United States v. Gaines

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 25, 2021
Christopher M. Wolpert
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 19-3177
v. (D.C. No. 2:15-CR-20078-JAR)
(D. Kan.)
DESMOND S. GAINES,
Defendant - Appellant.
ORDER AND JUDGMENT*
Before HARTZ, KELLY, and HOLMES, Circuit Judges.
In September 2017, a jury convicted Desmond S. Gaines of five federal offenses
involving illegal drugs and a firearm. Before his trial began, Mr. Gaines moved to
suppress certain evidence as the fruit of an unlawful seizure. The district court denied the
motion. It concluded that Mr. Gaines’s initial encounter with police—which led to the
discovery of the illegal drugs and firearm—was consensual and not a seizure. The
encounter itself was precipitated by an anonymous 911 tip.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate Procedure
32.1 and Tenth Circuit Rule 32.1.
In a prior appeal, we reversed. We held that Mr. Gaines’s initial encounter with
police was a Fourth Amendment seizure and not consensual. As a result, we vacated Mr.
Gaines’s conviction and remanded so the district court could determine whether the
seizure was justified by reasonable suspicion. On remand, the district court concluded the
police officers had a reasonable suspicion to seize Mr. Gaines. It again denied his motion
to suppress evidence and reinstated the original judgment.
The issue now before us is whether the district court erred in concluding that
reasonable suspicion existed to seize Mr. Gaines. We hold that the court did not err.
Therefore, exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I
One morning in August 2015, an anonymous tipster called 911 to report that a man
was selling phencyclidine, or PCP, near the Wilhelmina Gill Center and the Frank
Williams Center in downtown Kansas City, Kansas. The Wilhelmina Gill Center houses
a food kitchen; the Frank Williams Center offers resources to the homeless. The 911 call
lasted nearly two-and-a-half minutes. At the beginning of the call, the tipster indicated
that he was in downtown Kansas City near the two centers.1 Then he said, “we have a
suspect in all red clothing selling juice,” i.e., PCP. Gov’t Ex. 1 at 0:10–0:14 (911 Call).
1
The district court refers to the tipster using the pronouns for the male
gender (e.g., “he”), even though it does not appear to have explicitly found that the tipster
was male. We follow suit. Insofar as the court’s use of male-gender pronouns amounts
to a tacit finding that the tipster was male—based on our review of the audio recording of
the tipster’s 911 call—this finding would not be clearly erroneous.
2
The 911 operator asked about the alleged suspect’s race and the tipster replied, “light
skinned black.” Id. at 0:21–0:23. The tipster continued: “I don’t know what kind of car
he’s driving today, but he’s down here at the Gill Center, and he has on all red, red hat,
red shirt, big red shorts.” Id. at 0:25–0:34. According to the tipster, the man in red “just
made about 20 dollars.” Id. at 0:46–0:49.
The 911 operator asked for the exact address where the tipster and man in red were
located. “I don’t even know,” the tipster replied. Id. at 0:53–0:54. But then he said, “let
me go inside and ask.” Id. at 0:59–1:01. It is not clear where the tipster went, but he
subsequently confirmed that his location was “645 Nebraska.” Id. at 1:10–1:17. The 911
operator then asked where the officers should go when they arrived. The tipster said, “to
the parking lot.” Id. at 1:22–1:23. The operator asked what kind of car the man in red
was driving. The tipster again said “I don’t know,” but volunteered to try to find out. Id.at 1:34–1:39. The tipster then stated, “I’m watching him right now,” id. at 1:40–1:41, and
said that the man in red was “still not going to his car yet,” id. at 2:02–2:05, but was
instead “just standing on the corner,” id. at 2:07–2:10. Near the end of the call the tipster
commented, “after this guy we have only one more supplier, and that’s it.” Id. at
1:55–2:00.
Shortly before 10:00 a.m., two Kansas City police officers—one male and one
female—responded to the call. While approaching the Wilhelmina Gill Center, the male
officer saw a man in the parking lot who matched the description provided by the tipster.
