       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    United States v. Patterson                 No. 01-6001
    ELECTRONIC CITATION: 2003 FED App. 0290P (6th Cir.)
                File Name: 03a0290p.06                    Appellant. Camille R. McMullen, UNITED STATES
                                                          ATTORNEY, Memphis, Tennessee, for Appellee.
UNITED STATES COURT OF APPEALS                              MARTIN, C. J., delivered the opinion of the court, in
                                                          which DAUGHTREY, J., joined. KENNEDY, J. (pp. 8-10),
              FOR THE SIXTH CIRCUIT                       delivered a separate dissenting opinion.
                _________________
                                                                             _________________
UNITED STATES OF AMERICA , X
                                                                                 OPINION
            Plaintiff-Appellee, -                                            _________________
                                  -
                                  -  No. 01-6001
           v.                                               BOYCE F. MARTIN, JR., Chief Circuit Judge. Michael
                                  -
                                   >                      Patterson proffered a conditional plea of guilty to possession
                                  ,                       of a firearm by a convicted felon in violation of Title 18
MICHAEL PATTERSON,                -                       U.S.C. § 922(g). He reserved his right to appeal the district
         Defendant-Appellant. -                           court’s denial of his motion to suppress evidence seized
                                 N                        during a police search of his person. The district court
      Appeal from the United States District Court        sentenced Patterson to ten years imprisonment, followed by
   for the Western District of Tennessee at Memphis.      three years of supervised release. Patterson now appeals the
  No. 01-20033—Jon Phipps McCalla, District Judge.        district court’s denial of his motion to suppress. For the
                                                          reasons set forth below, we REVERSE.
                Argued: March 28, 2003
                                                             On October 19, 2000, Officer Myron Fair of the Memphis
         Decided and Filed: August 15, 2003               Police Department was given between fifteen to twenty
                                                          citizen complaints to investigate. One of those complaints
 Before: MARTIN, Chief Circuit Judge; KENNEDY and         regarded a group of males at the corner of Foster and Willet
           DAUGHTREY, Circuit Judges.                     streets who were conducting illegal drug sales. Officer Fair
                                                          had at the time ten years of experience with the police
                  _________________                       department, two of which were with the vice-narcotics
                                                          division. At trial, he described the corner of Foster and
                       COUNSEL                            Willett as a “hot spot,” a constant source of complaints
                                                          ranging “from domestic violence to shots fired, from drugs,
ARGUED: Randolph W. Alden, OFFICE OF THE                  carjackings . . . all day every day.”
FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for
Appellant. Camille R. McMullen, UNITED STATES               Fair, along with his partner Felip Boyce, arrived at the
ATTORNEY, Memphis, Tennessee, for Appellee.               corner on the day in question in an unmarked vehicle. As
ON BRIEF: Stephen B. Shankman, OFFICE OF THE              they approached they saw “at least eight male blacks standing
FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for          from the curb to the sidewalk to the top of the driveway” in

                            1
No. 01-6001                   United States v. Patterson       3    4      United States v. Patterson                   No. 01-6001

front of 1564 Foster, which is “about a house length” from the      reasonable suspicion to justify the stop. According to Terry,
intersection of Foster and Willett. Patterson was one of the        id., this type of warrantless search is legal if
individuals in this group. The group did not alter their
behavior until the officers got out of their car dressed in             a reasonably prudent man in the circumstances would be
police gear. At that point, the group moved away while                  warranted in the belief that his safety or that of others
tucking their hands in their pockets. The officers observed             was in danger . . . And in determining whether the officer
one of the individuals, not Patterson, making a throwing                acted reasonably in such circumstances, due weight must
motion towards the bushes. Seeing this, the officers                    be given . . . to the specific reasonable inferences which
requested that all of the individuals stop, take their hands out        he is entitled to draw from the facts in light of his
of their pockets, and place them on a nearby vehicle. The               experience.
officers claim this was to search for weapons and drugs and
to ensure the officers’ safety. Other officers arrived in a         The Court expounded on Terry in United States v. Cortez, 449
second unmarked car shortly thereafter.                             U.S. 411, 417-418 (1981), stating that

