United States v. Eli M. Gorin, 564 F.2d 159, 4th Cir. (1977)

564 F.
2d 159
UNITED STATES of America, Appellee,

v.
Eli M. GORIN, Appellant.
No. 76-2136.
United States Court of Appeals,

Fourth Circuit.
Submitted Aug. 29, 1977.
Decided Oct. 31, 1977.
David M. Shapiro, Richmond, Va. (court-appointed), Tronfeld, Caudle &

Shapiro, Richmond, Va., on brief, for appellant.
William B. Cummings, U.S. Atty., J. Frederick Sinclair, Asst. U.S. Atty.,
Alexandria, Va., on brief, for appellee.
Before HAYNSWORTH, Chief Judge, BOREMAN, Senior Circuit Judge,
and WINTER, Circuit Judge.
PER CURIAM:
Having been convicted of unlawful shipment and possession of firearms in

violation of 18 U.S.C. 922(g), 924(a) and 18 U.S.C.App. 1202(a)(1), Eli
M. Gorin appeals to this Court.
The major contention on this appeal is that the trial court erred in admitting into
evidence two guns seized at the time of defendant's arrest.
Three New York City detectives, working together in New York City as a
decoy unit, and, of course, dressed in civilian clothes, passed by a local bar that
several other policemen were entering. These policemen were responding to a
radio report based on an anonymous telephone call that a man with a gun was in
the bar. The policemen repeated to the detectives the description of the man
with the gun a white male, approximately six feet tall, wearing a black leather
jacket and a reddish shirt. One of the detectives then entered the bar and spoke
with the man who made the initial call to the police. This man, to whom the
detective referred as the bar owner or bartender, confirmed the description
given to the police on the phone and stated that the man with the gun had just
left the bar.
4
The detectives returned to their regular duties, and approximately twenty

