United States v. Robinson

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
9-13-2002
USA v. Robinson
Precedential or Non-Precedential: Precedential
Docket No. 00-1328
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PRECEDENTIAL
Filed September 13, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 00-1328 & 00-1715
UNITED STATES OF AMERICA
v.
MITCHELL ROBERTSON
a/k/a MITCHELL ROBINSON
a/k/a BRYHEER McMICHAEL
Mitchell Robinson,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Criminal No. 99-cr-00484
(Honorable Edmund V. Ludwig)
Argued April 5, 2001
Before: SCIRICA, AMBRO and GIBSON,*
Circuit Judges
(Filed September 13, 2002)
_________________________________________________________________
* The Honorable John R. Gibson, United States Circuit Judge for the
Eighth Judicial Circuit, sitting by designation.
DAVID L. McCOLGIN, ESQUIRE
(ARGUED)
Defender Association of Philadelphia
Federal Court Division
Curtis Center, Suite 540 West
Independence Square West
Philadelphia, Pennsylvania 19106
Attorney for Appellant
CAROL M. SWEENEY, ESQUIRE
(ARGUED)
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, Pennsylvania 19106
Attorney for Appellee
OPINION OF THE COURT
SCIRICA, Circuit Judge.
Mitchell Robertson entered a conditional guilty plea 1 to
possession of ammunition by a convicted felon, a violation
of 18 U.S.C. S 922(g)(1).2 The sole issue on appeal is
whether police officers had reasonable suspicion to stop a
public bus on which Robertson was traveling and search
for and seize a handgun and ammunition. We will affirm.
I.
On April 29, 1999, at 12:10 p.m., Philadelphia Police
Captain Joseph Sullivan of the 35th Police District and
_________________________________________________________________
1. Under Fed. R. Crim. P. 11(a)(2), "a defendant may enter a conditional
plea of guilty or nolo contendere, reserving in writing the right, on appeal
from the judgment, to review of the adverse determination of any
specified pretrial motion." Robertson entered a conditional guilty plea
under Rule 11, preserving his right to appeal the denial of his motion to
suppress. See also United States v. Zudick, 523 F.2d 848, 851 (3d Cir.
1975).
2. He was sentenced to sixty-six months’ imprisonment, three years of
supervised release, a $500 fine, and a $100 special assessment.
2
Officer Joseph Carolyn, his driver, responded to a radio call
that police officers were pursuing two male robbery
suspects on the run, in the area of 18th Street and 66th
Avenue. At least one of the suspects was allegedly armed.
A second radio report described the men as African-
American, one wearing a white shirt and reddish pants, the
other a white or gray shirt and dark pants, possibly blue
jeans. After traveling ten to twelve city blocks, Captain
Sullivan and Officer Carolyn met up with several other
officers in the 6600 block of Gratz Street, one-half block
west of 18th Street. Captain Sullivan and Officer Carolyn
left their unmarked patrol car to speak with the other
officers.
At this point Captain Sullivan saw two men running"in
the eastbound actual traffic lanes" of 66th Avenue, crossing
the intersection of Gratz Street.3 Believing these two men fit
the descriptions he had just received, Captain Sullivan
instructed Officer Carolyn to return to their car, pick him
up, and follow the suspects. The patrol car was parked a
quarter of the way up Gratz Street, facing north, and
Officer Carolyn had to back up to get onto 66th Avenue. A
line of buildings and houses caused Captain Sullivan to
lose sight of the two men after they turned the corner onto
66th Avenue. When Officer Carolyn arrived with the car,
approximately one minute later, they proceeded east on
66th Avenue.
Just then, a van pulled alongside Captain Sullivan’s
window, and the van driver gestured to roll down the police
car’s window. Captain Sullivan described the van driver as
a heavy-set African-American male in his late forties to
early fifties. The van driver informed Captain Sullivan the
_________________________________________________________________
3. The two men Captain Sullivan saw were apparently running toward
the robbery scene. But the direction of their flight may or may not be
legally consequential. Fleeing robbers may have changed direction for a
certain purpose. See, e.g., Illinois v. Wardlow, 528 U.S. 119, 124 (2000)
("Headlong flight -- wherever it occurs -- is the consummate act of
evasion; it is not necessarily indicative of wrongdoing, but it is certainly
suggestive of such."). The direction the suspects were running remains
one of many factors to consider in evaluating the"totality of the
circumstances." Here, we do not believe it negates the reasonable
suspicion that these men were the alleged robbers.
3
two men he was "looking for" had boarded a SEPTA bus4 a
few blocks away on 66th Avenue: "Officer, them two guys
you’re looking for just got on that bus." Captain Sullivan
did not ask the van driver’s name, address, or telephone
number. The two officers chased after the eastbound
SEPTA bus, stopped and boarded it. Two to three minutes
elapsed between the time Officer Carolyn obtained the car
and the time the officers boarded the bus.
