United States v. Wright

Case: 21-40849 Document: 00516615372 Page: 1 Date Filed: 01/18/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 18, 2023
No. 21-40849 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jacob Boone Wright,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:20-CR-1444-1
Before Smith, Barksdale, and Haynes, Circuit Judges.
Rhesa Hawkins Barksdale, Circuit Judge:
At issue is whether Jacob Boone Wright was seized in violation of the
Fourth Amendment when an officer, with emergency lights engaged, pulled
behind Wright’s parked vehicle, and he did not attempt to flee or terminate
the encounter, but failed to comply fully with the officer’s commands.
Because the officer’s actions communicated clearly to Wright he was not free
to leave, and because he submitted to the officer’s show of authority, we hold
a Fourth Amendment seizure occurred at the time the officer activated her
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emergency lights and almost simultaneously ordered him to stay in his car,
which he continued exiting but stood beside.
The district court at the end of an evidentiary hearing, however,
denied Wright’s motion to suppress, concluding erroneously that the Terry
stop was initiated instead at a later point in the encounter. As a result, its oral
findings of fact and conclusions of law are inadequate for our reviewing
whether reasonable suspicion existed at the earlier time we hold his seizure
occurred.
Therefore, while retaining jurisdiction over this appeal, we remand to
district court for it, based on the record developed at the suppression hearing,
to prepare expeditiously written findings of fact and conclusions of law on
whether the seizure at the earlier point in time was in violation of the Fourth
Amendment. The district court is to then return this case to this court for
further proceedings. REMANDED on LIMITED BASIS;
JURISDICTION RETAINED.
I.
A.
The suppression hearing was held on 24 June 2021. The following
recitation of facts is, unless otherwise noted, based on the record developed
at that hearing.
The Corpus Christi, Texas, Police Department (CCPD) on 15 July
2020 (at “about 4:30 in the afternoon”, as used in the Government’s
question to the caller discussed infra) received an anonymous “suspicious
vehicle call” regarding a vehicle in the Glen Arbor Park area near
Tanglewood Drive and Bonner Drive in Corpus Christi. Glen Arbor Park
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and the surrounding neighborhood are part of a corridor of problem areas
where drugs are sold. Officers respond to a few calls in this area every shift.
As a result of the call to CCPD, Officer Jakobsohn at 4:34 p.m. that
day received an incident “call-out”. The Officer testified the dispatcher
(dispatch) told her “there was a suspicious vehicle in the area of the Glen
Arbor Park near Tanglewood [Drive] and Bonner [Drive]”, and directed her
to respond. Dispatch also transmitted information regarding the call to the
Officer’s in-vehicle computer (call summary or call-log report generated by
CCPD dispatch). In addition to providing the address for Glen Arbor Park
and the names of the surrounding intersecting streets signifying the vehicle’s
location, the information communicated to the Officer included the
following:
• SUSPICIOUS PEOPLE AT LOC/ RP ADV DRUG DEAL-
ERS/NO DRIVING CARS AT LOC
• RP ADV NO DESC
• RP ADV PD NEEDS TO GET THESE DRUG DEALERS
OUT OF HIS PARK
• DID THREATEN TO SHOOT SUBJS IF THEY DID
SOMETHING THAT REQUIRED HIM TO DEFEND
HIMSELF
• REF TO GIVE INFO ON HIMSELF
• ALSO ADV OF A GOLD COROLLA AT LOC/ IS ONE OF
THE SUBJS CARS
This call summary was introduced in evidence by Wright at the
suppression hearing, with Officer Jakobsohn’s testifying about the summary.
She explained it stated “suspicious people at the location, via drug dealers,
driving cars at location”. She further confirmed the information specified
police “need[ed] to get these drug dealers out of [the caller’s] park”, but that
the caller “did not advise a description”. She did not testify about the
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caller’s threats; but, based on the caller’s testimony, he threatened to shoot
the subjects if they did something that required him to defend himself.
