United States v. Quarles ( 2003 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4209
JAMAR DAMIAN QUARLES,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CR-01-0273)
Argued: February 26, 2003
Decided: May 27, 2003
Before WIDENER, KING, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge Widener wrote the opinion, in
which Judge King joined. Judge Shedd wrote a concurring opinion.
COUNSEL
ARGUED: Denise Charlotte Barrett, Assistant Federal Public
Defender, Baltimore, Maryland, for Appellant. Paul M. Tiao, Assis-
tant United States Attorney, Baltimore, Maryland, for Appellee. ON
BRIEF: James Wyda, Federal Public Defender, Baltimore, Maryland,
for Appellant. Thomas M. DiBiagio, United States Attorney, Balti-
more, Maryland, for Appellee.
2 UNITED STATES v. QUARLES
OPINION
WIDENER, Circuit Judge:
This case is an appeal from a jury verdict in which the defendant
was found guilty of two counts of possession of a firearm after having
been convicted of a felony, in violation of 18 U.S.C. § 922(g). The
defendant was sentenced to 144 months imprisonment and 3 years of
supervised release.1 The firearm possession charge in count one
occurred on September 17, 1999, and the validity of that search and
whether the defendant possessed the firearm is not at issue in this
appeal. The charge in count two referred to an incident that occurred
on May 7, 2001. The recovery of the firearm on that day gave rise to
certain statements alleged to have been made by the defendant after
he was stopped which were subsequently introduced against him at
trial.
Prior to trial, the defendant made a motion to suppress the state-
ments on the ground that the encounter that he had with the police on
May 7, 2001 was an illegal Terry stop giving rise to fruit of the poi-
sonous tree. The district court denied the motion, finding that "there
was more than reasonable suspicion to execute this stop," there was
"no evidence to indicate that the statement was anything other than
a volunteered blurt," and thus, there was nothing unconstitutional in
the police behavior. At the conclusion of the government’s case-in-
chief and again at the conclusion of all the evidence, the defendant
moved for judgment of acquittal as to count two. The district court
denied both motions. On October 10, 2001, the jury found the defen-
dant guilty as to counts one and two. He was sentenced on March 12,
2002 and has appealed.
On appeal,2 the defendant asserts that the report of the 911 caller
1
The defendant was convicted on both counts charged in the indict-
ment. He was sentenced to 120 months on count one and 24 months,
consecutive, on count two. There was also a special assessment issued
against him in the amount of $200.00, but the court determined that the
defendant did not have the ability to pay the fine and it was waived.
2
With respect to both counts, the defendant also alleges on appeal that
(1) 18 U.S.C. § 922(g) is an unconstitutional exercise of the commerce
UNITED STATES v. QUARLES 3
was insufficient to provide the police with reasonable suspicion to
stop the defendant, investigate his activity, and thereby obtain incrim-
inating statements that were admitted against him at trial. We affirm
the judgment of the district court.
On May 14, 2001, a grand jury issued an indictment against the
defendant on two counts of illegal possession of a firearm in violation
of 18 U.S.C. § 922(g). The first count alleged that the defendant was
in possession of a .38 caliber revolver on September 17, 1999, and the
second count alleged that the defendant was in possession of a 12
gauge shotgun on May 7, 2001. The incident related to the first count
is not at issue in this appeal.
The events surrounding the arrest on May 7, 2001 are as follows:
On May 7, 2001, a 911 operator in Prince George’s County, Mary-
land, received a call reporting that the defendant was walking towards
Nash Street on Chapel Wood Lane. In addition, the caller explained
that the U. S. Attorney’s Office was looking for the defendant. The
caller provided a description of the defendant, stating that he was
black, with long dreadlocks, and that he had on a bluish green jersey
with the number 90 on it. The caller also stated that the defendant was
with two other men and that they were carrying a bag. Later in the
phone call, the caller specified that it was the defendant who was car-
rying the bag and that the defendant had a gun in the bag. When the
dispatcher asked the caller what the defendant was wanted for, the
caller responded that he was wanted for carrying a gun, and that the
defendant had killed the caller’s brother, but the defendant had "beat
power, (2) proof that a firearm traveled at some point in its life in inter-
state commerce is not sufficient to show that the firearm was possessed
"in or affecting commerce" under Section 922(g), and (3) the district
court erred in refusing to instruct the jury that it must find that the fire-
arm’s possession had to affect commerce in a non-trivial way. The defen-
dant concedes that this court has ruled that Section 922(g) is a valid
exercise of Congress’s authority under the Commerce Clause. See United
States v. Nathan, 202 F.3d 230, 234 (4th Cir.), cert. denied, 529 U.S.
