United States v. Brown ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
5-22-2006
USA v. Brown
Precedential or Non-Precedential: Precedential
Docket No. 05-1723
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-1723
UNITED STATES OF AMERICA
v.
KAREEM BROWN,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 03-cr-00683-1)
District Judge: Honorable Timothy J. Savage
Argued January 17, 2006
Before: BARRY, AMBRO and ALDISERT, Circuit Judges
(Filed: May 22, 2006)
Thomas F. Burke, Esquire (Argued)
Law Office of William J. Brennan
123 South Broad Street, Suite 1970
Philadelphia, PA 19109
Counsel for Appellant
Patrick L. Meehan
United States Attorney
Robert A. Zauzmer
Assistant United States Attorney
Chief of Appeals
John N. Joseph
Assistant United States Attorney
Karen L. Grigsby, Esquire (Argued)
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106
Counsel for Appellee
OPINION OF THE COURT
AMBRO, Circuit Judge
Kareem Brown appeals the denial by the United States
District Court for the Eastern District of Pennsylvania of his
motion to suppress evidence. Brown argues that he was
2
improperly stopped and searched, and thus the incriminating
evidence uncovered by that search was not properly admitted at
his trial. We agree, and accordingly reverse the District Court’s
denial of Brown’s motion to suppress and vacate his conviction.1
I. Factual Background
Our facts are taken from the suppression hearing held by
the District Court. On the evening of June 1, 2003, Jelena
Radenkovic and Lucia Zapatero were walking in the 2100 block
of Locust Street in Philadelphia. They were approached by two
black male teenagers who attempted to grab Radenkovic’s
purse. She refused to let go, and one of the males pointed a gun
at her. She turned and walked away from him. The males then
abandoned the robbery attempt and ran south on 22nd Street.
Moments after the attackers fled, Radenkovic called 911
to report the robbery to the police. In the course of that call,
Radenkovic described the robbery suspects as African-American
males between 15 and 20 years of age, one 5' 8" and the other 6',
wearing dark, hooded sweatshirts and running south on 22nd
Street. Immediately after calling 911, Radenkovic called her
friend, William Firth, who was waiting to meet her at a nearby
restaurant. Radenkovic told Firth about the attempted robbery
1
Because we reverse on the ground that the stop of Brown
was not supported by reasonable suspicion, we express no
opinion as to the lawfulness of the frisk independent of the stop.
3
and described the suspects, providing “just the clothing, the
general description. I didn’t go into too many details, but in
enough detail.”
Minutes later, a police officer, who was not identified in
the record, arrived and took a second description from
Radenkovic. That officer then relayed the description over the
police radio. The parties contest the content of the broadcast.
The Government states the broadcast “described the two
suspects as black males in their teens or 20's with dark
clothing.” Brown asserts the printout of the radio call reads:
“Black male, black hoody, last seen on Locust, attempted to
grab female’s purse. Location: westbound on Locust2, both 16-
18. The description reads: six-one, gray hoody, black pants;
number two: five-nine, thin, navy blue hoody.” The District
Court’s findings of fact state that the broadcast consisted of the
description Radenkovic had provided in her call to the 911
operator. The Court found that, while the officer was speaking
over the radio and describing one of the suspects as 15 years old
and the other as three or four years older, Lucia Zapatero
commented that she thought the suspects were older, in their
early twenties.
Within minutes of the police broadcast, Radenkovic, who
2
At all other places in the record the suspects are described as
running southbound on 22nd Street. This discrepancy in the
printout of the radio call is not material for our opinion.
4
was sitting in the police car at this point, received a call from
Firth, who stated he had just seen two men fitting the
descriptions of the robbery suspects at 22nd and Lombard
Streets (a location three blocks south of Locust Street).3 The
Court also found that a second officer, Kathleen Pacheco, who
arrived on the scene at that time, heard Radenkovic exclaim
“that the guys who had robbed her were at 22nd and Lombard
Streets.”
Based on Radenkovic’s comments, Officer Pacheco
drove to 22nd and Lombard Streets and en route issued a radio
call with the location information provided by Radenkovic.
Upon arriving, Pacheco observed two black males, Kareem
Brown and Jerome Smith, who appeared to be coming out of a
store with cups of coffee. Pacheco issued another radio call,
stating that she “had in [her] sight the two men that were
described [in] the [broadcast].” The following exchange took
place between Officer Pacheco and the Court about her
statement that the men matched the description of the suspects:
The Court: In what way did they match the
3
There is some discrepancy between the findings of fact and
Radenkovic’s testimony that Firth told her “these may be your
guys” and that she said to police “our guys may be on 22nd and
Lombard. My friend just called me. . . . They may be our guys.”