3
The man was Mr. Gaines. As Mr. Gaines entered a white Cadillac, the officers received a
call over their police radio from an off-duty police officer who had been working at the
Frank Williams Center that morning. The off-duty officer had kept his police radio on
and heard the officers dispatched in response to the 911 call. Earlier that morning, he had
noticed a man dressed in all red in the Frank Williams Center parking lot. The off-duty
officer radioed to the responding officers, “that’s him in that white Cadillac.” R., Vol. I,
at 137 (Test. of Mark Wilcox, dated Mar. 8, 2017).
The officers parked close to the Cadillac that Mr. Gaines occupied and turned on
their emergency lights. Both officers exited their vehicles. Mr. Gaines did the same and
shut his door. Mr. Gaines asked the male officer what he was doing. The officer replied
that he had received a call that a person matching Mr. Gaines’s description was selling
drugs in the parking lot. Mr. Gaines said it was not him. The male officer then asked Mr.
Gaines for identification. Mr. Gaines said it was in his car trunk and reopened the
Cadillac’s driver’s side door to open the trunk. With the door and trunk open, the male
officer smelled a strong chemical odor coming from the vehicle. The officer believed it
was PCP. He also noticed an open alcohol container in the front console—an arrestable
offense.
The male officer informed Mr. Gaines that he would have to handcuff and detain
him for the open container. As the officer tried to handcuff Mr. Gaines, he quickly pulled
away, grabbed a black bag from the driver’s side floorboard, shoved the officer, and ran
4
away. The responding officers chased Mr. Gaines on foot and eventually apprehended
him. They also recovered the black bag. It contained PCP, cocaine, and marijuana.
Later, police discovered a black handgun and more cocaine in Mr. Gaines’s Cadillac .
A federal grand jury indicted Mr. Gaines on five counts involving illegal drugs and
a firearm.1 Mr. Gaines moved to suppress the drugs and firearm evidence, arguing it was
the fruit of an unlawful seizure. The district court denied the motion. It held Mr.
Gaines’s initial encounter with police officers—from the time the officers first
approached his car to when one officer saw the open alcohol container—was consensual.
The case proceeded to trial and a jury convicted Mr. Gaines on all five counts. The
district court sentenced Mr. Gaines to 180 months’ imprisonment and eight years of
supervised release.
Mr. Gaines appealed. We reversed and held that the initial encounter between Mr.
Gaines and the police—before the officer spotted the open alcohol container—was a
Fourth Amendment seizure. We noted that the seizure “would have been permissible if
the police had a reasonable ground to suspect Mr. Gaines of a crime,” but the district
1
The five counts listed in the indictment were (1) possession with intent to
distribute twenty-eight grams or more of crack cocaine, in violation of 28 U.S.C.
§ 841(a)(1) and (b)(1)(B)(iii); (2) possession with intent to distribute marijuana, in
violation of 28 U.S.C. § 841(a)(1) and (b)(1)(D); (3) possession with intent to distribute
PCP, in violation of 28 U.S.C. § 841(a)(1) and (b)(1)(C); (4) possession of a firearm in
furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c); and
(5) possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1) and
18 U.S.C. § 924(a)(2). R., Vol. I, at 26–28 (Indictment, filed Sept. 2, 2015).
5
court did not address “the reasonableness of the police’s suspicion.” United States v.
Gaines, 918 F.3d 793, 802 (10th Cir. 2019). We declined to opine on this matter in the
first instance. Instead, we reversed the district court’s order denying Mr. Gaines’s
suppression motion and remanded so the district court could consider whether the officers
had a reasonable suspicion to justify the seizure. Id. at 803.
On remand, the district court found reasonable suspicion existed to seize Mr.
Gaines. The court’s conclusion rested in part on factors similar to those highlighted in
Navarette v. California, 572 U.S. 393, 399–400 (2014), where the Supreme Court upheld
an investigatory stop based on an anonymous tip. Specifically, the district court noted
that “the caller told the operator where he was, [ ] stayed on the phone for over two
minutes, and [ ] answered every question that was put to him, including answering the
operator honestly that he did not know what type of car [the] [d]efendant was driving.”
R., Vol. I, at 238 (Mem. and Order, dated Aug. 9, 2019). Additionally, the court credited
the responding officers’ first-hand knowledge of drug-related activity around the
Wilhelmina Gill Center, and the off-duty officer’s observations. Taken together, the
court held these facts provided responding officers with reasonable suspicion to conduct
an investigatory stop. The court, therefore, denied Mr. Gaines’s motion to suppress and
reinstated its original judgment. This appeal followed.
