Facts
On the night of February 27, 2022, Mary Smith and her sister were at their mother’s home. Smith’s sister told her that Smith’s daughter, Jane, was in possession of an ounce of methamphetamine and an ounce of fentanyl and needed to be picked up and driven back to the home. Smith’s sister left to pick up Jane and Charles Derryberry—with whom Jane was romantically involved—and bring them back to the home.
Smith had been working off and on as a confidential informant (CI) for the Lafayette County Sheriff’s Office (LCSO). After her sister left, Smith sent text messages and made phone calls to LCSO Chief Deputy Scott Mills and Criminal Investigator Brad McDonald to report the presence of narcotics in the vehicle that Smith’s sister was driving. She informed the officers that these drugs would be transported through Harmontown, a small community nearby, in a white Chevrolet truck. Although the text messages referred only to the “product” Jane had in her possession, Smith provided more detail regarding the types and quantities of narcotics in her phone conversations with the officers. Based on this information, Deputy Mills and Investigator McDonald asked LCSO Captain Jack Theobald to attempt to locate and stop the truck. Investigator McDonald told Captain Theobald that the truck was a white, four-door Chevrolet pickup registered to Smith’s father.
When Smith’s sister returned to the home with Jane and Derryberry, Smith, Jane, and Derryberry left in the truck to search for a missing relative with dementia. They began driving through the Harmontown area. About forty-five minutes later, while driving on the main route through Harmontown, Captain Theobald noticed a truck matching the description he was given. He believed the truck was speeding, so he pursued the vehicle and eventually initiated a traffic stop. (The district court was not convinced that Captain Theobald had reasonable suspicion to stop the vehicle for speeding. Accordingly, the only potential justification for the stop was Smith’s tip). Approximately two hours had elapsed between the time Smith contacted Deputy Mills and Investigator McDonald and the beginning of the traffic stop. Captain Theobald first verified that the truck was registered to Smith’s father.
He approached the vehicle and saw Jane in the driver’s seat, Smith in the passenger seat, and Derryberry lying down across the back seat. Captain Theobald and two other deputies then asked Derryberry to exit the vehicle and, after some initial resistance from Smith and Jane, received consent to search the vehicle. Captain Theobald found a nine-millimeter Smith & Wesson handgun under the back seat, near where Derryberry had been lying. A female officer frisked Smith and Jane and found a pipe inside Jane’s jeans. No drugs were found in the vehicle.
Derryberry was arrested and charged with being a convicted felon in knowing possession of a firearm. The District Court denied his motion to suppress the evidence. The 5th affirmed.
Analysis
Reasonable suspicion to stop a vehicle can arise based on an informant’s tip so long as the information provided boasts some indicia of reliability. See Powell. In Powell, the Fifth Circuit assessed the reliability of an informant’s tip using four non-exclusive factors: the credibility and reliability of the informant, the specificity of the information contained in the tip or report, the extent to which the information in the tip or report can be verified by officers in the field, and whether the tip or report concerns active or recent activity, or has instead gone stale.
Here, as to the first factor, the district court expressly found pertinent portions of Smith’s testimony, and the officers’ testimony regarding Smith’s reliability, credible. It initially found inconsequential the fact that the text messages between Smith and the officers lacked some of the information Smith purportedly relayed to the officers because Smith had also spoken with the officers over the phone. Although it acknowledged that Smith’s failure to reveal at the first suppression hearing that she was working as a CI for Metro Narcotics when the stop occurred undermined her trustworthiness, it found Smith’s expressed desire to help Jane credible. The district court recognized that more than one reason may very well have motivated Smith’s conduct and concluded that her explanation made sense. This finding was bolstered by evidence that Jane’s drug problem was very serious, and that Smith had expressed concern regarding Jane’s drug use to LCSO officers before. The district court also recognized Smith’s extensive criminal history. Nevertheless, it found that Smith’s previous tips over the span of twenty years were generally truthful and reliable and had even led to several arrests and drug seizures. Ultimately, the district court found that the first Powell factor weighed in favor of the Government.
As to the second prong of the Powell analysis—the specificity of the information provided—the district court could not help but question the specificity of the information Smith relayed to the officers. For instance, it noted the officers’ testimony differed regarding the type and quantity of narcotics purportedly present in the vehicle. But Smith’s tip also contained several specific, verifiable details: the make, color, and owner of the vehicle they were driving; where they would be traveling; how many people were in the vehicle; and Jane’s possession of a significant amount of at least one type of illicit drug. Based on inconsistencies in the officers’ testimony regarding what details Smith provided, the district court found that the overall lack of specificity counseled in favor of suppression.
The district court briefly discussed the third Powell factor, finding that the extent to which the information could be verified in the field favored suppression. It specifically noted that Captain Theobald was unable to locate any narcotics, although he was able to verify other details, such as the description, owner, and occupants of the truck.
Conversely, it concluded that the fourth Powell factor favored the Government because the reported activity was happening in real-time.
The district court also looked to additional considerations. For instance, it noted that Smith stayed in contact with law enforcement throughout the encounter, continuing to provide information to them as it occurred. The text messages supported Smith’s and the officers’ version of events, and any discrepancies as to the type and quantity of drugs present in the vehicle did not become apparent until after the search had been conducted. That officers found a pipe on Jane’s person also suggested that the vehicle’s occupants used drugs. Considering the totality of the circumstances, Derryberry has identified no clear error in the district court’s conclusion that Smith’s tip was reliable enough to form the basis of Captain Theobald’s reasonable suspicion that criminal activity had occurred or was occurring.
https://www.ca5.uscourts.gov/opinions/unpub/23/23-60338.0.pdf