The Officer presented conflicting testimony about “REF TO GIVE
INFO ON HIMSELF”. Despite testifying she received the summary
written in “all caps”, she explained she did not “see any kind of refusal” by
the caller to provide information; rather, the summary just stated the
referring party (caller) did not want contact, nor did he provide information
about himself. Finally, the Officer affirmed the caller provided information
that a gold Toyota Corolla was one of the subjects’ vehicles.
Minutes later, the Officer located a gold Toyota Corolla parked on
Bonner Drive, across the street from the park; executed a three-point-turn;
and pulled behind the vehicle, engaging her patrol vehicle’s red and blue
emergency lights. As the Officer parked her vehicle, she saw the driver’s
door open on the Corolla, and as she exited her vehicle, she commanded the
driver—later identified as Wright—three times to “stay in [his] car”.
Wright did not, however, remain in or re-enter his vehicle; but when
the Officer told him to put his hands on his vehicle, he placed his keys on top
of, and turned towards, it. The Officer then conducted a pat-down of Wright
and attempted to move him next to her patrol vehicle, but he refused. He
turned towards the Officer, keys in hand, and stated he wanted to talk to her.
When the Officer again commanded Wright to walk towards the patrol
vehicle, he instead began removing a key from the key chain. Wright then
disregarded the Officer’s commands to put his keys on top of his vehicle.
Once Wright separated one key and put the rest of them in his pocket, he
turned and began moving towards the driver’s door; the Officer moved him
to the front of his vehicle and ordered him to put his hands behind his back.
Wright began knocking, and then banging, on his vehicle’s hood, while
yelling repeatedly to the passenger in the vehicle to exit and lock it. Wright
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was also motioning to the passenger to put something in his mouth. The
Officer handcuffed Wright; she testified that, at this point, she was arresting
him for “resisting detention”.
The passenger exited the vehicle as a second officer arrived.
(According to testimony by a special ATF agent at Wright’s subsequent 23
December 2020 preliminary hearing, the passenger was not arrested during
the stop in question.) A search of the vehicle produced a pistol and drugs.
B.
Wright on 22 December 2020 was indicted for possession of firearm
by a felon, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). After learning
details of the anonymous tip, Wright on 17 May 2021 moved to suppress the
firearm as evidence derived from an investigatory stop and seizure effected
without reasonable suspicion, in violation of the Fourth Amendment.
In its response opposing the motion, the Government asserted:
“based on the totality of the circumstances, including the information in the
tip, the observance of activity consistent with that information, the
defendant’s nervous reaction to the police, his unusual behavior, and his
attempt to walk away, reasonable suspicion existed to justify a Terry stop”.
See Terry v. Ohio, 392 U.S. 1 (1968) (discussed infra).
The 24 June 2021 suppression hearing, which lasted approximately 90
minutes, was held approximately 11 months after the 15 July 2020 incident.
In addition to a map of the area and the Officer’s dashboard and body-cam
videos, the Government presented two witnesses: Officer Jakobsohn; and the
anonymous caller, whom officers had identified only the week prior through
knocking on doors in the area. Wright presented only the call summary.
At the conclusion of the hearing, the court ruled from the bench. It
denied the motion to suppress, based on concluding it did not “think that
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Terry was implicated [when the Officer pulled up behind the vehicle]”;
rather, the court “[thought] Terry was implicated afterwards based on the
conduct which was further . . . spoken to by the officer [at the hearing]”,
including the “chain of events that happened afterwards”. In that regard,
the court concluded: Wright’s “taking the keys off the chain, not being
willing to go back to the police officer’s car, [and] his communication with
the passenger, . . . allowed [the Officer] to initiate the Terry stop”. (Because
a “Terry stop” is a seizure within the meaning of the Fourth Amendment,
the term “stop” and “seizure” are used interchangeably in this opinion.