Among the twelve to fifteen passengers on the bus,
Captain Sullivan saw two men matching the descriptions of
the robbery suspects. Both were seated in the rear of the
bus. Captain Sullivan testified that Robertson, one of the
two men, was wearing a grayish shirt with dark pants 5 and
the person sitting next to Robertson was wearing a white
shirt and red pants.6
Upon boarding the SEPTA bus, Captain Sullivan made
eye contact with Robertson. He saw Robertson remove an
item from his waistband with his right hand, reach over the
passenger seated next to him, and place the item behind
the seat in front of him and to his right -- on top of the
bus’s wheel well. Based on his experience, Captain Sullivan
believed Robertson was trying to hide a concealed weapon.
Captain Sullivan drew his weapon and ordered Robertson
to lie on the floor. A search of the wheel well by another
officer revealed a loaded five-shot break-open revolver.
Other officers brought the robbery victim to the scene,
but the victim was unable to identify Robertson and his
companion as the robbers. The recovered weapon was of
indeterminate age and therefore, could not form the basis
of a weapons possession charge. See 18 U.S.C. S 921(a)(3)
_________________________________________________________________
4. The Southeastern Pennsylvania Transportation Authority provides
public bus transportation for the City of Philadelphia.
5. The color of Robertson’s clothing that day remains somewhat in
dispute. Two other officers testified Robertson was wearing blue or dark
jeans and a gray or dirty white shirt with black lettering on the front.
Photographs taken at police headquarters show Robertson wearing a
black T-shirt and jacket. Robertson’s prison receipt lists a black T-shirt,
black jeans, and a multi-colored jacket.
6. There is no dispute this person matched the description of the second
suspect.
4
(1994).7 Robertson was charged with illegal possession of
ammunition by a convicted felon, a violation of 18 U.S.C.
S 922(g)(1).8 After a hearing on Robertson’s motion to
suppress, the District Court held the police officers "were
justified in stopping the SEPTA bus, having formed the . . .
reasonable belief that the two robbery suspects had gotten
on the bus and believing that at least one of them had a
gun." This appeal followed.
II.
The District Court had jurisdiction under 18 U.S.C.
S 3231. We have jurisdiction under 28 U.S.C.S 1291.
III.
The central question on appeal is whether Captain
Sullivan had reasonable suspicion to stop and board the
SEPTA bus on which Robertson was traveling. As in all
difficult suppression cases, we must consider the totality of
the circumstances, including the police officer’s knowledge,
experience, and common sense judgments about human
behavior. The Fourth Amendment prevents "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. Katz v. United States, 389 U.S. 347,
356-57 (1967). But under the "narrowly drawn authority" of
Terry v. Ohio, 392 U.S. 1, 27 (1968), an officer without a
warrant "may, consistent with the Fourth Amendment,
conduct a brief, investigatory stop when the officer has a
_________________________________________________________________
7. Federal firearms statutes do not regulate the possession of firearms
manufactured prior to 1898. The manufacture date of Robertson’s
firearm could not be established, so no federal prosecution for the gun
could ensue. But the government proceeded with the ammunition count,
which has no chronological limitation. See 18 U.S.C. SS 921(a)(16),
921(a)(17).
8. Robertson, also known as "Mitchell Robinson" and "Bryheer
McMichael," possessed five live rounds of ammunition, loaded in a
Spanish break-open revolver with an obliterated serial number.
Robertson has twice been convicted of crimes punishable by more than
a year in prison.
5
reasonable, articulable suspicion that criminal activity is
afoot." Wardlow, 528 U.S. at 123.
To determine whether reasonable suspicion exists, we
must consider the " ‘totality of the circumstances -- the
whole picture.’ " United States v. Sokolow , 490 U.S. 1, 8
(1989) (quoting United States v. Cortez, 449 U.S. 411, 417
(1981)); see also United States v. Arvizu, 534 U.S. 266, 122
S. Ct. 744, 750-51 (2002) ("This process allows 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." (quotation and citation omitted)). In
United States v. Nelson, 284 F.3d 472 (3d Cir. 2002), we
described Arvizu as follows: "In the Supreme Court’s most
recent pronouncement on the Fourth Amendment
reasonable suspicion standard, it accorded great deference
to the officer’s knowledge of the nature and the nuances of
the type of criminal activity that he had observed in his
experience, almost to the point of permitting it to be the
focal point of the analysis." Id. at 482.
Moreover, we are appropriately reluctant to "second-
guess" investigative decisions made by officers in hot
pursuit of criminal suspects. E.g., United States v.
Valentine, 232 F.3d 350, 355 (3d Cir. 2000) ("The officers
knew the suspect was still in the vicinity, and had they
stalled for more lengthy questioning of the informant, the
armed suspect could have escaped detection."), cert. denied,
532 U.S. 1014 (2001); United States v. Brown, 159 F.3d
147, 149 (3d Cir. 1998) ("A police officer may conduct a
warrantless stop and frisk if specific and articulable facts,
together with all rational inferences, suggest that the
suspect was involved in criminal activity.") (summarizing
Terry). The Supreme Court has held "the determination of
reasonable suspicion must be made on common sense
judgments and inferences about human behavior."
Wardlow, 528 U.S. at 125.
IV.
