United States Court of Appeals
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`
`Decided April 29, 2016
`
`Argued March 4, 2016
`
`
`No. 14-3051
`
`UNITED STATES OF AMERICA,
`APPELLEE
`
`v.
`
`MARK STUBBLEFIELD,
`APPELLANT
`
`
`Appeal from the United States District Court
`for the District of Columbia
`(No. 1:08-cr-00171-1)
`
`Joshua M. Parker argued the cause for appellant. With
`him on the briefs was David W. DeBruin, appointed by the
`court.
`
`
`
`
`Lena H. Hughes, Bristow Fellow, U.S. Department of
`Justice, argued the cause for appellee. With her on the brief
`was Elizabeth Trosman, Assistant U.S. Attorney. Suzanne G.
`Curt, Assistant U.S. Attorney, entered an appearance.
`
`
`Before: TATEL, BROWN, and MILLETT, Circuit Judges.
`
`
`
`
`
`
`
`
`
`

`
`2
`Opinion of the Court filed by Circuit Judge BROWN:
`
`BROWN, Circuit Judge: This case is, at its core, a fact-
`intensive dispute over probable cause. Witness descriptions
`of a serial robber—a middle-aged black man of short build
`and facial disfigurement—helped produce a police sketch,
`which was then used in canvassing efforts, which netted an
`identification, which led police officers to the identified
`suspect, and their approach prompted that suspect, Mark
`Stubblefield, to flee for two blocks until he was apprehended
`and arrested. We are asked to decide whether, in view of this
`totality of circumstances, probable cause to arrest Stubblefield
`existed. We hold that it did.
`
`
`I
`
`Between January and April 2008, an unknown suspect
`committed a series of bank robberies in Washington, D.C.
`Witnesses described the robber as a thin, middle-aged black
`man, of short build—between 5’1” and 5’3”— and possessing
`an unusual
`facial complexion.
` Descriptions of his
`complexion varied slightly. Some used the word “scarring,”
`while others used terms like “markings,” “birthmarks,”
`“divots,” or “impressions . . . under his cheeks.” However, all
`acknowledged the disfigurement.
`
`Video surveillance showed a man, matching the robber’s
`description, running down a nearby street and hopping in a
`taxi cab just minutes after one of the robberies. FBI Special
`Agent Luis DeJesus tracked down the cab driver, who had
`been paid with a marked $20 bill the day before. The driver
`recalled dropping the man at 7th Street and Florida Avenue.
`
` Using a sketch produced from witness descriptions, FBI
`agents canvassed nearby areas and distributed “wanted”
`
`
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`

`
`3
`posters throughout Washington D.C. in search of anyone who
`might recognize the robber. In early May, one individual did.
`This person recognized the subject as a man who frequented
`the area of 7th Street and Florida Avenue NW, the same
`location identified by the cab driver. A few days later on the
`morning of May 12, this same individual informed the FBI
`that he or she had again spotted that same man, whom the
`informant referred to as “Mark,” this time at 7th and Rhode
`Island Avenue—a few blocks from Florida Avenue.
`
`Some time after receiving this tip, two officers went to
`the intersection and approached a man who matched the
`robber’s description. When the man saw them, he ran; they
`pursued and apprehended him two blocks away, where he was
`promptly arrested and searched. The search uncovered a
`small, inch-and-a-half long crack pipe in the suspect’s pocket.
`The arresting officers made no mention of the bank robberies
`in their arrest report, listing possession of drug paraphernalia
`as the basis for the arrest.
`
` The suspect, now identified as Mark Stubblefield, was
`booked, photographed, and processed.
` Agent DeJesus
`incorporated Stubblefield’s booking photograph into a photo
`array containing pictures of eight other men. He showed the
`array to two of the seven eyewitnesses. One witness, a branch
`manager, positively identified Mr. Stubblefield based on the
`photograph. The other, a teller, initially stated the photo
`didn’t match, but then added, “It really looks like him, I’m not
`sure, you know, I don’t know.” Based on the manager’s
`positive identification, Agent DeJesus obtained and executed
`a separate arrest warrant, this time charging Stubblefield with
`bank robbery.
`
`Before trial, Stubblefield’s attorney filed two motions to
`suppress—one, alleging in-court and out-of-court testimony
`
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`

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`4
`identification
`suggestive
`impermissibly
`from
`stemmed
`procedures, and the other, concerning Stubblefield’s post-
`arrest statements and actions at police headquarters. Neither
`motion alleged a Fourth Amendment violation.
`
`At trial, the government called thirty-seven witnesses.
`None of the eyewitnesses identified Stubblefield in court.
`Their
`testimonies
`focused,
`instead, on
`their pre-trial
`identifications and descriptions of
`the robber.
` Only
`Detectives DeJesus and Elmer Baylor identified Stubblefield
`in court.
