United States v. Nelson ( 2002 )

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
3-26-2002
USA v. Nelson
Precedential or Non-Precedential:
Docket 1-1177
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PRECEDENTIAL
Filed March 26, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 01-1177
UNITED STATES OF AMERICA
v.
TERRANCE NELSON
aka
TERRENCE NELSON
aka
ALSHERIES NELSON
aka
RAJOHN NELSON
aka
MALIK JONES
Terrance Nelson,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 98-cr-00454)
District Judge: Honorable William G. Bassler
Argued December 4, 2001
Before: ALITO, RENDELL and AMBRO, Circuit Judges
(Filed March 26, 2002)
Eric Tunis, Esq. [ARGUED]
20 Northfield Avenue
West Orange, NJ 07052
Counsel for Appellant
George S. Leone, Esq.
Office of the U.S. Attorney
970 Broad Street, Room 700
Newark, NJ 07102
Norman J. Gross, Esq. [ARGUED]
Office of the U.S. Attorney
Camden Federal Building &
Courthouse
401 Market Street
P.O. Box 2098, 4th Floor
Camden, NJ 08101
Counsel for Appellee
OPINION OF THE COURT
RENDELL, Circuit Judge.
This appeal raises once again the difficult issue of
balancing the much-prized interest of our citizens in being
free from search and seizure against the need for law
enforcement officers to investigate criminal conduct and
protect the public's, and their own, safety. As the Supreme
Court has described our task, it is: "to recognize that the
Fourth Amendment governs all intrusions by agents of the
public upon personal security, and to make the scope of
the particular intrusion, in light of all the exigencies of the
case, a central element in the analysis of reasonableness."
Terry v. Ohio, 392 U.S. 1, 19 (1968).
In the nearly 34 years since its decision in Terry, the
Supreme Court has repeatedly opined as to how courts are
to strike that balance in different factual settings. Recently,
the Supreme Court reiterated that courts are not to
evaluate factors in isolation, but are instead to evaluate the
totality of the circumstances, and to afford to officers the
opportunity to "draw on their own experience and
specialized training to make inferences from and
2
deductions about the cumulative information available to
them that ``might well elude an untrained person.' " United
States v. Arvizu, 534 U.S. ___; 122 S. Ct. 744, 750-51
(January 15, 2002).1
I. Statement of Facts and Procedural History
Lt. Zacche had been with the Jersey City Police
Department since 1979, serving as a patrolman,
plainclothesman, sergeant and lieutenant. He had served
on the Narcotics Squad, the Juvenile and Missing Persons
Unit, and had been assigned to the Federal Drug
Enforcement Administration office in Newark. As
lieutenant, Zacche was in the Field Leadership and
Training Unit, where he was responsible for training officers
who had recently been promoted to supervisors as to"how
to handle various calls in the street."
On November 5, 1997, Lt. Zacche was the highest
ranking field officer on his shift, and, as such, was
responsible for the coordination of interagency cooperation
if there was a major incident, and for ensuring that police
responded to calls in a timely fashion. He received a
telephone call on a private line used only by family
members of the police officers and confidential informants.
The caller asked to speak to Officer Goldrich, a narcotics
officer. When advised that Officer Goldrich was not there,
the caller--without identifying himself--informed Lt. Zacche
that two "jump out boys" from Newark were"running our
pockets." Lt. Zacche understood "running pockets" as a
distinctive phrase used to describe armed hold-ups of drug
dealers that had been taking place in that area. The caller
recounted that two black males were involved and were
driving in a gray BMW with tags in the rear window."It's
just cruising up and down the drive, sticking us up, man.
You better do something." The caller stated that the car was
_________________________________________________________________
1. The District Court had jurisdiction pursuant to 18 U.S.C. S 3231. We
have jurisdiction pursuant to 28 U.S.C. S 1291, as this is an appeal from
a final decision, and pursuant to 18 U.S.C. S 3742(a), because this is an
appeal from a final sentence in a criminal case. Our review of the
reasonableness of the stop is plenary. United States v. Valentine, 232
F.3d 350, 353 (3d Cir. 2000), cert. denied, 532 U.S. 1014 (2001).
3
on Martin Luther King Drive in the area of Stegman. Lt.
Zacche immediately broadcast the information to all of the
officers in the South and West districts of Jersey City. He
also went out to pursue the call. A second, later phone call,
was made from a pay phone near the intersection of
Stegman St. and Ocean Ave. to Jersey City 911, also
reporting that two black men in a gray BMW with
temporary license plates were "riding around sticking up
people." That call was also broadcast.
Nelson was a passenger in a gray BMW that was driving
on Martin Luther King Drive during the early morning
hours. At about 1:00 a.m., the car was pulled over based
on the information provided by the two broadcasts. 2 A gun
that was protruding from the waistband of Nelson's pants
was visible to the plainclothes officer who approached the
passenger's side of the vehicle. It was a 9 mm. Lorcin
semiautomatic handgun with an obliterated serial number
and a laser gun sight. The officer asked the passenger to
step out of the car. When he did, the officer removed the
gun, patted him down, handcuffed him, placed him under
arrest and read him his rights. It was determined that
Nelson was on parole and had previously been convicted of
several felonies, including armed robbery. The District
Court considered whether a "reasonably prudent man in
the circumstances of the officer would be warranted in the
belief that his safety or that of others was in jeopardy,"
recognizing that an officer may draw inferences based on
his experience, but may not "base the stop on an inchoate
and unparticularized suspicion or hunch." Applying that
standard, the District Court found that the totality of the
circumstances gave rise to a reasonable suspicion that
justified the limited intrusion of a Terry stop. For the
_________________________________________________________________
2. The officers contended that one reason for stopping the vehicle was
that they had witnessed it run a red light; evidence was presented -- and
accepted by the District Court -- that the signal was actually in blinking
mode at the time, and that there was no predicate traffic violation to
justify the stop. There is no issue about the traffic violation before us
on
appeal. The officers also testified, however, that they were traveling on
Martin Luther King Drive to look for a gray BMW with temporary tags
and two black males inside in response to Lt. Zacche's broadcast.