E.g., United States v. Sharpe, 470 U.S. 674, 682 (1985)). (The point in time
the court concluded the Terry stop permissibly occurred was, of course,
subsequent to the time the Officer engaged her emergency lights and almost
simultaneously ordered Wright to remain in his vehicle, which he instead
stood beside.)
Following the 24 June denial of his suppression motion, Wright on 4
August 2021, a little over a year after the incident, pleaded guilty pursuant to
a Federal Rule of Criminal Procedure 11(a)(2) conditional guilty plea,
reserving the right to appeal the suppression ruling. Our court granted
Wright’s motion to expedite his appeal.
II.
When, as here, defendant shows he was seized absent a warrant, the
Government bears the burden in showing reasonable suspicion existed
justifying the seizure. E.g., United States v. Martinez, 486 F.3d 855, 859–60
(5th Cir. 2007). Factual findings for the denial of a suppression motion are
reviewed for clear error; conclusions of law, de novo. United States v. Smith,
952 F.3d 642, 646 (5th Cir. 2020); see also United States v. Rodriguez, 564 F.3d
735, 740 (5th Cir. 2009) (“The district court’s overall [ruling] that
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reasonable suspicion existed for the stop is a conclusion of law that we review
de novo.”).
Viewing the evidence in the requisite light most favorable to the
prevailing party (here, the Government), a district court’s ruling will be
upheld “if there is any reasonable view of the evidence to support it”. United
States v. Massi, 761 F.3d 512, 520 (5th Cir. 2014) (citation omitted). In that
regard, “[o]ne of the most important principles in our judicial system is the
deference given to the finder of fact who hears the live testimony of witnesses
because of his opportunity to judge the credibility of the witnesses”. United
States v. Gibbs, 421 F.3d 352, 357 (5th Cir. 2005) (citation omitted).
Therefore, when, as in this instance, live testimony forms part of the basis for
denial of a suppression motion, our clearly-erroneous standard is
“particularly strong” because the “judge had the opportunity to observe the
demeanor of the witnesses”. Id. (citation omitted).
On the other hand, video recordings are given a presumption of
reliability and significant evidentiary weight because “[a]n electronic
recording will many times produce a more reliable rendition . . . than will the
unaided memory of a police agent”. United States v. White, 401 U.S. 745, 753
(1971). Accordingly, where testimony conflicts with video evidence, our
court must view the “facts in the light depicted by the videotape”. Scott v.
Harris, 550 U.S. 372, 380–81 (2007); see also United States v. Vickers, 442 F.
App’x 79, 86, 87 & n.7 (5th Cir. 2011).
A.
The Fourth Amendment prohibits unreasonable searches and
seizures. U.S. Const. amend. IV; Terry, 392 U.S. at 9. A “Terry stop” is
a “special category of Fourth Amendment ‘seizures’”, in which an officer
may briefly detain an individual for further investigation, if the officer has
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reasonable suspicion the individual is engaged in criminal activity. Terry, 392
U.S. at 9; Dunaway v. New York, 442 U.S. 200, 210 (1979).
“A temporary, warrantless detention of an individual constitutes a
seizure for Fourth Amendment purposes and must be justified by reasonable
suspicion that criminal activity has taken or is currently taking place;
otherwise, evidence obtained through such a detention may be excluded.”
United States v. Garza, 727 F.3d 436, 440 (5th Cir. 2013). The seizure must
be “justified at its inception”; therefore, “our first task is ordinarily to
determine when the seizure occurred”. United States v. Flowers, 6 F.4th 651,
655 (5th Cir. 2021) (citation omitted).
A seizure occurs when an officer “objectively manifests an intent to
restrain” the liberty of an individual through either use of physical force or a
show of authority. Torres v. Madrid, 141 S. Ct. 989 (2021) (emphasis in
original); Terry, 392 U.S. at 19 n.16. “In the absence of physical force to
restrain a suspect, ‘[a] police officer may make a seizure by a show of
authority . . . , but there is no seizure without actual submission; otherwise,
there is at most an attempted seizure, so far as the Fourth Amendment is
concerned.’” Carroll v. Ellington, 800 F.3d 154, 170 (5th Cir. 2015) (quoting
Brendlin v. California, 551 U.S. 249, 254 (2007)). Accordingly, when, as
presented in this appeal, a claimed seizure lacks physical force, we must
analyze the encounter in two steps: whether the officer exerted a sufficient
show of authority; and whether defendant submitted to it. E.g., id.