1123 (2000); United States v. Gallimore, 247 F.3d 134 (4th Cir. 2001).
The defendant raises these issues to preserve them for en banc and certio-
rari review. Based on the law of this circuit, we hold to be without merit
those last three issues under our holdings in Nathan and Gallimore.
4 UNITED STATES v. QUARLES
the case." The caller also said that Pervis Smith, a U. S. Marshal, had
a warrant out for the defendant and that Special Agent Smith had told
the caller that he should call Agent Smith if the caller saw the defen-
dant, or should call the police if the caller could not get a hold of
Agent Smith. In response to the 911 call, Officer Donald Taylor
received a dispatch order to respond to the area in question. Indeed
the 911 caller kept the defendant in sight and was talking to the 911
operator until the caller saw the officers put the defendant on the
ground. So there was no chance of mistaken identity.
While Officer Taylor was sent to the scene, the dispatcher kept the
caller on the line. Throughout this 14 minute conversation, the caller,
who had the men in sight, was keeping the dispatcher apprised of
where the defendant was walking with the men and continued to
update the descriptions of the men and identify them. He identified
the defendant and another man, Mark Waters, accurately, but was
mistaken about the identity of the third man. Towards the end of the
911 call, the caller identified himself as a Mr. Rainey and agreed to
have the dispatcher send some police officers to the corner of Nash
and Eastern, where Rainey was sitting in his vehicle, so that the offi-
cers could speak to Rainey directly.3
Meanwhile, before the end of the call, Officer Taylor had arrived
on the corner that the caller had described and encountered four sus-
pects. The officer had been informed by the dispatcher that the U. S.
State’s Attorney was looking for the defendant and was provided with
the description given by Rainey. Upon seeing the defendant, who
matched the description, Officer Taylor pulled his car up beside the
defendant and approached him and the other men. Officer Taylor
engaged in small talk with the men and confirmed the identity of the
3
When the officers had not arrived at Rainey’s car within eight min-
utes, Rainey called 911 again to confirm that officers were in fact com-
ing to speak with him. Officers later did meet Rainey and spoke with him
regarding the incident. We do not depend, however, on any conversa-
tions that Rainey had with any officers or 911 operators after the 14 min-
ute phone call. The reason is that we do not rely on any fact that occurred
after the defendant’s arrest because the exact time sequence of such
events is not clear from the record.
UNITED STATES v. QUARLES 5
defendant and then proceeded to run a check to see if he had an open
warrant.4
Officer Taylor testified that the defendant was not carrying a bag
when he was originally stopped. Because the telephone description
had been very accurate, however, Officer Taylor began looking
around for a bag and noticed a dark bag lying beside a bush exactly
where the defendant and the other men had been standing when the
officer had pulled around the corner. Another officer on the scene
retrieved the bag and found a sawed-off 12 gauge shotgun inside.
Officer Taylor testified, "after we found the gun by the bush, [the
defendant] stated that we didn’t get the gun on him and he would beat
that." The officer said that the statement was made without any prov-
ocation and was not in response to a question about the gun. After a
few more minutes, Officer Taylor received confirmation that the
defendant had an outstanding federal warrant against him and then
arrested the defendant.
Prior to trial, the defendant filed a motion to suppress the evidence
gathered as a result of the stop conducted on May 7, 2001. The dis-
trict court denied the motion, finding that the stop was an appropriate
one. The court found that the purpose of a stop is "to check who is
this and is there an open warrant, and that’s really all they did [here]."
Furthermore, the court found that the bag was retrieved before the end
of the stop and that it was still appropriate for the police to be investi-
gating whether there was an open warrant.
The issue of whether the police had reasonable suspicion necessary
to sustain a stop and frisk of the defendant is to be reviewed de novo.
See Ornelas v. United States, 517 U.S. 690, 699 (1996). This court
should review findings of historical fact only for clear error and give
due weight to inferences drawn from those facts by resident judges
4
Officer Taylor testified that he asked the men if they had seen a pit
bull chasing a little girl because the police had gotten a report to that
effect. He said that this was to divert their attention. The four suspects,
although walking away initially, eventually stopped to talk to the officer.
At that time, he patted them down for weapons, due to the information
given on the dispatch that the men were armed.
6 UNITED STATES v. QUARLES
and law enforcement. See Ornelas, 517 at 699; United States v. Sprin-
kle, 106 F.3d 613, 616-17 (4th Cir. 1997).