(emphases added). The District Court clarified this testimony
by asking: “They may be?” and Radenkovic responded: “Yes,
may be.”
5
description?
Officer Pacheco: From the radio --
The Court: What way?
Officer Pacheco: That they were two black males
with dark clothing.
The Court: That’s it?
Officer Pacheco: That’s what we received.
On the date of the attempted robbery, Brown, the appellant in
this case, was 27 years old, 6' tall, and had a full beard. Smith
was 31 years old, 5'8" tall, and also had a full beard.
Meanwhile, a third officer, Officer Marano Santiago, had
received the call with the location tip from Officer Pacheco and
arrived at 22nd and Lombard Streets at approximately the same
time. Santiago observed Smith and Brown as they were walking
across the street and hailing a taxi. He testified that the men
were walking normally and were not out of breath. He also
stated it was not unusual to see two black males at that location,
as there is a predominantly black neighborhood less than two
blocks away.
Officer Santiago testified as well that Smith and Brown
fit the description he received over the radio, in that they were
black males of the described height in dark clothing. Santiago
agreed at the suppression hearing that “two black males []
wearing dark clothing is a very general description.” In fact, at
some point before leaving his vehicle, Santiago had called for a
more specific description of the suspects, but did not receive any
6
additional information.4 Santiago summed up by stating that
4
The following exchange took place between the Court and
Officer Santiago after he testified that he had called in for
additional descriptive information:
Officer Santiago: All I was looking for was black
clothing, two black males.
The Court: That’s all you remember?
Officer Santiago: That’s correct.
The Court: So what happened when you called
and said, I want more information,
what did they give you?
Officer Santiago: They gave me– what I requested
was anymore [sic] clothing.
They keep saying, black clothing.
The Court: That’s what you recall them
saying?
Officer Santiago: That’s what I recall.
The Court: What else did they give you?
Officer Santiago: Basically, that was it, just black
clothing.
The Court: Where did you get his height from?
Officer Santiago: The height? From [the radio
broadcast].
The Court: So you had a height?
Officer Santiago: Yes.
The Court: And you had two black males.
Officer Santiago: That’s correct.
The Court: You had a gun?
Officer Santiago: Correct.
The Court: What else did they give you?
7
“[t]hey were the only two black males at that location[.] That
was the only reason why those two males were stopped by me
and they were investigated by me.” Indeed, he testified that he
would have stopped them even “if they were both five feet tall
wearing white clothes.”
Officer Santiago then approached Smith and Brown, told
the taxicab to keep moving, and informed them that they looked
like two persons who had attempted to commit a robbery and
that he wanted to talk to them.
I told them basically what
happened at 22nd and Locust. I
told them that I need to make an
investigation on both males. It was
a nice, brief conversation we had.
I let them know that we were
having the complainant, the victim
of the robbery, coming over to
22nd and Lombard to see if they
were the doers. If they weren’t,
they were free to go. At that point,
as we were waiting, I demanded
both males for my safety and their
Officer Santiago: What else? That’s all I can recall.
That was it.
8
safety that I was going to pat them
down.
Officer Santiago testified that he wanted to pat them down
because
there was a robbery committed at
22nd and Locust . . . . For my
safety at that point, I felt that I
should pat them down. Like I said,
they were not at that point – they
were not apprehended at any point.
They complied with my demands,
so I felt it was my right for me to
pat them down.
Santiago also stated, in response to questioning by the Court,
that he had decided to pat down the defendants regardless
whether they ran away or complied.
The District Court found that, as Santiago “attempted to
frisk him, Brown struggled and appeared to try to escape . . . .
While he was facing the police car, Brown attempted to place
his hand in his pocket, causing Santiago to restrain him . . . .
Santiago placed Brown in handcuffs and then recovered a gun
9
from Brown’s front belt area.”5 The moment at which “Brown
struggled and appeared to try to escape” was described in more
detail by Officer Pacheco:
Officer Santiago said to [Brown],
[‘C]ome on, I have to pat you
down. We just have a job. You
match the description.[‘] [Santiago]
takes him over to the car, stands up
against the car, turned him around,
started to pat him, and he started to
kind of like break away. With that,
[Santiago] put him over the head of
the car. You could see that he was
fidgeting. I jumped on [Santiago’s]
back to keep [Brown] from getting
his hands loose before we could
cuff him . . . .