1.
In determining whether an officer makes a sufficient show of
authority, the court considers whether, in the light of “all of the
circumstances surrounding the incident, a reasonable person would have
believed that he was not free to leave”. United States v. Mendenhall, 446 U.S.
544, 554 (1980). When a person “has no desire to leave for reasons unrelated
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to the police presence, the coercive effect of the encounter can be measured
better by asking whether a reasonable person would feel free to decline the
officers’ requests or otherwise terminate the encounter”. Flowers, 6 F.4th at
655 (citation omitted).
Wright contends the Terry stop was initiated when Officer Jakobsohn
pulled up behind his vehicle. At the suppression hearing, the Government
maintained the stop occurred when the Officer made physical contact almost
immediately with Wright through the pat-down. In our court, however, the
Government now predominantly asserts a position qualifying that the Terry
stop may have occurred at some point earlier than the pat-down: when the
Officer arrived with emergency lights engaged, or when she ordered Wright
to remain in his vehicle.
A Federal Rule of Appellate Procedure 28(j) letter concerning United
States v. Morris, 40 F.4th 323, 327 (5th Cir. 2022) (holding stop occurred
when officers “flagged down” defendant’s vehicle) was filed 3 November
2022 by Wright, four days before oral argument in our court; the
Government responded three days before argument. The Government’s
response added to its position: “All agree that stopping one’s vehicle
pursuant to a police command of a visual signal constitutes a seizure”; but,
because Wright’s vehicle was already stopped, he was not seized when the
Officer pulled behind him.
Although our case law is sparse in considering whether emergency
lights constitute a seizure, our court in Morris (again, the subject of the 28(j)
letter) recently explained “[a]n officer’s visual signal for a motorist to stop—
whether made by hand or lights and sirens—is such a show of authority”. Id.at 327–28. The use of emergency lights will not always exhibit a show of
authority, of course. For example, depending on the fact-specific
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circumstances, emergency lights may be used instead by an officer to render
aid or assistance.
In Morris, defendant parked his vehicle behind a truck-stop casino and
went to sleep; officers on foot later noticed the vehicle, but when they walked
towards it, it began to drive away. Id. at 325. After flagging down the vehicle,
it came to a stop. Id. Morris held defendant was stopped under the Fourth
Amendment when officers “flagged down” his vehicle even though they did
not physically block it. Id. at 327. Our court concluded the district court
focused incorrectly on whether officers blocked defendant’s path, instead of
assessing correctly whether the officers’ actions constituted a show of
authority, obligating defendant to submit. Id.According to Wright’s counsel at the suppression hearing, the sound
on the dashboard-camera video began when the Officer’s emergency lights
were engaged; and the Officer turned her emergency lights on “maybe right
before she stopped or right at the stop”. In any event, although Wright’s
vehicle was already in the parked position, the use of emergency lights when
Officer Jakobsohn arrived at his vehicle was a visual signal exhibiting her
authority, as explained in Morris. Id; see also Malina v. Gonzalez, 994 F.2d
1121, 1126 (5th Cir. 1993) (holding stopping individual “on the interstate by
flashing a red light, . . . is a show of authority”).
The principle underlying our court’s decision in Morris is not limited
to actively moving vehicles. Accordingly, when the Officer quickly pulled up
behind Wright’s vehicle, with emergency lights engaged, she was showing a
sign of authority clearly communicating to Wright he was not free to leave.
