                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-23-2008

USA v. Torres
Precedential or Non-Precedential: Precedential

Docket No. 07-1669




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                                        PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT


                  No. 07-1669


       UNITED STATES OF AMERICA,

                              Appellant

                         v.

               JOHNNY TORRES




   On Appeal from United States District Court
     for the District of Eastern Pennsylvania
            (D. C. No. 06-cr-00630)
     District Judge: Honorable Marvin Katz


             Argued March 5, 2008
Before: BARRY, JORDAN and HARDIMAN, Circuit
                   Judges.

              (Filed: July 23, 2008 )
Robert A. Zauzmer (Argued)
United States Attorney’s Office
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
      Attorney for Appellant

Dennis J. Cogan (Argued)
Cogan, Petrone & Associates
2000 Market Street
Suite 2925
Philadelphia, PA 19103
       Attorney for Appellee




                 OPINION OF THE COURT


HARDIMAN, Circuit Judge.

        In this appeal arising under the Fourth Amendment, we
consider whether Philadelphia police officers possessed
sufficient reasonable articulable suspicion to stop a car. The
traffic stop was based on information provided by a taxi driver
who called 911 after he saw a man brandish a gun at a gas
station. The District Court found that the 911 call did not
provide police with reasonable suspicion to effectuate the traffic
stop and, accordingly, suppressed the evidence gathered after
the stop. Because we find that the totality of the circumstances
amounted to reasonable suspicion, we will reverse.


                                2
                            I.

       On February 22, 2005, at 2:59 p.m., the Philadelphia
Police Department received a 911 call which included the
following information:

      CALLER:             Heading to Philadelphia,
                          Pennsylvania heading North
                          on Broad at South Street.
                          You got a guy with a BMW-
                          742 or 5I. License plate F
                          Frank Victor Able 7726.
                          Flashed a gun at the Hess
                          station at a Bum [sic] trying
                          to sell roses.

      DISPATCHER:         Heading North bound, you
                          said?

      CALLER:             No, negative, he is now
                          turned on South Street you
                          got a cop right in front of
                          him and I’m in back of him.

      DISPATCHER:         Alright give me the
                          description of the male. Is
                          h e B la c k, W hite , or
                          Hispanic Sir?




                            3
CALLER:       He is Hispanic, 745I Silver
              BMW, Frank Victor Able
              7726 at 13 N. South heading
              towards the Delaware. You
              got a cop right in front of
              him and he is following the
              cop. I’m behind him in a
              green cab.

          *                    *               *

CALLER:       He’s right in front of me.
              He has a 45, he had it in the
              console between the seats.
              He [took] it out and waved
              it at the bum selling roses at
              the Hess station. Your cop
              just turned right on 12th.

DISPATCHER:   All right Sir.

CALLER:       All right and he still, I’m
              behind him. I’m still on
              South Street just past 12th,
              approaching 11th. I’m in a
              green Avenguard cab.




                 4
      DISPATCHER:          Okay, we got the job put out
                           sir. All right, a Hispanic
                           male that’s all you have?

      CALLER:              He’s at a red light now at
                           10th, I’m right behind him.

      DISPATCHER:          Sir, do not follow him, sir,
                           the Police will be there as
                           soon as possible.     He’s
                           heading Eastbound on South
                           Street some one will be
                           there sir.

      CALLER:              All right remember he’s got
                           a 45 looks like a Glock in
                           the center console. I was
                           pumping gas at [sic]
                           adjacent pump when he
                           waved it at the bum. All
                           right.

      DISPATCHER:          All right, Thanks.

      CALLER:              Your [sic] welcome, I’m
                           going to peel off.

At 3:02 p.m. — only three minutes after the 911 call was
initiated — dispatch radioed officers on patrol and told them
that a Hispanic male driving a silver BMW 745i with license


                             5
plate FVA-7726 was driving eastbound on South Street, and that
the driver had a gun.

        Immediately upon receiving the report, officers in the
field asked whether the dispatcher “got a complainant” for it; the
dispatcher informed them that “no complainant is showing.”
Within minutes, plainclothes officers observed a BMW 745i
matching the dispatcher’s description and with license plate
FVA-7726 pass them on South Street, approximately twelve
blocks from where the taxi driver had initially reported it.
Pursuant to department policy, the plainclothes officers relayed
the information to uniformed police officers. By 3:07 p.m.,
uniformed officers spotted the vehicle, stopped it, and found that
its driver — Defendant Johnny Torres, a Hispanic male — had
a fully-loaded 9 millimeter handgun with one round in the
chamber stowed in the pocket of the driver’s side door.