II
The Fourth Amendment protects against “unreasonable searches and seizures.”
6
U.S. CONST. amend. IV. However, this mandate does not prevent police officers from
making a brief investigatory stop of a person when they 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); see also United States v. McHugh, 639
F.3d 1250, 1255 (10th Cir. 2011) (noting that an investigatory stop is justified “if the
specific and articulable facts and rational inferences drawn from those facts give rise to a
reasonable suspicion a person has or is committing a crime” (quoting United States v.
DeJear, 552 F.3d 1196, 1200 (10th Cir. 2009))). The “reasonable suspicion” needed to
justify a stop depends “upon both the content of information possessed by police and its
degree of reliability.” Alabama v. White, 496 U.S. 325, 330 (1990). We look to “the
totality of the circumstances—the whole picture” to determine whether police have a
reasonable suspicion. Cortez, 449 U.S. at 417; see also United States v. Sanchez, 519
F.3d 1208, 1213 (10th Cir. 2008) (explaining that we assess the “reasonableness of the
officer’s suspicions . . . by an objective standard taking the totality of the circumstances
and information available to the officers into account” (quoting United States v. Johnson,
364 F.3d 1185, 1189 (10th Cir. 2004))).
A mere hunch is not enough; nevertheless, a reasonable suspicion requires
“considerably less than proof of wrongdoing by a preponderance of the evidence,” and
“obviously less” than the proof needed for probable cause. United States v. Sokolow, 490
U.S. 1, 7 (1989); see also United States v. Chavez, 660 F.3d 1215, 1221 (10th Cir. 2011)
7
(“Although ‘reasonable suspicion requires [an] officer to act on something more than an
inchoate and unparticularized suspicion or hunch, the level of suspicion required . . . is
considerably less than proof by a preponderance of the evidence or that required for
probable cause.’” (quoting McHugh, 639 F.3d at 1255–56)).
“These principles apply with full force to investigative stops based on information
from anonymous tips.” Navarette, 572 U.S. at 397. The Supreme Court has struck a
delicate balance on when an anonymous tip can provide a reasonable suspicion for an
investigatory stop. The Court has noted that “an anonymous tip alone seldom
demonstrates the informant’s basis of knowledge or veracity,” and therefore seldom
supplies reasonable suspicion. White, 496 U.S. at 329. Yet, the Court nonetheless has
acknowledged that “under appropriate circumstances, an anonymous tip can demonstrate
‘sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory
stop.’” Navarette, 572 U.S. at 397 (quoting White, 496 U.S. at 327); see also United
States v. Madrid, 713 F.3d 1251, 1258 (10th Cir. 2013) (“A confidential tip may justify
an investigatory stop if under the totality of the circumstances the tip furnishes both
sufficient indicia of reliability and sufficient information to provide reasonable suspicion
that criminal conduct is, has, or is about to occur.” (quoting United States v. Leos-
Quijada, 107 F.3d 786, 792 (10th Cir.1997))).
The Supreme Court has identified several key indicia of reliability when it comes
to anonymous tips. In Alabama v. White, a tipster told police that a woman would drive
8
from a specific apartment building to a specific motel in a specific kind of car, while
transporting cocaine. The police corroborated the benign details—the apartment, the
motel, and the car type—before making a stop. The Supreme Court held that the
corroboration of these details made the tip sufficiently reliable to justify a stop. The
Court emphasized, however, that the corroborated details related “not just to easily
obtained facts and conditions existing at the time of the tip, but to future actions of third
parties ordinarily not easily predicted.” White, 496 U.S. at 332 (quoting Illinois v. Gates,
462 U.S. 213, 245 (1983)). If a tipster can accurately predict an individual’s future
behavior, it implies that the tipster has “a special familiarity with [the individual’s]
affairs” and, in particular, “access to reliable information about that individual’s illegal
activity.” Id.But if a tip “provide[s] no predictive information and therefore le[aves] the police
without means to test the informant’s knowledge or credibility,” it will often not justify an
investigatory stop. Florida v. J.L., 529 U.S. 266, 271 (2000). This was true of the tip in
Florida v. J.L. In that case, the tipster merely said that a young Black man who was
wearing a plaid shirt and standing at a particular bus stop was carrying a gun. All the
police had was “the bare report of an unknown, unaccountable informant who neither
explained how he knew about the gun nor supplied any basis for believing he had inside
information about J.L.” Id. In holding that the police lacked reasonable suspicion to stop
and frisk the defendant—who was wearing a plaid shirt—the Court noted that an
9
“accurate description of a subject’s readily observable location and appearance” is
reliable only in a “limited sense”: it will “help the police correctly identify the person
whom the tipster means to accuse.” Id. at 272. However, such a tip “does not show that
the tipster has knowledge of concealed criminal activity.” Id. To help establish
reasonable suspicion, a tip must be “reliable in its assertion of illegality, not just in its
tendency to identify a determinate person.” Id.But, corroborated predictive information—of the kind present in White, but not in
J.L.—is not necessarily required for an anonymous tip to support a reasonable-suspicion
finding. In the case that the district court here relied on, Navarette, a tipster called 911 to
report that a truck had just run her off the road. The tipster supplied no predictive
information. Yet, she provided the truck’s make, model, color, and license plate number.