That Wright’s vehicle was parked at the time does not detract from the
Officer’s show of authority. Moreover, the Officer almost simultaneously
ordered Wright to remain in his vehicle; and “[u]nder the Fourth
Amendment’s free to leave test, it is hard to conclude that a person ordered
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to a certain location by police would feel free to leave”. Morris, 40 F.4th at
328. (Therefore, on the facts presented by this case, it is not necessary to
decide whether solely engaging the emergency lights constituted a seizure.)
2.
Officer Jakobsohn’s having asserted authority over Wright by
engaging her emergency lights and visually and orally communicating to him
that he was not free to leave, we next consider whether Wright submitted to
that authority. Determining the time at which an individual submits to
authority “depends on what a person was doing before the show of authority:
a fleeing man is not seized until he is physically overpowered, but one sitting
in a chair may submit to authority by not getting up to run away”. Brendlin,
551 U.S. at 262.
It is undisputed that compliance with an officer’s commands
constitutes submission to authority. E.g., United States v. Darrell, 945 F.3d
929, 933 (5th Cir. 2019) (seizure occurred when defendant complied with
officer’s second command to stop). The question at hand, however, turns on
whether Wright submitted when, although he disregarded the Officer’s
commands to remain in his vehicle, he did not attempt to flee or terminate
the encounter.
At the suppression hearing, Officer Jakobsohn testified: she found it
unusual to see the driver’s door opening; and Wright’s exiting the vehicle
was “kind of an aggressive approach”. The Officer’s dashboard-camera
video shows Wright slowly exiting his vehicle. He turns to face the Officer
with his arms extended at mid-chest level, with the palms of both of his hands
facing her, and calmly states “Ma’am, I haven’t done anything”. He did not
lunge towards the Officer, nor did he make any threatening or evasive
movements. Wright did not attempt to flee, nor terminate the encounter.
Contra California v. Hodari D., 499 U.S. 621, 628 (1991) (Seizure could not
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“have occurred during the course of” a police chase because “that ‘show of
authority’ did not produce [the individual’s] stop”. (citation omitted)).
Wright’s not complying fully with some of Officer Jackobsohn’s
commands was improper, to say the least, but his behavior does not show
defiance to the Officer’s authority. Wright sufficiently submitted to the show
of authority because he objectively appeared to believe he was not free to
leave, and he did not attempt to flee, nor terminate the encounter.
B.
Wright’s having been seized when Officer Jakobsohn pulled behind
his parked vehicle with the emergency lights engaged on her patrol vehicle
and almost simultaneously ordered him to remain in his vehicle, which he
instead stood beside, we turn to whether the requisite reasonable suspicion
existed to justify the seizure at that point.
1.
An officer has reasonable suspicion if, based on the totality of the
circumstances at the time of the stop, she has 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). The facts giving rise to
reasonable suspicion must be “judged against an objective standard”. Terry,
392 U.S. at 21. “The reasonable suspicion analysis is a fact-intensive test in
which the court looks at all circumstances to weigh not the individual layers,
but the laminated total.” United States v. Jacquinot, 258 F.3d 423, 427 (5th
Cir. 2001).
In claiming the stop was initiated pursuant to an unreliable anonymous
tip, Wright maintains Officer Jakobsohn lacked reasonable suspicion to
justify the stop. The Government, on the other hand, again presents an ever-
shifting position.
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In district court, as quoted supra, the Government asserted in its
response in opposition to suppression: “the totality of the circumstances,
including the information in the tip, the observance of activity consistent with
that information, the defendant’s nervous reaction to the police, his unusual
behavior, and his attempt to walk away” created reasonable suspicion
justifying the stop.
At the suppression hearing, the district judge had the Government
clarify its position:
[The Government]: . . . So, here, it is our position that this case
does not hinge on the tip that was provided by the 9-1-1 caller to
the dispatch center but, instead, hinges on what happened when
the officer arrived on the scene and the Defendant got out of his
vehicle and those events that occurred thereafter.
...
The Court: When is it the Government’s assertion that Terry
was implicated, at what point?