5
At approximately the same time that Officer Santiago arrived
at 22nd and Lombard Streets, Officer Kenyatta Abney arrived
at that location. Officer Abney pursued Smith, who ran down
Van Pelt Street, squatted behind a car and then came up with his
hands raised in the air. Abney put Smith in handcuffs and then
surveyed the area with other police officers. The survey resulted
in the discovery of a gun behind the curbside tire of the vehicle
behind which Smith had squatted. Smith is not a party to this
appeal.
10
Officer Pacheco also stated that Brown placed his hands on the
police car before his breakaway attempt. This version of events
was supported by a report (called a “7549 report”) summarizing
the incident based on information the arresting officers provided
to detectives shortly after the arrest. The 7549 report states that
“[b]oth males had their hands placed on the hood of the police
vehicle. Brown started to struggle while handcuffs were being
placed on his hands.”
A different version of the frisk was provided by Officer
Santiago, who testified that “as soon as I requested both of them
to put their hands on the vehicle, they made the intent to put
their hands on the vehicle, they made the intent to put their
hands on top of the car, but they never did. That’s when [Smith
fled].” After Smith ran, Brown “[had] the intent also to flee, but
being that he was so close to me, I held him. We went into a
little struggle.”
Ultimately, police officers brought Radenkovic to the two
locations where Brown and Smith were being held. Radenkovic
informed the police that these were not the males who attempted
to rob her; Brown and Smith had beards and the robbers did not,
and Smith and Brown were much older than the robbers.
Brown moved to suppress the firearm found on him,
claiming there was not reasonable suspicion for the stop. After
a two-day evidentiary hearing, the District Court denied the
motion.
11
The case then went to a jury trial. Brown was found
guilty of being a convicted felon in possession of a firearm
under 18 U.S.C. §§ 922(g) and 924(e). His sentence included
180 months imprisonment and five years supervised release.
He appeals.6
II. Discussion
The Fourth Amendment prohibits “unreasonable searches
and seizures . . . .” U.S. Const. amend. IV. “Generally, for a
seizure to be reasonable under the Fourth Amendment, it must
be effectuated with a warrant based on probable cause.” United
States v. Robertson, 305 F.3d 164, 167 (3d Cir. 2002). But,
under the exception to the warrant requirement established in
Terry v. Ohio, 392 U.S. 1 (1968), “an officer may, consistent
with the Fourth Amendment, conduct a brief, investigatory stop
when the officer has a reasonable, articulable suspicion that
criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119,
123 (2000). Any evidence obtained pursuant to an investigatory
stop (also known as a “Terry stop” or a “stop and frisk”) that
does not meet this exception must be suppressed as “fruit of the
poisonous tree.” See Wong Sun v. United States, 371 U.S. 471,
487-88 (1963); United States v. Coggins, 986 F.2d 651, 653 (3d
Cir. 1993).7
6
We have jurisdiction pursuant to 28 U.S.C. § 1291.
7
The Terry analysis applies here even though the crime in
question had already been completed. United States v. Hensley,
12
Before us is whether Officer Santiago had reasonable
suspicion to stop and frisk Brown. If not, the firearm found on
him must be suppressed as the fruit of an unlawful seizure. We
review the District Court’s denial of a motion to suppress for
clear error as to the underlying factual findings and we exercise
plenary review over questions of law. United States v. Coward,
296 F.3d 176, 179 (3d Cir. 2002).
A. When was Brown seized?
We begin by determining when the seizure of Brown
occurred, as that is the moment “the Fourth Amendment
becomes relevant.” Terry, 392 U.S. at 16; see Johnson v.
Campbell, 332 F.3d 199, 205 (3d Cir. 2003). Only then can we
evaluate the presence or absence of reasonable suspicion, as we
must consider only “the facts available to the officer at the
moment of the seizure.” Terry, 392 U.S. at 21-22; see also
Florida v. J.L., 529 U.S. 266, 271 (2000); Johnson, 332 F.3d at
205.
The Government urges us to hold that Brown was not
seized until after the officers succeeded in handcuffing him,
469 U.S. 221, 229 (1985) (“[I]f police have a reasonable
suspicion, grounded in specific and articulable facts, that a
person they encounter was involved in or is wanted in
connection with a completed felony, then a Terry stop may be
made to investigate that suspicion.”).