In holding that the tip had sufficient indicia of reliability, and thus supplied a reasonable
suspicion for an investigatory stop, the Court focused on three factors. First, the caller
“necessarily claimed eyewitness knowledge of the alleged dangerous driving,” precisely
because the caller was run off of the road by the dangerous driver. Navarette, 572 U.S.
at 399. Second, “the caller reported the incident soon after she was run off the road.” Id.
As to this point, the Court explained that this sort of “contemporaneous report has long
been treated as especially reliable.” Id. This is so because, under the law of evidence,
“statements about an event and made soon after perceiving that event are especially
trustworthy because ‘substantial contemporaneity of event and statement negate the
10
likelihood of deliberate or conscious misrepresentation.’” Id. at 400 (quoting FED. R.
EVID. 803(1) advisory committee’s note). Third, the caller used the 911 system. Because
a 911 call “has some features that allow for identifying and tracing callers” it provides
“some safeguards against making false reports with immunity.” Id.
Furthermore, without reference to predictive information, we, too, have identified
certain factors that often suggest the reliability of an anonymous tip. In United States v.
Chavez, we succinctly summarized the most important factors we usually consider:
Although no single factor is dispositive, relevant factors include:
(1) whether the informant lacked “true anonymity” (i.e., whether the
police knew some details about the informant or had means to discover
them); (2) whether the informant reported contemporaneous, firsthand
knowledge; (3) whether the informant provided detailed information
about the events observed; (4) the informant’s stated motivation for
reporting the information; and (5) whether the police were able to
corroborate information provided by the informant.
Chavez, 660 F.3d at 1222. Though we place a premium on information related “to future
actions of third parties [which are] ordinarily not easily predicted,” such details are not
necessarily required to render an anonymous tip reliable. United States v. Hauk, 412 F.3d
1179, 1189 (10th Cir. 2005) (quoting Gates, 462 U.S. at 245).
A tipster is not truly anonymous if he “provides sufficient details regarding his
identity to render him readily identifiable by police,” such as where he works or lives.
United States v. Brown, 496 F.3d 1070, 1076 (10th Cir. 2007). Contemporaneous,
firsthand knowledge also differs from that which is acquired “through the report of a third
party or reported sometime later than the described events.” Madrid, 713 F.3d at
11
1260–61; see also Brown, 496 F.3d at 1076 (“We consider it another important indicium
of reliability that the caller claimed firsthand knowledge of the alleged conduct.”). We
likewise credit “detailed information about the events [a tipster] witnessed.” Chavez, 660
F.3d at 1222. Additionally, motivations bolster reliability when they “bespeak an
ordinary citizen acting in good faith,” particularly to protect others. United States v.
Copening, 506 F.3d 1241, 1247 (10th Cir. 2007). Lastly, police corroboration of any
information provided by a tipster is also potentially relevant. See Brown, 496 F.3d
at 1078–79 (deeming even “limited police corroboration of facts provided by the caller”
relevant to the determination that “the 911 caller [ ] bore sufficient indicia of reliability to
generate a reasonable suspicion”).