` And aside
`from
`these pre- and
`in-trial
`identifications, the government put on no other evidence
`directly linking Stubblefield to the bank robberies.
`
`Nonetheless, a jury convicted Stubblefield of six counts
`of bank robbery and one count of attempted bank robbery,
`and he received a sentence of 180 months’ imprisonment.
`This court affirmed his conviction on direct appeal, see
`United States v. Stubblefield, 643 F.3d 291 (D.C. Cir. 2011),
`and Stubblefield comes before us now on a motion to vacate
`that conviction due to ineffective assistance of counsel (IAC),
`pursuant to 28 U.S.C. § 2255(a). The district court denied
`Stubblefield’s motion and declined to issue a certificate of
`appealability. United States v. Stubblefield, 931 F. Supp. 2d
`118 (D.D.C. 2013).
`
`
`
`Stubblefield’s ineffective assistance of counsel argument
`is relatively straightforward: He contends his booking
`photograph was obtained
`in violation of
`the Fourth
`Amendment, and had his counsel moved to suppress it, there
`wouldn’t have been sufficient evidence
`to sustain a
`conviction. To prevail on an ineffective assistance of counsel
`motion premised on a Fourth Amendment claim,
`the
`
`II
`
`
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`

`
`5
`defendant bears the burden of “prov[ing] that his Fourth
`Amendment claim is meritorious.” Kimmelman v. Morrison,
`477 U.S. 365, 375 (1986). Attempting to carry that burden,
`Stubblefield, through court-appointed Amicus, asserts three
`separate, if overlapping, grounds for suppression: one, the
`police lacked reasonable suspicion to stop him; two, the crack
`pipe was discovered through an impermissible search; and
`three, the government lacked probable cause to arrest
`Stubblefield for bank robbery. As the foregoing recitation
`demonstrates, Stubblefield proffers “a substantial showing of
`the denial of a constitutional right,” and we grant his request
`for a certificate of appealability. See Slack v. McDaniel, 329
`U.S. 473, 484 (2000). Accordingly, we review his IAC claim
`de novo. United States v. Abney, 812 F.3d 1079, 1087 (D.C.
`Cir. 2016).
`
`Affirming the district court’s conclusion that there was
`probable cause to arrest Stubblefield for bank robbery would
`render inert his other two arguments, both of which are
`premised on a lack of reasonable suspicion. So we begin
`there. Determining probable cause requires examination of
`the totality of circumstances rather than facts in isolation.
`Illinois v. Gates, 462 U.S. 213, 231–32 (1983). Like a mosaic
`formed from many pieces, it is the whole picture, viewed
`from the proper perspective, that deserves our attention. No
`single piece, no matter how colorful or ornate, can duplicate
`the impact of the image formed when the parts are viewed
`together.
` Here, proper attention
`to
`the
`totality of
`Stubblefield’s case—to the entire pattern—creates a portrait
`that clearly supports the district court’s finding of probable
`cause.
`
`Three facts in particular shape the portrait. First, the
`witness descriptions of the robber uniquely identify and
`clearly match Stubblefield’s characteristics. Witnesses
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`
`6
`described the robber as a middle-aged black man, of thin,
`short build and with some sort of facial disfigurement. Of
`these descriptions, two are particularly distinctive: the height
`and the facial disfigurement. As to the robber’s height,
`witnesses identified the robber as between 5’1” and 5’2”.1
`Given that, for black men ages 40–59, a height even of 5’5” is
`considered the bottom fifth percentile,2 the robber’s height—
`which matched Stubblefield’s height of 5’2”—is a unique
`identifier. In addition to the robber’s unusually short build, he
`exhibited unique facial disfigurement. While it’s true that
`witness descriptions toggled between “scarring” and “divots”
`and “markings,” many eyewitnesses readily noticed the
`robber’s distinctive facial disfigurement. And again, the
`described disfigurement, another unique
`identifier, was
`consistent with Stubblefield’s disfigurement. Second, two
`different sources put the robber at or very near the location
`where Stubblefield was arrested. The cab driver told police
`he dropped the robber off at the intersection of 7th and
`Florida Avenue. And a citizen-informant told the FBI that a
`man matching the robber’s description frequented that exact
`same intersection. Stubblefield was ultimately apprehended a
`few blocks from
`there—7th and Rhode Island—after
`
`1 Stubblefield attempted at trial and again here on appeal to suggest
`other witness descriptions put the robber’s height around 5’5” or
`5’6”. Amicus Reply Br. 5. As support, Amicus directs the court to
`a colloquy at trial between defense counsel and a branch manager
`in which the branch manager could not recall what height she told
`police, only that the robber “was a smaller gentleman, probably
`below average” who was “possibly” “five-foot five or shorter.”
`S.A. 139. Thus, the discrepancy was minor and equivocal; the
`consensus described an exceptionally short male.