4
reasons stated below, we agree, and we will therefore affirm
Nelson's conviction and sentence.3
II. Terry v. Ohio Jurisprudence
In 2000, the United States Supreme Court decided two
cases in which the justification for a stop was in dispute:
Florida v. J.L., 529 U.S. 266 (2000), and Illinois v. Wardlow,
528 U.S. 119 (2000). Although the parties focus their
discussion on J.L., the case whose facts are most closely
analogous to our own, we find the analysis in both cases
valuable in our assessment of what is necessary to justify
a stop.
A. Florida v. J.L.
"On October 13, 1995, an anonymous caller reported to
the Miami-Dade Police that a young black male standing at
a particular bus stop and wearing a plaid shirt was
carrying a gun." 529 U.S. at 268. After an unspecified
amount of time, two officers approached the bus stop and
noticed three young men, one of whom wore a plaid shirt.
None of the young men was behaving suspiciously; no
weapons were evident; and none of the young men ran. Id.The police officers frisked all three young men and found a
_________________________________________________________________
3. On appeal, Nelson has raised three issues. The other two issues --
one a challenge to the prosecutor's alleged vouching, and the other a
challenge under Apprendi v. New Jersey, 530 U.S. 466 (2000), based on
the District Court's failure to submit Nelson's recidivism to the jury --
we find to be without merit. The District Court found the vouching,
which did not seek to divert the jury from the evidence or its assessment
of it, not to constitute reversible error. We review the decision for
abuse
of discretion, and if we find error, we examine whether the error was of
constitutional proportions; if not, we affirm if there is a "high
probability"
the error did not contribute to the conviction. But if the error does
involve a violation of a constitutional right it must be harmless beyond
a reasonable doubt. United States v. Molina-Guevara, 96 F.3d 698, 703
(3d Cir. 1996). Applying that standard, we will not disturb the District
Court's ruling. Regarding Apprendi, the use of prior convictions without
a jury finding is explicitly excluded from the scope of Apprendi. See 530
U.S. at 490 ("Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable
doubt."). Only the Terry issue warrants extensive analysis.
5
gun on J.L. He was subsequently charged with carrying a
concealed firearm without a license and possession of a
firearm while under the age of 18. Id. at 269.
In determining that the police were not justified in their
stop of J.L., the Court noted several important factors:
- the telephone call was from an unknown caller and
an unknown location.
- the officers had no other basis or observations to
justify their actions.
- there was no corroborating evidence to "think the
tipster had inside knowledge about the suspect and
therefore to credit his assertion . . . ."
Id. at 270.
In addressing Florida's arguments, the Court refuted
assumptions and resolved controversies that had
permeated decisions of the courts of appeals and district
courts. The first of these was that an accurate description
was sufficient to infer reliability. As the Court stated:
An accurate description of a subject's readily
observable location and appearance is of course
reliable in this limited sense: It will help the police
correctly identify the person whom the tipster means to
accuse. Such a tip, however, does not show that the
tipster has knowledge of concealed criminal activity.
The reasonable suspicion here at issue requires that a
tip be reliable in its assertion of illegality, not just in its
tendency to identify a determinate person.
Id. at 272.
The Court also rejected the commonly-held perception
that allegations of gun possession lessen the reliability that
is otherwise required. The Court opined that the very
rationale of requiring only reasonable suspicion, rather
than probable cause, to warrant a Terry stop was precisely
to accommodate the need for police to respond to
dangerous situations posed by guns. While the Court
acknowledged that some dangers might be great enough, or
in some situations the expectation of privacy might be
reduced enough, to justify a search without any indicia of
6
reliability (for instance if it was reported that a person was
carrying a bomb), the Court emphasized that in all other
instances, a stop is justified only if there is sufficient
reliability to support a reasonable suspicion. Id. at 273-74.
B. Illinois v. Wardlow
Two months prior to J.L., the Supreme Court handed
down its opinion in Illinois v. Wardlow. There, officers were
patrolling an area that had been subject to heavy drug
trafficking. They observed a man holding a bag. When the
man saw the officers, he fled. The Illinois Supreme Court
had held that the combination of flight and a high crime
area were insufficient to justify a Terry stop. The United
States Supreme Court reversed.
It noted that "nervous, evasive behavior is a pertinent
factor in determining reasonable suspicion." 528 U.S. at
124. And it held that in combination the flight and the high
crime area justified the stop. But it also stressed that
"officers are not required to ignore the relevant
characteristics of a location in determining whether the
circumstances are sufficiently suspicious to warrant further
investigation." Id. And it reiterated that the stop's being in
a high crime area was "among the relevant contextual
considerations in a Terry analysis." Id.C. The Predecessors to J.L. and Wardlow
The reasoning of both J.L. and Wardlow drew on
principles established in several of the Court's earlier
decisions. In United States v. Hensley, for example, the
Court established that whether the officers making an
investigatory stop were justified in their decision depends
on whether the officer doing the broadcasting (or, in the
specific facts upon which Hensley was predicated, the
drawing up of a wanted poster) possessed a "reasonable
suspicion" on the basis of "articulable facts." 469 U.S. 221,
232-33 (1985).