The defendant argues on appeal that the police lacked reasonable
suspicion to apprehend him, thus the stop was unconstitutional. An
investigative stop, referred to as a Terry stop, is constitutional when
it is supported "by a reasonable and articulable suspicion that the per-
son seized is engaged in criminal activity." Sprinkle, 106 F.3d at 617
(citing Reid v. Georgia, 448 U.S. 438, 440 (1980) (per curiam)). The
scope of a Terry stop, which is considered an exception to the proba-
ble cause requirement, was first established in the 1968 case of Terry
v. Ohio. Terry v. Ohio, 392 U.S. 1 (1968). In Terry, the Supreme
Court noted that the law enforcement official making the stop does
not need to be certain that criminal activity is on-going, but needs
only to "be able to point to specific and articulable facts which, taken
together with rational inference from those facts, reasonably warrant
intrusion." Terry, 392 U.S. at 21-22. In defining the reasonable suspi-
cion standard, the Court stated, "The Fourth Amendment requires
‘some minimal level of objective justification’ for making the stop.
That level of suspicion is considerably less than proof of wrongdoing
by a preponderance of evidence." Alabama v. White, 496 U.S. 325,
329-30 (1990) (citation omitted). Furthermore, the Court stated that
"reasonable suspicion can arise from information that is less reliable
than that required to show probable cause." White, 496 U.S. at 330.
The Terry stop has been developed over the years and the Court
held in United States v. Hensley that law enforcement officials may
conduct a Terry stop based upon reasonable suspicion "that a person
they encounter was involved in or is wanted in connection with a
completed felony." United States v. Hensley, 469 U.S. 221, 229
(1985). In Hensley, an informant provided the police with information
that the defendant had participated in a recent robbery. Hensley, 469
U.S. at 223. Based on this information, the police issued a wanted
flyer to other police departments. Twelve days after the reported rob-
bery, Hensley was stopped by officers in another precinct based on
the information in the flyer.
Upholding the constitutionality of the stop, the Supreme Court
stated that its precedents do not suggest that police are precluded
"from stopping persons they suspect of past criminal activity unless
UNITED STATES v. QUARLES 7
they have probable cause for arrest." Hensley, 469 U.S. at 227 (citing
United States v. Cortez, 449 U.S. 411, 417 n.2 (1981); United States
v. Place, 462 U.S. 496, 702 (1983); Michigan v. Summers, 452 U.S.
692, 699 & n.7 (1981)). Rather, it stated,
[W]here police have been unable to locate a person sus-
pected of involvement in a past crime, the ability to briefly
stop that person, ask questions, or check identification in the
absence of probable cause promotes the strong government
interest in solving crimes and bringing offenders to justice.
Hensley, 469 U.S. at 229. While the Court did not make a finding that
Terry stops are permitted to investigate all past crimes, it did find that
"if police have a reasonable suspicion, grounded in specific and
articulable facts, that a person they encounter was involved in or is
wanted in connection with a completed felony, then a Terry stop may
be made to investigate that suspicion." Hensley, 469 U.S. at 229.
In the instant case, the district court relied on two primary cases in
rendering its opinion. First, distinguishing this case from Florida v.
J.L., 529 U.S. 266 (2000), the court found that there was sufficient
reasonable suspicion in this case for the police to make the stop. The
court stated that, unlike in J.L., the caller here gave enough informa-
tion to be identified later, and therefore, was not totally anonymous
at any time. In addition, the court noted that the tip in this case was
"much, much more reliable, had a wealth of detail, indicated personal
knowledge by the caller of a person named Jamar Quarles with that
description, and I think justified a stop."
Second, the district court concluded that the stop did not exceed the
scope of the Fourth Amendment. Relying on Hensley, the court deter-
mined that the stop was permissible because it was made with reason-
able suspicion that the defendant was wanted in connection with a
completed felony. The court noted, "The stop here was for the pur-
pose of finding out i[f] this Jamar Quarles, is there an open warrant
from the Federal Government for him, and, by the way, if you stop
him, you better check for weapons." Thus, the court found that the
stop was appropriate and refused to suppress any statements the
defendant had made. We will analyze the district court’s determina-
tions in turn.
8 UNITED STATES v. QUARLES
The first question in this case is whether the police had reasonable
suspicion, based on specific and articulable facts, that the defendant
was involved in or connected with a completed felony. See Hensley,
469 U.S. at 229. Thus, we must ask if the 911 caller was sufficiently
reliable to justify the stop. The defendant argues that because Rainey
did not reveal his name until the end of the conversation, the tip was
essentially anonymous, and thus more akin to Florida v. J.L., 529
U.S. 266 (2000).5 We disagree.
