United States v. Rose ( 2022 )

United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
July 29, 2022
No. 20-10463 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellant,
versus
Terrel Jamal Rose,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CR-142-1
Before Higginbotham, Southwick, and Engelhardt, Circuit
Judges.
Per Curiam:
In this interlocutory appeal, the government challenges the district
court’s partial grant of defendant Terrel Rose’s motion to suppress.
Contrary to the district court, we conclude that the evidence at issue was
obtained following a constitutionally valid investigatory stop and thus did not
warrant suppression on that account. Accordingly, we REVERSE and
REMAND for further proceedings consistent with this opinion.
No. 20-10463
I.
At 1:28 p.m. on November 12, 2018, a 911 caller reported a suspicious
confrontation, possibly an armed robbery, transpiring in the parking lot of a
Dallas liquor store. The caller, whose number was logged although he
declined to identify himself, described seeing two people sitting in a white
Ford Crown Victoria parked beside the store near a trash can. He said that a
black male—wearing a black hoodie, red pants, and white and gold
“Jordans”—was seated in the driver’s seat and threatening the passenger,
who he did not describe, with a black handgun that had an extended clip. No
shots were fired, but it appeared, the caller said, that the suspect took pills
from the passenger.
The 911 operator relayed the details of the anonymous call to the
police. Approximately five minutes after the call, Officer Matthew Kalash
arrived on the scene, followed a few seconds later by Officers Gary Green and
Gabriele Pina. Almost immediately upon reaching the scene, Officer Kalash
sighted a person standing behind a dumpster, later identified as Terrel Rose,
who seemed to mostly fit the informant’s description—a black man wearing
red pants with white and gold tennis shoes but a light-gray hoodie rather than
a black hoodie. He also wore a black skullcap, and his loose-fitting hoodie
was mostly unzipped, revealing a white t-shirt beneath. Parked nearby, as
described by the caller, was a white Ford Crown Victoria beside the liquor
store and a blue trash can. No one was in the vehicle.
Exiting his patrol car and approaching the dumpster, Officer Kalash
initially made eye contact with Rose, but Rose “ducked out of viewpoint
where [he] couldn’t see him for a second, and then popped back up.” With
Officer Green also approaching, Officer Kalash called for Rose to come out
from behind the dumpster. Rose complied, saying that he had gone behind
the dumpster to relieve himself, and Officer Kalash briefly patted him down
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No. 20-10463
to check for weapons. Motioning to the Crown Victoria, Officer Green asked
Rose if it belonged to him. Rose said that it did. Officer Green then asked
Rose to sit down as Officer Kalash proceeded to search behind the dumpster,
where he quickly found a black handgun with an extended clip on the ground
in the area where he had first observed Rose. 1 Bringing the weapon back to
his car, Officer Kalash ran the serial number and found that it had been
reported stolen.
While Officer Kalash checked the firearm, Officer Green obtained
Rose’s identification and ran a subject check, which, according to Officer
Kalash’s testimony at the suppression hearing, revealed an outstanding
arrest warrant and documented gang membership. Approaching Rose again,
Officer Kalash asked if he had any tattoos, to which Rose responded that he
did. Officer Kalash then asked if the Crown Victoria belonged to him, and
when Rose said that it did, he asked if he could look inside. Rose replied, “go
ahead.” Inside the car, which was still running, Officer Kalash found
multiple small baggies containing marijuana.
Returning to Rose, Officer Kalash asked, “for gang information
purposes,” if he could photograph Rose’s tattoos, which Rose allowed.
Officer Kalash then informed Rose of the arrest warrant and discovery of
marijuana in his car and placed him in handcuffs. Proceeding to search him,
Officer Kalash found prescription bottles containing pills, for which Rose had
1
There is some confusion as to whether Officer Kalash found the handgun on the
ground or in a plastic bag hanging on a fence pole behind the dumpster. Although Officer
Kalash testified at the suppression hearing that it was on the ground, making the point that
the weapon was completely dry although it had been raining shortly before, the district
court’s opinion states that he found the gun inside the plastic bag. Officer Kalash’s body
camera shows him fingering the plastic bag but does not clarify whether he removed the
gun from the bag or knelt to pick it up off the ground.
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No. 20-10463
no prescription, in his pockets. The officers then transported Rose to the jail.
During the drive there, Officer Pina asked Rose standard booking questions.
A grand jury indicted Rose for unlawful possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). Rose filed a motion to suppress the
evidence and statements obtained during and after the stop, contending that
the officers, without Mirandizing him, “detained or arrested [him] without
lawful warrant, probable cause or other lawful authority.” The district court
conducted a hearing on the motion and requested additional briefing as to the
constitutionality of seizing the firearm if the investigatory stop was improper.