13
which was after his attempted breakaway and the finding of the
gun. Brown contends that he was seized earlier in the
encounter, at the moment he submitted to Officer Santiago’s
show of authority by turning and placing his hands on the police
vehicle. The benefit to the parties of having their
characterization of the seizure adopted is significant – if the
seizure occurred after Brown’s apparent escape attempt, we
must include that attempt in our analysis of reasonable
suspicion. In contrast, if the seizure occurred before the
attempted escape, it plays no role in the reasonable suspicion
analysis. See, e.g., Johnson, 332 F.3d at 210. Flight from a
lawful frisk or arrest can contribute to a finding of reasonable
suspicion; thus, the timing of the seizure could tip the finding in
favor of one party or the other. See, e.g., Wardlow, 528 U.S. at
124 (“[h]eadlong flight . . . is . . . suggestive of [wrongdoing]”);
United States v. Brown, 159 F.3d 147, 149 (3d Cir. 1998)
(“flight combined with other factors may support a warrantless
stop and frisk”).
A seizure occurs when there is either (a) “a laying on of
hands or application of physical force to restrain movement,
even when it is ultimately unsuccessful,” or (b) submission to “a
show of authority.” California v. Hodari D., 499 U.S. 621, 626
(1991). Put another way, when a seizure is effected by even
“the slightest application of physical force,” it is immaterial
whether the suspect yields to that force. Id. at 625-26. In
contrast, if a suspect in the absence of physical force does not
submit to an officer’s show of authority, there is no seizure and
14
no Fourth Amendment claim. Id. at 626-27. “[T]he test for
existence of a ‘show of authority’ is an objective one: not
whether the citizen perceived that he was being ordered to
restrict his movement, but whether the officer’s words and
actions would have conveyed that to a reasonable person.” Id.
at 628.
Here there was a clear show of authority when Santiago
told Brown and Smith that a robbery victim was being brought
over to identify them as possible suspects and, if they were not
identified, they would be free to go – necessarily implying that
they were not free to leave. Santiago also said he “demanded”
that the men submit to a pat-down. This instruction “would
have conveyed [] to a reasonable person” that “he was being
ordered to restrict his movement.” Id.; see also United States v.
Mendenhall, 446 U.S. 544, 554 (1980) (suggesting that a
reasonable person would not feel free to leave when he or she is
confronted with “the threatening presence of several officers, the
display of a weapon by an officer, some physical touching of the
person of the citizen, or the use of language or tone of voice
indicating that compliance with the officer’s request might be
compelled”); Johnson, 332 F.3d at 206 (“interaction became a
stop” when officer persisted in asking defendant to roll down his
car window after defendant had refused officer’s first request).
Brown clearly submitted to this show of authority. As
Officer Pacheco testified, and the 7549 report confirms, Brown
turned to face the police car and placed his hands on the vehicle
15
in response to Santiago’s demand. (This conclusion is not
meaningfully contradicted by Santiago’s testimony that Brown
had begun to move his hands to the vehicle, but did not
complete the action.) Moreover, Brown’s initial submission is
not undercut by any subsequent attempt to flee. The facts before
us are similar to those of United States v. Coggins, where a
police officer began questioning the defendant and his
companions, the defendant stood up and asked to go to the
bathroom, the officer told him to wait, the defendant sat back
down, then again stood and ran off. 986 F.2d at 652-53. We
held that the defendant “initially yielded to [the officer’s]
authority by sitting back down,” and there was thus a seizure
“[e]ven though he fled soon thereafter.” Id. at 654. Unlike the
defendant in United States v. Valentine, Brown demonstrated
more than “momentary ‘compliance’” with the arresting
officers’ demands. 232 F.3d 350, 359 (3d Cir. 2000) (“Even if
Valentine paused for a few moments and gave his name, he did
not submit in any realistic sense to the officers’ show of
authority.”) Brown first yielded to Santiago’s authority by
turning to face the police car and placing (or moving to place)
his hands on the vehicle. It was only after this initial submission
that he began to struggle.
16
B. Was the seizure of Brown based on reasonable
suspicion?
Having determined when the seizure of Brown occurred,
was it based on reasonable, articulable suspicion that Brown and
his companion might be the robbery suspects? Terry, 392 U.S.
at 19 (determining reasonableness after establishing moment of
seizure). Reasonable suspicion is an “elusive concept,” but it
unequivocally demands that “the detaining officers must have a
particularized and objective basis for suspecting the particular
person stopped of criminal activity.” United States v. Cortez,
449 U.S. 411, 417-18 (1981). An officer’s objective basis for
suspicion must be particularized because the “demand for
specificity in the information upon which police action is
predicated is the central teaching of this Court's Fourth
Amendment jurisprudence.” Terry, 392 U.S. at 22 n.18. At the
same time, we must allow “officers to draw on their own
experience and specialized training to make inferences from and
deductions about the cumulative information available to them
that might well elude an untrained person.” United States v.