III
We “review de novo the ultimate question of reasonableness under the Fourth
Amendment.” United States v. McNeal, 862 F.3d 1057, 1061 (10th Cir. 2017). In doing
so here, we conclude the officers had a reasonable suspicion to seize Mr. Gaines for an
investigatory stop. We first consider the relevant indicia of reliability displayed by the
anonymous tipster’s 911 call. Then, after acknowledging the absence of predictive
information in the tip, we explain why it supported the district court’s finding of a
reasonable suspicion. We then distinguish the tip in this case from the one in Florida v.
J.L. Finally, we address why the drug-related activity near the area of Mr. Gaines’s arrest
is relevant to our reasonable-suspicion inquiry.
12
A
We begin with the three indicia of reliability highlighted in Navarette: that is,
(1) “claimed eyewitness knowledge of” the illegal activity, (2) a contemporaneous
report—“soon after”—the occurrence of the activity, and (3) the “use [of] the 911
emergency system.” Navarette, 572 U.S. at 399–400.
As to the first factor, the district court found that the anonymous tipster “implie[d]
that he personally observed [Mr. Gaines’s] drug sale.” R., Vol. I, at 236. This finding is
not clearly erroneous. When the 911 call began, the tipster identified his location and
then stated, “we have a suspect in all red clothing selling juice.” Gov’t Ex. 1
at 0:10–0:14. And, significantly supportive of the district court’s finding, the tipster also
reported that the man in red “just made about 20 dollars,” id. at 0:46–0:49 (emphasis
added), implying that the tipster possessed eyewitness knowledge of an illegal drug sale.2
2
We recognize that, in some of our other cases, the tipster seemingly
communicated in more explicit terms eyewitness knowledge of unlawful activity. See,
e.g., Brown, 496 F.3d at 1076 (“The caller in this case specifically told the 911 operator
that he was present when an armed man entered [a woman’s] apartment and that he saw
the man’s gun.”); Copening, 506 F.3d at 1247 (noting that “the caller told dispatch he saw
the . . . weapons incident”). But we conclude that the district court’s finding that the
tipster “implie[d] that he personally observed [Mr. Gaines’s] drug sale,” R., Vol. I, at 236,
means the first Navarette factor “weigh[s] in favor of the caller’s veracity,” Navarette,
572 U.S. at 400—even if it does not do so strongly. Cf. Brown, 496 F.3d at 1078–79
(noting that even though there was “limited police corroboration of facts provided by the
caller” it was relevant to the determination that “the 911 caller here bore sufficient indicia
of reliability to generate a reasonable suspicion”). Furthermore, we underscore that the
reasonable-suspicion determination is grounded on the totality of the circumstances and
no one factor—including those highlighted in Navarette—is determinative.
13
Furthermore, the other two Navarette factors are both clearly satisfied here. The
tipster undoubtedly made a “contemporaneous report” of Mr. Gaines’s activities, both
non-criminal and criminal alike. Indeed, most of the tipster’s statements appeared to
provide a real-time report of Mr. Gaines’s activities: “I’m watching him right now,” the
tipster said. Id. at 1:40–1:41. “Yeah, he’s still walking up the hill.” Id. at 1:49–1:50.
“He’s just standing on the corner.” Id. at 2:07–2:10. And, as noted, the tipster reported
that “[h]e just made about 20 dollars,” implying that it was from a drug sale. Id.at 0:46–0:49. We have ample reason, then, to conclude that the “substantial
contemporaneity of event and statement negate the likelihood of deliberate or conscious
misrepresentation.” Navarette, 572 U.S. at 400 (quoting FED. R. EVID. 803(1) advisory
committee’s note); see also United States v. Conner, 699 F.3d 1225, 1229 (10th Cir 2012)
(“[T]he caller’s immediate, firsthand knowledge added to the reliability of his
statements.”). We thus conclude that the second Navarette factor here “weigh[s] in favor
of the caller’s veracity.” Navarette, 572 U.S. at 400
Finally, the tipster called 911 to report his observations. Again, this factor is
important because a 911 call “has some features that allow for identifying and tracing
callers, and thus provide some safeguards against making false reports with immunity.”
Navarette, 572 U.S. at 400. The Supreme Court noted two such safeguards in Navarette:
a recorded call “provides victims with an opportunity to identify the false tipster’s voice
and subject him to prosecution,” and callers cannot “block call recipients from obtaining
14
their identifying information.” Id. at 400–01. We do not suggest that “tips in 911 calls
are per se reliable.” Navarette, 572 U.S. at 401. But the tipster’s use of the 911 system is
“one of the relevant circumstances that, taken together, justified the officer[s’] reliance on
the information.” Navarette, 572 U.S. at 401.
