United States v. Ayala , 169 F. App'x 717 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
3-7-2006
USA v. Ayala
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2065
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"USA v. Ayala" (2006). 2006 Decisions. Paper 1473.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1473
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 05-2065
____________
UNITED STATES OF AMERICA
v.
HAEN AYALA,
Appellant
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 04-cr-00473)
District Judge: Honorable Jan E. DuBois
____________
Submitted Under Third Circuit LAR 34.1(a)
February 14, 2006
Before: SCIRICA, Chief Judge, BARRY and FISHER, Circuit Judges.
(Filed: March 7, 2006)
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
I.
On December 16, 2004, Defendant Haen Ayala entered a conditional guilty plea to
one count of being a felon in possession of a weapon in violation of 18 U.S.C. § 922(g).
In accordance with the terms of his conditional guilty plea, Ayala now appeals the
District Court’s judgment of conviction and sentence, alleging that the District Court
erroneously denied his motion to suppress evidence seized from him during a frisk on
June 14, 2004.1 We conclude that, in light of the totality of the circumstances, the police
officers had reasonable suspicion to conduct the frisk. As a result, the District Court
properly denied Ayala’s motion to suppress. We will, therefore, affirm the District
Court’s judgment of conviction and sentence.
II.
As we write only for the parties, we set forth only those facts necessary to our
analysis. On June 14, 2004, Officers Charles Harron and Michael Hooven of the
Philadelphia Police Department were on patrol as part of “Project Safe Streets,” an
initiative designed to maintain a constant police presence in certain high-crime areas.
At approximately 4:30 p.m., an unidentified informant pulled his van alongside the
officers’ marked patrol unit. The informant was visibly upset and began “blurting things
out” to the officers. After the officers instructed the informant to speak more slowly, he
told the officers that someone on the corner of Ontario and C Streets had a gun and had
threatened to shoot him. The informant described the assailant as a Hispanic man
wearing an orange shirt and grey or black jeans. The officers testified that they had no
1
We review the District Court’s denial of a motion to suppress for clear error as to
the underlying facts, and exercise plenary review of the District Court’s application of the
law to those facts. United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002).
2
reason to disbelieve the informant. Because the officers were more concerned with
locating the suspect than in identifying the informant, they did not request any more
information from the informant.
The officers drove about two blocks to the corner of Ontario and D Streets, where
they observed a group of people at the corner of Ontario and C Streets.2 As the officers
pulled their car toward the group of people, all but Ayala, who was wearing an orange
shirt and dark jeans, walked away. Because Ayala matched the informant’s description of
the assailant, the officers suspected that Ayala was armed and asked him to place his
hands in the air as a safety precaution. They then performed a pat-down search and found
a .25 caliber handgun in Ayala’s left front pocket. The gun contained four live rounds,
one of which was loaded in the chamber. The officers then placed Ayala under arrest.
III.
The issue on appeal is whether the officers were entitled to stop and frisk Ayala
based on the informant’s tip. Under Terry v. Ohio, 392 U.S. 1 (1968), and subsequent
cases, “‘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.’” United States v. Valentine, 232 F.3d 350, 353 (3d Cir. 2000) (quoting
2
Officer Harron testified that they followed the informant’s van to the corner of
Ontario and D Streets. Officer Harron also testified that the informant pointed to the
group standing at the corner of Ontario and C Streets and indicated that his alleged
assailant was among them. Officer Hooven has no recollection of these events, but does
not doubt Officer Harron’s recollection.
3
Illinois v. Wardlow, 528 U.S. 119, 123 (2000)). An officer can also perform a limited
search for weapons when he reasonably believes that the subject of an investigatory stop
is armed and dangerous. Terry, 392 U.S. at 27.