Ultimately, the district court partially granted Rose’s motion, finding the
investigatory stop unconstitutional and suppressing “all evidence collected
during the search of the vehicle and the search of Rose, the arrest, and the
statements made during the stop.” 2 The government appealed the district
court’s grant of Rose’s motion to suppress under 18 U.S.C. § 3731. 3 In
response to the government’s unopposed motion, we dismissed this appeal
without prejudice so that Rose could enter a guilty plea. After the district
court rejected the plea agreement, the government moved to withdraw the
mandate in this case and reinstate the appeal. We granted that motion, and
now consider the appeal on the merits.
II.
“When examining a district court’s ruling on a motion to suppress,
we review questions of law de novo and factual findings for clear error.”
United States v. Wise, 877 F.3d 209, 215 (5th Cir. 2017) (quoting United States
2
The district court did not, however, suppress the firearm itself, and that
determination is not at issue in this appeal.
3
The district court analyzed no Miranda claims and we express no view as to
whether Rose possesses any such claims. To the extent that he advances any, the district
court should address it in the first instance.
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No. 20-10463
v. Hearn, 563 F.3d 95, 101 (5th Cir. 2009)). Nonetheless, we view the
evidence “in the light most favorable” to the party that prevailed in the
district court. United States v. Toussaint, 838 F.3d 503, 507 (5th Cir. 2016).
And we uphold a district court’s ruling on a suppression motion “if there is
any reasonable view of the evidence to support it.” United States v.
Michelletti, 13 F.3d 838, 841 (5th Cir. 1994) (en banc) (citation omitted).
III.
We must decide whether the district court erred in its determination
that the investigatory stop of Rose was not justified by reasonable suspicion.
We conclude that it did. 4
The Fourth Amendment prohibits unreasonable searches and
seizures, and “applies to seizures of the person, including brief investigatory
stops.” United States v. Cortez, 449 U.S. 411, 417 (1981). An investigatory
stop, however, does not violate the Fourth Amendment if it is supported by
“reasonable suspicion.” 5 United States v. Arvizu, 534 U.S. 266, 273 (2002).
The reasonable suspicion inquiry is qualitative and quantitative; it depends
“upon both the content of information possessed by police and its degree of
reliability.” Alabama v. White, 496 U.S. 325, 330 (1990). Thus, a law
enforcement officer acts with reasonable suspicion if, based on the totality of
the circumstances, he has “a particularized and objective basis for suspecting
the particular person stopped of criminal activity.” Cortez, at 417–18.
4
Because we determine that the investigatory stop was supported by reasonable
suspicion, we do not reach the issue of whether the government waived its attenuation
argument or, if it did not, whether that argument would necessitate remand for further fact
finding as to when the officers became aware of the outstanding arrest warrant.
5
Such investigatory stops are commonly referred to as “Terry stops” because the
rule derives from the case of that name. See Terry v. Ohio, 392 U.S. 1 (1968). The
constitutionality of Terry stops is long established and undisputed here.
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No. 20-10463
A 911 call can sometimes supply reasonable suspicion, and we evaluate
the individual circumstances of each case when making that determination.
United States v. Vickers, 540 F.3d 356, 361 (5th Cir.), cert. denied, 555 U.S.
1088 (2008). In doing so, we consider four factors: “(1) the credibility and
reliability of the informant; (2) the specificity of the information contained in
the tip or report; (3) the extent to which the information in the tip or report
can be verified by officers in the field; and (4) whether the tip or report
concerns active or recent activity or has instead gone stale.” United States v.
Gomez, 623 F.3d 265, 269 (5th Cir. 2010) (citing United States v. Martinez,
486 F.3d 855, 861 (5th Cir. 2007)).
First, we begin by considering the credibility and reliability of the
informant. Of course, that assessment encounters obvious difficulty when,
as here, the informant is anonymous. In such circumstances, “the
Government must establish reasonable suspicion based on the remaining
factors.” Id.But some attributes can increase reliability even when the informant
chooses to remain anonymous. In its most recent anonymous-tip case, the
Supreme Court identified three factors that, taken together, support a
decision by law enforcement to credit the reliability of anonymous tips: the
informant (1) asserts eyewitness knowledge of the reported event; (2) reports
contemporaneously with the event; and (3) uses the 911 emergency system,
which permits call tracing and voice recording. Navarette v. California, 572
U.S. 393, 398–401 (2014).