   Officer Fair conducted a pat down of Patterson and found             [a]n investigatory stop must be justified by some
a .40 caliber revolver in his right side waistband. Patterson           objective manifestation that the person stopped is, or is
was subsequently handcuffed and arrested.                               about to be, engaged in criminal activity . . . the totality
                                                                        of the circumstances--the whole picture--must be taken
   On February 21, 2001, a federal grand jury in the Western            into account. Based upon that whole picture the detaining
District of Tennessee returned an indictment charging                   officers must have a particularized and objective basis for
Michael Patterson with possession of a firearm by a convicted           suspecting the particular person stopped of criminal
felon in violation of Title 18 U.S.C. § 922(g). The defendant           activity.
filed a motion to suppress evidence on March 22. The district
court conducted an evidentiary hearing on the motion on               With these tests in mind, we now look to the evidence
April 6. At the conclusion of the hearing, the court issued an      articulated by the officers to support their reasonable
oral ruling denying the motion. The defendant entered a             suspicion to search the group at Foster and Willet. The entire
conditional guilty plea, reserving his right to appeal the denial   incident began with an anonymous call to a drug hotline for
of the motion to suppress evidence, and on August 7, he was         the reporting of drug-related crimes. The message on the
sentenced to the maximum penalty of ten years imprisonment          hotline complained about drug sales at the corner of Foster
with three years of supervised release.                             and Willett at some earlier time on the day in question. At
                                                                    9:30 pm, over five and a half hours after Officer Fair received
   We review a district court’s legal conclusions with respect      the complaint, he and Officer Boyce arrived at the location.
to a motion to suppress de novo. United States v. McLevain,         At a house near the corner, the officers observed eight black
310 F.3d 434, 438 (6th Cir. 2002).                                  males at the front of a house. When the police officers
                                                                    revealed that they were police officers, the group put their
  In Terry v. Ohio, 392 U.S. 1, 27 (1968), the Supreme Court        hands in their pockets and began walking away from the
held that officers have the authority under the Fourth              officers. At this, the officers instructed the group to stop
Amendment to stop and temporarily detain citizens with only         moving and put their hands on the car. At this point, the
                                                                    officers needed to have reasonable suspicion in order to stop
No. 01-6001                  United States v. Patterson      5    6      United States v. Patterson                   No. 01-6001

the defendant. United States v. Buchanon, 72 F.3d 1217,           suspicion to stop and frisk a person. To allow the tip alone to
1226 (6th Cir. 1995).                                             establish reasonable suspicion would allow officers carte
                                                                  blanche to search every person in the vicinity.
  In Florida v. J.L., 529 U.S. 266 (2000), police officers
received an anonymous tip that a young black male wearing            Without the anonymous tip, the officers merely observed a
a plaid shirt was at a bus station and carrying a firearm. In     group of individuals walking away from the area, in isolation
that case, the Court held that the anonymous tip was not          an innocuous behavior unless the officers have detained them.
enough, despite the inclusion of age, race, clothing type, and    Florida v. Royer, 460 U.S. 491, 498 (1983). Walking in the
specific location of the defendant, to justify reasonable         opposite direction from the police could be considered an
suspicion. Id. at 271. In this case, Officers Fair and Boyce      indication of a person’s fear of being caught participating in
had none of that information. The tip merely described drug       illegal activities, but it also could be purely innocent activity.
activity without any details as to the perpetrators. An           We addressed innocent activity in the context of reasonable
anonymous tip’s reliability stems from its ability to predict     suspicion in United States v. Smith, 263 F.3d 571, 593-594
future activities. Alabama v. White, 496 U.S. 325, 332            (6th Cir. 2001) (internal citations omitted) when we said the
(1990). The anonymous tip in this case offered no reliable or     following:
meaninfgul information in support of reasonable suspicion
because it was not specific enough as to a prediction of future       This Court is aware that under the totality of the
unlawful activities.                                                  circumstances test it is possible that "objective facts,
                                                                      meaningless to the untrained" can provide the basis for
  A comparable case to this one is United States v. Roberson,         reasonable suspicion. However, some factors may be
90 F.3d 75 (3rd Cir. 1996). In that case, the police acted            "outrightly dismissed," because they are "so innocent or
immediately on an anonymous tip that indicated that there             susceptible to varying interpretations as to be
was illegal activity occurring at a drug “hot spot” and gave a        innocuous." . . . It is possible for factors, although
description of the perpetrator as “a heavy-set, black male            insufficient individually, to add up to a reasonable
wearing dark green pants, a white hooded sweatshirt, and a            suspicion--that is the nature of the totality of the
brown leather jacket.” Id. The Third Circuit held that even           circumstances test. But we think it impossible for a
this detailed tip alone was not enough to grant reasonable            combination of wholly innocent factors to combine into
suspicion, because the tip had no basis for reliability. Id. at       a suspicious conglomeration unless there are concrete
81. Here, however, we do not have the degree of specificity           reasons for such an interpretation . . . Although the
of the tip, nor do we have the closeness in time of the trip to       government presented several factors which could, under
the stop. The hotline tip is of little value as to establishing       different circumstances, and in combination with other
reasonable suspicion.                                                 factors, support a finding of reasonable suspicion, under
                                                                      the facts of this case, they merit little, if any, weight in
  We do, however, recognize the difficulty in fighting drug           our analysis.
crimes and the great success that cities like Memphis have
had in catching and prosecuting drug-related offenders            We believe that Patterson walking away from the police when
through tools like this hotline. The problem arises when          they got out of their unmarked car constitutes a factor to be
officers use vague information about an intersection already      outrightly dismissed. Patterson’s behavior is innocent and
known as a “hot spot” as the sole basis for reasonable            insufficient to provide the police with reasonable suspicion.
No. 01-6001                   United States v. Patterson      7    8     United States v. Patterson                   No. 01-6001