`2 See U.S. Dep’t of Health & Human Servs., National Health
`Statistics Reports: Anthropometric Reference Data for Children and
`Adults: United States, 2003-2006, Oct. 22, 2008, at 16, available at
`http://www.cdc.gov/nchs/data/nhsr/nhsr010.pdf.
`
`
`
`

`
`7
`receiving another tip from the same informant. Third, when
`the police followed that tip to 7th and Rhode Island and
`approached Stubblefield, he fled and eluded the police’s chase
`for two blocks. Whether any of these facts is sufficient alone
`for probable cause or whether reasonable suspicion ripened, at
`some point, to probable cause, we need not decide. Placed
`alongside each other,
`these
`three pieces—the witness
`descriptions matching Stubblefield’s unusual visage and
`physique, Stubblefield’s
`location at or near
`the place
`witnesses had previously seen him, and his flight from the
`police—form a convincing depiction of probable cause.
`
`In an attempt to divide and minimize, Amicus responds
`by isolating and impeaching each fact. Regarding the witness
`descriptions, Amicus contends “the perpetrator’s one
`distinctive feature” was his “scarring or mark[ings] on his
`face,” and asserts Stubblefield lacked that one feature.
`Amicus Br. 26. And absent that one feature, Amicus avers,
`Stubblefield matched only the generic descriptions, which is
`insufficient since “there were almost certainly other short,
`black men somewhere between the ages of 36 and 50 in the
`area.” Id. at 25. But here, Amicus overplays its hand in two
`important respects. First, the record doesn’t support the
`argument that “scarring” was the robber’s one distinctive
`feature. To the contrary, witnesses described the robber as
`possessing a facial complexion more similar to Stubblefield’s
`than the one Amicus depicts. See e.g. Stubblefield, 931 F.
`Supp. 2d at 120 (“unusual facial complexion”); Trial Tr. day 1
`at 89 (“a very sunken face” with “bumps”); Trial Tr. day 3 at
`42 (“I don’t know whether it was gashes or wrinkles, but you
`could definitely see marks, an indentation in his cheeks”). To
`be sure, witnesses equivocated on whether it was a scar, bad
`skin, bumps, or divots, but one thing was clear: the robber had
`some sort of disfigurement, and that disfigurement was
`consistent with Stubblefield’s. Second, Amicus glosses over
`
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`8
`just how distinctive the robber’s height is and, thus, how
`relevant it is to our probable cause calculus. Individuals a full
`three inches taller than Stubblefield still fall in the bottom
`fifth percentile. There are relatively few middle-aged men of
`such height in America. There are even fewer middle-aged
`men of such height who also have visible
`facial
`disfigurement. That Stubblefield matches both supports a
`finding of probable cause.
`
`None of the cases Amicus cites persuades us otherwise.
`For instance, the Supreme Court found no probable cause to
`search a traveler’s luggage for drugs in Reid v. Georgia, 448
`U.S. 438 (1980). That traveler had no luggage other than a
`shoulder bag, arrived from Fort Lauderdale (a hotbed of
`cocaine trafficking), and arrived early in the morning when
`law
`enforcement
`presence
`is
`diminished. Those
`circumstances, the Court explained, “describe[d] a very large
`category of presumably innocent travelers.” Id. at 441. That
`conclusion is unsurprising, since finding probable cause there
`would have meant everyone traveling from Fort Lauderdale in
`the early morning with light luggage forfeited the Fourth
`Amendment’s protection. Nothing even approaching that
`scenario exists in Stubblefield’s case.
`
`And our conclusion that no probable cause existed in
`United States v. Short, 570 F.2d 1051 (D.C. Cir. 1978), is
`easily distinguishable from the case at hand. We concluded a
`description consisting of a black “male approximately 18 to
`19 years old, 5’9 to 5’10” tall, 145 to 155 pounds, with a short
`Afro-bush haircut and dark complexion, . . . wearing a camel-
`colored, waist-length leather jacket and blue trousers” was not
`Id. at 1053–54.
`sufficiently specific.
`
` But unlike
`Stubblefield’s, those descriptors (with the possible exception
`of the suspect’s clothing, distinguishable for other reasons)
`are extraordinarily common characteristics that “fit[] many
`
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`9
`young people in that area of Washington.” Id. at 1054. It was
`precisely for this reason we concluded the description was
`“insufficient to narrow the number of suspects to a level
`tolerable under the Fourth Amendment.” Id. Stubblefield’s is
`a very different case. We are convinced that if the description
`in Short had identified a thin, middle-aged black man,
`approximately 5’2” tall with facial disfigurement, the number
`of suspects would have narrowed to a tolerable level.
`
`As to location, Amicus advances two arguments, both
`centered on the informant’s tips. First, Amicus contends that,
`since little is known about the tipster, the tips were unreliable.
