United States v. Reginald Edwards

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50165
Plaintiff-Appellee,
D.C. No.
v. 2:12-cr-00751-
GAF-1
REGINALD AARON EDWARDS, AKA
Baby R-Mac, AKA Arron Reginald
Edwards, AKA Reggie Aaron OPINION
Edwards, AKA Reginald Aron
Edwards, AKA Timothy Green,
AKA R-Mac,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Argued and Submitted
May 14, 2014—Pasadena, California
Filed July 31, 2014
Before: John T. Noonan, Jr., Kim McLane Wardlaw
and Raymond C. Fisher, Circuit Judges.
Opinion by Judge Fisher
2 UNITED STATES V. EDWARDS
SUMMARY*
Criminal Law
The panel affirmed the district court’s denial of a
suppression motion in a case in which police officers
responding to an anonymous 911 call found the defendant in
the vicinity of the reported shooting, discovered he matched
the description of the reported suspect, stopped him, frisked
him, found he had a gun, and arrested him.
The defendant contended that the officers’ conduct
converted his detention before the gun was discovered from
an investigatory stop into an arrest, and that even if the
defendant’s detention was merely an investigatory stop, the
officers did not have reasonable suspicion to stop him. The
panel held that the officers properly conducted an
investigatory stop and had reasonable suspicion to do so.
COUNSEL
Sean K. Kennedy, Federal Public Defender, Los Angeles,
California; and Davina T. Chen (argued), Glendale,
California, for Defendant-Appellant.
André Birotte Jr., United States Attorney, Robert E. Dugdale,
Assistant United States Attorney, Chief, Criminal Division,
Max B. Shiner (argued), Assistant United States Attorney,
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. EDWARDS 3
Violent & Organized Crime Section, Los Angeles, California,
for Plaintiff-Appellee.
OPINION
FISHER, Circuit Judge:
Reginald Aaron Edwards was arrested and charged with
being a felon in possession of a firearm after an anonymous
caller reported a shooting to a 911 dispatcher. Police officers
responding to the 911 call found Edwards in the vicinity of
the reported shooting and discovered that he matched the
description of the reported suspect. They stopped Edwards,
frisked him and found he had a gun, and then arrested him.
Edwards conditionally pled guilty and now challenges the
district court’s denial of his motion to suppress the evidence
police obtained when they stopped him. Specifically,
Edwards contends that the officers’ conduct converted his
detention before the gun was discovered from an
investigatory stop into an arrest, and that even if Edwards’
detention was merely an investigatory stop, the officers did
not have reasonable suspicion to stop him. We hold that the
officers properly conducted an investigatory stop and had
reasonable suspicion to do so.
I. Background
On May 3, 2012, at 7:40 p.m., the Inglewood Police
Department received a 911 call from an unidentified male
reporting that a “young black male” at the corner of West
Boulevard and Hyde Park Boulevard was shooting at passing
cars, including the caller’s. The caller provided additional
details about the suspect during the five-minute call, telling
4 UNITED STATES V. EDWARDS
the 911 dispatcher that the shooter was between 5 feet 7
inches and 5 feet 9 inches in height and “maybe 19, 20” years
old. The caller initially said that the shooter was wearing “all
black” but later clarified that he was wearing a black shirt and
gray khaki pants. The caller also reported that the shooter
had a black handgun and, after shooting, was entering “Penny
Pincher’s Liquor” store.
Police officers Ryan Green and Julian Baksh began
receiving information about the call from the dispatcher at
7:42 p.m. The dispatcher requested that officers “[r]espond
to shots fired in the area of Hyde Park and West” and told
officers that, according to a reporting party, a black man,
“[a]pproximately 5’7” to 5’9” wearing a black sweatshirt and
gray khaki pants,” was “[w]alking around shooting at passing
vehicles” and was now possibly inside Penny Pincher’s
Liquor. Green and Baksh arrived on the scene at around 7:45
p.m. and parked two blocks from the shooter’s reported
location. After leaving their vehicle, Green and Baksh
observed Edwards walking eastbound approximately 75 feet
from the liquor store. Green testified that Edwards matched
the description of the suspect reported in the anonymous call.
Edwards is African-American, was 5 feet 11 inches and 26
years old at the time, and was wearing a black, long-sleeve
shirt and gray pants. Green also testified that “[t]here was
only one other individual in the area, a male Hispanic,
wearing a black and green heavy jacket and blue jeans.”
Green notified other police units of Edwards’ location,
and officers John Ausmus and Landon Poirier quickly
responded. Ausmus and Poirier detained Edwards as well as
the “male Hispanic,” while Green and Baksh covered them.