   Finally, in articulating the basis for their reasonable                               _______________
suspicion to stop Patterson, the officers argue that their
observation at the scene of one of the group throwing an                                    DISSENT
object away contributed to the totality of the circumstances                             _______________
supporting their reasonable suspicion to stop the group. The
Supreme Court has made clear, however, that a warrantless            KENNEDY, Circuit Judge, dissenting. Contrary to the
search must be based on individualized suspicion. Chandler         majority, I believe that under the totality of circumstances test
v. Miller, 520 U.S. 305, 313 (1997). In order to search            the officers’ decision to stop Patterson was supported by a
Patterson, the officers only could factor in Patterson’s actions   reasonable suspicion that Patterson was engaged, or about to
and the circumstances surrounding him alone in order to            be engaged in, drug sales. Accordingly, I respectfully dissent.
constitute reasonable suspicion. Because the officers might
have seen one member of the group throw something lends               The Supreme Court has recently clarified the proper
little more to the totality of the circumstances surrounding       application of the totality of circumstances test. In United
Patterson. See id.                                                 States v. Arvizu, the Court made clear that courts are not to
                                                                   view in isolation the factors upon which police officers base
  For the foregoing reasons, the judgment of the district court    their reasonable suspicion. See 534 U.S. 266, 274 (2002)
is REVERSED. This case is REMANDED for further                     (stating that “[t]he court’s evaluation and rejection of seven
proceedings in accordance with this opinion.                       of the listed factors in isolation from each other does not take
                                                                   into account the ‘totality of circumstances,’ as our cases have
                                                                   understood that phrase.”). Rather, courts must consider all of
                                                                   an officer’s observations, giving due credit to any inferences
                                                                   drawn by an officer based experience or training. Id. at 275-
                                                                   77.
                                                                      The majority dismisses the import of the citizen complaint
                                                                   that brought the officers to the intersection of Foster and
                                                                   Willett on the grounds that the information conveyed by the
                                                                   tip was not specific enough to allow the officers to predict
                                                                   future criminal activities at the named location or by the
                                                                   described persons. The majority dismisses out right the
                                                                   notion that Patterson’s conduct in concealing his hands and
                                                                   walking away from the officers’ approach could be
                                                                   considered evasive conduct that could reasonably raise an
                                                                   officer’s suspicion. And finally, the majority dismisses the
                                                                   relevance of the officers observing a man in the group
                                                                   throwing something into the bushes before concealing his
                                                                   hands in his pockets.
No. 01-6001                   United States v. Patterson      9    10   United States v. Patterson                  No. 01-6001

   While I agree that the tip alone would not support stopping     when considered in light of the totality of circumstances
Patterson, the officers were not acting only on the tip. Officer   provided a basis for the officers to reasonably suspect that he
Boyce testified that the complaint was about “people hanging       was engaged or about to be engaged in illegal drug sales. I
out in that corner of the area selling drugs.” The complaint       would, therefore, affirm the district court’s decision to deny
provided a framework for observing the street scene and its        Patterson’s motion to suppress.
participants and applying the officers’ professional expertise
in regards to this neighborhood and the street level sale of
drugs. Officer Fair, a ten-year veteran of the police
department and a two-year veteran of the vice-narcotics unit,
testified that the Foster and Willett area is a “hot spot” for
criminal activity and that he had investigated numerous drug
complaints in the immediate vicinity. Officer Boyce, also a
veteran of the vice-narcotics unit, testified that his suspicion
was raised when the men congregated in front of 1564
Willett attempted to evade contact with the officers once the
men recognized that police officers were approaching them.
Officer Boyce also testified that one of the men made a
throwing motion towards some bushes, conduct Officer
Boyce believed was consistent with disposing of drugs. This
testimony makes clear that the officers reasonably suspected
that the men, Patterson included, were engaged in street drug
sales because the men were loitering after dark in a location
that was both generally known for street level drug sales and
the subject of a recent drug sales complaint, the men
attempted to evade police detection of their activity by
concealing their hands and walking away, and one man in the
group surreptitiously disposed of something in the bushes
prior to concealing his hands. This court must give due credit
to the inferences drawn by Officers Fair and Boyce based on
their specialized training as officers in narcotics division and
Officer Fair’s experience with drug sales in this
neighborhood. Due credit is not given when factors such as
the citizen complaint and evasive conduct are dismissed
outright.
  As the Arvizu Court pointed out, “[a] determination that
reasonable suspicion exists . . . need not rule out the
possibility of innocent conduct.” Id. at 277. Though
Patterson’s conduct may have been innocent, his conduct