`Because we know nothing of the informant’s identity or
`record, Amicus argues, we are unable to “infer” much at all
`about the tipster’s credibility. Id. To the contrary, the
`reliability of this informant’s tip, obtained in a face-to-face
`encounter with FBI canvassers, surpasses others the Supreme
`Court has previously blessed. See Alabama v. White, 496
`U.S. 325 (1990) (concluding an anonymous tip exhibited
`sufficient indicia of reliability to justify an investigatory stop);
`Navarette v. California, 134 S. Ct. 1683 (2014) (holding that
`an anonymous call reporting apparent drunk driving was
`sufficiently reliable). In-person tips are “inherently more
` United States v.
`trustworthy”
`than anonymous ones.
`Thompson, 234 F.3d 725, 729 (D.C. Cir. 2000).
`
`Amicus’s second argument indicts the lack of record
`evidence concerning how much time elapsed between the
`informant’s May 12th tip and the officers’ arrival at 7th and
`Rhode Island. Amicus suggests the record reveals only that
`“both occurred in the morning” and requests, at the very least,
`an evidentiary hearing to fill in the gaps. Amicus Reply Br. 8.
`It is true the record is incomplete. But even if we were to
`discover, after supplementing the record, that the police
`dithered for an hour before arriving at the scene, it wouldn’t
`
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`
`10
`change our conclusion.3 The citizen-informant who provided
`the tip told police the individual “frequented the area,” which
`suggests the person hangs around longer than, say, a passing
`commuter. Thus, even if there was a long response time, the
`person identified by the informant was likely still in the
`vicinity. Moreover, as we noted earlier, the individual
`identified by the informant, by the robbery witnesses, and
`ultimately by
`the police possessed not one, but
`two
`extraordinarily rare characteristics. Given all the other
`evidence suggesting probable cause here, whether the police
`promptly pursued the tip or not would hardly alter the
`probable cause mosaic at all.
`
`Finally, Amicus argues Stubblefield’s flight from police
`does not add anything to this portrait of probable cause
`because the record does not demonstrate his flight was
`“headlong” or “unprovoked.” Amicus Br. at 30. Those terms
`come from the Supreme Court’s decision in Illinois v.
`Wardlow, in which the court held that “[h]eadlong” or
`“unprovoked flight” can suggest wrongdoing and justify
`further investigation. 528 U.S. 119, 124–25 (2000). While
`we agree the record is scant, we do not agree with Amicus’s
`ultimate contention for two reasons. First, the record tells us
`that Stubblefield “fled on foot,” that “[a] chase ensued,” and
`that he was ultimately apprehended two blocks away from
`where he was first approached. Aff. in Support of Arrest
`Warrant for Mark Stubblefield at 4. The Wardlow opinion
`
`3 This is unlikely, in any event. In his original arrest report from
`May 12, the arresting officer noted the time of the arrest was 7:49
`AM. Thus, before 7:49 AM, the officers received the tip, arrived at
`the scene, approached Stubblefield, chased him two blocks, stopped
`him, patted him down, discovered drugs, and then arrested him.
`While it is true the record does not say when the informant called
`the police, the arrest was made early enough in the morning to
`dampen fears that an alarming delay occurred.
`
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`

`
`11
`strikes an explicit contrast between a person’s “right to ignore
`the police and go about his business” and “unprovoked flight
`upon noticing the police.” 528 U.S. at 124–25. Whatever can
`be made of the scant record before us, it is clear Stubblefield’s
`flight and attempt to outrun the police were “just the
`opposite” of “going about one’s business.” Id. at 125. And
`second, this piece of the mosaic must not be viewed in
`isolation. If all we had before us was an instance of
`unprovoked flight, the probable cause question would favor
`Stubblefield. See United States v. Sharpe, 470 U.S. 675, 706
`(1985) (Brennan, J., dissenting) (“[F]light alone cannot give
`rise to probable cause.”). But that’s not all we have before us.
`We’ve already shown how the witness descriptions, combined
`with Stubblefield’s location, at the very least contributed to a
`reasonable suspicion of wrongdoing. That is crucial—
`because while flight alone cannot sustain a finding of
`probable cause, it can when “coupled with pre-existing
`reasonable and articulable suspicion.” Id.
`
`
`III
`
`As we said at the outset, this case is fundamentally about
`probable cause, a “fluid concept[,] turning on the assessment
`of probabilities in particular factual contexts.” Gates, 462
`U.S. at 232. This case’s factual context, its assemblage of
`interlocking pieces, reveals a mosaic that clearly depicts
`probable cause. Because the FBI had probable cause to arrest
`him for bank robbery, Stubblefield’s Fourth Amendment
`argument for suppression is not meritorious and, therefore, his
`ineffective assistance of counsel claim fails. The decision of
`the district court is accordingly
`
`Affirmed.