Arvizu, 534 U.S. 266, 273 (2002) (internal quotation marks
omitted); see also United States v Nelson, 284 F.3d 472, 476 (3d
Cir. 2002). “The ultimate question is whether a reasonable,
trained officer standing in [Santiago’s] shoes could articulate
specific reasons justifying [Brown’s] detention.” Johnson, 332
F.3d at 206.
In evaluating whether there was an objective basis for
17
reasonable suspicion, we consider “the totality of the
circumstances – the whole picture.” Cortez, 449 U.S. at 417;
Robertson, 305 F.3d at 167. As our Court has observed,
[t]he 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), 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).
Nelson, 284 F.3d at 478.
The factors that informed Officer Santiago’s decision to
stop and frisk Brown were (a) the police radio broadcast of a
description of the robbery suspects and the extent to which
Brown and Smith matched that description, (b) the radio call
18
from Officer Pacheco conveying the location tip provided by
Firth, and (c) Santiago’s personal observation of Brown and
Smith at 22nd and Lombard Streets. Although Santiago
conceded that Brown and Smith being “the only two black
males at that location . . . was the only reason why those two
males were stopped by me and they were investigated by me,”
we must consider only whether “a reasonable, trained officer
standing in [Santiago’s] shoes could articulate specific reasons
justifying” the investigative stop of Brown. Johnson, 332 F.3d
at 206. Thus, even if the initial radio broadcast and the conduct
of Brown and Smith did not factor into Santiago’s reasonable
suspicion analysis, they must be included in ours. Although we
examine each of the three factors in turn, our ultimate
determination of reasonable suspicion requires us to consider
these items not “in isolation from each other,” but (as noted) as
part of the “totality of the circumstances.” Arvizu, 534 U.S. at
274.
1. The radio broadcast
The first factor contributing to the totality of the
circumstances was the initial radio broadcast describing the
attempted robbery suspects and the extent to which Brown and
Smith matched that description. The fact that “every detail
provided [in a description] matched the details observed by the
officers” can contribute to a finding of reasonable suspicion.
Nelson, 284 F.3d at 483. The broadcast description in this case,
however, fails to satisfy the Fourth Amendment’s “demand for
19
specificity.” Terry, 392 U.S. at 21 n.18.
The broadcast, as described in the District Court’s
findings of fact, identified the suspects as African-American
males between 15 and 20 years of age, wearing dark, hooded
sweatshirts and running south on 22nd Street, where one male
was 5' 8" and the other was 6'.8 In the more stringent context of
probable cause, we have concluded that, “armed with
information that two black males driving a black sports car were
believed to have committed three robberies in the area some
relatively short time earlier, [the officer] could not justifiably
arrest any African-American man who happened to drive by in
any type of black sports car.” United States v. Kithcart, 134
F.3d 529, 532 (3d Cir. 1998) (though offering no opinion on
whether there was sufficient reasonable suspicion for a Terry
stop). Similarly, even the less stringent standard of reasonable
8
Over 43% of Philadelphia’s population is African-American.
Jesse McKinnon, U.S. Dep’t of Commerce, No. C2KBR/01-5,
The Black Population: 2000, at 7 fig. 3 (2001), available at
http://www.census.gov/prod/2001pubs/c2kbr01-5.pdf. The
medium height for men age 20 and older in the United States is
approximately 5' 8". Margaret A. McDowell et al., U.S. Dept.
of Health & Human Servs., No. 361, Anthropometric Reference
Data for Children and Adults: U.S. Population, 1999–2002, at
26 tbl.31 (2005). Officer Santiago also gave uncontested
testimony that “it was in no way unusual to see two black males
at that intersection” given the racial makeup of the
neighborhood.
20
suspicion cannot be met by a description that paints with this
broad of a brush.
By way of contrast, consider the facts of United States v.
Harple, 202 F.3d 194, 196-97 (3d Cir. 1999), where reasonable
suspicion was supported, along with other factors, when the
suspects’ car “substantially matched the description,” including
the two-toned color of the car, the presence of a third brake light
in the rear window, and five or more young, white, male
passengers. See also Nelson, 284 F.3d at 481 n.5 (finding
support for reasonable suspicion when there was an “exact
match of the unique description – car, plates, occupants and
direction of travel”).
