Facts
In 2018, a 911 caller reported a suspicious confrontation, possibly an armed robbery, transpiring in the parking lot of a Dallas liquor store. The caller, whose number was logged although he declined to identify himself, described seeing two people sitting in a white Ford Crown Victoria parked beside the store near a trash can.
He said that a black male—wearing a black hoodie, red pants, and white and gold “Jordans”—was seated in the driver’s seat and threatening the passenger, who he did not describe, with a black handgun that had an extended clip. No shots were fired, but it appeared, the caller said, that the suspect took pills from the passenger.
The 911 operator relayed the details of the anonymous call to the police. Approximately five minutes after the call, Officer Matthew Kalash arrived on the scene, followed a few seconds later by Officers Gary Green and Gabriele Pina. Almost immediately upon reaching the scene, Kalash sighted a person standing behind a dumpster, later identified as Terrel Rose, who seemed to mostly fit the informant’s description—a black man wearing red pants with white and gold tennis shoes but a light-gray hoodie rather than a black hoodie.
He also wore a black skullcap, and his loose-fitting hoodie was mostly unzipped, revealing a white t-shirt beneath. Parked nearby, as described by the caller, was a white Ford Crown Victoria beside the liquor store and a blue trash can. No one was in the vehicle.
Exiting his patrol car and approaching the dumpster, Kalash initially made eye contact with Rose, but Rose ducked out of viewpoint where he couldn’t see him for a second, and then popped back up. With Green also approaching, Kalash called for Rose to come out from behind the dumpster. Rose complied, saying that he had gone behind the dumpster to relieve himself, and Kalash briefly patted him down to check for weapons.
Motioning to the Crown Victoria, Green asked Rose if it belonged to him. Rose said that it did. Green then asked Rose to sit down as Kalash proceeded to search behind the dumpster, where he quickly found a black handgun with an extended clip on the ground in the area where he had first observed Rose. Bringing the weapon back to his car, Kalash ran the serial number and found that it had been reported stolen.
While Kalash checked the firearm, Green obtained Rose’s identification and ran a subject check, which, according to Kalash’s testimony, revealed an outstanding arrest warrant and documented gang membership. Approaching Rose again, Kalash asked if he had any tattoos, to which Rose responded that he did.
Kalash then asked if the Crown Victoria belonged to him, and when Rose said that it did, he asked if he could look inside. Rose replied, “go ahead.” Inside the car, which was still running, Kalash found multiple small baggies containing marijuana. Returning to Rose, Kalash asked, for gang information purposes, if he could photograph Rose’s tattoos, which Rose allowed. Kalash then informed Rose of the arrest warrant and discovery of marijuana in his car and placed him in handcuffs.
Proceeding to search him, Kalash found prescription bottles containing pills, for which Rose had no prescription, in his pockets. The officers then transported Rose to the jail. During the drive there, Officer Pina asked Rose standard booking questions.
A grand jury indicted Rose for unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court ruled the stop was improper. The 5th reversed.
Analysis
A 911 call can sometimes supply reasonable suspicion, and we evaluate the individual circumstances of each case when making that determination. In doing so, we consider four factors: (1) the credibility and reliability of the informant; (2) the specificity of the information contained in the tip or report; (3) the extent to which the information in the tip or report can be verified by officers in the field; and (4) whether the tip or report concerns active or recent activity or has instead gone stale. See Gomez.
A. Credibility and reliability of informant
First, we begin by considering the credibility and reliability of the informant. When it is anonymous, the Government must establish reasonable suspicion based on the remaining factors. But some attributes can increase reliability even when the informant chooses to remain anonymous. In its most recent anonymous-tip case, the U.S. Supreme Court in Navarette v. U.S, 572 U.S. 393 (2014), identified three factors that, taken together, support a decision by law enforcement to credit the reliability of anonymous tips: the informant (1) asserts eyewitness knowledge of the reported event; (2) reports contemporaneously with the event; and (3) uses the 911 emergency system, which permits call tracing and voice recording.