The J.L. case involved a brief and anonymous tip, which the
Supreme Court found to be lacking sufficient indicia of reliability to
justify the stop because the call "provided no predictive information"
and the officers had no reasonable basis for suspecting J.L. of unlaw-
ful conduct. J.L., 529 U.S. at 271. The district court in this case
stated, "This is a very far cry from the tip in Florida v. J.L., which
was brief, totally anonymous and indicated no basis upon which to be
able to identify the talker." We agree with the district court and find
that J.L. does not control this case.
First, we do not believe that 911 call in this case qualifies as anony-
mous. Regardless of when the caller gave his name, the caller did
identify himself to the dispatcher, and indeed, went a step further and
arranged for the police to meet with him after the phone call to verify
the information. Rainey stayed on the 911 line for 14 minutes, watch-
ing the defendant and providing the dispatcher with on-going infor-
mation regarding the defendant and even witnessing the police
approaching the defendant. In addition to giving the defendant’s name
to the police, Rainey stated that the defendant had killed his [Rai-
ney’s] brother and "beat the case." We believe there was sufficient
5
In J.L., the police received an anonymous tip that there was a young,
black male standing at a particular bus stop, wearing a plaid shirt, and
carrying a gun. J.L., 529 U.S. at 268. The tipster was unidentified and
there was no known recording of the tip. J.L., 529 U.S. at 268. Addition-
ally, the police had no information regarding illegal conduct. Police offi-
cers approached three men at the bus stop in question (including the
defendant who was wearing a plaid shirt), who appeared to be "hanging
out". J.L., 529 U.S. at 268. They found a gun on the defendant and
arrested him for, inter alia, illegal possession of a firearm. J.L., 529 U.S.
at 268-269.
UNITED STATES v. QUARLES 9
information given to accurately identify the caller. The fact that Rai-
ney was identifiable lends support to his credibility and reliability
because, the Supreme Court has noted that "a known informant[‘s]
reputation can be assessed and [she] can be held responsible if her
allegations turn out to be fabricated." J.L., 529 U.S. at 270 (citations
omitted).
Second, we believe that the caller in this instance provided enough
information to "test [his] knowledge or credibility." J.L., 529 U.S. at
271. In J.L., the Court noted that the only thing that the police had
to go on was an "unknown, unaccountable informant who neither
explained how he knew about the gun nor supplied any basis for
believing he had inside information." J.L., 529 U.S. at 271. On the
contrary, here Rainey provided the police with inside information and
explained his connection to the defendant. For example, in addition
to a detailed description of the defendant (including his name, the
color of jersey he was wearing with the number that was on the jer-
sey, his hairstyle, and his exact location), Rainey knew that there was
a warrant out for the defendant’s arrest, the type of offense that the
defendant was wanted for (involving possession of a firearm), the fact
that he was carrying a bag with a gun, and the name of the U. S. Mar-
shal involved in the case.
We are also guided here by our decision in United States v. Christ-
mas, 222 F.3d 141 (4th Cir. 2000), cert. denied, 531 U.S. 1098(2001). In Christmas, officers conducted a Terry stop after a neigh-
borhood resident approached one of the officers, who was investigat-
ing another crime in the area, informing the officer that the officer
needed to "deal with the drugs and the guns" at a house a short dis-
tance away.6 Christmas, 222 F.3d at 143. We found the informant was
sufficiently reliable for two reasons: the officer’s face-to-face encoun-
ter with the woman gave the officer an opportunity to assess her cred-
ibility and demeanor; and she could be held accountable for her false
6
The woman who approached the officers did not provide her name,
but she did provide her address, 309 Canal Street, and the address of the
house of which she was speaking, 401 Canal Street. Christmas, 222 F.3d
at 143. The woman was intoxicated and did not follow the police officers
to the house in question when they responded to her information. Christ-
mas, 222 F.3d at 143.
10 UNITED STATES v. QUARLES
statements because she approached the police officer. Christmas, 222
F.3d at 144.
The defendant argues that this case is distinguishable on the basis
that Rainey was not technically face-to-face with an officer when pro-
viding his information and contends that Rainey did not provide suffi-
cient personal information to be held accountable. We find that
neither of these assertions distinguish these two cases. While Rainey
was not face-to-face with an officer, he was on the phone with the dis-
patcher for 14 minutes watching the defendant and providing to the
911 operator detailed and precise information about the defendant.
The amount of information that Rainey was able to provide to the dis-
patcher enabled the dispatcher to make a determination about his
credibility.