The District Court found the stop of the SEPTA bus was
supported by reasonable suspicion and the search and
6
seizure was valid. We exercise plenary review over the
District Court’s conclusions regarding reasonable
suspicion. We review the District Court’s factual findings
for clear error. United States v. Riddick, 156 F.3d 505, 509
(3d Cir. 1998). We exercise plenary review over the District
Court’s application of law to the facts of this case. Id.As noted, calculating whether an officer has reasonable
suspicion to warrant a stop and search is often an
imprecise judgment. Arvizu, 122 S. Ct. at 751 ("Our cases
have recognized that the concept of reasonable suspicion is
somewhat abstract."); Wardlow, 528 U.S. at 125 ("[W]e
cannot reasonably demand scientific certainty from judges
or law enforcement officers where none exists."). The
determination is often made under exigent circumstances
requiring quick, decisive reactions. Under this set of facts,
Captain Sullivan had a reasonable suspicion that the two
suspects he viewed sprinting through the streets of
Philadelphia, in close proximity to the scene of the armed
robbery, had committed the crime. See Alabama v. White,
496 U.S. 325, 330 (1990) ("Reasonable suspicion is a less
demanding standard than probable cause not only in the
sense that reasonable suspicion can be established with
information that is different in quantity or content than
that required to establish probable cause, but also in the
sense that reasonable suspicion can arise from information
that is less reliable than that required to show probable
cause.").
The "total picture" in this case demonstrates Captain
Sullivan reasonably suspected the men who boarded the
bus were the suspected armed robbers. In reaching this
determination, Captain Sullivan relied on his experience
and training, indispensable to his evaluation of reasonable
suspicion. Cf. Terry, 392 U.S. at 30; see also Ornelas v.
United States, 517 U.S. 690, 699 (1996) ("[A] police officer
views the facts through the lens of his police experience
and expertise.").
It is well settled that reasonable suspicion can be based
on information gathered from another person. Adams v.
Williams, 407 U.S. 143, 147 (1972). Robertson contends
Captain Sullivan improperly relied on statements from the
van driver before deciding to stop the SEPTA bus. We
7
disagree. Information provided by the van driver was
reliable because it was provided by a witness "reporting
what he had observed moments ago, not what he learned
from stale or second-hand sources." Valentine , 232 F.3d at
354. The van driver spoke directly to Captain Sullivan, who
had at least a fleeting "opportunity to assess[his] credibility
and demeanor." Id. at 350. The van driver was in the area
where an armed robbery had just occurred. He was driving
on the same street where two "armed" fleeing men had been
spotted. Cf. Brown, 159 F.3d at 150 (suspect’s presence in
"close proximity to the crime scene a few minutes after" a
crime supported a finding of reasonable suspicion). He
initiated contact with Captain Sullivan and, without being
prompted, said the "two guys" pursued had just boarded
the SEPTA bus. "[I]n light of the total circumstances," the
information was "sufficiently trustworthy." Valentine, 232
F.3d at 355.
No doubt in perfect hindsight and with more time,
Captain Sullivan might well have asked the bystander more
questions. But elaboration or corroboration in these
circumstances can delay -- and even terminate-- effective
pursuit. Valentine, 232 F.3d at 355. This concern is not
abstract. At the suppression hearing Captain Sullivan was
asked by defense counsel whether he had seen the van
driver before, whether the van driver was an "officer," and
whether he took the van driver’s name, address or
telephone number. To all these inquiries, Captain Sullivan
answered, "No, I was a little more concerned with catching
that bus." If Captain Sullivan had waited to determine if the
van driver had a basis for his statement, the fleeing
suspects may well have escaped. It is legally insignificant
that Robertson was not ultimately identified by the victim
as the armed robber. Florida v. J.L., 529 U.S. 266, 271
(2000) ("The reasonableness of official suspicion must be
measured by what the officers knew before they conducted
their search.").
Nor do we believe Captain Sullivan’s "hot pursuit" of the
suspects had turned "cold" by the time he boarded the bus.
Only two to three minutes passed between the time Officer
Carolyn began backing down Gratz Street and the time
Captain Sullivan stopped the bus. Under this set of facts,
8
the "hot" pursuit remained quite warm. Nor is there any
allegation or hint that Captain Sullivan’s "hot pursuit" of
Robertson was a pretext. Captain Sullivan reasonably
thought he was chasing armed robbers through
Philadelphia city streets. His decision to stop the bus was
based on a "common sense judgment." Wardlow, 528 U.S.
at 125.
Robertson characterizes the van driver as an "anonymous
informant." We disagree. We view this as essentially a hot
pursuit case, aided by a bystander’s informative tip. For
Fourth Amendment purposes, the information the van
driver provided Captain Sullivan, coupled with the other
circumstances, justified a "brief investigatory stop" of the
bus. Accord Valentine, 232 F.3d at 353. Regardless, the
information conveyed by the van driver contained several
indicia of reliability, distinguishing it from the truly
anonymous tip in Florida v. J.L. See 529 U.S. at 271 (police
cannot rely on "the bare report of an unknown,
unaccountable informant who has neither explained how he
knew [certain information] nor supplied any basis for
believing he had inside information about [the suspect]").