The Supreme Court has repeatedly recognized that a
reasonable suspicion may be the result of any combination
of one or several factors: specialized knowledge and
investigative inferences (United States v. Cortez), personal
observation of suspicious behavior (Terry v. Ohio),
7
information from sources that have proven to be reliable,
and information from sources that -- while unknown to the
police -- prove by the accuracy and intimacy of the
information provided to be reliable at least as to the details
contained within that tip (Alabama v. White). In United
States v. Cortez the Court expanded on the standard:
Courts have used a variety of terms to capture the
elusive concept of what cause is sufficient to authorize
police to stop a person. Terms like "articulable reasons"
and "founded suspicion" are not self-defining; they fall
short of providing clear guidance dispositive of the
myriad factual situations that arise. But the essence of
all that has been written is that the totality of the
circumstances -- the whole picture -- must be taken
into account. Based upon that whole picture the
detaining officers must have a particularized and
objective basis for suspecting the particular person
stopped of criminal activity.
449 U.S. 411, 417-18 (1981). The Court stressed that, in
performing the requisite calculus, the evaluation of the
totality of the circumstances must give rise to a
particularized suspicion, because "[this] demand for
specificity in the information upon which police action is
predicated is the central teaching of this Court's Fourth
Amendment jurisprudence." Id. at 418 (quoting Terry at 21,
n.18).
In Cortez, a case in which the Court upheld a police stop
of a vehicle based on the officers' observations and
knowledge of how aliens were being smuggled, the Court
accorded great weight to the officers' knowledge of the area
being observed as a crossing point for aliens, and on the
pattern of operations they had discerned through their
investigations. Id. at 419.
The Supreme Court has just issued another opinion
construing reasonable suspicion in the context of cross-
border smuggling. See United States v. Arvizu , 534 U.S. ___;
122 S. Ct. 744. In Arvizu drugs, rather than aliens, were
being smuggled. The Ninth Circuit found the stop to be
illegal under Terry, characterizing each factor that
contributed to the officer's decision to stop the van either as
8
carrying "little or no weight in the reasonable-suspicion
calculus" or as inadequate to justify the stop. Id. at 750.
Reversing, the Supreme Court emphasized that the
"particularized and objective basis" for an officer's
reasonable suspicion arises out of the "totality of the
circumstances." Id. at 750. The Court also counseled that
officers' experience and specialized training may allow them
to make inferences and deductions from information that
"might well elude an untrained person." Id . at 751 (quoting
Cortez, 449 U.S. at 418.).
In Adams v. Williams, 407 U.S. 143 (1972), the Court
addressed whether tips could form the basis of reasonable
suspicion, concluding that where the tip was itself reliable,
it could itself be the basis of the reasonable suspicion, but
where the reliability of the tip was unknown or in doubt,
reasonable suspicion had to rest on more than just the tip.
Informants' tips, like all other clues and evidence
coming to a policeman on the scene, may vary greatly
in their value and reliability. One simple rule will not
cover every situation. Some tips, completely lacking in
indicia of reliability, would either warrant no police
response or require further investigation before a
forcible stop of a suspect would be authorized. But in
some situations -- for example, when the victim of a
street crime seeks immediate police aid and gives a
description of his assailant, or when a credible
informant warns of a specific impending crime -- the
subtleties of the hearsay rule should not thwart an
appropriate police response.
Id. at 147. The Court also accorded importance to the fact
that the stop occurred in a high crime area and during the
early morning hours justified officers' fear for their safety.
Id. at 147-48. Also, "[t]he Fourth Amendment does not
require a policeman who lacks the precise level of
information necessary for probable cause to arrest to
simply shrug his shoulders and allow a crime to occur or a
criminal to escape." Id. at 145.
The Court examined the propriety of a magistrate's
reliance on an anonymous tip to establish probable cause
to issue a search warrant in Illinois v. Gates , 462 U.S. 2139
(1983). The Illinois Supreme Court had utilized a two-prong
test to determine that the tip could not establish probable
cause, evaluating the veracity of the informant and the
basis of the knowledge provided. Id. at 230 n.4. Because
the author of the tip was unknown, the first ("veracity")
prong could not be established. The second "basis of
knowledge" prong could not be established because the
details provided were insufficient to infer how the writer
knew of the defendant's activities. Id. at 229-30. While
agreeing that it was important to evaluate an informant's
veracity, reliability, and basis of knowledge, the Court
rejected the rigid application of "separate and independent
requirements," stressing instead that probable cause could
be established only by examining the "totality of the
circumstances." Id. at 230-31. The Court found that the
DEA agents' knowledge of the pattern of drug run behavior,
combined with the fact that the agents' investigation
corroborated the details provided in the anonymous letter
were sufficient to constitute probable cause. Id . at 243-44.
The Court specifically disagreed with the Illinois Supreme
Court's discounting of the corroborative details as"innocent
activity," stating that "innocent behavior frequently will
provide the basis for a showing of probable cause" and that
"[i]n making a determination of probable cause the relevant
inquiry is not whether particular conduct is ``innocent' or
``guilty,' but the degree of suspicion that attaches to
particular types of noncriminal acts." Id. at 245 n.13.
The Supreme Court revisited the reliability of anonymous
tips in Alabama v. White, 496 U.S. 325, 329 (1990),
concluding there that an anonymous tip that provided
"virtually nothing from which one might conclude that [the
caller] is either honest or his information reliable" and that
provided no information that independently provided a
basis for suspecting criminal activity, was insufficient to
support a Terry stop. The Court emphasized the value that
knowing an informant contributes to assessing the
reliability of a tip, concluding that where there is no basis
for determining the reliability of a tip from the informant,
the information contained in the tip cannot by itself be
sufficient to provide probable cause or even reasonable
suspicion to justify a Terry stop. Instead, police must
investigate further to provide independent corroboration of
10
the tip in order to justify stopping the target of the tip. Id.
at 329. Such independent corroboration is measured by
both the quantity and quality of the totality of the
circumstances. If, for example, a tip on its own carries few
indicia of reliability, much corroborating information is
necessary to demonstrate reasonable suspicion. Id. at 330.