All four officers had their weapons drawn as they approached
the two men. Ausmus commanded both men to kneel on the
UNITED STATES V. EDWARDS 5
pavement. Ausmus handcuffed Edwards while he was on his
knees, and then stood Edwards up and had him spread his
legs. Ausmus began patting down Edwards and felt a hard
object above Edwards’ right knee, inside the pant leg.
Ausmus pulled on the pants to jiggle the item out, and a silver
.22-caliber revolver fell out of Edwards’ pants and onto the
pavement beside Edwards’ feet. The 911 dispatcher had a
call-back number for the reporting party, and the officers at
the scene requested the dispatcher to call back the reporting
party. The anonymous caller had already left the scene,
however, and did not want to be involved with the case.
Thereafter, the officers transported Edwards to the police
station.
A grand jury charged Edwards with being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
Edwards moved to suppress all physical evidence obtained as
a result of his initial stop and frisk. After an October 2012
hearing, the district court denied the motion to suppress under
United States v. Terry-Crespo, 356 F.3d 1170 (9th Cir. 2004),
finding that the officers did not need probable cause to detain
Edwards because they had reasonable suspicion necessary for
the stop. Edwards entered a conditional guilty plea, and the
district court sentenced him to 48 months’ imprisonment
followed by three years’ supervised release.
II. Discussion
A. Standard of Review
“We review de novo the denial of a motion to suppress.”
United States v. Crawford, 372 F.3d 1048, 1053 (9th Cir.
2004) (en banc). “The determination of whether a seizure
exceeds the bounds of [an investigatory] stop and becomes a
6 UNITED STATES V. EDWARDS
de facto arrest is reviewed de novo.” United States v. Miles,
247 F.3d 1009, 1012 (9th Cir. 2001) (internal quotation marks
omitted). “A determination whether there was reasonable
suspicion to support an investigatory ‘stop and frisk’ is a
mixed question of law and fact, also reviewed de novo.”
United States v. Burkett, 612 F.3d 1103, 1106 (9th Cir. 2010).
B. Edwards’ Detention Did Not Amount To An Arrest
Edwards challenges the district court’s determination that
his detention leading to the discovery of the gun was merely
an investigatory stop under Terry v. Ohio, 392 U.S. 1 (1968),
and not an arrest requiring probable cause.1 The totality of
the circumstances determines whether and when an
investigatory stop becomes an arrest. See Washington v.
Lambert, 98 F.3d 1181, 1185 (9th Cir. 1996). In looking at
the totality of the circumstances, we examine two main
components of the detention. See id. First is “the
intrusiveness of the stop, i.e., the aggressiveness of the police
methods and how much the plaintiff’s liberty was restricted.”
Id. Under this component, we “review the situation from the
perspective of the person seized,” assessing whether “a
1
The Supreme Court held in Terry that “where a police officer observes
unusual conduct which leads him reasonably to conclude in light of his
experience that criminal activity may be afoot and that the persons with
whom he is dealing may be armed and presently dangerous, where in the
course of investigating this behavior he identifies himself as a policeman
and makes reasonable inquiries, and where nothing in the initial stages of
the encounter serves to dispel his reasonable fear for his own or others’
safety, he is entitled for the protection of himself and others in the area to
conduct a carefully limited search of the outer clothing of such persons in
an attempt to discover weapons which might be used to assault him.”
392 U.S. at 30. Such a search is allowed under the Fourth Amendment,
and “any weapons seized may properly be introduced in evidence against
the person from whom they were taken.” Id. at 31.
 UNITED STATES V. EDWARDS 7
reasonable innocent person in these circumstances would . . .
have felt free to leave after brief questioning.” United States
v. Delgadillo-Velasquez, 856 F.2d 1292, 1295–96 (9th Cir.
1988). Second is “the justification for the use of such tactics,
i.e., whether the officer had sufficient basis to fear for his
safety to warrant the intrusiveness of the action taken.”
Lambert, 98 F.3d at 1185. This “inquiry is undertaken . . .
from the perspective of law enforcement,” while bearing in
mind that “the purpose of a Terry stop is to allow the officer
to pursue his investigation without fear of violence.” United
States v. Guzman-Padilla, 573 F.3d 865, 884 (9th Cir. 2009)
(internal quotation marks and alteration omitted). “The
second inquiry frequently proves determinative.” Id.