We cannot divorce the information provided by the van
driver from the surrounding circumstances of the hot
pursuit. The Supreme Court has rejected this type of
bifurcated analysis:
The [Court of Appeals for the Ninth Circuit] appeared
to believe that each observation by [a border patrol
agent] that was by itself readily susceptible to an
innocent explanation was entitled to "no weight." Terry,
however, precludes this sort of divide-and-conquer
analysis. The officer in Terry observed the petitioner
and his companions repeatedly walk back and forth,
look into a store window, and confer with one another.
Although each of the series of acts was "perhaps
innocent in itself," we held that, taken together, they
"warranted further investigation."
Arvizu, 122 S. Ct. at 751 (citations omitted); see also
Nelson, 284 F.3d at 484 (reiterating that the circumstances
surrounding an anonymous tip -- "its content and import,
and the knowledge of the officer receiving it"-- must be
9
considered to determine whether reasonable suspicion
existed).
Furthermore, we believe United States v. Roberson, 90
F.3d 75 (3d Cir. 1996), is inapposite. In Roberson, the
Philadelphia Police Department 911 officer received an
"anonymous tip" of criminal activity at the 2100 block of
Chelten Avenue. Id. at 76. Police officers, who were
unaware of the activity before receiving the call, approached
a person matching the tipster’s profile. Id. We reversed the
district court’s refusal to suppress evidence obtained
through a subsequent search, largely because the police,
"dealing with an anonymous and bare-bones tip," had "no
basis for assessing either the reliability of the informant or
the grounds on which the informant believed that a crime
was being committed." Id. at 80.
Roberson is distinguishable in at least three significant
ways. First, the investigation in Roberson was initiated
because of an anonymous telephone "tip." Here, Captain
Sullivan was already pursuing persons matching a
description, provided by other police officers, of two men
who had just committed an armed robbery and were
sprinting through a specific area. Having observed the
fleeing suspects board the SEPTA bus, the bystander told
Captain Sullivan where the men he "was looking for" had
gone. Second, in Roberson, "[t]he officers could have set up
surveillance of the defendant" in order to corroborate the
"non-predictive, anonymous tip they received." 90 F.3d at
81. Here, Captain Sullivan, in hot pursuit, did not have
time to ask for details without risking the suspects’
disappearance. Finally, in Roberson we expressly declined
to extend our holding beyond the facts presented, namely,
when an anonymous tip suggests a defendant is selling
drugs. 90 F.3d at 81 n.4 ("We do not address whether such
a tip is sufficient to create reasonable suspicion when the
tip involves an allegation that the defendant was carrying a
gun rather than dealing drugs. Under those circumstances,
a different rule may apply.").
In sum, we believe the totality of the circumstances
demonstrates Captain Sullivan had reasonable suspicion to
stop the SEPTA bus on which Robertson was riding. On
these facts, Captain Sullivan reasonably relied on the
10
credible information the van driver provided and made a
"common sense" judgment consistent with constitutional
requirements.
V.
Next we consider whether the search for and seizure of
Robertson’s firearm and ammunition was consistent with
the Fourth Amendment. As noted, Captain Sullivan had the
requisite reasonable suspicion to stop the public bus on
which Robertson was riding. Given the possibility that the
suspects might have been carrying weapons,9 Captain
Sullivan testified that when boarding the bus, he was
concerned for his personal safety. As the Supreme Court
held, "there must be a narrowly drawn authority to permit
a reasonable search for weapons for the protection of the
police officer, where he has reason to believe that he is
dealing with an armed and dangerous individual, regardless
of whether he has probable cause to arrest the individual
for a crime." Terry, 392 U.S. at 27. A limited search of the
suspects for weapons was justified under these
circumstances.
But more significantly, Captain Sullivan saw Robertson
remove an item from his waistband, reach over the adjacent
passenger, and place the item on top of the bus’s wheel
well. Captain Sullivan reasonably believed Robertson was
trying to hide a concealed weapon. Therefore, Robertson
also posed a threat to the bus passengers’ safety. Cf. Terry,
392 U.S. at 27:
The officer need not be absolutely certain that the
individual is armed; the issue is whether a reasonably
prudent man in the circumstances would be warranted
in the belief that his safety or that of others was in
danger. And in determining whether the officer acted
reasonably in such circumstances, due weight must be
given, not to his inchoate and unparticularized
suspicion, or "hunch," but to the specific reasonable
_________________________________________________________________
9. To reiterate, in the radio report Captain Sullivan heard, officers
broadcast that they were in pursuit of two males in connection with a
robbery, and that at least one of the males was armed with a handgun.
11
inferences which he is entitled to draw from the facts
in light of his experience.
See also Nelson, 284 F.3d at 483 (noting the"Supreme
Court’s consistent prior teaching that an officer, in
determining whether there is reasonable suspicion, may
take into account reports of an active threat, including the
presence and use of dangerous weapons"). Given
Robertson’s movements on the bus, which were observed
by Captain Sullivan, the search for and ultimate seizure of
Robertson’s handgun and ammunition were justified.
VI.
