Opinion for the Court filed by Chief Judge MIKVA.
Dissenting opinion filed by Circuit Judge WALD.
MIKVA, Chief Judge:
This troubling case requires the court to examine the bounds of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its considerable progeny. Terry allowed the police to "frisk" a suspect for weapons when they stopped someone and had reason to believe that they were dealing with a possibly armed person. While Terry only analyzed the "frisk," it implicitly assumed the validity of the stop itself when there was a similar reasonable belief that a crime had been or was being committed. This implicit authority to stop a suspect without a warrant under Terry was made explicit in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). We uphold the "stop and frisk" in this case.
A might be expected, all of the cases which involve this "stop and frisk" exception to the warrant requirements of the Fourth Amendment turn on the specific facts of the case. Sometimes the line between when police conduct will be upheld and when it will be rejected is very thin; it always depends on the precise factual situation that confronted the officer of the case. This ease presents a particularly close call, and therefore the facts must be detailed at some length.
On March 29, 1991, at approximately 11:40 a.m., several officers of the Metropolitan Police Department were moving quickly up a short flight of steps in a small apartment complex to execute a search warrant for narcotics. The warrant authorized a search for narcotics, notebooks, binders and personal papers proving residency within the apartment. A the officers came up the stairs, holding their weapons at the ready, they saw the defendant, Carlton Reid, exit the apartment to be searched and proceed down the stairs. The first two officers on the steps allowed Reid to pass them by; the third officer, Carter, ordered Reid to stop, and immediately conducted a pat-down for weapons. Reid did not say anything to Carter, nor did he resist the stop and frisk. Officer Carter did not find a weapon, but did find and retrieve from Reid's front shirt pocket a large plastic bag. The bag contained 23 ziplock bags of crack cocaine, several empty ziplock bags, and one ziplock bag which contained a razor blade.
Officer Carter returned the large plastic bag to Reid's shirt pocket and detained Reid while the other officers broke down the door to the apartment and executed the search warrant. After the officers entered the apartment, Reid was taken inside, placed on the floor and again patted down. The officers again retrieved the large plastic bag from Reid's shirt pocket, and also discovered two much larger pieces of crack cocaine in Reid's pants pocket. Reid was then arrested for possession of crack cocaine.
Reid sought to have the evidence suppressed prior to trial, and, at the suppression hearing, additional pertinent facts were brought forth. Officer Carter testified that his reason for believing that Reid should be stopped stemmed from his leaving of the apartment just as it was about to be searched for drugs. Officer Carter explained that he searched Reid for weapons "[bjecause in my experience as a police officer in executing narcotics search warrants, it's always a chance that sometime there is weapons in the premises or on persons in that premises." When Officer Carter patted Reid's chest, he felt a "hard object" that "could have been a gun." He further testified that the first two officers who preceded him up the steps had specific functions in the prospective search: the first officer was carrying the ram, with which the door to the apartment was in fact knocked down; the second officer was the "announce" officer who informed the residents of the apartment that the police had a warrant and were entitled to entry.
The trial court denied the motion to suppress the evidence that was seized from Reid. Judge Richey concluded that the police had a reasonable basis for the stop: "under the totality of the circumstances here, the conduct of the police was reasonable----" The trial court found that the officers in this case "had even more reason to be careful" because the warrant for the apartment to be searched described it as a place where "crack activity was being conducted."
The legal landscape reflects all of the variations on the theme first articulated by the Supreme Court in Terry. The tension between the promises of personal security in the Fourth Amendment to the Constitution and the need for police to be able to protect themselves from concealed weapons every time a suspect is stopped is real and ongoing. The conflict between the right to be let alone and the need for the police to be able to pursue enforcement and investigative tasks is equally sharp. In all of these contraplexes, the Supreme Court has made it clear that the Fourth Amendment protection from unlawful search and seizure is not an impenetrable barrier to the police performing their necessary tasks and protecting themselves from concealed weapons in such performance. As Chief Justice Warren stated in Terry,
the central inquiry under the Fourth Amendment [is the] reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security____ The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?
Terry, 392 U.S. at 19, 21-22, 88 S.Ct. at 1878, 1880 (citations and footnotes omitted). With that as the touchstone, we cannot say that the conduct of Officer Carter was unreasonable in the circumstances of this case. We have no basis for resolving the ambivalence any differently than did Judge Richey, who heard first-hand the accounting of the situation that prevailed on the day of the drug raid.
Counsel for Reid argue that cases such as Ybarra v. Illinois, 444 U.S. 85,100 S.Ct. 338, 62 L.Ed.2d 238 (1979) call for a reversal in this case. In Ybarra, the Supreme Court refused to uphold a search and seizure of patrons in a public tavern that was being searched lawfully pursuant to a warrant. The Court explained that the frisk of Ybarra was unjustified because the police knew nothing about Ybarra "except that he was present, along with several other customers, in a public tavern at a time when the police had reason to believe that the bartender would have heroin for sale." Id. at 91, 100 S.Ct. at 342. The frisk in this case, however, did not occur in a public place. Common sense suggests that there is a much greater likelihood that a person found in a small private residence containing drugs will be involved in the drug activity occurring there than an individual who happens to be in a public tavern where the bartender is suspected of possess ing drugs. Police officers are not blind to these realities and we should not encourage them to be.