Thus, where the tip contains information that later
investigation contradicts, or that is of such a general nature
as to be easily obtained by any observer, there is no
reasonable suspicion. In White, in contrast, even though
the tip was wholly anonymous, the details provided in the
tip were sufficiently particularized and accurate to reflect a
"special familiarity" with the subject of the information. Id.
at 332. There, the "special familiarity" was demonstrated by
the accurate prediction of the defendant's future behavior.
Id.D. Third Circuit Jurisprudence
We recently had an opportunity to construe J.L . in United
States v. Valentine, 232 F.3d 350 (3d Cir. 2000). Two
officers had been patrolling a high crime area during the
early morning hours when they were flagged down by a
man who claimed he had just seen a man with a gun and
described the man's attire and his companion. The
informant refused to identify himself. The officers found two
men matching the informant's description in the parking lot
of a nearby restaurant, accompanied by a third man. When
they saw the police officers, they began to walk away. One
of the officers asked Valentine to come and place his hands
on the car; Valentine tried to charge past him, and, as he
did so, Valentine's gun fell to the ground.
There, we attached great weight to the fact that the
informant had just witnessed a crime. We also attributed
greater reliability to the informant's tip than to an
anonymous phone call because the officers had an
opportunity to appraise the witness's credibility through
observation. We noted specifically that we were concerned
not so much with whether the informant could be traced as
"whether the tip should be deemed sufficiently trustworthy
in light of the total circumstances." Id. at 355. We also
recognized in Valentine, as the Supreme Court had stated
in Gates and has recently reaffirmed in Arvizu, that acts
11
that in isolation may be "innocent in itself " or at least
susceptible to an innocent interpretation, may collectively
amount to reasonable suspicion. 534 U.S. at ___; 122 S. Ct.
at 751. The other factor present in Valentine that has been
absent in many of the cases that we have found inadequate
to support a reasonable suspicion is the timing of the
information relative to the commission of a crime,
particularly a crime of violence. When criminal activity is
reported to be ongoing, the public expects the police to take
action based on the reports. As we expressed in Valentine,
"if the police officers had done nothing and continued on
their way after receiving the informant's tip, the officers
would have been remiss." 232 F.3d at 356.
In upholding the stop as reasonable, we distinguished
United States v. Ubiles, 224 F.3d 213 (3d Cir. 2000), a case
factually similar to Valentine. In Ubiles, a man approached
a group of officers during a festival to indicate that there
was a man in the crowd whom he had seen with a gun. The
officers frisked the identified man and recovered a gun.
However, in the Virgin Islands, such gun possession is not
illegal, and the informant never alleged that any illegal
activity had occurred or would occur. Id. at 215. In drawing
the distinction, we emphasized that officers can consider
the time and area, as well as suspicious responses-- in
Valentine, the walking away upon seeing the officers -- in
determining whether suspicion is reasonable. Id . at 356-57.
Additionally, we noted that in Valentine, unlike in Ubiles,
the mere possession of a gun without a permit was illegal.
Id.We also note that, four years before J.L., we invalidated
a stop in a high-crime area where the anonymous tip called
in to the police described a person, his attire, and his
location and reported that he was selling drugs. United
States v. Roberson, 90 F.3d 75, 79-80 (3d Cir. 1996). When
the officers arrived at the location, they saw a person who
matched the description, first standing on the corner, then
talking to someone in a car. Id. at 80. It was early evening,
and the officers testified that Roberson's behavior was
"normal" for the neighborhood; there was nothing
suspicious about his presence on the corner nor the rate at
which he walked to the car. Id. Under the circumstances,
12
we found that the "anonymous and bare-bones tip" that
could have been generated by a caller "looking out his
window" was inadequate. An individual's presence in a
residential neighborhood, even at a "hot corner" known for
drug sales, could not, of itself, give rise to a reasonable
suspicion justifying the investigative stop of Mr. Roberson.
Id. at 79-80.
III. Analysis
Against the backdrop of Supreme Court guidance and
our precedents, we assess whether the communications to
the police possessed sufficient indicia of reliability, when
considering the totality of the circumstances, for us to
conclude that the officers possessed an objectively
reasonable suspicion sufficient to justify a Terry stop. We
find that they do. In order for the stop of the car to be
justified, the officers stopping the car must have had
reasonable suspicion. One element of that reasonable
suspicion has not been contested here: no one disputes
that the gray BMW with a tag in the back window and two
black males inside matched precisely the broadcast
information; nor that the car was on the road described in
the first broadcast.4 Because the officers stopping the car
did so based on the fact that the car and individuals
matched the description broadcast over the police radio, the
reasonableness of the stop in this case depends on the
reliability of the tip itself. Did Lt. Zacche have sufficient
grounds to view the tip as reliable and issue the radio
bulletin pursuant to which the car was stopped? See, e.g.,
Hensley, 469 U.S. at 232-33. See also United States v.
Colon, 250 F.3d 130 (2d Cir. 2001)(determining the
_________________________________________________________________
4. This is not a situation such as we confronted in United States v.
Kithcart, 134 F.3d 529, 531 (3d Cir. 1998) where the officer saw only one
person in a car, but still pulled it over, when the transmission had
reported a car containing two persons (and there in fact turned out to be
two in the car). The transmission in Kithcart had also identified the car
as possibly a Z-28 or Camaro, and the car pulled over was actually a
Nissan 300ZX.