        A grand jury indicted Torres on one count of possession
of a firearm and ammunition by a convicted felon, in violation
of 18 U.S.C. § 922(g)(1). Torres filed a motion to suppress the
weapon and ammunition, arguing that the tip from the taxi
driver did not supply reasonable suspicion for the stop. The
District Court granted the motion to suppress after a hearing,
and the Government appealed.

                               II.

       The District Court had jurisdiction pursuant to 18 U.S.C.
§ 3231 and our jurisdiction arises under 18 U.S.C. § 3731. The
Government argues that the District Court erred in suppressing
the handgun and the ammunition. The parties agree that the

                                6
decision to suppress turns on the question of whether the
officers had a right to stop Torres’s vehicle pursuant to Terry v.
Ohio, 392 U.S. 1 (1968).

       “In reviewing a suppression order, we exercise plenary
review over the District Court’s legal conclusions, and we
review the underlying factual findings for clear error.” United
States v. Laville, 480 F.3d 187, 190-91 (3d Cir. 2007) (citation
omitted). We review de novo the District Court’s legal
conclusion that the officers lacked sufficient reasonable
articulable suspicion to effectuate a Terry stop. See Johnson v.
Campbell, 332 F.3d 199, 206 (3d Cir. 2003).

                               III.

        The Fourth Amendment prohibits “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.” United
States v. Robertson, 305 F.3d 164, 167 (3d Cir. 2002) (citation
omitted). Under the exception to the warrant requirement
established in Terry, however, “an officer may, consistent with
the Fourth Amendment, conduct a brief, investigatory stop when
the officer has a reasonable, articulable suspicion that criminal
activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000)
(citation omitted). “Any evidence obtained pursuant to an
investigatory stop (also known as a ‘Terry stop’ or a ‘stop and
frisk’) that does not meet this exception must be suppressed as
‘fruit of the poisonous tree.’” United States v. Brown, 448 F.3d
239, 244 (3d Cir. 2006) (citations omitted).


                                7
       The initial step of a Fourth Amendment suppression
analysis requires us to determine the timing of the seizure.
“[U]nder Terry, in evaluating whether [the officer’s] interaction
with [the defendant] prior to his arrest amounted to an
unreasonable seizure, we must first determine at what moment
[the defendant] was seized . . . .” Johnson, 332 F.3d at 205. In
the case at bar, the District Court found — and the parties do not
dispute — that Torres was seized when the officers stopped his
car.

        Having pinpointed the time of the Fourth Amendment
seizure, we next ask “whether that seizure was justified by
reasonable, articulable facts known to [the officer] as of that
time. . . .” Id. When officers are told to investigate a situation
by a police dispatcher, as was the case here, the court must look
beyond the specific facts known to the officers on the scene to
the facts known to the dispatcher. See United States v. Nelson,
284 F.3d 472, 481 (3d Cir. 2002) (analyzing the reasonableness
of a Terry stop by asking whether the officer who, functioning
as a dispatcher, had “sufficient grounds to view the tip as
reliable and issue the radio bulletin pursuant to which the car
was stopped”) (citation omitted); see also Rogers v. Powell, 120
F.3d 446, 453 (3d Cir. 1997) (“The legality of a seizure based
solely on statements issued by fellow officers depends on
whether the officers who issued the statements possessed the
requisite basis to seize the suspect.”) (emphasis in original). In
other words, the knowledge of the dispatcher is imputed to the
officers in the field when determining the reasonableness of the
Terry stop.



                                8
        The Government concedes that the unidentified taxi
driver’s tip was “the only information” known by the police
when they seized Torres. When the Government relies upon a
tip from an unidentified informant as the basis for reasonable
suspicion, assessing the reasonableness of a Terry stop becomes
more intricate. See Adams v. Williams, 407 U.S. 143, 146-47
(1972) (noting the reliability problems of anonymous telephone
tips and distinguishing anonymous tips from tips given by a
known informant whose reputation can be assessed and whose
information is immediately verifiable at the scene). The
Supreme Court has made clear that “an informant’s ‘veracity,’
‘reliability,’ and ‘basis of knowledge’ . . . [are] ‘highly relevant
in determining the value of his report.’” Alabama v. White, 496
U.S. 325, 328 (1990) (quoting Illinois v. Gates, 462 U.S. 213,
230 (1983)). The honesty of the caller, the reliability of his
information, and the basis of his knowledge are “closely
intertwined issues that may usefully illuminate the
commonsense, practical question” of whether there is reasonable
suspicion to support a Terry stop. Gates, 462 U.S. at 230; see
also White, 496 U.S. at 328-29 (applying the Gates analysis to
reasonable suspicion context). This Court has identified the
specific aspects of tips which indicate their reliability:

       (1) The tip information was relayed from the
       informant to the officer in a face-to-face
       interaction such that the officer had an
       opportunity to appraise the witness’s credibility
       through observation.