Here, there is no doubt that the police were intrusive in
stopping Edwards. Four officers pointed their weapons
toward him, and he was forced to kneel and was handcuffed
before being patted down. See, e.g., Lambert, 98 F.3d at
1188 (“[I]f the police draw their guns it greatly increases the
seriousness of the stop.”); United States v. Bautista, 684 F.2d
1286, 1289 (9th Cir. 1982) (“[H]andcuffing substantially
aggravates the intrusiveness of an otherwise routine
investigatory detention and is not part of a typical Terry
stop.”). The officers used aggressive methods and restricted
Edwards’ liberty.
However, as we have repeatedly explained, “because we
consider both the inherent danger of the situation and the
intrusiveness of the police action, . . . pointing a weapon at a
suspect and handcuffing him, or ordering him to lie on the
ground, or placing him in a police car will not automatically
convert an investigatory stop into an arrest that requires
probable cause.” Lambert, 98 F.3d at 1186 (emphasis in
original). In Miles, officers responded to a report that a black
8 UNITED STATES V. EDWARDS
man wearing an oversized jacket and riding a bicycle had
fired a gun at a residence. See 247 F.3d at 1010–11. When
they found a suspect fitting the description approximately six
blocks from the residence and standing in the immediate
vicinity of a bicycle, the officers approached the suspect with
their guns drawn, ordered him to kneel and handcuffed him.
See id. at 1011. We concluded these actions were reasonable
and this initial stop did not amount to an arrest, given that the
officers “had a report of gunfire and had legitimate safety
concerns” and “made an on-the-spot assessment of the
restraint necessary to control the situation.” Id. at 1013.
Particularly relevant here, we noted that “[w]e have permitted
the use of intrusive means to effect a stop where the police
have information that the suspect is currently armed or the
stop closely follows a violent crime. Under such
circumstances, holding a suspect at gunpoint, requiring him
to go to his knees or lie down on the ground, and/or
handcuffing him will not amount to an arrest.” Id. (citation
omitted).2
Here, as in Miles, the officers’ aggressive conduct was
reasonable and did not convert Edwards’ detention into an
arrest. Edwards was the only person in the vicinity of the
liquor store who fairly matched the description of a man who
reportedly had been shooting at passing cars just minutes
before police arrived. The officers had sufficiently detailed
information from the 911 call to reasonably believe that
Edwards could be the shooter and therefore could be armed
and dangerous, possibly having just committed a violent
crime. The officers’ legitimate safety concerns justified their
2
Miles ultimately held that a motion to suppress should have been
granted, but only because the officers violated the limits of a Terry
patdown. See 247 F.3d at 1013–15.
UNITED STATES V. EDWARDS 9
on-the-spot decision to use intrusive measures to stabilize the
situation before investigating further. See id. at 1013.
C. The Officers Had Reasonable Suspicion To Stop
Edwards
Edwards also disputes that the anonymous 911 call
provided the officers with enough information to give them
reasonable suspicion to support the investigatory stop in the
first place. “The Fourth Amendment permits brief
investigative stops . . . when a law enforcement officer has a
particularized and objective basis for suspecting the particular
person stopped of criminal activity.” Navarette v. California,
134 S. Ct. 1683, 1687 (2014) (internal quotation marks
omitted). “Although a mere hunch does not create reasonable
suspicion, the level of suspicion the standard requires is
considerably less than proof of wrongdoing by a
preponderance of the evidence, and obviously less than is
necessary for probable cause.” Id. (citations and internal
quotation marks omitted). Reasonable suspicion “is
dependent upon both the content of information possessed by
police and its degree of reliability,” and “[t]he standard takes
into account the totality of the circumstances – the whole
picture.” Id. (internal quotation marks omitted).
The Supreme Court, in addressing the issue of telephone
tips and investigatory stops, has focused on whether the tips
“exhibited sufficient indicia of reliability to provide
reasonable suspicion to make the investigatory stop.”
Alabama v. White, 496 U.S. 325, 326–27 (1990). In White,
an anonymous caller telephoned a police department
reporting that a woman named Vanessa White would be
leaving a specific apartment in a specific car at a specific
time, on her way to a particular motel and in possession of
10 UNITED STATES V. EDWARDS
cocaine. See id. at 327. Officers followed White as she
drove in the specified car from the apartment to the motel,
and when they stopped her they found marijuana and cocaine.
See id. The Court held that the anonymous tip exhibited
sufficient indicia of reliability to justify the stop, because the
caller was able to accurately predict White’s future behavior
and officers were able to sufficiently corroborate the details
of the tip. See id. at 330–32.