13
reasonableness of a stop based on whether the original
recipient of the tip had reasonable suspicion.). 5
We conclude that he did. Even though Lt. Zacche did not
personally know the informant or his identity, he did know
that the caller had a previous relationship with the police,
and he was justified in inferring that the caller was an
informant. Here, while Lt. Zacche did not have the
"opportunity to assess the informant's credibility and
demeanor" that we considered significant in Valentine, see
232 F.3d at 354, the informant used a private line whose
number was disseminated only to family members and
informants, and the caller asked for one of Lt. Zacche's
coworkers by name. In J.L., the Court noted that one of the
characteristics of a known informant that contributes to
reliability is that he or she can be held responsible if the
allegations turn out to be fabricated. 529 U.S. at 270. Here,
the informant was not truly anonymous, because both the
caller and Lt. Zacche knew that another officer could
potentially identify the caller. This risk increased the
reliability of the caller. As well, the posture of the caller
allowed the officer to infer that the caller was himself a
victim of the criminal activity -- "they're running our
pockets" and "sticking us up, man. You better do
something." Adams specifically indicated that a victim of a
crime who "seeks immediate police aid and gives a
description of his assailant" warrants a police response.
407 U.S. at 147. We said in Valentine that reports of
present or imminent crime in a high crime area at a
suspicious hour warrant a response, and indeed, that"if
the police officers had done nothing and continued on their
way after receiving the informant's tip, the officers would
have been remiss." 232 F.3d at 356. The same is true here.
In the Supreme Court's most recent pronouncement on the
Fourth Amendment reasonable suspicion standard, it
_________________________________________________________________
5. The dissent would appear to require an independent reason to stop
the car -- swerving or erratic behavior -- but our reading of the case law
leads us to conclude that, given the reasonable suspicion that the
individuals in the car had committed the crimes reported, based on the
exact match of the unique description -- car, plates, occupants and
direction of travel -- no additional suspicious conduct was required to
justify the stop.
14
accorded great deference to the officer's knowledge of the
nature and the nuances of the type of criminal activity that
he had observed in his experience, almost to the point of
permitting it to be the focal point of the analysis. 534 U.S.
at ___; 122 S. Ct. at 751-53. Lt. Zacche's perception of the
reliability of the call in this case deserves similar respect.
Further, the information that was provided to Lt. Zacche
conformed to his specialized knowledge of a pattern of
criminal activity and to the location where that activity had
been occurring, and utilized certain language that was
peculiar to those criminal activities. Lt. Zacche was justified
therefore, under the precedents of Terry, Cortez, and Arvizu,
in drawing upon his specialized knowledge and experience
in considering the information provided to be reliable.
While the informant's call did not merit as much
credence as a face-to-face report or a call from an
informant who identified himself would have, nonetheless,
the use of the private line and the officer's name, coupled
with the accuracy and "inside" nature of the information, as
well as its urgency, afforded the call sufficient indicia of
reliability to arouse a reasonable suspicion. In weighing all
of the information available to Lt. Zacche, the tip here was
closer to the one upheld in Adams than the one
disapproved in Gates.
Under Hensley, then, the officers that heard the
broadcasts were reasonable in relying upon the information
provided. The second broadcast, standing alone, would not
have possessed sufficient indicia of reliability-- it was
wholly anonymous and received on a generally available
telephone line, even though it did originate from a high-
crime area and was reporting current criminal activity. In
these circumstances, though, it served both to confirm the
type of activity reported in the first call and to heighten the
officers' awareness of the need for intervention, since the
second call confirmed that the crimes were ongoing.
The officers were then able to corroborate the details
provided in the phone calls, and the totality of
circumstances bolstered the reasonable suspicion
necessary to justify the Terry stop. While the details
provided were not the predictions of future activity that
15
established the veracity of the tip in White, they did report
accurately observable characteristics -- the color and make
of the car and the fact that it had tags in the back window,
the fact that the car was traveling in the vicinity of the
original report, and the number, gender, and race of the
occupants. In Gates, the Court recognized that when an
informant has been shown to be right about some things,
he is probably right about others, including the alleged
criminal activity. 462 U.S. at 244. The fact that Nelson, like
Valentine, was in a high-crime area during the late night to
early morning hours, and the fact that every detail provided
by the informant matched the details observed by the
officers, and that some of those details established a
particularized suspicion, warranted the limited intervention
of an investigatory stop.
We disagree with Nelson's argument that such a finding
of reasonable suspicion is precluded both by J.L. and by
our own case law. In part, Nelson is concerned that the
District Court placed too much reliance on the tipster's
allegation that the suspects had a gun. Prior to J.L., many
courts had interpreted some of the language in earlier
Supreme Court cases to warrant extra caution on the part
of police when a tip alleged that a suspect was armed. As
we noted above, J.L. stated emphatically that no such "gun
exception" existed. While the District Court does state that
it is "important to note" that the "probability of gunplay"
was alleged, and it does cite as support cases that required
only a "weak corroboration of facts" when tips about guns
were provided, we think that the critical element alleged in
the tip was not the mere presence of a gun, but the fact
that violent crimes were in the process of being committed.
Further, at the hearing on Defendant's Supplemental
Motion for a New Trial, held October 2, 2000, the District
Court indicated that the ongoing criminal activity here
distinguished the situation from one in which "there's a guy
hanging out on the street and he's got a gun on him.. . .
[where] [t]here was no indication that he was engaged in or
about to engage in any kind of criminal activity." We believe
that J.L. was addressing a tendency by courts to use
suspicion of possession of a gun to justify the stop, but it
did not disturb the Supreme Court's consistent prior
teaching that an officer, in determining whether there is
16
reasonable suspicion, may take into account reports of an
active threat, including the presence and use of dangerous
weapons. J.L. did not disturb the officers' ability to consider
the prospect of harm to others or to themselves, for that
matter. Here, there were alleged repeated and ongoing acts
of victimization that, with a gun, could be deadly.