The government, for its part, urges us to align this case with Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). In Summers, the Supreme Court held that it was appropriate to detain a person who was in the process of leaving his apartment when the officers arrived to execute a search warrant of his house. Notably, the Court did not consider whether the search of Summers was justified because the frisk occurred after probable cause to arrest had been established. Moreover, unlike Summers, Reid was not a resident of the apartment which was to be searched under the warrant, and the trial did not disclose that he had any proprietary or residential interest in the suspect premises. In that respect, Reid is closer to the patron in the bar than the owner of the Summers house. That distinction, however, also points up the futility of trying to fashion a bright line rule that will tell judges which searches and seizures are which side of Terry. It is more important to remember Chief Justice Warren's admonition that the "scheme of the Fourth Amendment" is bottomed on the "reasonableness of a particular search or seizure in light of the particular circumstances." Terry, 392 U.S. at 21, 88 S.Ct. at 1880. It does not stretch the imagination too much to conjure up a fact situation where a bar patron might be a reasonable target for a "stop and frisk" notwithstanding the Ybarra precedent, any more than that it might be unreasonable under some circumstances to detain a homeowner whose house is about to be searched.
The government would like us to extend Summers to hold that the police, when executing a narcotics search warrant, should be able to search everyone on the premises for weapons. People v. Thurman, 209 Cal.App.3d 817, 257 Cal.Rptr. 517 (1989), seems to support that view. Whatever the intrinsic logic of that intermediate court case in California, it does not fit the facts of this case any more than Summers. Reid was not on or in the premises to be searched, and were it not for the specific testimony of Officer Carter that he felt endangered by Reid's potential presence behind the police officers as they were seeking to execute the search warrant, the government could not prevail. Difficult as it may be to fashion appellate review on such fact-bound principles, it seems necessary to do so when the challenge to support liberty and order is as great as it is under the Fourth Amendment.
We recognize the danger of slippage into a guilt by association pattern whereby anyone seen near prospective drug activity becomes fair game for a stop and frisk. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) was just such a case. The police officer was told in no uncertain terms that "[t]he inference that people who talk to narcotics addicts are engaged in the criminal traffic in narcotics is simply not the sort of reasonable inference required to support an intrusion by the police upon an individual's personal security." Sibron, 392 U.S. at 62, 88 S.Ct. at 1902. The line of distinction is admittedly thin between people who talk to narcotics addicts and people who frequent apartments where narcotics activity is being conducted. But it is a line that has some bearing on the reasonableness of the officer's conduct. There is more reason to suspect that an individual who is present in a private residence containing drugs is involved in illegal drug activity than someone who merely holds conversations with drug addicts in public places. Here, the justification for the stop and frisk lies in Reid's proximity to the premises to be searched, and the reasonableness of Officer Carter's expressed concern about his safety and that of his colleagues. We have even less basis for challenging that reasonableness on appeal than did the trial court in hearing the evidence on the motion to suppress evidence.
We recognize that we have created no beacons for police or trial judges to use in navigating the deep waters of Fourth Amendment doctrine. Unfortunately, "reasonableness" is not a plain meaning word that lends itself to bright-line parsing.
Reid also contends that the district court committed reversible error by refusing to grant him a two-level reduction in his base offense level for acceptance of responsibility. See U.S.S.G. § 3El.l(a) (a sentence reduction is warranted "[i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for [his] criminal conduct"). According to Reid, he is deserving of the two-level reduction because he accepted responsibility for his offense during his testimony at the suppression hearing and went to trial only to preserve his Fourth Amendment claims for appeal.
The district court was not persuaded that Reid's testimony at the suppression hearing amounted to an unequivocal acceptance of responsibility. Rather, the court found Reid's testimony to be somewhat contradictory and ambiguous. In addition, the court found Reid's refusal to discuss the facts of the case with his probation officer to be inconsistent with his claim of acceptance of responsibility.
As we explained in United States v. Barry, acceptance of responsibility determinations by the district court are "entitled, at the least, to the benefit of the clearly erroneous standard of review." United States v. Barry, 961 F.2d 260, 266 (D.C.Cir.1992) (quoting United States v. Taylor, 937 F.2d 676, 680 (D.C.Cir.1991) (emphasis added by Barry Court). Viewing the district court's decision under this highly deferential standard, we see no basis for reversal. Not only was the sentencing court "unquestionably in a better position to assess the contrition and candor" of the defendant than we are on appeal, Taylor, 937 F.2d at 680, the defendant in this case pled not guilty and went to trial.
A two-point reduction for acceptance of responsibility is generally not available to a defendant that has put the government to its proof. See U.S.S.G. § 3E1.1; United States v. McLean, 951 F.2d 1300, 1303 n. 2 (D.C.Cir.1991). And while Reid apparently went to trial to "preserve issues that do not relate to factual guilt," we are not persuaded that this is necessarily one of those "rare situations," where the defendant is entitled to a two-point reduction even though he put the government to its proof. See U.S.S.G. § 3E1.1 comment n. 2. It was reasonable for the district court to conclude that Reid's failure to discuss the case with his probation officer, taken together with his ambiguous testimony during the suppression hearing and his decision to go to trial, failed to make out the clear showing necessary to justify a two-point reduction for acceptance of responsibility. Reid's conviction and sentence are therefore affirmed.
Affirmed.