[The Government]: Well, she does the [pat-down]; and he is
still playing with his keys; and that was what started this—the trail
of events that led to her reasonable suspicion ultimately.
The Court: Okay. So, it wasn’t when she pulled up behind the
car, it wasn’t when he exited the car, it was when she actually
made physical contact with the Defendant is the Government’s
position?
[The Government]: Yes, your Honor.
(Emphasis added.)
At no point in the suppression hearing did the Government claim that
the anonymous tip alone justified the seizure; instead, it repeatedly asserted
the events that occurred after the pat-down cumulatively created reasonable
suspicion. But, under its theory before this court, the Government contends
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the anonymous tip regarding activity in a high-crime area established
reasonable suspicion to justify the stop; in the alternative, the tip regarding
activity in a high-crime area, plus Wright’s exiting his vehicle, gave rise to
reasonable suspicion.
“An investigative vehicle stop is permissible under Terry only when
the officer has a reasonable suspicion supported by articulable facts that
criminal activity may be afoot.” Martinez, 486 F.3d at 861 (quoting United
States v. Jaquez, 427 F.3d, 340–41 (5th Cir. 2005)). Reasonable suspicion “is
dependent upon both the content of the information possessed by police and
its degree of reliability”. Alabama v. White, 496 U.S. 325, 330 (1990).
This is especially true when claimed reasonable suspicion is primarily
grounded in information from a tipster. It goes without saying that not all
tips to police warrant the same reliance. “Unlike a tip from a known
informant whose reputation can be assessed and who can be held responsible
if her allegations turn out to be fabricated, an anonymous tip alone seldom
demonstrates the informant’s basis of knowledge or veracity.” Florida v.
J.L., 529 U.S. 266, 270 (2000) (citations omitted). There are certain
circumstances, however, where an anonymous tip is “suitably
corroborated”, exhibiting “sufficient indicia of reliability to provide
reasonable suspicion to make the investigatory stop”. Id. (citation omitted).
Although a tip need not necessarily contain predictive information to
establish reasonable suspicion, certain factors may be considered in deciding
whether the tip provided a sufficient basis. United States v. Gomez, 623 F.3d
265, 269 (5th Cir. 2010). Those factors are:
(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
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verified by officers in the field; and (4) whether the tip or report
concerns active or recent activity or has instead gone stale.
Id. (citing Martinez, 486 F.3d at 861).
An anonymous tip may be found reliable when “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”. United States v. Rose, 48
F.4th 297, 303 (5th Cir. 2022) (citing Navarette v. California, 572 U.S. 393,
398–401 (2014)). (Although the Government claimed the call was through
the 9-1-1 system, it had stated earlier for purposes of the indictment that the
call was a suspicious-vehicle call. In any event, as discussed supra, even
assuming it was a 9-1-1 call, the Government did not produce the recording
or the dispatcher at the suppression hearing. As noted, the caller was found
instead by knocking on doors the week prior to the hearing. And, as discussed
supra, Officer Jakobsohn testified at the suppression hearing it was a
suspicious-vehicle call.)
2.
As stated, and contrary to the district court, we hold Wright was
seized when the Officer pulled behind his parked vehicle with the emergency
lights engaged on her patrol vehicle and almost simultaneously ordered him
to remain in his vehicle. That the Terry stop was initiated earlier than when
the district court concluded obviously “changes the analysis”. Morris, 40
F.4th at 329.
All agree, as the district court noted at the hearing on the suppression
motion, that the Government bears the burden of proving reasonable
suspicion existed to justify the seizure. E.g., Martinez, 486 F.3d at 859. At
the hearing, the Government, as discussed supra, did not base its position on
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the anonymous tip; instead, it emphasized that the “trail of events [occurring
after the pat-down] led to [the Officer’s] reasonable suspicion ultimately”.