Reasonable suspicion is “‘a less demanding standard than probable cause and
requires a showing considerably less than preponderance of the evidence.’” Valentine,
232 F.3d at 353 (quoting Wardlow, 528 U.S. at 123). Our decision must rest on “whether
[the Officers] had the ‘minimal level of objective justification’ necessary for a Terry
stop.” Id. (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). In evaluating
whether the officers had reasonable suspicion, “we must consider ‘the totality of the
circumstances–the whole picture.’” Sokolow, 490 U.S. at 8 (quoting United States v.
Cortez, 449 U.S. 411, 417 (1981)).
In order for an informant’s tip to provide the basis for reasonable suspicion, that
tip must be reliable both in its assertion of illegality and in its tendency to identify a
determinate person. See Florida v. J.L., 529 U.S. 266, 272 (2000) (“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.”). In addition, the reliability of the
informant is relevant in an analysis of reasonable suspicion. See Valentine, 232 F.3d at
354.
Ayala argues that this case is analogous to J.L., in which the Supreme Court held
that an anonymous tip, without certain “indicia of reliability,” was insufficient to support
a Terry stop. In J.L., an anonymous caller reported to police that a young African-
4
American man standing at a particular bus stop and wearing a plaid shirt was carrying a
gun. J.L., 529 U.S. at 268. Apart from this tip, the officers had no reason to suspect that
the individual who met this description had engaged in any illegal activity. The Court
held that the anonymous tip, which lacked indicia of reliability, could not justify the
officers’ stop and frisk of the suspect. Id. at 274.
Ayala also contends that the face-to-face encounter was unreliable because the
officers lacked the information necessary to track down the informant if the tip was
untruthful. However, in Valentine, we specifically rejected the argument that a tip was
unreliable simply because the informant fled prior to apprehension of the suspect.
Valentine, 232 F.3d at 355. The relevant question is not whether the officers could
guarantee that they could track down the informant again, but rather whether the tip
should be deemed sufficiently trustworthy in light of the totality of the circumstances. Id.
We have held that “a tip given face to face is more reliable than an anonymous
telephone call.” Valentine, 232 F.3d at 354-55 (citing J.L., 529 U.S. at 276 (Kennedy, J.,
concurring) (“If an informant places his anonymity at risk, a court can consider this factor
in weighing the reliability of the tip.”)). When a tip is given face to face rather than over
the telephone, the officers can quickly confirm or disconfirm the tip, assess the
informant’s credibility as he spoke, and assess the informant’s appearance. Id.
In this case, these considerations suggest that the officers had reason to find the
informant credible. The officers’ overall assessment of the informant’s demeanor and
appearance led them to believe that he was credible. The informant was speaking quickly
5
and was visibly shaken, which lent credibility to his claim that he had recently been
threatened. Based on their face-to-face interaction with the informant, the officers
reasonably concluded that the tip was credible.
The tip was also sufficient to identify Ayala as the suspect. The informant told the
officers that a Hispanic man, wearing an orange shirt and dark jeans, had just threatened
to shoot him. In addition to this physical description, the informant told the officers that
the events had occurred only moments ago and only three blocks from the officers’
location. Therefore, the officers had reason to believe that the suspect would be at the
corner of Ontario and C Streets if they responded quickly. When they arrived at the
corner of Ontario and C Streets, the officers found one person who matched the
description provided by the informant. In light of the tip and the surrounding
circumstances, the officers had a reasonable basis to believe that the man they searched
was the man described by the informant.
In addition, the informant alleged direct knowledge of criminal activity–the
suspect threatened to shoot him. Thus, the informant’s tip clearly pointed to criminal
activity. United States v. Ubiles, 224 F.3d 213, 218 (3d Cir. 2000).
Based on the totality of the circumstances, the officers had reasonable suspicion
that Ayala was armed and dangerous, and their subsequent protective frisk of his person
was therefore justified. As a result, the District Court properly denied Ayala’s motion to
suppress the gun seized from him during the search. Accordingly, we will affirm the
judgment of conviction and sentence.
6