In contrast, the Court in Florida v. J.L., 529 U.S. 266, 268
(2000), dealt with an anonymous caller who told the police
“that a young black male standing at a particular bus stop and
wearing a plaid shirt was carrying a gun.” Police proceeded
to the bus stop, frisked J.L. – who was black and was wearing
a plaid shirt – and seized a gun from his pocket. See id. The
Court held this tip insufficient to justify the investigatory
stop. See id. at 274. It “lacked the moderate indicia of
reliability present in White and essential to the Court’s
decision in that case” because “[t]he anonymous call
concerning J.L. provided no predictive information and
therefore left the police without means to test the informant’s
knowledge or credibility.” Id. at 270–71. The Court
explained that the tip leading to J.L.’s arrest was “[a]n
accurate description of a subject’s readily observable location
and appearance” but “d[id] not show that the tipster ha[d]
knowledge of concealed criminal activity. . . . [R]easonable
suspicion . . . requires that a tip be reliable in its assertion of
illegality, not just in its tendency to identify a determinate
person.” Id. at 272. The Court also declined to speculate
about situations in which “the danger alleged in an
anonymous tip might be so great as to justify a search even
without a showing of reliability,” such as “a report of a
person carrying a bomb.” Id. at 273.
 UNITED STATES V. EDWARDS 11
With J.L. in mind, we focused our attention in United
States v. Terry-Crespo, 356 F.3d 1170 (9th Cir. 2004), on the
emergency situation that the Supreme Court had declined to
reach. In Terry-Crespo, a man called 911, identified himself
and his general location, and then described in detail a man he
said threatened him with a .45-caliber gun three minutes
earlier. See id. at 1172. An officer stopped Ariel Terry-
Crespo as a suspect and found that he had a .45-caliber gun.
See id. at 1173. We held that the 911 call supported
reasonable suspicion justifying the investigatory stop, see id.
at 1174, for four main reasons: (1) the “call was not
anonymous and therefore was entitled to greater reliability,”
id. at 1174; (2) “an emergency 911 call is entitled to greater
reliability than an anonymous tip concerning general
criminality,” id. at 1176; (3) “[m]erely calling 911 and having
a recorded telephone conversation risks the possibility that
the police could trace the call or identify [the caller] by his
voice,” so the caller “risked any anonymity he might have
enjoyed and exposed himself to legal sanction,” id.; and
(4) “the police could place additional reliability on [the
caller’s] tip because his call evidenced first-hand information
from a crime victim laboring under the stress of recent
excitement,” id. at 1176–77.
The district court here relied primarily on J.L. and Terry-
Crespo in its reasoning. However, in the time since the
district court issued its decision, the Supreme Court has
weighed in on this issue once again, this time addressing an
anonymous call about an emergency situation. See Navarette
v. California, 134 S. Ct. 1683 (2014). In Navarette, a 911
caller – assumed by the Court to be anonymous – reported
that a vehicle ran her off the road. See id. at 1686, 1688.
After a dispatcher relayed the tip, which included the nature
of the incident and the location and a specific description of
12 UNITED STATES V. EDWARDS
the offending vehicle, officers pulled the vehicle over and
found 30 pounds of marijuana. See id. at 1686–87. The
Court held that the anonymous call provided reasonable
suspicion to justify this investigatory stop, see id. at 1692,
emphasizing four points: (1) the caller claimed eyewitness
knowledge of the alleged dangerous activity, lending
“significant support to the tip’s reliability,” id. at 1689;
(2) the caller made a statement about an event “soon after
perceiving that event,” which is “especially trustworthy,” id.;
(3) the caller used 911, which “has some features that allow
for identifying and tracing callers, and thus provide some
safeguards against making false reports with immunity,” id.;
and (4) the caller created reasonable suspicion of an ongoing
and dangerous crime – drunk driving – rather than “an
isolated episode of past recklessness,” id. at 1690. The Court
distinguished the anonymous call in Navarette from the
“bare-bones tip” in J.L., “where the tip provided no basis for
concluding that the tipster had actually seen the gun” and
where “[t]here was no indication that the tip . . . was
contemporaneous with the observation of criminal activity or
made under the stress of excitement caused by a startling
event.” Id. at 1689, 1692.
In this case, the tip was an anonymous 911 call from an
eyewitness reporting an ongoing and dangerous situation and
providing a detailed description of a suspect. In light of
Navarette, we conclude that the anonymous call leading to
Edwards’ detention exhibited sufficient indicia of reliability
to provide the officers with reasonable suspicion. There are
several circumstances that lead us to this conclusion.