After hearing testimony from two witnesses, reviewing evidence, and
hearing argument from the parties, the court made its findings of facts and
conclusions of law from the bench. Prefacing its findings, the court stated: it
was “not really sure that [the testifying] anonymous caller helped [the
Government] out very much”; and, in ruling on the motion, it was “basing it
on the totality of the circumstances articulated by the officer in this particular
case”. (Emphasis added.) The court then made its findings of fact and
conclusions of law:
What I have before me is what [the Officer] saw on her screen
which was report of suspicious people at a location, drug
dealers. There’s an identification of a gold Corolla. And so,
based on that and her experience that this was an area that had
a high crime rate, vagrancy, and drug dealing, I find that it is
reasonable for her to, at least, have pulled up behind the car. I
don’t think that Terry was implicated at that point; and then, of
course, all of the behavior that happened afterwards.
...
So, based on the identifying information of the gold Corolla, I
find that it was absolutely reasonable for her to have pulled
behind a gold Corolla to, at least, investigate; and I think that
Terry was implicated afterwards based on the conduct which was
further, I think, spoken to by the officer.
...
And then, the chain of events that happened afterwards with
the conduct that we saw on the video. So, taking the keys off
the chain, not being willing to go back to the police officer’s car,
his communication with the passenger, all of those things I
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think allowed her to initiate the Terry stop; and then, the
resisting is what happened afterwards with his conduct.
(Emphasis added.)
As reflected above, and consistent with, provided above, the court’s
not relying on the tipster’s testimony in making its findings and conclusions,
the court’s findings and conclusions are silent on the reliability of the
anonymous tip and whether reasonable suspicion existed when, as held by
this court, Wright was seized, as discussed supra. The court’s finding it was
“reasonable” for the Officer to pull behind Wright’s vehicle cannot be read
synonymously with a conclusion that she possessed “reasonable suspicion
supported by articulable facts that criminal activity may be afoot”. Martinez,
486 F.3d at 861 (citation omitted).
“The Supreme Court has made clear that the initial reasonable
suspicion determination should be made by the ‘resident judge,’ that is, the
trial court of first instance, and the courts of appeal must give ‘due weight’
to that court’s ‘factual inferences’.” Morris, 40 F.4th at 329 (quoting United
States v. Arvizu, 534 U.S. 266, 273–74 (2002)). Accordingly, “it is not the
place of our court to decide in the first instance the key issue of whether there
was reasonable suspicion for the [Officer’s] stop”. Id.Based on the district court’s concluding the Terry stop was initiated
later than our holding supra it occurred when the Officer pulled behind
Wright’s parked vehicle with the emergency lights engaged on her patrol
vehicle and almost simultaneously ordered him to remain in his vehicle, the
record lacks adequate findings of fact and conclusions of law for whether
reasonable suspicion existed at that point. In other words, because the
court’s findings and conclusions turn instead on events occurring after the
Terry stop, we are unable to deduce from them whether the court concluded
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No. 21-40849
the totality of the circumstances prior to the Officer’s pulling behind
Wright’s vehicle provided reasonable suspicion justifying the stop.
Accordingly, we remand for the limited purpose of the district court’s
expeditiously providing written findings of fact and conclusions of law on
whether reasonable suspicion existed when the Officer pulled behind Wright
and ordered him to remain in his vehicle. Toward that end, because “the
suppression hearing provided the [G]overnment the opportunity and
obligation to present evidence establishing” reasonable suspicion, “[w]e will
not afford the [G]overment a second opportunity to present evidence to the
district court in attempt to meet their burden of proof”. United States v.
Raney, 633 F.3d 385, 392 (5th Cir. 2011). Instead, the findings and
conclusions are to be based on the record developed at the suppression
hearing.
III.
For the foregoing reasons, we retain jurisdiction over this appeal and
remand to district court on a limited basis. As directed by this opinion, the
court is to prepare expeditiously, based on the record developed at the
suppression hearing, the above-described written findings of fact and
conclusions of law. The court is to then return this case to this court for
further proceedings. REMANDED on LIMITED BASIS;
JURISDICTION RETAINED.
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