We reserve the broader question whether police need
reasonable suspicion to stop a public bus.10 Accord United
States v. Leon, 468 U.S. 897, 905 (1984) ("Although it is
undoubtedly within our power to consider the question . . .
that question has not been briefed or argued; and it is also
within our authority, which we choose to exercise, to take
the case as it comes to us . . . .").11
The Supreme Court, in a case involving an allegedly
unconstitutional search on a public bus, recently reiterated
that "for the most part, per se rules are inappropriate in the
Fourth Amendment context." United States v. Drayton, ___
U.S. ___, 122 S. Ct. 2105, 2111 (2002) (holding the proper
_________________________________________________________________
10. Even assuming Robertson had an expectation of privacy on this
public bus, the firearm was located on the bus’s wheel well, not, for
example, in luggage Robertson carried. To that extent, the search was of
the bus itself, not of Robertson’s person or belongings.
11. Compare Delaware v. Prouse, 440 U.S. 648, 653 (1979) ("stopping an
automobile and detaining its occupants constitute a‘seizure’ [for the
Fourth Amendment"), and United States v. Hernandez-Zuniga, 215 F.3d
483, 486-87 (5th Cir. 2000) (assuming that a stop of a bus by the police
constituted a seizure) (citing cases), with Florida v. Bostick, 501 U.S.
429, 436 (1991) (holding that if police board a bus during a regular stop,
the relevant inquiry is "whether a reasonable person would feel free to
decline the officer’s requests or otherwise terminate the encounter"), and
United States v. Gonzales, 979 F.2d 711, 712-13 (9th Cir. 1992)
(boarding of bus implicated no constitutional rights where it occurred at
a stoplight and transpired "pursuant to an agreement between the bus
company and the border patrol").
12
inquiry considers the totality of the circumstances). In
Drayton, the Supreme Court rejected a categorical rule that
evidence obtained during suspicionless drug interdiction
searches on public buses must be suppressed unless police
officers advise passengers of their rights not to cooperate
and to refuse consent. Id. at 2111-12; see also id. at 2112
("It is beyond question that had this encounter occurred on
the street, it would be constitutional. The fact that an
encounter takes place on a bus does not on its own
transform standard police questioning of citizens into an
illegal seizure."). The proper test is the totality of the
circumstances. As noted, once on the bus Captain Sullivan
reasonably believed he saw Robertson remove a firearm
from his waistband and place it on top of the bus’s wheel
well. Under these circumstances, the search and seizure
here is not unlawful under the Fourth Amendment.
VII.
For the foregoing reasons, we will affirm the judgment of
the District Court.
13
JOHN R. GIBSON, Circuit Judge, dissenting:
I respectfully dissent. In my view, the court errs today in
two significant respects. First, I disagree that Captain
Sullivan was in hot pursuit--not after instructing Officer
Carolyn to get the car which, was parked a quarter of the
way up Gratz Street, waiting approximately a minute to get
picked up, backing out onto 66th Avenue, and only then
proceeding in the direction that the two men he had briefly
glimpsed were running. Second, and even more important,
the tip here does not involve the relating of a simple fact
observed by the van driver, but rather his statement that
the men Captain Sullivan was looking for got on the SEPTA
bus. This is simply a conclusion unsupported by any basis,
at best an "inchoate and unparticularized suspicion or
‘hunch,’ " Terry v. Ohio, 392 U.S. 1, 27 (1968), insufficient
to justify a stop. I would reverse.
I.
With respect to the court’s hot pursuit discussion, there
is serious question as to whether the total period of time,
from Officer Carolyn obtaining the car to the boarding of
the bus, was actually two to three minutes. Captain
Sullivan first testified on cross-examination that it took
approximately one minute for Officer Carolyn to get the car.
In fact, by the time the officers emerged onto 66th Street,
so much time had passed that Captain Sullivan testified
that he believed he’d lost the suspects. Then the van driver
entered the picture, and Captain Sullivan testified further
that approximately two to three minutes had passed from
the time the car was retrieved to the time he encountered
the van driver. That brings the total time from the spotting
of the running men to the conversation with the motorist to
three to four minutes. While Captain Sullivan testified still
later that the total time from obtaining the car to pulling
over the bus was two to three minutes, his earlier
testimony calls that estimation into doubt. Whatever the
exact time period, I conclude there was no hot pursuit in
this case, but rather a trail gone cold, if not frigid or even
frozen.
I further disagree with the application of any sort of hot
pursuit analysis because the hot pursuit exception to the
14
warrant requirement requires police to have probable
cause. United States v. Santana, 427 U.S. 38 (1976). In
fact, at oral argument the Government explicitly denied that
it was asking this court to extend the hot pursuit exception
to Terry stops based on reasonable suspicion. Accordingly,
because Captain Sullivan relied on an unknown and
unidentified van driver’s tip in stopping the bus, we should
be primarily guided by cases involving stops based on
anonymous tips. But see supra at 9 ("Robertson
characterizes the van driver as an ‘anonymous informant.’
We disagree. We view this as essentially a hot pursuit case,
aided by a bystander’s informative tip.").
II.