                                 9
       (2) The person providing the tip can be held
       responsible if her allegations turn out to be
       fabricated.

       (3) The content of the tip is not information that
       would be available to any observer. . . .

       (4) The person providing the information has
       recently witnessed the alleged criminal activity.

       (5) The tip predicts what will follow, as this
       provides police the means to test the informant’s
       knowledge or credibility. . . . .

See Brown, 448 F.3d at 249-50 (citations and internal quotation
marks omitted). Other factors can bolster what would otherwise
be an insufficient tip, such as “[the p]resence of a suspect in a
high crime area,” “[a] suspect’s presence on a street at a late
hour,” “[a] suspect’s nervous, evasive behavior, or flight from
police,” and a suspect’s behavior “that conforms to police
officers’ specialized knowledge of criminal activity.” See id. at
251 (citations and internal quotation marks omitted).
Ultimately, the Court must ask whether the unknown caller’s tip
“possessed sufficient indicia of reliability, when considering the
totality of the circumstances, for us to conclude that the officers
possessed an objectively reasonable suspicion sufficient to
justify a Terry stop.” Id. at 250 (citation omitted) (emphasis
added).

       Here, having determined that Torres was seized for
Fourth Amendment purposes at 3:07 p.m. when police stopped

                                10
his vehicle, the District Court held that “the anonymous tip did
not exhibit sufficient indicia of reliability to provide reasonable
suspicion.” After noting that the tip did not contain “predictive
information” or other “particularized knowledge,” and upon
concluding that no other factors supported a finding of
reasonable suspicion, the District Court granted Torres’s motion
to suppress. The Government argues that the District Court
“ignored substantial indicia of reliability.”

        Considering the totality of the circumstances present in
this case, we agree with the Government that the tip at issue
possessed sufficient indicia of reliability to justify the stop of
Torres’s vehicle. First, the tipster was an eyewitness who had
“recently witnessed the alleged criminal activity.” See Brown,
448 F.3d at 249-50; see also United States v. Valentine, 232
F.3d 350, 354 (3d Cir. 2000) (the fact that “the officers in our
case knew that the informant was reporting what he had
observed moments ago, not what he learned from stale or
second-hand sources” weighed in favor of a tip’s reliability);
United States v. Wheat, 278 F.3d 722, 735 (8th Cir. 2001) (“We
think that an anonymous tip conveying a contemporaneous
observation of criminal activity whose innocent details are
corroborated is at least as credible as the one in White, where
future criminal activity was predicted, but only innocent details
were corroborated”). Additionally, the content of the tip was
relatively detailed and was given to the 911 dispatcher in play-
by-play fashion as the taxi driver was pursuing the man whom
he had seen brandishing a weapon moments before. The tipster
provided a description of the vehicle — including make, model,
and license plate number — while contemporaneously
describing the movement of the vehicle. The tipster also stated

                                11
that he was driving a green cab and freely stated not only the
name of his cab company, but also the fact that a police car was
in front of the perpetrator. Finally, the tipster described in some
detail the brandishing episode by noting the Hess station and
explaining what he was doing when he saw the firearm, the
make of it, where he saw it within the assailant’s car, the make,
model, color, and license plate number of the car, the assailant’s
race, what the victim was doing when the assault occurred, and
the threatening conduct itself.. This information was credibly
available to the tipster and it accurately predicted what would
follow (i.e., that an Hispanic man would be driving a silver
BMW 745i with license plate FVA-7726 near the location
provided by the tipster).

