA apartment building in Cleveland, Ohio. The officers knew that this apartment building had a history of problems with drug trafficking and unauthorized occupants. Pet. App. A896. After arriving at the building, two of the officers entered the front door while Barry and another officer used the rear entrance. The front and rear entrances led to separate stairways which rose to opposite ends of hallways on the second and third floors. As Officer Barry and the officer accompanying him climbed the rear stairway, they met a man descending from the third level to the second level. The officer accompanying Barry detained this individual, and Barry continued up the stairs toward the third floor. As he climbed the stairway, he received a radio message from one of the other officers that a man was running up the front stairs to the third floor in an attempt to leave the building through the rear exit. Pet. App. A896; Tr. 3-4, 14-17. /1/ When Barry arrived at the third floor landing, he saw petitioner running up the front stairway to the third floor. Pet. App. A897; Tr. 4. Barry, who was in uniform and had his gun drawn and pointed at a 45-degree angle toward the ground, ordered petitioner to put his hands up and face the wall. Petitioner put his hands on the wall, but subsequently removed his right hand from the wall and tried to reach into his left coat pocket. Barry placed petitioner's hand back on the wall and told him to leave it there. Petitioner again attempted to reach inside his left coat pocket, and Barry again ordered him to leave his hands on the wall. Barry then conducted a pat-down search of petitioner's outer clothing, and discovered what felt like a weapon. Barry reached inside petitioner's coat and removed a .12 gauge sawed-off shotgun. Pet. App. A897. Following his indictment on various weapons charges, petitioner moved to suppress the gun. The district court denied the motion, concluding that the gun had been discovered in the course of a lawful investigatory stop. Pet. App. B1-B4. 2. The court of appeals affirmed. The court found that petitioner's detention by Officer Barry constituted an investigatory stop, not an arrest, and that the stop was supported by a reasonable and articulable suspicion that petitioner was engaged in criminal activity. Pet. App. A898-A899. The court found it unnecessary to decide whether the informant's tip by itself would have been sufficient to establish reasonable suspicion, concluding that there were "other specific and articulable facts which support a reasonable suspicion of criminal activity." Id. at A898. The court also concluded -- based upon petitioner's "flight from the other officers and his attempts to reach into his coat pocket" -- that Officer Barry's pat-down search was supported by a reasonable belief that petitioner was armed and dangerous. Pet. App. A899-A900. ARGUMENT Petitioner contends that the sawed-off shotgun should have been suppressed on three grounds. He argues that his detention was an arrest unsupported by probable cause; that, even if the detention amounted only to an investigatory stop, it was not supported by reasonable suspicion; and that Officer Barry conducted the pat-down search without any basis for believing that petitioner might be armed and dangerous. The court of appeals correctly rejected these contentions, and they involve only the application of settled legal principles to the facts of this case. 1. Even in the absence of probable cause sufficient to sustain an arrest, a law enforcement officer may stop and briefly detain an individual for investigative purposes if the officer reasonably suspects that the individual is involved in criminal activity. See e.g., Florida v. Rodriquez, 469 U.S. 1, 5 (1984) (per curiam); Florida v. Royer, 460 U.S. 491, 502 (1983) (plurality opinion). In determining whether a stop is supported by reasonable suspicion, the totality of the circumstances must be taken into account. Alabama v. White, 110 S. Ct. 2412, 2416 (1990); United States v. Sokolow, 109 S. Ct. 1581, 1585 (1989); United States v. Cortez, 449 U.S. 411, 417 (1981). In this case, when Officer Barry detained petitioner, he had reasonable grounds for believing that petitioner might be involved in criminal activity. Officer Barry and the other officers were asked to investigate an anonymous report of an unauthorized person and possible drug trafficking in a building with a history of those problems. As he climbed the rear stairway, Officer Barry received a radio report from an officer who had entered through the front entrance that a man was fleeing up the front stairway in an attempt to escape through the rear entrance. /2/ Shortly thereafter, Officer Barry saw petitioner running up the front stairs to the third floor. Petitioner's flight, coupled with other circumstances suggestive of a crime, was more than sufficient to justify a reasonable suspicion that petitioner was involved in criminal activity. See United States v. Sharpe, 470 U.S. 675, 682 & n.3 (1985); id. at 705-706 & n.2 (Brennan, J., dissenting); 3 W. LaFave, Search and Seizure Section 9.3(c), at 448-450 (1987). See also 2 id. Section 3.6(e) (flight as basis for probable cause). The court of appeals was correct in its determination that petitioner's flight "invited pursuit, and along with the background facts, supplied (Officer Barry) with a reasonable basis for conducting an investigative stop" (Pet. App. A899). /3/ 2. When he encountered petitioner fleeing up the front staircase, Officer Barry had his gun drawn and pointed at a 45-degree angle to the ground. He ordered petitioner to put his hands up and face the wall. When petitioner twice tried to reach into his pocket, Officer Barry physically stopped petitioner from doing so and conducted a pat-down search which led to the discovery of a sawed-off shotgun. Officer Barry's actions were reasonably justified by the facts available to him and were thus within the scope of a lawful investigative stop. a. Citing the fact that he reasonably believed that he was not free to leave and that Officer Barry displayed