Additionally, Rainey provided sufficient information to the police
that he could have been held accountable for his statements. Not only
did Rainey provide his name, he provided information about the mur-
der of his brother, the name of a U. S. Marshal to whom he had spo-
ken about Quarles, the color and make of his own car, and his
location. This was enough information for the police to track down
Rainey and enough that Rainey is bound to have felt as though he was
being held accountable for what he was saying. Our decision in
Christmas is informative here and we are of opinion that the caller in
this instance carried as much, if not more, credibility than the tipster
in Christmas. Christmas, 222 F.3d at 144-45.
Having established that the 911 caller was a reliable informant, we
move to the second inquiry, which is whether the stop exceeded the
scope of the Fourth Amendment. As construed in Hensley, a Terry
stop is permissible when it concerns a person involved in a prior
crime if the police had reasonable suspicion, grounded in specific,
articulable facts. Hensley, 469 U.S. at 229. We have already deter-
mined that Rainey was a reliable informant; the 911 call was not
anonymous and provided sufficient information about Rainey and
about the defendant to find Rainey credible and knowledgeable. We
also believe that the 911 call provided sufficient reasonable suspicion
to justify stopping the defendant. Indeed, the Hensley Court found
sufficient reasonable suspicion for a stop with no more, or even less,
to go on than we have here.
UNITED STATES v. QUARLES 11
At the time the police stopped Quarles, they knew from the 911
call that there was a federal arrest warrant outstanding for Quarles
which involved the possession of a gun. The officer in charge stopped
Quarles and detained him until the officer could verify there was a
warrant outstanding. At that time, Quarles was arrested.
The question raised on appeal which we here consider is only the
admission into evidence of the various conversations Quarles had
with the officers from the time he was stopped until he was arrested.
We are of opinion this case is controlled by Hensley and our opin-
ion in Christmas, rather than by J.L.. The stop in this case was a law-
ful Terry stop. The conversations were properly admitted into
evidence.
The judgment of the district court is accordingly
AFFIRMED.
SHEDD, Circuit Judge, concurring:
By the time that the police detained Quarles, the 911 caller — who
remained on the telephone line and kept Quarles within his sight —
had indirectly identified himself to police by stating that Quarles had
killed his brother and beaten the case; and he had told the police that
Quarles had an outstanding federal warrant against him for illegal
firearm possession, that a federal agent named Pervis Smith was look-
ing for Quarles, and that this federal agent had told him to call the
police if he saw Quarles. The 911 caller had also told police that
Quarles was then in the company of another individual who was also
the subject of an outstanding warrant and that Quarles (and/or his
companions) was carrying a gun and drugs. Additionally, the 911
caller had provided the police with a specific description of Quarles
and the specific location where they could find him.
Although it is a close call, I believe that under the Terry standard,
the information set forth above (particularly about the warrant and the
federal agent), construed in the light most favorable to the govern-
ment, see United States v. Seidman, 156 F.3d 542, 547 (4th Cir.
12 UNITED STATES v. QUARLES
1998), gave the police more than an "inchoate and unparticularized
suspicion or ‘hunch,’" that Quarles was wanted or otherwise was
involved in criminal activity. Terry v. Ohio, 392 U.S. 1, 27 (1968).
Accordingly, I concur in the result reached by the majority concern-
ing the Terry stop.1
I write separately to note that at the time of the Terry stop, it does
not appear that the 911 caller had yet provided the police with his
name, his exact location, or a description of his automobile; and he
had not yet indicated any willingness to meet with them.2 Because it
appears that the 911 caller only gave that information to police after
the Terry stop, it should not be considered in the reasonable suspicion
analysis. See Florida v. J.L., 529 U.S. 266, 271 (2000) ("The reason-
ableness of official suspicion must be measured by what the officers
knew before they conducted their search").3
1
I agree with the majority that the scope of the Terry stop was reason-
able and that Quarles’ Commerce Clause arguments lack merit.
2
At the suppression hearing, the government introduced into evidence
the "CAD report," which the district court described as being "sort of a
shorthand, typed-in rendition of what is being sent out" by the dispatch.
J.A. 75. Quarles introduced the 911 call audiotape. Matching the CAD
report with the transcript of the audiotape provides a time frame of
events.
3
See also Leverette v. Bell, 247 F.3d 160, 168 n.5 (4th Cir.), cert.
denied, 534 U.S. 993 (2001) ("the reliability of a tip must . . . be viewed
at the time the search becomes necessary"); United States v. Ienco, 182
F.3d 517, 524 (7th Cir. 1999) ("reasonable suspicion must exist at the
time the officer stops an individual, . . . it cannot come after the fact").