To make matters worse, the match of Brown and Smith
to even this most general of descriptions was hardly close.
Among other things, the robbery suspects were described as
between 15 and 20 years of age, but on the date of the stop
Brown was 28 years old and Smith was 31 years old. Moreover,
both Brown and Smith had full beards and the description of the
suspects included no mention of any facial hair. Indeed, about
the only thing Brown and Smith had in common with the
suspects was that they were black. What we have is a
description that, while general, is wildly wide of target. By no
logic does it, by itself, support reasonable suspicion.
21
2. The location tip
When, as here, one officer (Santiago) conducts a stop and
frisk based on information provided by another officer
(Pacheco), “a finding of reasonable suspicion to justify the stop
require[s] the presentation of evidence by the government that
the officer who issued the radio bulletin [Pacheco] had
reasonable suspicion, not simply that it was reasonable for the
arresting officer [Santiago] to have relied on the bulletin.”
Coward, 296 F.3d at 180; see also United States v. Hensley, 469
U.S. 221, 233 (1985) (when “the police make a Terry stop in
objective reliance on a flyer or [radio] bulletin, we hold that the
evidence uncovered in the course of the stop is admissible if the
police who issued the flyer or [radio] bulletin possessed a
reasonable suspicion justifying a stop.”) (emphasis in original);
Nelson, 284 F.3d at 481 (when officers’ stop was based on
match of defendants with broadcast information, “the
reasonableness of the stop . . . depends on the reliability of the
tip itself”); Rogers v. Powell, 120 F.3d 446, 453 (3d Cir. 1997)
(“The legality of a seizure based solely on statements issued by
fellow officers depends on whether the officers who issued the
statements possessed the requisite basis to seize the suspect.”)
(emphasis in original). Our focus is thus the first source –
Officer Pacheco. Would the location tip give “a reasonable,
trained officer standing in [her] shoes” reasonable suspicion to
order the stop? Johnson, 332 F.3d at 206.
Pacheco’s information regarding the location of the
22
suspects was based on comments by the victim, Radenkovic,
relaying observations by Radenkovic’s friend, William Firth.
“It is well settled that reasonable suspicion can be based on
information gathered from another person.” Robertson, 305
F.3d at 168; see also Johnson, 332 F.3d at 206 (noting that
“officers may rely on a trustworthy second hand report, if that
report includes facts that give rise to particularized suspicion”).
Both our Court and the Supreme Court have considered the
reliability of tips from citizens in several Terry stop cases, but
almost always in the context of anonymous informants. In the
typical case, an unidentified person calls the police and reports
a man with a gun standing at a particular location wearing
specified clothing. See, e.g., J.L., 529 U.S. at 268 (anonymous
caller reported that a young black male wearing a plaid shirt and
standing at a particular bus stop was carrying a gun).
The record before us does not fit neatly into the typical
anonymous tip framework, as Firth made no effort to hide his
identity and was known to Radenkovic. Despite this distinction,
we may still borrow underlying principles from the anonymous
tip context to evaluate the reliability of Firth’s tip. Cf.
Robertson, 305 F.3d at 169 (distinguishing “anonymous
informant” case from “hot pursuit case, aided by a bystander’s
informative tip,” but still applying standards of reliability from
anonymous tip cases).
In the context of anonymous tips, the Supreme Court has
made clear that “an informant’s ‘veracity,’ ‘reliability,’ and
23
‘basis of knowledge’. . . [are] ‘highly relevant in determining the
value of his report.’” Alabama v. White, 496 U.S. 325, 328
(1990) (quoting Illinois v. Gates, 462 U.S. 213, 230 (1983)).
When considering fully all the facts about a tip, the honesty of
the caller, the reliability of his information and the basis of his
knowledge are “closely intertwined issues that may usefully
illuminate the commonsense, practical question” whether there
is reasonable suspicion to support a Terry stop. Gates, 462 U.S.
at 230; see also White, 496 U.S. at 328-29 (holding Gates
analysis applicable to reasonable suspicion context); Valentine,
232 F.3d at 354 (Supreme Court “uses a flexible standard that
assesses the relative value and reliability of an informant’s tip in
light of the totality of the circumstances”).
The following specific aspects of tips indicate reliability:
(1) The tip information was relayed from the informant to
the officer in a face-to-face interaction such that the
officer “had an opportunity to appraise the witness’s
credibility through observation.” Nelson, 284 F.3d at
480; see also Valentine, 232 F.3d at 354.