This court recently considered anonymous tips and the
role they play in creating reasonable suspicion in United
States v. Roberson, 90 F.3d 75 (3d Cir. 1996). The tip in
Roberson was that a "heavy-set, black man wearing green
pants, a brown leather jacket, and a white hooded
sweatshirt was selling drugs on the 2100 block of Chelten
Avenue" in Philadelphia. Id. at 79. Despite the fact that
officers found a man fitting that description when they
arrived at the scene, this court concluded that reasonable
suspicion was lacking for a stop because "the police had no
basis for assessing either the reliability of the informant or
the grounds on which the informant believed that a crime
was being committed." Id. at 80 (emphasis added). In his
opinion for the court, Judge (now Chief Judge) Becker set
out the principles used in analyzing whether such tips are
a sufficient basis for police action. Id. at 77.
Judge Becker first discussed the two-factor
Aguilar/Spinelli test, formerly used to evaluate an
informant’s tip in the probable cause context. Id. (citing
Spinelli v. United States, 393 U.S. 410 (1969); Aguilar v.
Texas, 378 U.S. 108 (1964)). That test required that an
informant’s tip, to be credible, "had to indicate both the
basis for the informant’s knowledge and facts sufficient to
establish its veracity or reliability." Id. As Judge Becker
pointed out, the Supreme Court later abandoned this two-
part test in favor of a totality of the circumstances
approach under which the Aguilar/Spinelli factors are
15
"better understood as relevant considerations in the
totality-of-the-circumstances analysis that traditionally has
guided probable cause determinations: a deficiency in one
may be compensated for, in determining the overall
reliability of a tip, by a strong showing as to the other, or
by some other indicia of reliability." Id. (quoting Illinois v.
Gates, 462 U.S. 213, 233 (1983)). This totality of
circumstances test was extended to the reasonable
suspicion context in Alabama v. White, 496 U.S. 325(1990).
In White, the Court upheld a Terry stop based upon an
anonymous informant’s telephone tip. 496 U.S. at 332. The
informant in that case alleged that a certain woman was in
possession of illegal drugs, and predicted that this woman
would leave a particular apartment, at a particular time, in
a particular car, and then drive to a particular location. Id.
at 327. Most of the tip was corroborated by police before
they stopped the woman. Id. Despite the plethora of
descriptive and predictive information contained in the tip
(as opposed to the case before us here), the Court
recognized that White was "a close case," id. at 332, and
only concluded that there was reasonable suspicion
because "police observation showed that the informant had
accurately predicted the woman’s movements." Florida v.
J.L., 529 U.S. 266, 270 (2000).
Most recently, in J.L., officers received an anonymous
phone call alleging that a young African-American male
wearing a plaid shirt was standing at a particular bus stop
and carrying a gun. 529 U.S. at 268. Even though the
police officers who investigated the tip did indeed find a
man fitting that description at the bus stop, the Court held
that the call did not provide them with reasonable
suspicion to stop the man, because the tipster in that case
had "neither explained how he knew about the gun nor
supplied any basis for believing he had inside information."
Id. at 271.
As Judge Becker observed in Roberson, while White
stressed the importance of the officer’s ability to
corroborate significant aspects of the tip and the tip’s
ability to predict future events, it also reiterated that the
Aguilar/Spinelli factors "remain‘highly relevant in
16
determining the reliability of [an informant’s] report.’ "
White, 496 U.S. at 328 (quoting Gates, 462 U.S. at 230),
cited in Roberson, 90 F.3d at 80; cf. J.L. , 529 U.S. at 271(holding tip insufficient because it "left the police without
means to test the informant’s knowledge or credibility").
Here, the corroboration of descriptive or predictive
information generally relied upon in finding reasonable
suspicion in the anonymous tip context is lacking. More
disturbing, there is nothing in the tip to establish the
informant’s basis of knowledge. This is critical because
without something to demonstrate that the van driver was
not only honest but also "well informed," White, 496 U.S. at
332, Sullivan is left acting purely upon the van driver’s
impermissible "hunch," Terry, 392 U.S. at 27.
I examine the factual issues separately, for the sake of
clarity. This does not accord them "independent status,"
but rather facilitates application of the totality of
circumstances test, recognizing, as stated above, that "a
deficiency in one [factor] may be compensated for, in
determining the overall reliability of a tip, by a strong
showing as to the other, or by some other indicia of
reliability." Gates, 462 U.S. at 233, quoted in Roberson, 90
F.3d at 77.
A.
The lack of anything in the tip to establish a basis of
knowledge on the part of the van driver is the most glaring
defect in this case. See J.L., 529 U.S. at 271 (holding that
even where police verified the description of the suspect
given by the anonymous informant, the fact that the tipster
"neither explained how he knew about the gun nor supplied
any basis for believing he had inside information" precluded
finding of reasonable suspicion); cf. White, 496 U.S. at 332(concluding reasonable suspicion was present where"there
was reason to believe not only that the caller was honest
but also that he was well informed, at least enough to
justify the stop"). As discussed above, basis of knowledge
continues to be a relevant consideration in the totality of
the circumstance analysis. Here, the van driver had at best
an "inchoate and unparticularized suspicion or‘hunch,’ "
Terry, 392 U.S. at 27, that the men he saw get on the bus
17
were the same men Sullivan was looking for. When he
imparted this hunch to Sullivan it gained no greater
substantive content, and Sullivan did nothing to determine
whether the driver had any basis at all for his hunch.