        The aforementioned facts distinguish this tip from the
anonymous one at issue in Florida v. J.L., 529 U.S. 266 (2000).
In J.L., the Supreme Court held that an anonymous call to police
about a gun-toting man at a bus stop did not supply reasonable
suspicion to support a Terry stop, where there was no indication
that the anonymous caller had observed the crime and where the
description of the gunman was vague enough to describe any
number of men. Id. at 271-72. Here, although the taxi driver
never gave his name (he was not asked to do so), he did
volunteer that he was driving a green taxicab from a specified
company. This information, which identified the informant’s
employer, further supported the reliability of the tip. See United
States v. Fernandez-Castillo, 324 F.3d 1114, 1118-19 (9th Cir.
2003) (holding that a tip from an unnamed employee of the
Montana Department of Transportation was not anonymous
because the tip narrowed the likely class of informants, even
though the tip was not corroborated before an officer relied on

                                12
it to support a Terry stop); see also Edwards v. Cabrera, 58 F.3d
290, 294 (7th Cir. 1995) (holding that a tip from an unnamed
city bus driver “was not anonymous” and supported full
probable cause, reasoning: “while the police did not know his
name, we can presume his identity was (and is) easily
ascertainable by the officers. The officers also knew his
occupation. These characteristics permit certain inferences
regarding his reliability”).

        Finally, we note that the tipster neither attempted to, nor
had any reason to, conceal his identity; the dispatcher simply
neglected to ask him his name. As one of our sister circuits has
stated: “[w]e do not fault the officers’ choice to forgo extensive
credibility checking in order to quickly respond. The business
of policemen and firemen is to act, not speculate or meditate on
whether the report is correct. People could well die in
emergencies if police tried to act with the calm deliberation
associated with the judicial process.” United States v. Sanchez,
519 F.3d 1208, 1211 n.1 (10th Cir. 2008) (emphasis in original)
(citations and internal quotations omitted). Moreover, the
informant’s straightforward and thorough description makes his
tip even more trustworthy than other tips which have been found
sufficiently reliable to support a Terry stop. See, e.g., United
States v. Copening, 506 F.3d 1241, 1247 (10th Cir. 2007)
(finding that an anonymous telephone call supported a Terry
stop where the informant witnessed a man with a pistol outside
a convenience store, provided the license number of the car the
suspect drove, and gave a detailed account of the suspect’s
direction of travel as he followed the suspect in his own car,
even though the caller refused to give the dispatcher his name);
see also United States v. McBride, 801 F.2d 1045, 1048 (8th Cir.

                                13
1986) (finding that a telephone tip from an anonymous caller
stating that a man had just left his house with four ounces of
heroin and was driving a small silver foreign car bearing a
particular license number in a particular direction supported a
Terry stop, even though police did not spot the car until four
hours later at a location approximately eight blocks from the
intersection identified by the caller).

        To be sure, not all of the indicia of reliability we
identified in Brown are present here. Nevertheless, although an
anonymous tip without any indicia of reliability cannot justify
a Terry stop, see J.L., 529 U.S. at 271-72, a tip need not bear all
of the indicia — or even any particular indicium — to supply
reasonable suspicion. See Robertson, 305 F.3d at 169 (citation
omitted). Indeed, “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. For instance, the need for
predictive information is not required where “an officer had
objective reason to believe that a tip had some particular indicia
of reliability.” United States v. Perkins, 363 F.3d 317, 325 (4th
Cir. 2004) (citations and internal quotations omitted). “[W]hile
predictive information can demonstrate particularized
knowledge, other aspects of the tip can reflect particularized
knowledge as well.” Nelson, 284 F.3d at 483-84.

       Here, the informant provided a detailed account of the
crime he had witnessed seconds earlier, gave a clear account of
the weapon and the vehicle used by Torres, and specified his
own occupation, the kind and color of the car he was driving,
and the name of his employer. The veracity and detail of this

                                14
information were enhanced by the fact that the informant
continued to follow Torres, providing a stream of information
meant to assist officers in the field. Thus, the totality of the
circumstances leads us to conclude that the taxi driver was an
innominate (i.e., unidentified) informant who could be found if
his tip proved false         rather than an anonymous (i.e.,
unidentifiable) tipster who could lead the police astray without
fear of accountability. See Valentine, 232 F.3d at 355; United
States v. Brown, 496 F.3d 1070, 1075-76 (10th Cir. 2007) (“An
unnamed individual who divulges enough distinguishing
characteristics to limit his possible identity to only a handful of
people may be nameless, but he is capable of being identified
and thus is not anonymous. For example, if a tipster says ... ‘I
wish to remain anonymous, but I have a blue truck and work at
the Burger King on a particular avenue,’ the person may have
provided sufficient clues for an intrepid officer to find and
identify him”).

       Accordingly, we hold that the officers had reasonable
articulable suspicion sufficient to justify a Terry stop and that
the District Court erred in suppressing the fruits of that stop.
We will reverse and remand for further proceedings consistent
with this opinion.




                                15