Here, all three of the Navarette factors favor the government. The tipster identified himself as an eyewitness to the events in the liquor store parking lot; he professed to describe those events as they unfolded, and the setting the officers found on their arrival five minutes later tended to support that timeline; and he used the 911 emergency system, which, as reflected by the record, both traced his number and recorded his call.
The district court apparently considered it significant that the tipster did not provide any predictive information to indicate any inside knowledge known to the tipster. But we have expressly held that there is no per se rule prohibiting investigatory stops based on anonymous tips that fail to provide predictive information. See Gomez. The need for predictive information is context dependent and is less important when the informant professes to see the alleged criminal activity unfolding in the open.
B. Specificity of information
Of specific details, the informant provided quite a lot. He indicated that the events were unfolding in his presence in real time; described the make, model, and color of the car; its location in the parking lot of a particular liquor store, beside the building and next to a trash can; the suspect’s race, sex, and clothing, even down to the style and color of his shoes; the threatening interaction with the person in the passenger seat, including the apparent passage of pills between them; and unique details about the gun involved.
C. Information verified by officers
Third, although some discrepancies were encountered, the information conveyed by the informant was mostly consistent with what the officers discovered when they arrived on the scene. They found the white Ford Crown Victoria, still running and parked on the side of the liquor store beside a trashcan. Steps away from the car, they identified a man who fit, in significant ways, the description they had received and who was in distinctive attire.
Rose’s furtive movements upon seeing them also tended to heighten their suspicion. And they found a firearm in his proximity that precisely matched the extended-clip handgun described by the informant.
The district court emphasized that the tip described a black hoodie instead of a light-gray hoodie and he was not inside the car. The district court focused mostly on the discrepancies and hardly at all on the striking similarities.
Citing Supreme Court case Florida v. J.L., 529 U.S. 266 (2000), Rose contends that a tip must be corroborated by more than wholly innocent facts, such as a subject’s clothes or appearance. Rose (and the district court) misconstrued J.L.’s holding. That case involved an anonymous tip—from an unknown location by an unknown caller—that a person was illegally carrying a gun. The informant, however, gave no indication how or why he knew that. In short, J.L. sets forth a rule that officers must corroborate anonymously reported criminal activity when the tip itself lacks certain indicia of reliability; it does not mandate that they always do so.
And this case is easily distinguishable from J.L. because the anonymous informant explained exactly how he knew about the alleged criminal activity: he was an eyewitness to conduct occurring in plain view at a public place.
D. Recent Activity
The criminal activity reported need not be ongoing when the officers arrive for them to nonetheless entertain reasonable suspicion sufficient to justify an investigatory stop. See Supreme Court case United States v. Hensley, 469 U.S. 221, 229 (1985).
Whether a tip has become stale is not assessed merely by mechanical counting of time between when a tip is received and when it is investigated. Instead, it depends upon the nature of the tip and the nature of the criminal activity alleged. See Gonzalez.
Here, the tip described, contemporaneous with its occurrence, what appeared to be an armed robbery. Within approximately five minutes, the officers arrived on the scene. And they found multiple indicators that the setting of the alleged crime remained mostly intact: the car remained parked exactly where the informant had said and a suspect mostly fitting the description provided was close by and acting abnormal. Moreover, the car itself was still running, suggesting that the suspect had only just left it and intended very soon to return to it.
Taken together, these facts leave minimal reason to conclude that the reported criminal activity had even dissipated by the time the officers acted upon the information.
Having determined that all the factors weigh in favor of the government, we conclude that, even when viewing the evidence in the light most favorable to Rose, no reasonable view of it supports the district court’s ruling. Accordingly, we REVERSE and REMAND.
https://www.ca5.uscourts.gov/opinions/unpub/20/20-10463.0.pdf