Appellant also challenges the sufficiency of the
information provided in the tip because it was not
"predictive." As discussed above, in White the Supreme
Court noted the importance of differentiating between facts
that could be observed by anyone and those that would be
known only to someone intimately familiar with the
criminal activity alleged. In White, the tip satisfied the latter
requirement because its predictions were sufficiently
specific to impute to the informant the particularized
knowledge stressed by the Court since the earliest cases.
See, e.g., Terry, Cortez. But we find that, while predictive
information can demonstrate particularized knowledge,
other aspects of the tip can reflect particularized knowledge
as well. Here -- as in Cortez -- what made the knowledge
"particularized" was the way in which the specific details of
language, type of activity and location matched a pattern of
criminal activity known to the police, but not to the general
public. The tipster did not need to know Nelson's future
behavior in order to demonstrate the sort of "inside
information" that connoted the caller's familiarity with the
conduct being reported. Also, the tipster was complaining of
activity that was happening to him; he was one of the
people being victimized, and was likely an informant. It was
only reasonable to conclude that he possessed special
knowledge. In J.L., in contrast, the only information
provided identified a man standing in a particular location,
dressed in certain clothes, and carrying a gun, all of which
was information that was readily observable by anyone, and
none of which would imply any special knowledge on the
part of the observer, let alone implicate ongoing or
imminent criminal activity. This lack of any connection to
criminal activity was ultimately the factor in Ubiles that
distinguished it from Valentine.
Nelson also contends that the District Court erroneously
distinguished our opinion in United States v. Roberson, 90
17
F.3d 75 (3d Cir. 1996), arguing that Roberson is "factually
indistinguishable from the present case." We disagree.
While again focusing on the predictive nature of the
particularized information provided in White, we
emphasized in Roberson that what distinguished
particularized facts that do support a reasonable suspicion
from generalized facts that do not, is whether "anyone"
could have provided the information on which the police
relied, and whether the details were known "to the general
public." 90 F.3d 75, 79. There, the facts provided were
generally observable, not particularized. Further, there was
no indication from the "anonymous and bare-bones tip"
that the tip was based on inside information rather than on
raw observation. Id. at 79-80. Here, in contrast, the tip
provided particularized information about the crimes that
were being committed that corresponded to specialized
knowledge that Lt. Zacche had. Thus, the tip could not
have been generated by the general public, nor based solely
on observation.
Our dissenting colleague relies on Roberson as setting
forth a binding "anonymous tip" rule for our court, but in
doing so emasculates the circumstances surrounding the
specific call in question, its content and import, and the
knowledge of the officer receiving it. None of these facts was
present in Roberson, but these facts were the focus in
Gates and White, which we discussed above and which
opinions provided the essence of our reasoning in Roberson.
Reliability, predictability, and corroboration do not mean
that an officer must have probable cause. Rather, they
mean that, given all the facts, the suspicion must be
reasonable. Key to our ruling in Roberson was our finding
of a "fleshless" tip that provided "only readily observable
information." 90 F.3d at 80. Here, we have more.
IV. Conclusion
In conclusion, we follow the Supreme Court's admonition
that reasonable suspicion cannot be reduced to "a neat set
of legal rules," lest our focus on factors in isolation blind us
to the "totality of the circumstances" that must guide our
assessment of police behavior. Arvizu, 534 U.S. at __; 122
S. Ct. at 751. Here, considering that the initial tip came
18
from an individual who had a prior relationship with the
police force, that it indicated specific "inside" knowledge,
and that it appeared to come from one who was an
informant and a victim, Lt. Zacche was "entitled to make an
assessment of the situation in light of his specialized
training and familiarity" with drug trafficking in general
and recent events and activity in the area in particular. Id.
at 752. Accordingly, the officers receiving the information
and observing a vehicle matching it in every detail, were
reasonable in making the Terry stop. For these reasons, we
will AFFIRM the decision of the District Court.
19
AMBRO, Circuit Judge, dissenting:
I respectfully dissent. While the majority purportedly
relies on "the totality of the circumstances" in reaching its
result, the record illustrates that the tip here came from an
anonymous caller, offered no predictive information of
future events, and was not adequately corroborated by the
arresting officers. The majority's opinion, in my view, is
inconsistent with Florida v. J.L., 529 U.S. 266 (2000), and
United States v. Roberson, 90 F.3d 75 (3d Cir. 1996), both
of which involved circumstances analogous to those present
here. Following those controlling decisions, I would reverse
the District Court's ruling.
In evaluating the existence of reasonable suspicion, the
Court must look at the "totality of the circumstances"
measured by "what the officers knew before they conducted
their search." J.L., 529 U.S. at 271. Where initial suspicion
arises not from officer observation but from an identifiable
informant's tip, only minimal police corroboration may be
needed to justify an investigative stop. Adams v. Williams,
407 U.S. 143, 147 (1972). Where the informant is
identified, his veracity, basis of knowledge, and track record
of providing information may suggest the tip's inherent
reliability. Id.In contrast, "an anonymous tip alone seldom
demonstrates the informant's basis of knowledge or veracity
inasmuch as ordinary citizens generally do not provide
extensive recitations of the basis of their everyday
observations and given that the veracity of persons
supplying anonymous tips is by hypothesis largely
unknown, and unknowable." Alabama v. White , 496 U.S.
325, 329 (1990). Because of the inherent unreliability of
such information, an anonymous tip must contain
"something more" before reasonable suspicion arises. Id.This higher standard dictates that reasonable suspicion
only arises from a "truly anonymous"1 tip if it provides
predictive future facts and the officers corroborate the
information by observing illegal or unusual conduct
_________________________________________________________________
1. As discussed later, a tip is "truly anonymous" if it is made from "an
unknown location by an unknown caller." J.L. , 529 U.S. at 270; see id.
at 275 (Kennedy, J., concurring).