First, even though we gave weight to the caller’s self-
identification in Terry-Crespo, see 356 F.3d at 1174, the
Supreme Court’s decision in Navarette makes explicitly clear
UNITED STATES V. EDWARDS 13
that the “principles” underlying Terry stops and reasonable
suspicion “apply with full force to investigative stops based
on information from anonymous tips,” 134 S. Ct. at 1688
(emphasis added). It is now clearly established that “under
appropriate circumstances, an anonymous tip can demonstrate
‘sufficient indicia of reliability to provide reasonable
suspicion to make [an] investigative stop.’” Id. (alteration in
original) (quoting White, 496 U.S. at 327).
Second, the anonymous caller here reported an ongoing
emergency situation even more dangerous than the suspected
drunk driving in Navarette. See id. at 1691 (“[S]he alleged a
specific and dangerous result of the driver’s conduct: running
another car off the highway. That conduct bears too great a
resemblance to paradigmatic manifestations of drunk driving
to be dismissed as an isolated example of recklessness.”).
The call was not simply one “concerning general
criminality.” Terry-Crespo, 356 F.3d at 1176. Rather, the
caller said right at the outset of his call that someone was
“shooting at cars as they [are] going down the street,”
implying that the shooting was still taking place as he called
911. Such a dire situation distinguishes this case from J.L.,
which “merely involved a report of general criminality,
namely, a minor’s possession of a firearm in violation of
Florida law.” Id. (citing United States v. Holloway, 290 F.3d
1331, 1339 (11th Cir. 2002)); see also Holloway, 290 F.3d at
1338 (“A crucial distinction between J.L. and this case is the
fact that the investigatory stop in J.L. was not based on an
emergency situation. This difference was expressly
contemplated by J.L. . . . .”).
Third, the reporting party here had eyewitness knowledge
of the shooting. See Navarette, 134 S. Ct. at 1689 (“[T]he
caller necessarily claimed eyewitness knowledge of the
14 UNITED STATES V. EDWARDS
alleged dangerous driving. That basis of knowledge lends
significant support to the tip’s reliability.”). When asked by
the emergency dispatcher whether the shooter hit any
vehicles, the caller described part of what he witnessed,
explaining that “[h]e didn’t hit any vehicles because when he
got to mine, it looked like the gun might have jammed but I
heard the pow, pow pow.” Additionally, at one point during
the call, he exclaimed: “Oh, my god.” Thus, there are
indications that the call also was a “‘statement relating to a
startling event’” which was “‘made while the declarant was
under the stress of excitement that it caused,’” lending further
credibility to the allegations. Id. (quoting Fed. R. Evid.
803(2)); see also Terry-Crespo, 356 F.3d at 1176 (“[T]he
police could place additional reliability on [the caller’s] tip
because his call evidenced first-hand information from a
crime victim laboring under the stress of recent excitement.”).
Fourth, the caller, although anonymous, used the 911
emergency system, also lending further credibility to his
allegations. See Navarette, 134 S. Ct. at 1689–90 (“A 911
call has some features that allow for identifying and tracing
callers, and thus provide some safeguards against making
false reports with immunity. . . . Given the foregoing
technological and regulatory developments . . . a reasonable
officer could conclude that a false tipster would think twice
before using such a system.”); Terry-Crespo, 356 F.3d at
1176 (“Merely calling 911 and having a recorded telephone
conversation risks the possibility that the police could trace
the call or identify [the caller] by his voice.”).
UNITED STATES V. EDWARDS 15
Applying Navarette and Terry-Crespo, we hold that the
officers in this case reasonably relied on the anonymous call
in stopping Edwards, as the district court properly found.3
III. Conclusion
The district court properly determined that the officers’
conduct did not convert Edwards’ detention into an arrest and
that they had reasonable suspicion based on the anonymous
911 call to stop Edwards.
AFFIRMED.
3
Edwards also contends the 911 dispatcher’s knowledge could not be
imputed to the officers for purposes of reasonable suspicion, citing United
States v. Colon, 250 F.3d 130, 134–38 (2d Cir. 2001). Colon, however,
is factually distinguishable. There, the dispatcher made a brief call for
officers to respond, calling the situation a “man with a gun case” and
providing a location and short description of the suspect. Id. at 132. Here,
the officers received much more information from the dispatcher,
including statements specifying exactly which information came from the
reporting party, the suspect’s possible locations, a full description of the
suspect, a full description of the incident and updates as the reporting
party provided new information. Thus, the officers had enough
information to assess what was happening during this ongoing emergency;
they did not have to rely on imputed knowledge.