Sullivan himself thus had no more than a hunch that there
was criminal activity afoot on the bus. This is simply not
enough to justify a stop. Id.Roberson concluded that since the descriptive
information provided by the tip in that case was readily
observable, all the Government was left with was the fact
that the defendant was standing on a "hot" high-crime
corner, and "[t]his is not enough." 90 F.3d at 80. Similarly
in this case, all that Captain Sullivan could glean from the
informant’s tip was that (1) some men had gotten on a bus
and (2) the informant assumed these men were sought by
the police. There was nothing in the tip to provide a "reason
to believe" that the van driver was "well informed" and had
any basis for knowing that the men getting on the bus were
those sought by the police.1 White, 496 U.S. at 332. Nor did
Captain Sullivan seek any details to establish the basis for
this assumption or hunch. To paraphrase Judge Becker in
Roberson: I simply cannot accept the Government’s position
that any citizen getting on a bus who, without otherwise
engendering suspicion, is unlucky enough to be the subject
of a non-predictive anonymous tip is subject to a Terry stop
simply because a crime has been committed in the area.
See 90 F.3d at 80.
The court seeks to distinguish Roberson. Supra at 10. It
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1. While it may be argued that sufficient basis of knowledge should be
inferred from the fact that the van driver was in the area and pointing
to a bus the suspects could conceivably have reached, we should decline
to make such an inference absent something more in the content of the
tip. Cf. 4 Wayne LaFave, Search and Seizure, S 9.4(g) at 211 ("[A]n
unexplained assertion by the police (or, to the police by another) that a
person looks suspicious is not entitled to weight.") (footnote omitted) (3d
ed. 1996). This is not the same thing as "categoriz[ing those] factors . . .
as simply out of bounds in deciding whether there was ‘reasonable
suspicion’ for the stop." United States v. Arvizu, 122 S. Ct. 744, 748
(2002). Rather, I simply conclude that the totality of circumstances here
does not give rise to reasonable suspicion in light of the binding
anonymous informant precedent set out in this dissent.
18
argues that this case is different because Captain Sullivan
already knew a crime had been committed and the van
driver merely pointed out where the men Captain Sullivan
was looking for had gone. This but accentuates the lack of
any basis for the van driver’s knowledge of who Captain
Sullivan was looking for. To establish the basis for this
knowledge, the court itself must add to the tip the words
"pursued," supra at 8, and "having observed the fleeing
suspects," supra at 10, to support the bald, conclusory
statement, "The guys you are looking for, they just got on
that bus." Had the tip contained such additional language,
we would have a far different case. But this language is not
in the record--the van driver did not mention fleeing or
pursued suspects. This addition of language is a vital step
in the court’s decision, as it supplies for itself the support
for the tip which is lacking in the record. The van driver
stated only that the men Captain Sullivan was looking for
had gotten on the bus. He gave no information to support
his raw conclusion or assumption that the men he saw
were the "suspects" that Sullivan was looking for. He said
nothing to demonstrate how he reached this conclusion,
and the court errs today in supplying it for him. The facts
in the record before us are not sufficient to justify the
court’s conclusion.2
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2. The court also attempts to distinguish Roberson because "[h]ere,
Captain Sullivan, in hot pursuit, did not have time to ask for details
without risking the suspects’ disappearance." Id. Suffice it to say that
this argument rests on the proposition that a public bus may disappear
in the time it takes to ask: "Were they running?" or "Was one of them
wearing red pants?" Finally, the court suggests this case is different
because the suspects here were alleged to be armed. There is no firearm
exception to Terry, however. See Florida v. J.L., 529 U.S. 266, 272 (2000)
("Our decisions recognize the serious threat that armed criminals pose to
public safety; Terry’s rule, which permits protective police searches on
the basis of reasonable suspicion rather than demanding that officers
meet the higher standard of probable cause, responds to this very
concern."). Of most significance is that the relevance of Roberson is the
analytical framework it sets out, not any particular set of facts it does or
does not encompass.
19
B.
In order for an anonymous tip to supply reasonable
suspicion it must bear indicia of reliability. J.L., 529 U.S. at
274. The Supreme Court has looked for these indicia of
reliability in the form of predictive or descriptive details.
White, 496 U.S. at 332. In Roberson, this court recognized
the importance of the corroboration of details and the value
of predictive information, pointing out that in both Gates
and White predictive and descriptive information was
corroborated by police investigation prior to any seizure. 90
F.3d at 77, 79. Judge Becker concluded his analysis with
an observation relevant to this case: "The tip in the case at
bar contained no ‘details of future actions of third parties
ordinarily not easily predicted.’ Thus, no future actions
could be corroborated, and an important basis for forming
reasonable suspicion was absent." Id. at 80 (internal
citations omitted) (quoting White, 496 U.S. at 332). Here,
too, the tip contained no details of future actions. Rather,
the prediction made--that the men the officers were looking
for would be found on the bus--consisted entirely of an
assumption: that the men on the bus were the ones the
officers were looking for. The van driver gave no basis for
this assumption, which was the key reason the officers acted.3
Indeed, whom the officers were looking for is something
that only the officers could know.
The Government argues that the lack of descriptive or
predictive information here is not fatal given the totality of
the circumstances.4 It contends the tip merely served to fill
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3. The court states as fact that the van driver said he saw "two guys."
