United States of America v. Joseph Christmas, a/k/a Jason Carter

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 99-4631
JOSEPH CHRISTMAS, a/k/a Jason
Carter,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Frank W. Bullock, Jr., District Judge.
(CR-98-364)
Argued: May 5, 2000
Decided: August 2, 2000
Before WILKINSON, Chief Judge, NIEMEYER, Circuit Judge,
and Jerome B. FRIEDMAN, United States District Judge
for the Eastern District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Niemeyer and Judge Friedman joined.
_________________________________________________________________
COUNSEL
ARGUED: John A. Dusenberry, Jr., Assistant Federal Public
Defender, Greensboro, North Carolina, for Appellant. Lawrence Pat-
rick Auld, UNITED STATES ATTORNEY'S OFFICE, Greensboro,
North Carolina, for Appellee. ON BRIEF: Louis C. Allen, III, Fed-

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eral Public Defender, Greensboro, North Carolina, for Appellant.
Walter C. Holton, Jr., United States Attorney, Sandra J. Hairston,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
_________________________________________________________________
OPINION
WILKINSON, Chief Judge:
Joseph Christmas was charged with possession with intent to dis-
tribute cocaine base in violation of 21 U.S.C. § 841(a)(1). The district
court denied Christmas' motion to suppress drugs and a firearm
seized during his arrest. Christmas subsequently entered a conditional
plea of guilty and was sentenced to eighty-eight months imprison-
ment. Christmas appeals the district court's suppression ruling, argu-
ing that an unsolicited tip from a neighbor was not adequate grounds
for a Terry stop. Because face-to-face encounters with informants are
altogether different from anonymous tips and because the tip here fur-
nished reasonable suspicion for the protective pat-down of defendant,
we affirm the judgment of the district court.
I.
On May 7, 1998, Officers Anthony Smith and Jack Cates were
investigating a homicide in the area of Mallard and Queen Streets in
Durham, North Carolina. While speaking with a citizen regarding the
homicide, Officer Smith was approached by a neighborhood resident.
She informed Smith that, "instead of talking to this gentleman, you
need to come and deal with the drugs and the guns that these guys
have on the porch two doors down from me." The informant indicated
that she lived at 309 Canal Street. She stated that the residence that
was the object of her complaint was two houses away at 401 Canal
Street. She did not give her name. The informant, who was intoxi-
cated, insisted that the officers investigate her complaint immediately.
In response to her entreaties, the officers proceeded the short dis-
tance to 401 Canal Street. The informant did not accompany them.
When they arrived, Officer Smith saw on the porch one woman and
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three men. Smith recognized one of the men as Christmas. Smith
advised all four people on the porch that he was investigating a report
about narcotics and gun activity on the premises. Smith then stated
that he was going to conduct a pat-down search for the safety of all
concerned. Smith twice asked Christmas if he was carrying any weap-
ons. Although Christmas denied being armed both times, Smith's pat-
down of Christmas revealed the butt of a loaded .357 Magnum. After
Smith placed Christmas under arrest, he conducted a more thorough
search. This search yielded a plastic bag containing a large amount of
crack cocaine and marijuana.
Christmas was charged with possession with intent to distribute
cocaine base, in violation of 21 U.S.C. § 841(a)(1). Christmas moved
to suppress the evidence seized during the search, arguing that the
police lacked reasonable suspicion to conduct a Terry stop and frisk.
The district court denied the motion. Christmas subsequently entered
a conditional plea of guilty to the charge, reserving the right to appeal
the district court's adverse ruling on his suppression motion. Christ-
mas now appeals that ruling and also his subsequent sentence under
the federal Sentencing Guidelines.
II.
"[T]he police can stop and briefly detain a person for investigative
purposes if the officer has a reasonable suspicion supported by
articulable facts that criminal activity `may be afoot,' even if the offi-
cer lacks probable cause." United States v. Sokolow, 490 U.S. 1, 7
(1989); see also Terry v. Ohio, 392 U.S. 1 (1968). Christmas contends
that, in light of Florida v. J.L., 120 S. Ct. 1375 (2000), a tip from a
woman living two doors away from the porch where he had gathered
did not provide reasonable suspicion for the protective pat-down of
his person.
We disagree. Contrary to Christmas' assertions, J.L. is not control-
ling. In J.L., the police received an anonymous telephone tip that a
young black male standing at a particular bus stop and wearing a plaid
shirt was carrying a gun. Id. at 1377. The police did not know the
informant's name nor could they verify the informant's credibility.
Apart from the tip, the police had no reason to suspect the young man
of illegal conduct. Id. The Supreme Court held that the tip, without
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more, was insufficient to justify a Terry stop and frisk. Id. The Court
identified two problems with allowing anonymous tips to serve as the
sole basis for a Terry stop. First, anonymous tips "alone seldom dem-
onstrate[ ] the informant's basis of knowledge or veracity." Id. at
1378 (quoting Alabama v. White, 496 U.S. 325, 329 (1990)). Second,
since anonymous tipsters cannot be held responsible for fabricated
allegations, permitting such tips to result in a Terry stop would
increase the potential for harassment through false accusation. Id.
A desire to ensure the informant's credibility and accountability
thus underlies the Court's concern with anonymous tips. Turning first
to credibility, the reasonable suspicion standard"requires that a tip be
reliable in its assertion of illegality." Florida v. J.L., 120 S. Ct. at
1379. When police receive an anonymous telephone tip, it is difficult
for them to determine the source and reliability of the caller's knowl-
edge. See id. at 1378; id. at 1381 (Kennedy, J., concurring) ("If the
telephone call is truly anonymous, the informant has not placed his
credibility at risk and can lie with impunity.").