On the whole, then, the three indicia of reliability highlighted in Navarette favor
concluding that the anonymous tip provided reasonable suspicion justifying the stop.
Looking beyond Navarette, other factors here also demonstrate the tipster’s reliability.
First, as we have framed the matter, the tipster was not truly anonymous. As
previously mentioned, he used the 911 system. But that is not all. He confirmed the
precise address of his physical location. See Madrid, 713 F.3d at 1260 (observing that
“giving the address [of where the crime took place and of the caller’s own location] was
at least an ‘indicium of reliability’” (quoting Robinson v. Howes, 663 F.3d 819, 829 (6th
Cir. 2011))); cf. United States v. Williams, 403 F.3d 1188, 1194 n.5 (10th Cir. 2005)
(noting that an anonymous restaurant patron who reported seeing another patron with a
firearm was not truly anonymous because the tip placed the tipster at the particular
restaurant at a particular time). Furthermore, the tipster here spoke for over two minutes
in a known location, making it likelier that police could unearth witnesses who might help
identify him. Taken together, the police quite possibly (if not likely) had “sufficient
details” to “render [the tipster] readily identifiable.” Brown, 496 F.3d at 1076.
Moreover, throughout the call, the tipster answered every question asked by the
15
operator. For example, he took time to retrieve the exact address of his location when
asked. The tipster also did not obviously withhold any information. Indeed, he appeared
to answer honestly that he did not know what type of car Mr. Gaines was driving. And,
importantly, the tipster never declined to give his name. Instead, the 911 operator did not
ask for it. This, too, is an indicium of reliability. See Madrid, 713 F.3d at 1260 (deeming
it significant that “the 911 operator never asked the caller for his name or other
identifying information and there [was] no reason to believe he would not have provided
this information if requested”); United States v. Torres, 534 F.3d 207, 212 (3d Cir. 2008)
(noting that although the tipster never gave his name, “he was not asked to do so”).
We also have often inquired into a tipster’s motivations, and here “the 911
transcripts provide no indication that the caller had iniquitous intentions.” Copening, 506
F.3d at 1247. In particular, it strikes us as improbable that an individual intending to
falsely attribute criminal conduct to another would speak to a 911 operator in the kind of
measured and circumspect manner displayed by the tipster here—who, for example,
freely admitted when he did not know the answer to the 911 operator’s questions. The
length of the call is also relevant: the tipster did not rush to lodge a hasty false allegation
and dash off unidentified. See Johnson, 364 F.3d at 1191 (crediting the length of an
anonymous tipster’s call as an indicium of reliability). If anything, the 911 call suggests
that the tipster possibly acted with an commendable motive—seeking to rid the area
around the Wilhelmina Gill Center of drug-related activity. Specifically, near the end of
16
the call the tipster said, “And after this guy, we only have one more supplier, and that’s
it.” Gov’t Ex. 1 at 1:55–2:00. This comment would appear to “bespeak an ordinary
citizen acting in good faith.” Copening, 506 F.3d at 1247. At the very least, nothing in
the call suggests that the tipster had a malicious motive.
Moreover, throughout the call, the tipster provided detailed information about Mr.
Gaines’s appearance, location, and movements. We have said that when a tipster
“provide[s] detailed information about the events he [is] observing,” it is “another
indicium of reliability.” Madrid, 713 F.3d at 1261; see also Conner, 699 F.3d at 1230
(“The number and precision of [a tipster’s] details added to the tip’s reliability.”). We
value detailed tips because “[o]verly generic tips, even if made in good faith, could give
police excessive discretion to stop and search large numbers of citizens.” Johnson, 364
F.3d at 1191. The anonymous tip in this case “did not provide the officers with excessive
discretion to stop and search a large number of citizens.” Sanchez, 519 F.3d at 1214.
Instead, the tipster identified the suspect’s physical appearance and location with a fairly
high degree of specificity. In that way, because “the description’s considerable detail
significantly circumscribed the number of people police could have stopped in reliance on
it,” we deem the tip’s details another indicium of reliability. Johnson, 364 F.3d at 1191.