20
suggesting "that criminal activity may be afoot." Id. at 332;
J.L., 529 U.S. at 272; see id. at 275 (Kennedy, J.,
concurring); Terry v. Ohio, 392 U.S. 1, 30 (1968).
Both J.L. and Roberson illustrate the difficulty of finding
reasonable suspicion from an anonymous tip. In J.L., an
anonymous caller alleged that a "young black male
standing at a particular bus stop and wearing a plaid shirt
was carrying a gun." 529 U.S. at 268. The Supreme Court
held that no reasonable suspicion arose because the tip
offered no predictive future facts that the police could
corroborate. Id. at 271.
Similarly, Roberson involved an anonymous caller who
alleged that "a heavy-set, black male wearing dark green
pants, a white hooded sweatshirt, and a brown leather
jacket was selling drugs on the 2100 block of Chelten
Avenue." 90 F.3d at 79. Judge (now Chief Judge) Becker,
writing for the majority, stated that reasonable suspicion
was lacking because "the police had no basis for assessing
either the reliability of the informant or the grounds on
which the informant believed that a crime was being
committed." Id. at 80.
Under this legal framework, we address the situation
before us. During the early hours of November 5, 1997,
Lieutenant Zacche was on duty in the Jersey City Police
Department, Southern District. While at the precinct he
answered a call on an untaped telephone used primarily by
officers' families and confidential informants. The male
caller asked for Officer Goldrich, a narcotics officer in the
precinct. Zacche identified himself, stated that Officer
Goldrich was off-duty, and asked the caller if he could be
of assistance. The caller refused to identify himself, and
instead informed Zacche that "two black males in a gray
BMW with a tag in the window was cruising up and down
Martin Luther King Drive in the area of Stegman." The
caller further stated that the two men were "jump out boys"
from Newark who were "running our pockets."
From these circumstances, the majority unearths
reasonable suspicion justifying a stop of Nelson's vehicle.
Of concern is the majority's conclusion that the informant's
call "was not truly anonymous," and thus the tip need not
21
provide "something more" before giving rise to reasonable
suspicion. An informant's call is anonymous when it is
made from "an unknown location by an unknown caller."
J.L., 529 U.S. at 270. Here, the informant offered no
information from which the officers could identify his
location. The call was unrecorded. Id. at 276 (Kennedy, J.,
concurring) (distinguishing truly anonymous calls from
those where "[v]oice recording of telephone tips might . . .
be used by police to locate the caller"). The tipster did not
state how, when, or where he observed the alleged activity.
United States v. Valentine, 232 F.3d 350, 354 (3d Cir.
2000); see New York v. Herold, 726 N.Y.S.2d 65, 66 (N.Y.
App. Div. 2001) (finding an informant not truly anonymous
where he observed criminal activity in one apartment from
a specific apartment in the same building).
Nor did the anonymous informant offer any information
suggesting his true identity. J.L., 529 U.S. at 275 (Kennedy,
J., concurring) (distinguishing a truly anonymous tipster
from an informant who has a proven track record of
providing reliable information); Valentine, 232 F.3d at 354(distinguishing face-to-face informants from truly
anonymous tipsters). The tip was also untraceable. J.L.,
529 U.S. at 276 (Kennedy, J., concurring) (distinguishing
truly anonymous tips from those where "the ability of the
police to trace the identity of anonymous telephone
informants may be a factor which lends reliability"); see
Arizona v. Gomez, 6 P.3d 765, 768 (Ariz. Ct. App. 2000)
(stating that a tipster placed her credibility at risk by
calling from her traceable private home phone).
From the tipster's mere mention of an officer's name, the
majority concludes that the caller was not anonymous. To
the contrary, the tipster's specific request for Officer
Goldrich only suggested, at best, his willingness to disclose
or compromise his identity, a predisposition upon which he
never acted. Further, nothing in the record suggests that
the caller actually possessed that willingness."The whole
picture" here shows that the call was made from"an
unknown location by an unknown caller," and thus the
caller remained cloaked in anonymity with the ability to "lie
with impunity." J.L., 529 U.S. at 275.
22
Further, Lieutenant Zacche, the supervising officer in the
case, believed that the tip was an anonymous one. At the
suppression hearing, he offered the following statement:
Q: Now, the information that you got over the phone
after you left the bathroom was an anonymous tip.
Correct?
A: Yes, sir.
Q: You have no idea who provided with you [sic] the
information. Is that right?
A: No, I don't.
The majority purports to give Lt. Zacche's "perception" of
the call "great deference . . . almost to the point of
permitting it to be the focal point of the analysis." Maj. Op.
at 15. Yet the majority fails to give any deference to Lt.
Zacche's statement regarding the issue of anonymity.
As noted above, an anonymous tip may provide
reasonable suspicion if independent police observation
corroborates its prediction of the suspect's future acts.
White, 496 U.S. at 332. The majority concedes, as it must,
that the anonymous tip here provided no predictive future
facts.2 The majority attempts to circumvent this
requirement by stating that a reliable tip need only show
that the informant possesses "inside information that
connoted the caller's familiarity with the conduct being
reported." In the context of an anonymous tip, however, the
Supreme Court has never applied this relaxed "inside
information" standard. Indeed, the Supreme Court has only
found an anonymous tip reliable when it contained
significant predictive future facts. Id.Even under the majority's "inside information" standard,
the record refutes its assertion that the tip offered
"particularized" knowledge relating to "a pattern of criminal
activity known to the police, but not to the general public."
Unfortunately, robberies of this kind were common
_________________________________________________________________
2. For example, in White, which the Supreme Court considered "a close
case," the anonymous tipster offered predicative future facts regarding
the alleged criminal's time of departure, intended destination, and likely
route. 496 U.S. at 331.