The first two of these factors are straightforward, but the third
warrants some further explanation. In his concurrence in Florida v. J.L.,
Justice Kennedy noted that “the ability of the police to trace the identity of
anonymous telephone informants may be a factor which lends reliability to
what, years earlier, might have been considered unreliable anonymous tips.”
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No. 20-10463
529 U.S. 266, 276 (2000) (Kennedy, J., concurring). Nearly fifteen years
later, the Supreme Court held in Navarette that, although tips in 911 calls are
not per se reliable, “the caller’s use of the 911 emergency system” is
“[a]nother indicator of veracity.” Navarette, 572 U.S. at 400–01. Borrowing
from and expanding on the reasoning in Justice Kennedy’s J.L. concurrence,
the Court cited “technological and regulatory developments” since the J.L.
decision, including requirements “to identify the caller’s geographic location
with increasing specificity.” Id. That ability to identify and trace callers, the
Court observed, provides “some safeguards against making false reports with
immunity.” Id. at 400. Moreover, the Court noted that the ability to record
911 calls provides an opportunity for victims to identify a false tipster’s voice
and subject him to prosecution. Id. Nor is it relevant whether the anonymous
informant had notice that his call was recorded and traceable by the 911
system. Navarette posits, without any reference to the personal knowledge
of the tipster, that “a reasonable officer could conclude that a false tipster
would think twice before using such a system.” Id. at 401. All this led the
Court to conclude that “[t]he caller’s use of the 911 system is therefore one
of the relevant circumstances that, taken together, justifie[s]” officers’
reliance on the information reported in 911 calls. Id. at 401.
Here, all three of the Navarette factors favor the government. The
tipster identified himself as an eyewitness to the events in the liquor store
parking lot; he professed to describe those events as they unfolded, and the
setting the officers found on their arrival five minutes later tended to support
that timeline; and he used the 911 emergency system, which, as reflected by
the record, both traced his number and recorded his call. Accordingly, to the
extent that the factor concerning the informant’s reliability tends in any
direction, it leans the government’s way.
The district court apparently considered it significant that “the tipster
did not provide any predictive information to indicate any ‘inside knowledge’
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No. 20-10463
known to the tipster.” But we have expressly held that there is no per se rule
prohibiting investigatory stops based on anonymous tips that fail to provide
predictive information. Gomez, 623 F.3d at 270. Such a rule, which serves
the obvious function of screening fabricated tips, would apply where the
alleged criminal conduct is concealed and the informant neither explains how
he knows about the allegations nor provides any basis for believing he
possesses insider information about the suspect. See J.L., 529 U.S. at 271–
72. But the need for predictive information is context dependent and is less
important when the informant professes to see the alleged criminal activity
unfolding in the open. See Navarette, 572 U.S. at 399 (contrasting J.L. on the
grounds that eyewitness “knowledge lends significant support to the tip’s
reliability”); Gomez, 623 F.3d at 270–71. And here, the informant identified
himself as an eyewitness to the alleged criminal activity he described, which
was occurring, unconcealed, in a public parking lot.
Second, the information provided by the informant, despite his
requested anonymity, was highly specific. On the point of specificity, the
district court observed only that “the tipster provided some specific details.”
But of specific details, the informant provided quite a lot. See Illinois v. Gates,
462 U.S. 213, 234 (1983) (noting that an informant’s “explicit and detailed
description of alleged wrongdoing, along with a statement that the event was
observed first-hand, entitles his tip to greater weight than might otherwise be
the case”). He indicated that the events were unfolding in his presence in
real time; described the make, model, and color of the car; its location in the
parking lot of a particular liquor store, beside the building and next to a trash
can; the suspect’s race, sex, and clothing, even down to the style and color of
his shoes; the threatening interaction with the person in the passenger seat,
including the apparent passage of pills between them; and unique details
about the gun involved. Indeed, other than a description of the individual in
the passenger seat, a license plate number, and his own relation, if any, to the
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No. 20-10463
unfolding events, it is unclear what further details an eyewitness to such a
scene could have provided.
Third, although some discrepancies were encountered, the
information conveyed by the informant was mostly consistent with what the
officers discovered when they arrived on the scene. Almost as soon as the
officers arrived, they found the white Ford Crown Victoria, still running and
parked on the side of the liquor store beside a trashcan, all as described by the
911 caller. Steps away from the car, they identified a man who fit, in
significant ways, the description they had received and who was in distinctive
attire. Furthermore, against the background of what the officers had already
corroborated, Rose’s furtive movements upon seeing them also tended to
heighten their suspicion. And within seconds of confronting Rose, they
found a firearm in his proximity that precisely matched the extended-clip
handgun described by the informant.