The face-to-face encounter here did not pose this same credibility
problem. Officer Smith's conversation with the informant provided
him with an opportunity to assess her credibility and demeanor. Two
aspects of the encounter supported the credibility of the informant's
report. The first was the close proximity of the informant's residence
to the illegal activities at 401 Canal Street. It was reasonable for Offi-
cer Smith to conclude that a woman living two doors from 401 Canal
Street would know if drugs were being dealt from the porch there.
Second, the informant's proximity to 401 Canal Street at the time she
spoke with Officer Smith further bolstered her credibility. By inform-
ing the police about her neighbors' illegal activity, the informant
exposed herself to the risk of reprisal. The fact that she provided the
report to uniformed police officers in public only increased the proba-
bility that someone associated with the illegal activity would witness
her aid to the police.
Unlike the anonymous tipster, a witness who directly approaches
a police officer can also be held accountable for false statements. As
the Supreme Court has observed, citizens who pesonally report crimes
to the police thereby make themselves accountable for lodging false
complaints. See Illinois v. Gates, 462 U.S. 213, 233-34 (1983); Adams
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v. Williams, 407 U.S. 143, 147 & n.2 (1972). Here the informant pro-
vided her home address to the officers. In doing so, the informant
exposed herself to the repercussions of misleading or deceiving the
police.
All of these factors make the information provided in this case
more trustworthy and reliable than the anonymous tip at issue in J.L.
Indeed, courts have had no difficulty distinguishing between cases
involving face-to-face encounters with informants and cases involv-
ing anonymous tipsters. See Adams v. Williams , 407 U.S. 143, 146-47
(1972); United States v. Salazar, 945 F.2d 47, 50-51 (2d Cir. 1991)
("[T]hough the informant in the present case had not previously been
relied on by the officers, a face-to-face informant must, as a general
matter, be thought more reliable than an anonymous telephone tip-
ster."); United States v. Gorin, 564 F.2d 159, 160-61 (4th Cir. 1977)
(same); United States v. Sierra-Hernandez, 581 F.2d 760, 763 (9th
Cir. 1978) (same).
Christmas contends, however, that the Terry pat-down was not jus-
tified because the informant's statement was conclusory, the police
officer had no prior knowledge of the informant's credibility, and the
officer did not corroborate her story. But accepting Christmas' argu-
ment would mean incorporating into the reasonable suspicion deter-
mination a rule similar to the inflexible "two-pronged test" for
probable cause of Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli
v. United States, 393 U.S. 410 (1969). Doing so would make little
sense, especially since the Aguilar/Spinelli standard has been relaxed
even in the context of probable cause, see Illinois v. Gates, 462 U.S.
213, 238 (1983); Alabama v. White, 496 U.S. 325, 328, 330-31
(1990); United States v. Blackwood, 913 F.2d 139, 142 (4th Cir.
1990), and replaced by a more flexible test permitting a balanced
assessment of the relative value and reliability of different infor-
mants' tips. See Gates, 462 U.S. at 231-35.
Moreover, Christmas' statement that no evidence corroborated the
informant's tip is simply false. Officer Smith knew Christmas and
found it odd that he would be present on Canal Street, given the ten-
sions between gangs based near Canal Street and gangs from Christ-
mas' part of town. Based on this information, it was reasonable for
Officer Smith to surmise that Christmas' presence on the porch cre-
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ated a potential for violence. And although Christmas' presence in a
high crime area is not alone sufficient to justify a Terry stop, "[t]he
fact that the stop occurred in a `high crime area' [is] among the rele-
vant contextual considerations in a Terry analysis." Illinois v. Ward-
low, 120 S. Ct. 673, 676 (2000); see also United States v. Perrin, 45
F.3d 869 (4th Cir. 1995). Courts are not required to sever the relation-
ships that citizens and local police forces have forged to protect their
communities from crime. Petitioner argues for a rule that comes close
to disqualifying face-to-face discussions with residents as a basis for
a Terry stop and frisk. To rule out such conversations as a basis for
reasonable suspicion would be a serious step. A community might
quickly succumb to a sense of helplessness if police were constitu-
tionally prevented from responding to the face-to-face pleas of neigh-
borhood residents for assistance. Officers in turn are entitled to
investigate such reports without jeopardizing their personal safety.
Any other constitutional rule would destroy the basis for effective
community police work.
III.
Christmas also contests the two-level enhancement in his sentenc-
ing guideline offense level for possession of a dangerous weapon.
This claim too lacks merit. Since Christmas possessed a firearm, he
falls plainly under the language of the enhancement. See U.S.S.G.
§ 2D1.1(b)(1) ("If a dangerous weapon (including a firearm) was pos-
sessed, increase by 2 levels."). Indeed, Christmas does not argue oth-
erwise. Instead Christmas contends, apparently under a theory of
double jeopardy, that the enhancement cannot apply because he was
previously convicted in state court for the same possession of the
same firearm. Under the doctrine of dual sovereignty, however, fed-
eral prosecutions are not barred by a previous state prosecution for the
same or similar conduct. See Abbate v. United States, 359 U.S. 187
(1959). Here the government could have prosecuted Christmas under
18 U.S.C. § 924(c)(1) for possession of the firearm, notwithstanding
his state conviction. If the federal prosecution is allowed under the
law, then the enhancement under the guidelines must also be allow-
able.*
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*Of course, if the conduct upon which the offense level enhancement
was based also served as the factual basis for the underlying federal con-
viction, the enhancement would not apply. See U.S.S.G. § 2K2.4, Com-
mentary Note 2. That is not the case here.
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IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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