a weapon, petitioner argues (Pet. 8-35) that his stop was an arrest requiring probable cause. Neither circumstance is inconsistent with the lower courts' determination that petitioner's detention was a lawful Terry stop. Any suspect who is detained in an investigative stop pursuant to Terry v. Ohio, 392 U.S. 1 (1968), is not free to leave until the officer has had an opportunity to dispel or verify his suspicion. That is why the detention constitutes a seizure within the meaning of the Fourth Amendment and must be supported by reasonable suspicion. See United States v. Jones, 759 F.2d 633, 637 (8th Cir.), cert. denied, 474 U.S. 837 (1985). The fact that a suspect is not free to leave, therefore, is entirely consistent with a lawful Terry stop. Officers effecting an investigative stop are entitled to employ procedures that are reasonably justified under the circumstances for that purpose. As this Court noted in Terry (392 U.S. at 24): (W)e cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm. Here, Officer Barry was investigating a complaint of possible drug trafficking by an unauthorized person in an apartment building that had a history of unauthorized persons and drug trafficking. When he encountered petitioner, petitioner was fleeing from other officers and Officer Barry was alone. In these circumstances, Officer Barry was fully justified in taking steps to halt and immobilize petitioner. In similar cases, the courts of appeals consistently have recognized that safety measures, including the display of weapons, may be necessary for the protection of officers conducting an investigative stop and that reasonable exhibitions of force do not convert a stop into an arrest. See United States v. Alvarez, 899 F.2d 833, 838-839 (9th Cir. 1990), cert. denied, No. 90-420 (Jan. 7, 1991); United States v. Ocampo, 890 F.2d 1363, 1369 (7th Cir. 1989); United States v. Laing, 889 F.2d 281, 285-286 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 1306 (1990); United States v. Hardnett, 804 F.2d 353, 357 (6th Cir. 1986), cert. denied, 479 U.S. 1097 (1987); United States v. Pantoja-Soto, 768 F.2d 1235, 1236 (11th Cir. 1985); United States v. Jones, 759 F.2d at 637-641; United States V. Manbeck, 744 F.2d 360, 377 (4th Cir. 1984), cert. denied, 469 U.S. 1217 (1985); United States v. Aldridge, 719 F.2d 368, 371-372 (11th Cir. 1983); United States v. Merritt, 695 F.2d 1263, 1272-1274 (10th Cir. 1982), cert. denied, 461 U.S. 916 (1983). b. For similar reasons, there is no merit to petitioner's contention that Officer Barry lacked a sufficient basis for believing, when he conducted the pat-down search, that petitioner was armed and dangerous. Under Terry v. Ohio, 392 U.S. at 27, an officer "need not be absolutely certain that the individual is armed" in order to justify a pat-down for weapons. An officer may conduct such a pat-down if "a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Ibid. As the court of appeals found, given petitioner's flight from uniformed officers and his attempts to reach into his coat pocket after being ordered to keep his hands up, Officer Barry had a reasonable belief that petitioner was armed and dangerous. That belief justified a pat-down search that, in this case, confirmed the officer's suspicions. /4/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General DEBORAH WATSON Attorney JANUARY 1991 /1/ "Tr." refers to the transcript of the September 7, 1989 suppression hearing. /2/ In its opinion, the court of appeals observed (Pet. App. A899): When two uniformed officers entered the front door of the apartment building, they encountered four males in the front hallway, and the four men began running up the stairway leading to the second floor. * * * (T)he four males broke into a run when the uniformed officers entered the apartment building. Petitioner correctly notes (Pet. 36-37) that the only evidence of flight at the suppression hearing was Officer Barry's testimony that he received a radio call from another officer that a suspect had fled up the front stairway to the third floor landing and was attempting to escape through the rear entrance. See Tr. 3-4, 13, 17. But the fact that the evidence at the suppression hearing did not demonstrate that four people had fled from the officers at the front entrance is immaterial to the validity of petitioner's detention. The record establishes that Officer Barry was justified in believing that petitioner had fled, and only his detention is at issue. Further, the court of appeals did not rely on other findings by the district court that were unsupported by the evidence (see Pet. 37), and those findings are not necessary to uphold the validity of the stop. /3/ Petitioner also complains (Pet. 41) that "(t)he court of appeals declined to decide whether, as required by (Alabama v. White, 110 S. Ct. 2412 (1990)), the anonymous tip in this case was sufficiently corroborated (to provide the requisite reasonable suspicion to justify a temporary detention of petitioner)." In White, the police stopped the defendant on the basis of an anonymous telephone tip that she would be in possession of cocaine at a particular time. This Court held that by the time the officers stopped White, the tip had been sufficiently corroborated to furnish reasonable suspicion that she was engaged in criminal activity. 110 S. Ct. at 2416. In the instant case, however, the court of appeals found it unnecessary to determine whether the anonymous tip would have sustained petitioner's detention, since Officer Barry was justified in relying, in addition, on petitioner's flight and other circumstances. /4/ In this case, officers were asked to investigate an anonymous tip of drug trafficking in a building with a history of that problem. The courts have noted that drug traffickers often carry weapons. See, e.g., United States v. Gilliard, 847 F.2d 21, 27 (1st Cir. 1988), cert. denied, 488 U.S. 1033 (1989); United States v. Nersesian, 824 F.2d 1294, 1317 (2d Cir.), cert. denied, 484 U.S. 957 (1987); United States v. Pajari, 715 F.2d 1378, 1383-1384 (8th Cir. 1983).