minutes later (around 11:30 p. m.) and seven blocks away, the detectives
observed the defendant sitting in a parked car with two other men, one of
whom was white, and the other, black. The defendant matched the description
of the man with the gun who had been seen earlier in the bar. After conferring
among themselves about the proper course of action, one of the detectives
walked over to the car in which the defendant was sitting, identified himself,
and asked to speak with the defendant. As Gorin stepped out of the car, the
detective noticed a gun at Gorin's waist. The detective took the gun from Gorin
and placed him under arrest. A further search of the car and the other occupants
led to the discovery of a second weapon.1
The question presented by the defendant's challenge to admitting the two guns
as evidence is whether the arresting detective had "reasonable suspicion" to
undertake the "stop and frisk" that led to the discovery of the first gun. If the
detective was justified in questioning Gorin, he also was justified in seizing the
gun that he could see even before "patting down" the defendant. Gorin contends
that the detectives stopped him because of a suspicion, based on the occupants
of the car and the time of the night, that Gorin was participating in a drug deal.
The district court expressly concluded during the pre-trial suppression hearing,
however, that this was not the detectives' reason for questioning Gorin.
Gorin argues alternatively that the "stop and frisk" was unconstitutional
because the "reasonable suspicion" that Gorin possessed a gun was based on a
tip from an anonymous informant. As a final alternative, Gorin suggests that
even if the detectives knew the identity of the informant, the detectives did not
know whether the informant was reliable. We believe the record indicates that
the informant was the bar owner or bartender, and thus we consider only the
argument concerning the informant's reliability.
Gorin cites several state court decisions holding that "reasonable suspicion"
cannot be based on a tip from an informant whose reliability is not known. A
fair reading of Adams v. Williams, 407 U.S. 143, 146-47, 92 S.Ct. 1921, 32
L.Ed.2d 612 (1972), however, indicates that in Gorin's situation this lack of
information should not preclude a finding of "reasonable suspicion."
The record clearly indicates that someone in the bar made the call concerning
The record clearly indicates that someone in the bar made the call concerning
the person the detectives believed to be Gorin. The informant based his tip on
personal observation and gave the police a reasonably specific description of
the man with the gun. The detectives confirmed this tip in person with the bar
owner or bartender, who they believed to be the original informant. Thus, the
informant was in a position of substantial responsibility, which suggests that he
would provide reliable information, and the detectives could have identified the
informant for further questioning or testimony at trial.
Using this information, the detectives found Gorin only seven blocks away
from the bar. Under the circumstances, the detectives' only reasonable
alternative was to ask to question Gorin when they did. If the detectives had
returned to the bar to verify their information and learn about the informant's
reliability, Gorin likely would have left the scene before the detectives returned.
On these facts, given the alternatives and information available to the
detectives, we cannot conclude that they lacked the "reasonable suspicion"
necessary to justify questioning Gorin. Any other conclusion would give an
overly narrow reading to Adams v. Williams, supra, and Terry v. Ohio, 393
U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Supreme Court in Adams
considered the necessity of the policeman's conduct in order to prevent the
flight of the defendant. The Court specifically noted that standards of reliability
should not prevent appropriate police action when a victim of a crime
immediately has contacted the police. See 407 U.S. at 147, 92 S.Ct. 1921. That
same analysis applies here.
10
This Court has not previously considered whether "reasonable suspicion" can
be based upon a tip from an informant whose reliability is not known. Both
United States v. Poms, 484 F.2d 919 (4th Cir. 1973) and United States v.
Jefferson, 480 F.2d 1004 (4th Cir.), cert. denied, 414 U.S. 1001, 94 S.Ct. 354,
38 L.Ed.2d 236 (1973), involved tips from informants known to be reliable.
The Fifth, Seventh and Tenth Circuits have upheld the use of anonymous tips
for establishing reasonable suspicion, although other information corroborated
the tips in two of those cases. See United States v. Legato, 480 F.2d 408, 410
(5th Cir.), cert. denied, 414 U.S. 979, 94 S.Ct. 295, 38 L.Ed.2d 223 (1973);
United States v. Hernandez, 486 F.2d 614, 616 (7th Cir. 1973), cert. denied,
415 U.S. 959, 94 S.Ct. 1488, 39 L.Ed.2d 574 (1974); United States v. Cage,
494 F.2d 740, 742 (10th Cir. 1974). The Sixth Circuit upheld the use of a tip
from an informant whose reliability was not known, although the tip was
corroborated by other information. See United States v. Preston, 468 F.2d 1007
(6th Cir. 1972). Only the Ninth Circuit has rejected the use of tips from untested
informants, and in that case the tip was very unspecific and the police had had
the defendant under surveillance for five months without discovering any
evidence of criminal activity. See United States v. De Vita, 526 F.2d 81, 82
(9th Cir. 1975). We believe that our holding on the facts of this case is
consistent with the decisions of the other Circuits, especially since the
informant was identified as a person in a position of substantial responsibility.
11
Gorin's reliance on Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21
L.Ed.2d 637 (1969), and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12
L.Ed.2d 723 (1964), is inappropriate in this case. Those cases concerned the
standard of informant reliability necessary for establishing probable cause for a
search. The detectives' "stop and frisk" of Gorin here is considered less
intrusive, however, and only need satisfy the less stringent test of "reasonable
suspicion," as set forth in Adams and Terry, supra. The high standard for
informant reliability established in Aguilar and Spinelli simply does not apply
when the detectives needed only "reasonable suspicion," rather than "probable
cause," to justify their actions.
12
The remaining claim raised by the defendant is that the district court interfered
with his pro se defense by denying him access to his legal papers. This claim is
factually groundless. The record indicates that the district court offered Gorin a
copy of the Federal Rules of Criminal Procedure, which probably were the
papers Gorin requested, and the district court ordered a recess until Gorin's own
legal papers could be brought to him from the jail in which he was incarcerated.
13
Gorin now complains that these papers were not in fact delivered to him, but
the record does not support this contention. Even if the papers were not
delivered, Gorin did not apprise the district court of this fact. The one comment
in the record Gorin cites as support for his factual contention occurred at the
end of Gorin's presentation of his case and is susceptible to other, more
plausible interpretations. Thus, Gorin's contention is unsupported factually, and
we do not reach the legal questions it raises.
14
Accordingly, we dispense with oral argument and affirm the judgment of

conviction.
15
AFFIRMED.
Gorin does not claim that this search was illegal, apart from the fact that it was
the fruit of the allegedly illegal arrest. After the gun was taken from Gorin, the
detectives found bullets not fitting that gun on the person of one of the other
occupants of the car. The detectives then searched the car to determine if
another gun was in the car

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564 F.

UNITED STATES of America, Appellee,

United States Court of Appeals,

David M. Shapiro, Richmond, Va. (court-appointed), Tronfeld, Caudle &

Having been convicted of unlawful shipment and possession of firearms in

The detectives returned to their regular duties, and approximately twenty

Accordingly, we dispense with oral argument and affirm the judgment of

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