(2) The person providing the tip can be “held responsible if
her allegations turn out to be fabricated.” Valentine, 232
F.3d at 354 (internal quotations and citation omitted); see
also J.L., 529 U.S. at 270; Adams v. Williams, 407 U.S.
143, 146-47 (1972); Nelson, 284 F.3d at 482.
24
(3) The content of the tip is not information that would be
available to any observer. Nelson, 284 F.3d at 483
(citing White, 496 U.S. at 332 (1990)). A “not truly
anonymous” tip is accorded greater weight when “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,” and “the tip could
not have been generated by the general public, nor based
solely on observation.” Id. at 482, 484; see also United
States v. Roberson, 90 F.3d 75, 79 (3d Cir. 1996)
(affording tip less weight when information could have
been gained by “caller . . . looking out of his window . .
. at the time of his 911 call”).
(4) The person providing the information has recently
witnessed the alleged criminal activity. See Gates, 462
U.S. at 234 (informant’s “statement that the event was
witnessed first-hand” entitles tip to greater weight);
Adams, 407 U.S. at 147 (citing situation “when the
victim of a street crime seeks immediate police aid and
gives a description of his assailant” as example of tip that
could support reasonable suspicion); Nelson, 284 F.3d at
482 (tip was more reliable when “posture of the caller
allowed the officer to infer that the caller was himself a
victim of the criminal activity”).
(5) The tip predicts what will follow, as this provides police
the “means to test the informant’s knowledge or
25
credibility.” J.L., 529 U.S. at 271; see also White, 496
U.S. at 332 (“When significant aspects of the caller’s
predictions were verified, there was reason to believe not
only that the caller was honest but also that he was well
informed, at least well enough to justify the stop.”);
Gates, 462 U.S. at 245. Predictive information is also
useful in that it “can reflect particularized knowledge.”
Nelson, 284 F.3d at 484.
With these indicators, “we assess whether the
communication[] [J.L.originating from Firth] 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.” Nelson, 284 F.3d at 481. We conclude
that this factor does not support reasonable suspicion to stop and
frisk Brown.
It is true Firth did not make an anonymous call; the police
would certainly have been able to find him and hold him
accountable had his tip proved to be inaccurate. Moreover,
nothing in the record suggests that Firth was dishonest. See
Wardlow, 528 U.S. at 125 (“the determination of reasonable
suspicion must be based on commonsense judgments and
inferences about human behavior”). Reasonable suspicion,
however, requires that there must be some “reason to believe
not only that the caller was honest but also that he was well
informed.” White, 496 U.S. at 332. With little information to
26
go on, Firth made inferences not based in fact. For example, he
stated that Smith and Brown looked like the robbery suspects,
but he had never seen the suspects and heard only a general
description from Radenkovic.
Bad information in leads to bad information out. But
how is a professional like Officer Pacheco to know this? First,
a reasonable, trained officer would assume, from the context of
the call, that Firth did not witness the attempted robbery; he had
never seen the people he was attempting to identify. Second, a
reasonable, trained officer would recognize that Firth’s tip
provided no information that would reflect any “particularized
knowledge” or that he was “well-informed.” Third, and most
important, a reasonable, trained officer would realize Firth was
merely providing information “that could be observed by
anyone.” Nelson, 284 F.3d at 483. Specifically, Firth was
providing Officer Pacheco with nothing more than his
observation that there were two black males at 22nd and
Lombard Streets.
A tip is not reliable merely because “its description of the
suspect’s visible attributes prove accurate.” J.L., 529 U.S. at
271. “[R]easonable suspicion . . . requires that a tip be reliable
in its assertion of illegality, not just in its tendency to identify a
determinate person.” Id. at 272; see also White, 496 U.S. at 332.
Firth was undoubtedly sincere, but his tip was nothing more than
Brown’s “readily observable location and appearance,” and was
thus insufficient on its own to support reasonable suspicion.
27
J.L., 529 U.S. at 272. “[O]ne citizen’s subjective feelings are
not enough to justify the seizure of another where the objective
facts do not point to any articulable basis for suspicion.”
Johnson, 332 F.3d at 210. The tip in the record, sincere as Firth
was, does not provide objective facts justifying the seizure of
Brown and would not have established reasonable suspicion in
the mind of a reasonable, trained officer.
3. Officer Santiago’s observations
With Firth’s call imparting information a reasonably
trained officer would suspect, was there anything observed
personally by the police that would justify a stop of Brown?