In reaching its conclusion that “the officers were unable to
corroborate much of the information,” the district court focused mostly on
the discrepancies and hardly at all on the striking similarities. With little
acknowledgement that Rose wore a hoodie and a black skullcap, it
emphasized that the tip described a black hoodie instead of a light-gray
hoodie. Nor did it take account of Officer Kalash’s statements at the
suppression hearing that he was accustomed to seeing suspects—“all of the
time,” especially when it was cold, as it was on that day—wear multiple
layers and frequently change clothes. Without granting that Rose was found
mere steps from the still-running car, the district court observed that he was
not, as the tip stated, inside the car with another person. And without even
noting Rose’s arguably odd behavior, it stressed that he stood alone behind a
fenced-in dumpster. In sum, without mitigating the differences the district
court identified, we nevertheless conclude that this factor supports the
officers’ decision to conduct an investigatory stop. We think it unreasonable
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No. 20-10463
to suggest that the officers, given what they knew and saw, are required to
simply walk away from this scene without any further investigation.
The district court also emphasized that what the officers found at the
scene “did not corroborate the reported criminal activity.” And Rose holds
forth this point as “critical.” Citing Florida v. J.L., he contends that a tip
must be corroborated by more than “wholly innocent facts, such as a
subject’s cloth[e]s or appearance” because reasonable suspicion “requires
that a tip be reliable in its assertion of illegality, not just in its tendency to
identify a determinate person.”
To be sure, the officers did not come upon Rose actually engaged in
the threatening conduct described by the informant. But here again Rose
(and the district court) misconstrued J.L.’s holding. That case involved an
anonymous tip—from an unknown location by an unknown caller—that a
person was illegally carrying a gun. J.L., 529 U.S. at 268. The informant,
however, gave no indication how or why he knew that. Id. And the Supreme
Court held that the tip was insufficiently reliable in its assertion of illegality
because it did “not show that the tipster ha[d] knowledge of concealed
criminal activity.” Id. at 272. Distinguishing reliability as to identification
from reliability as to the likelihood of criminal activity, the Court concluded
that the tip, without something more, did not justify the officers’ decision to
stop and frisk a suspect matching the provided description. Id. In short, J.L.
sets forth a rule that officers must corroborate anonymously reported
criminal activity when the tip itself lacks certain indicia of reliability; it does
not mandate that they always do so. And this case is easily distinguishable
from J.L. because the anonymous informant explained exactly how he knew
about the alleged criminal activity: he was an eyewitness to conduct occurring
in plain view at a public place. Moreover, as discussed above, the Court later
emphasized other factors that lend an anonymous tip credibility and which
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No. 20-10463
are present here, including eyewitness knowledge, a contemporary report,
and the use of a 911 system. See Navarette, 572 U.S. at 398–401.
Finally, we consider whether the tip concerned active or recent
activity or had instead gone stale. The district court noted that the officers,
upon their arrival, did not see Rose in the car or with another man and saw
no indications of an ongoing or recent robbery. Accordingly, it summarily
concluded that “the information was stale.” We disagree.
To begin, we note that the criminal activity reported need not be
ongoing when the officers arrive for them to nonetheless entertain reasonable
suspicion sufficient to justify an investigatory stop. United States v. Hensley,
469 U.S. 221, 229 (1985) (holding that “if 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”).
The freshness of a tip “is to be determined on the facts of each case.”
United States v. Webster, 734 F.2d 1048, 1056 (5th Cir. 1984). Whether a tip
has become stale is not assessed merely by mechanical counting of time
between when a tip is received and when it is investigated. United States v.
Gonzalez, 190 F.3d 668, 673 (5th Cir. 1999). Instead, it “depends upon the
nature of the tip and the nature of the criminal activity alleged.” Id. Here,
the tip described, contemporaneous with its occurrence, what appeared to be
an armed robbery. Within approximately five minutes, the officers arrived
on the scene. And they found multiple indicators that the setting of the
alleged crime remained mostly intact: the car remained parked exactly where
the informant had said and a suspect mostly fitting the description provided
was close by and acting abnormal. Moreover, the car itself was still running,
suggesting that the suspect had only just left it and intended very soon to
return to it. Taken together, these facts leave minimal reason to conclude
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No. 20-10463
that the reported criminal activity had even dissipated by the time the officers
acted upon the information.
IV.
Having determined that all the factors weigh in favor of the
government, we conclude that, even when viewing the evidence in the light
most favorable to Rose, no reasonable view of it supports the district court’s
ruling. Accordingly, we REVERSE and REMAND.
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