23
occurrences in this particular area, as Lt. Zacche
acknowledges in his testimony:
Q: How common is drug dealing in that area?
A: Stegman -- Stegman between the areas of Ocean,
MLK, Stegman, that small two block radius is one
of the most popular drug locations in the city.
Q: And how do you know that?
A: I spent nearly 10 years in narcotics and six of them
I was assigned in the Southern District as a
narcotics sergeant.
Q: How common are robberies in that area?
A: We had a big rash of robberies where we were
having rival groups from either areas of Jersey City
or out-of-towners coming in and they were sticking
up the local dealers.
Q: Okay. I was going to ask, how common are
robberies in particular regarding drug dealers in
that area?
A: Too many robberies.
From this testimony I find it a stretch to infer that "inside
information" known only to the police was being reported to
them. Further, Lt. Zacche states that these robberies were
common among "rival groups," suggesting a motive for why
an anonymous tipster might offer false information. 3 In
Roberson, Chief Judge Becker warned that "anyone of us
could face significant intrusion on the say-so of an
anonymous prankster, rival, or misinformed individual." 90
F.3d at 80-81 (emphasis added). This case is the Chief
Judge's admonition come to life.
The majority believes that the officers had reasonable
suspicion based on their corroboration of the reported
observable characteristics, i.e., the car's description, its
location, and the number, race, and gender of its
occupants. The Supreme Court rejected an identical claim
in J.L.:
_________________________________________________________________
3. In fact, the police made no efforts to verify whether the passengers in
the gray BMW actually committed any stickups.
24
An accurate description of a subject's readily
observable location and appearance is of course
reliable in this limited sense: It will help the police
correctly identify the person whom the tipster means to
accuse. Such a tip, however, does not show that the
tipster has knowledge of concealed criminal activity.
The reasonable suspicion here at issue requires that a
tip be reliable in its assertion of illegality , not just in its
tendency to identify a determinate person.
529 U.S. at 272 (emphasis added). The Court thus made it
clear that corroboration of the tip's alleged criminal activity
is essential. Id.; see also Roberson, 90 F.3d at 80 (holding
that even though the police corroborated the tip's"readily
observable facts," no reasonable suspicion arose because
the officers did not notice "unusual or suspicious conduct
on [the suspect's] part"). As in J.L. and Roberson, the police
here failed to corroborate the tip's claim of criminal activity.
Further, the police observed no unusual or suspicious
behavior by the passengers in the BMW, and the vehicle
was not being driven in a swerving, erratic, or evasive
manner. The officers' only observation was of two black
men in a BMW lawfully driving down a street, and that, as
far as I know, is not illegal, unusual, or suspicious.
Unwilling or unable to corroborate the tip's allegation of
criminal activity, the police instead fabricated a traffic
violation to mask the absence of reasonable suspicion.
Fortunately for these officers, the majority conjures what
an anonymous tip and minimal police work could not: the
reasonable suspicion necessary to justify stopping Nelson's
vehicle.
The majority also argues that a second 911 call helped
corroborate the first anonymous tip. However, the record
suggests that this 911 call is irrelevant to our
determination of reasonable suspicion. "The reasonableness
of official suspicion must be measured by what the officers
knew before they conducted their search." J.L., 529 U.S. at
271 (emphasis added). Contrary to the majority's reading,
there is no evidence that Officers Legowski and Petrovcik
knew of this 911 call before stopping Nelson's vehicle.
25
Thus, the second call cannot factor into the reasonable
suspicion analysis.4
In J.L., the Supreme Court held that no reasonable
suspicion arose based on a set of facts involving (1) an
anonymous tip, (2) an allegation that a "young black male
standing at a particular bus stop and wearing a plaid shirt
was carrying a gun," (3) no predictive future facts, and (4)
no police corroboration of the alleged criminal activity. 529
U.S. at 268-71.
In Roberson, this Court held that no reasonable suspicion
arose based on a set of facts involving (1) an anonymous
tip, (2) an allegation that "a heavy-set, black male wearing
dark green pants, a white hooded sweatshirt, and a brown
leather jacket was selling drugs on the 2100 block of
Chelten Avenue," (3) no predictive future facts, and (4) no
police corroboration of the alleged criminal activity. 90 F.3d
at 79-80.
As in J.L. and Roberson, the "whole picture" before us
involves (1) an anonymous tip, (2) an allegation that two
black males in a gray BMW were riding on MLK Drive
robbing drug dealers, (3) no predictive future facts, and (4)
no police corroboration of the alleged criminal activity.
_________________________________________________________________
4. Two additional arguments warrant brief response. The majority reads
too much into the caller's statement that the suspects were "running our
pockets." This situation is much different from those where the police
had identifiable evidence of the informant's status as a victim or
witness.
See Adams, 407 U.S. at 147 (discussing tips from known informants);
Valentine, 232 F.3d at 354 (involving a face-to-face informant who
witnessed criminal activity). Moreover, the tip here offered no
information
regarding how or when the informant observed the alleged activity.
Valentine, 232 F.3d at 354.
Second, the majority relies on the fact that the alleged activity took
place in a high crime area. While this fact is part of the "whole
picture,"
Illinois v. Wardlow, 528 U.S. 119, 124 (2000), its presence is not
crucial.
Indeed, this factor was also present in Roberson , and we still found
reasonable suspicion lacking under circumstances analogous to those
present here. 90 F.3 at 80; see Wardlow, 528 U.S. at 124 ("An
individual's presence in an area of expected criminal activity, standing
alone, is not enough to support a reasonable, particularized suspicion
that the person is committing a crime.").
26
J.L. and Roberson, in my view, control this case. Thus I
respectfully dissent.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
27