Put another way, “if a tip has a relatively low degree of
reliability, more information will be required to establish the
requisite quantum of suspicion than would be required if the tip
were more reliable.” White, 496 U.S. at 330; see also Nelson,
284 F.3d at 480 (“If, for example, a tip on its own carries few
indicia of reliability, much corroborating information is
necessary to demonstrate reasonable suspicion.”); Roberson, 90
F.3d at 80 (“omissions [in tip] probably would not have
invalidated the stop, if, after corroborating readily observable
facts, the police officers had noticed unusual or suspicious
conduct on [the suspect’s] part”).
The following factors have been identified by the
Supreme Court and our Court as suggesting suspicious behavior;
alone they may be insufficient to establish reasonable suspicion,
28
but if observed by police they can serve to corroborate an
otherwise insufficient tip.
(1) Presence of a suspect in a high crime area. Wardlow,
528 U.S. at 124; Adams, 407 U.S. at 147-48; Johnson,
332 F.3d at 206; Nelson, 284 F.3d at 483; United States
v. Ubiles, 224 F.3d 213, 217 (3d Cir. 2000); Valentine,
232 F.3d at 356; Brown, 159 F.3d at 149.
(2) A suspect’s presence on a street at a late hour. Adams,
407 U.S. at 147-48; Nelson, 284 F.3d at 483; Valentine,
232 F.3d at 356; Brown, 159 F.3d at 148, 150.
(3) A suspect’s “nervous, evasive behavior,” or flight from
police. Wardlow, 528 U.S. at 124; see also United States
v. Bonner, 363 F.3d 213, 217 (3d Cir. 2004); Ubiles, 224
F.3d at 217; Valentine, 232 F.3d at 357; Brown, 159 F.3d
at 150.
(4) A suspect behaves in a way that conforms to police
officers’ specialized knowledge of criminal activity.
Arvizu, 534 U.S. at 276; Nelson, 284 F.3d at 482.
Notably, none of these factors was observed by Officer
Santiago. It was not alleged that Brown and Smith were in a
high crime area. Neither were they on the street late at night.
Nothing about their behavior was evasive or suspicious. Brown
and Smith were walking normally; Santiago testified that they
29
were not running nor were they out of breath. See Roberson, 90
F.3d at 80 (stating that “walk[ing] casually” is “behavior that
does not indicate criminal activity”). The two men were hailing
a cab. While Officer Santiago thought this was “more to try to
flee the area,” he also agreed that the men “were flagging it
down like an ordinary person would.” Moreover, Brown and
Smith were cooperative when approached by Santiago, who
testified that he had a “nice, brief conversation” with the two
men and that they were “cooperative” and “complied with all
[his] demands.”9 In sum, as Officer Santiago testified, Brown
and Smith “weren’t doing anything suspicious other than hailing
a taxicab.”
Although legal, innocent behavior at times corroborates
other information to raise reasonable suspicion, the suspects’
act of hailing a cab in this case hardly corroborates the
unreliable tip of Firth. See, e.g., United States v. Sokolow, 490
U.S. 1, 10 (1989) (in making a determination of reasonable
suspicion, “‘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’”) (quoting
9
We do not mean to suggest that had Brown not been
cooperative, reasonable suspicion would have been established.
“[T]he Supreme Court has ‘consistently held that a refusal to
cooperate, without more, does not furnish the minimal level of
objective justification needed for a detention or seizure.’”
Johnson, 332 F.3d at 208 (quoting Florida v. Bostick, 501 U.S.
429, 437 (1991)).
30
Gates, 462 U.S. at 245 n.13). In light of the unreliability of the
tip from Firth, some unquantifiable but significant amount of
corroborating information is required to establish reasonable
suspicion to stop Brown, and the record is devoid of that
evidence.
* * * * *
We conclude that Brown was seized before his aborted
escape attempt, and each of the factors argued to support
reasonable suspicion to stop and frisk him – the radio broadcast,
the location tip, and Officer Santiago’s observations of Brown
and Smith – underwhelms. We recognize nonetheless that,
under a totality of the circumstances test, even factors
independently “susceptible to innocent explanation” can
collectively amount to reasonable suspicion. Arvizu, 534 U.S.
at 274, 275. We are confident, however, that in this case an
excessively general description, combined with an honest but
unreliable location tip in the absence of corroborating
observations by the police, does not constitute reasonable
suspicion under the “narrowly drawn authority” of Terry v.
Ohio. 392 U.S. at 27. We thus reverse the District Court’s
denial of Brown’s motion to suppress and vacate his conviction.
31