Supra at 4. However, the record, which on this point consists entirely of
the testimony of Sullivan, is not so clear. See App. for Appellant at 33a
("[H]e stated to me: ‘Officer, those guys you’re looking for just got on that
bus up there.’ "); id. at 52a ("[H]e says ‘Officer, them two guys you’re
looking for just got on that bus’ . . . ."); id. ("[He] say[s]: ‘Officer, the guys
you’re looking for, they just got on that bus.’ "); see also United States v.
Robertson, 81 F. Supp. 2d 579, 580 (E.D.Pa. 2000) ("[A] motorist came
by and informed [Sullivan] that the men he was looking for had boarded
a SEPTA bus . . . .").
4. It is important to remember that the circumstances in this case
include two men running toward the scene of the crime, at midday, in
20
in the last part of the puzzle: Where did the two suspects
go? While there may be cases that support this argument
in a general sense, the Government cites none where
officers relied, even in part, upon a tip so lacking in detail
as the one here. For example, in United States v. Allen, the
Tenth Circuit concluded that an anonymous tip was
sufficiently corroborated "[f]or the limited purpose of
establishing identity." 235 F.3d 482, 488 (10th Cir. 2000),
cert. denied, 121 S. Ct. 1643 (2001). However, the
informant in that case identified the suspect by name, and
described the suspect’s physical stature and car. Id. at 485.
The tip here is utterly lacking in detail, and we should
"refus[e] to stretch Alabama v. White any further."
Roberson, 90 F.3d at 80.
The Government also cites this court’s recent decision in
United States v. Valentine, 232 F.3d 350 (3d Cir. 2000),
cert. denied, 532 U.S. 1014 (2001), to argue that the tip in
this case is not truly "anonymous" as that term is used in
cases such as J.L. and White, but rather deserves
additional credit because it was a face-to-face report. In
Valentine this court concluded that "officers had reasonable
suspicion after they received [a] face-to-face tip, were in a
high-crime area at 1:00 a.m., and saw Valentine and his
two companions walk away as soon as they noticed the
police car." Id. at 357. J.L. was distinguished on the basis
of the tip being face-to-face and because the officers "knew
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metropolitan Philadelphia, cf. 4 Wayne R. LaFave, Search and Seizure,
S 9.4(g) at 206 (3d ed. 1996) ("[L]ess will suffice in the early morning
hours when few persons are about than would be a basis for a stopping
at high noon."), as well as an informant whose identity is unknown, cf.
J.L., 529 U.S. at 270 (distinguishing anonymous tip from one where
tipster "can be held responsible if her allegations turn out to be
fabricated"); Roberson, 90 F.3d at 79 n.3 (distinguishing descriptions
given by anonymous informants from those given by"identified
witnesses"). See generally United States v. Jones, 998 F.2d 883, 885-86
(10th Cir. 1993) (concluding reasonable suspicion was not present in
vehicle stop case where suspects were "in Albuquerque, a major
population center, at 4:00 p.m. on a weekday," and the "information that
the police were acting on came from an informant with whom they had
no experience").
21
that the informant was reporting what he had observed
moments ago." Id. at 354.
While it is true that "a tip given face to face is more
reliable than an anonymous phone call," id. at 354 (citing
cases), that proposition does not stretch so far as to provide
reasonable suspicion here. In White, the Supreme Court
stated that as a tip becomes more reliable, less information
will be required to establish reasonable suspicion--it did
not say that no information would be required. 496 U.S. at
330. The tipster in Valentine in fact provided a detailed
description which the police matched before making the
stop. 232 F.3d at 352-53. Furthermore, Valentine
recognized that the reliability inferred from a face-to-face
tip was not sufficient in and of itself: "The reliability of a
tip, of course, is not all that we must consider in evaluating
reasonable suspicion; the content of the tip must also be
taken into account . . . ." Id. at 355. Here, the content of
the van driver’s tip contained nothing to support the
speculative conclusion or assumption that the men he saw
get on the bus were the ones Sullivan was chasing.
III.
While this court said in Valentine that"we are not going
to second-guess the officers’ decision to pursue the suspect
immediately," 232 F.3d at 355, the officer in that case
actually stopped the defendant only after he had received
and corroborated descriptive information, id. at 352-53.
Sullivan did not attempt to satisfy Terry with a quick
question such as: "Were they running?" or"What were they
wearing?" If the officers in Valentine had time to verify the
tip in that case even though an armed gunman was
involved, Sullivan could reasonably be expected to do the
same here.5 A thorough analysis of the totality of the
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5. The fact that Sullivan was confronted with the possibility of an armed
criminal on a passenger bus does not change this conclusion. It is
certainly not obvious that the best reaction to such a scenario is to pull
over the bus with sirens blaring and lights flashing. Cf. J.L., 529 U.S. at
273 ("The facts of this case do not require us to speculate about the
circumstances under which the danger alleged in an anonymous tip
might be so great as to justify a search even without a showing of
reliability.").
22
circumstances, as required by White and Gates, and as
specifically focused by this court in Roberson , requires the
conclusion that Terry was not satisfied.
I would reverse.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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