B
We acknowledge the tipster did not provide the kind of predictive information that
often renders an anonymous tip reliable. In particular, we cannot say that the information
17
provided here described “future actions of third parties ordinarily not easily predicted.”
White, 496 U.S. at 332 (quoting Gates, 462 U.S. at 245). Relatedly, at first blush, the tip
here might seem similar to the tip in Florida v. J.L.—the one the Supreme Court held did
not supply reasonable suspicion for a stop. In this case and in J.L., the tipster
communicated to law enforcement that a person of a certain description, wearing certain
clothing, was at a particular location doing something illegal. However, we nevertheless
conclude that the tip here significantly supports a reasonable-suspicion finding and that
J.L. is distinguishable.
First, the Supreme Court has never indicated that an anonymous tipster must
provide corroborated predictive information to support a finding of reasonable suspicion.
See Parker v. Chard, 777 F.3d 977, 980 (8th Cir. 2015) (noting that in J.L. and White the
Supreme Court “did not hold that corroboration of predictive elements is the exclusive
measure of a tip’s reliability”). After all, this inquiry must take into account the totality of
the circumstances, and not solely whether a tipster supplies predictive information that
police corroborate.
Second, since Florida v. J.L., we have repeatedly suggested that police
corroboration of even non-predictive information provided by a tipster—especially in
conjunction with other relevant factors—can be indicative of reliability. See, e.g., Hauk,
412 F.3d at 1189 (“Corroboration of information other than predictive facts, such as the
basis of the informant’s knowledge, the circumstances under which it was obtained, and
18
the amount of detail about the alleged criminal activity, can also justify reliance on an
anonymous tip in appropriate circumstances.”); Conner, 699 F.3d at 1230 (finding an
anonymous tipster reliable when police “discovered the black SUV in the precise location
provided by the caller” and “spotted a light-skinned black male in a fuzzy hunting hat,
just as the caller had described”); Chavez, 660 F.3d at 1222 (crediting as an indicium of
reliability the fact that officers verified “that there was a black pickup truck and a white
Cadillac in the parking lot” specifically identified by the tipster); Johnson, 364 F.3d
at 1191 (emphasizing that the tipster’s “descriptions of [the defendants’] appearance and
location” were confirmed by an officer’s observations). This does not mean that,
standing alone, law enforcement corroboration of such non-predictive information can
“be used to confirm the reliability of an anonymous informant for the purpose of
establishing . . . reasonable suspicion.” United States v. Tuter, 240 F.3d 1292, 1297 (10th
Cir. 2001). But, in light of the totality of the circumstances, it is still significant that the
police corroborated non-predictive information provided by the tipster—namely, that a
light-skinned Black man in all red clothing was located at a particular parking lot.3
3
On this point, we also find it worth mentioning—though it is admittedly a
factor of modest weight—that the off-duty officer radioed to the responding officers
when they arrived on the scene, “that’s him in that white Cadillac.” R., Vol. I, at 137.
The off-duty officer had seen a man fitting Mr. Gaines’s description at the Frank
Williams Center parking lot that morning. Of course, the off-duty officer corroborated
neither predictive information nor criminal activity. But his statement nonetheless helped
corroborate the identity of “the person whom the tipster mean[t] to accuse.” J.L., 529
U.S. at 272.
19
Furthermore, we conclude that the tip at issue in Florida v. J.L.—upon close
inspection—is significantly different from the one here. Our prior discussion highlights
why. The tipster in this case used the 911 system and was not truly anonymous. Cf. J.L.,
529 U.S. at 268 (recounting as to J.L.’s tip, that “[s]o far as the record reveals, there is no
audio recording of the tip, and nothing is known about the informant”). Moreover, the
tipster here contemporaneously reported his first-hand observations. Cf. id. (noting, as to
J.L.’s tip, that “[s]ometime after the police received the tip—the record does not say how
long—two officers were instructed to respond” (emphasis added)). Furthermore, the
tipster in this case made the tip from a known location. Cf. id. at 270 (noting that the tip
in J.L. came from “an unknown location”). Also, adding to his credibility, the tipster in
this case withheld no information, appeared to have a benign motive, and answered all the
questions put to him (if he could) over a somewhat lengthy call. These factors were not
available to support the tipster’s credibility in J.L.; indeed, “nothing [was] known about
the [tipster].” Id. at 269. Accordingly, J.L. is distinguishable and does not lead us to alter
our conclusion regarding the reliability of the tip here.
Our reasonable-suspicion inquiry is a holistic one—which takes account of the
totality of the circumstances. No single consideration is determinative. Viewed through
this all-encompassing lens, the relevant factors in the anonymous-tipster inquiry here
weigh in favor of a determination that the 911 call was sufficiently reliable to support an
investigatory stop. This is so despite the absence of predictive information.
20
C
Importantly, the district court’s reasonable-suspicion determination did not solely
rest on evidence of the anonymous tip. In addition to the tipster’s call, evidence of drug-
related activity in the area of the Wilhelmina Gill Center was a legitimate contributing
factor in creating a reasonable suspicion for the investigatory stop.
Mr. Gaines’s mere “presence in a high-crime area is not, ‘standing alone,’ enough
to provide reasonable suspicion.” United States v. Dennison, 410 F.3d 1203, 1208 (10th
Cir. 2005) (quoting Illinois v. Wardlow, 528 U.S. 119, 124 (2000)). However, “the fact
that conduct occurs in an area known for criminal activity [is an] appropriate factor[] to
consider in determining whether reasonable suspicion exists.” DeJear, 552 F.3d at 1201;
see also United States v. Pena-Montes, 589 F.3d 1048, 1055 (10th Cir. 2009) (noting that
whether a stop occurs “in a high-crime area is a relevant consideration” for a
reasonable-suspicion analysis); Dennison, 410 F.3d at 1208 (acknowledging that a
defendant’s “presence in a high crime area . . . may be a ‘relevant contextual
consideration’” (quoting Wardlow, 528 U.S. at 124)). After all, “officers are not required
to ignore the relevant characteristics of a location in determining whether the
circumstances are sufficiently suspicious to warrant further investigation.” Wardlow, 528
U.S. at 124.
In reaching its reasonable-suspicion determination, the district court partially relied
on significant evidence of drug-related activity near the Wilhelmina Gill Center. Both
21
arresting officers testified about this activity. The female officer testified she knew about
“a lot of medical-type calls [for] individuals on PCP, along with complaints of narcotics
sales in the area.” R., Vol. I, at 126 (Trial Test. of Shenee Davis, dated Mar. 8, 2017).
The other (male) officer testified that he has responded to “a lot of narcotics complaints”
around the Wilhelmina Gill Center. Id. at 86 (Trial Test. of Carl Rowland, dated Mar. 8,
2017). He told the court that in the period leading up to the arrest of Mr. Gaines, “[w]e
had [ ] increased contact with individuals under the influence of PCP.” Id. He also
recalled that police sometimes received “multiple [calls] within a few minutes in that
general area [concerning] individuals exhibiting behavior that [suggested] they were
under the influence of PCP.” Id. at 86–87. Furthermore, other evidence presented at trial
confirmed that, in the two months prior to Mr. Gaines’s arrest, police had been called to
the area three times for drug overdoses.
In short, the area around the Wilhelmina Gill Center attracted drug-related activity.
Consequently, a reasonable officer in the shoes of the arresting officers here would have
almost certainly taken this fact into consideration in determining whether Mr. Gaines’s
conduct was sufficiently suspicious to justify an investigatory stop. And we conclude that
the district court properly determined that this evidence of drug-related activity provided
support for the reasonableness of the officers’ stop.
Of course, standing alone, this evidence of drug-related activity would not have
given the officers reasonable suspicion to conduct an investigatory stop of an individual
22
in the vicinity of the Wilhelmina Gill Center. See, e.g., Dennison, 410 F.3d at 1208. But,
this evidence did not stand alone. In conjunction with the anonymous tipster’s call, the
area’s reputation for drug-related activity was a “relevant contextual consideration” that
helped create a reasonable suspicion to stop a particular individual—Mr. Gaines. Id.IV
Based on “the totality of the circumstances and information available to the
officers,” Johnson, 364 F.3d at 1189 (quoting United States v. Lang, 81 F.3d 955, 965
(10th Cir. 1996)), we conclude there was reasonable suspicion justifying an investigatory
stop of Mr. Gaines. We therefore AFFIRM the judgment of the district court.
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
23