                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-20-2006

USA v. Goodrich
Precedential or Non-Precedential: Precedential

Docket No. 05-3071




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                                            PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                     __________

                        No. 05-3071
                        __________

             UNITED STATES OF AMERICA,

                             vs.

              JERVIS LAVERN GOODRICH
                                               Appellant
                  ____________________

      On Appeal from the United States District Court
         For the Middle District of Pennsylvania
             (D.C. Criminal No. 03-cr-00036)
       District Judge: Honorable John E. Jones, III
                    _______________

                   Argued May 16, 2006

     Before: MCKEE and GARTH, Circuit Judges, and
               LIFLAND, District Judge*

                   (Filed: June 20, 2006)


      *
         The Honorable John C. Lifland, Senior District Judge
for the District of New Jersey, sitting by designation.
MICHAEL G. LEONARD, ESQUIRE (ARGUED)
Law Office of Michael G. Leonard
91 North Main Street
Hughesville, Pennsylvania 17737

       Counsel for Appellant

WILLIAM A. BEHE (ARGUED)
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108

GEORGE J. ROCKTASHEL, ESQUIRE
Office of United States Attorney
240 West Third Street, Suite 316
Williamsport, Pennsylvania 17701

       Counsel for Appellee

                          __________

                 OPINION OF THE COURT
                       __________

GARTH, Circuit Judge.
       State police officers, acting upon a non-specific tip,
stopped a vehicle in the immediate vicinity of a reported theft in
progress. We address the constitutionality of this investigatory
stop under the “reasonable suspicion” standard of Terry v. Ohio,

                               -2-
392 U.S. 1 (1968), and its progeny. We hold that,
notwithstanding the vague and imprecise description provided
by the informant in this case, other relevant circumstances
furnished the police with “reasonable suspicion” to justify the
Terry stop. We will therefore affirm the District Court’s
judgment which denied appellant’s motion to suppress evidence,
but as our opinion explains, we do so for an entirely different
reason.
                               I.
        As the “reasonable suspicion” inquiry is highly fact-
dependent in nature, we proceed to describe the facts relating to
the vehicle stop in some detail, placing sole emphasis on those
events preceding the stop. We preface this factual discussion,
however, by noting that both the District Court and the parties
refer to many facts having little or no relation to the vehicle
stop. Such facts were deemed relevant in the proceedings below
because the District Court erroneously held that Terry did not
authorize the stop and therefore proceeded to consider the
application of the exclusionary rule to the contested evidence.
It ultimately denied the suppression motion, concluding that the
contested evidence should nonetheless be admitted under certain
exceptions to the exclusionary rule. Our analysis does not
proceed beyond the constitutional principles governing the
investigatory stop. Because we uphold the validity of the stop,
we have no occasion to reach or address the alternate theories
relied upon by the District Court in denying the suppression
motion.


                               -3-
                              A.
        Mill Hall is a small town in Clinton County,
Pennsylvania. Situated along the railroad tracks in a mixed
residential and commercial part of town, directly adjacent to
Mill Hall Clay Products and diagonally across the railroad tracks
from R&M Gas & Oil (“R&M Gas”), is Webb’s Super-Gro
(“Webb’s”), a farm supply company which sells anhydrous
ammonia, among other agricultural products. Anhydrous
ammonia is a chemical used in agricultural industries, but also
frequently employed in the production of methamphetamine. As
a result of repeated thefts of anhydrous ammonia from Webb’s
tanks, the police viewed the surrounding vicinity as a “hot spot”
for criminal activity. App. 246.
        On the night of September 10, 2002, at approximately
11:20 p.m., the Pennsylvania State Police Barracks in Lamar,
Pennsylvania received a call from an employee at Mill Hall Clay
Products, reporting a possible theft in progress from Webb’s
anhydrous ammonia tanks. The caller identified himself as
Todd Gentzyel (“Gentzyel”), a third-shift kiln operator at the
brickyard adjacent to Webb’s. Gentzyel previously had
informed the Lamar Barracks of similar thefts and had been
advised to call the state police immediately upon witnessing any
suspicious activity in the future.           He told the police
communications officer (“PCO”) that, “. . . there was two people
just carrying some kind of buckets or something across from the
Webb’s . . . and they’re just, they’re over behind R&M Gas right
now loading into some kind of a vehicle. I’m gonna go try to


                               -4-
get a description.” App. 392. The PCO directed Gentzyel to call
back when he obtained a description, and then immediately
dispatched Troopers Stephen Wilcox and Christopher Soo from
the Lamar Barracks to R&M Gas. The PCO also dispatched
Trooper David Kirkendall, already out on patrol, to the scene.
At 11:21 p.m., the PCO repeated to one of the responding
troopers that the suspects were behind R&M Gas. App. 392.
       Having responded to numerous incidents at Webb’s on
prior occasions and having conducted routine surveillance of the
anhydrous ammonia tanks on the property, Troopers Wilcox and
Soo were both familiar with the location of R&M Gas and the
surrounding area. App. 110, 157. They arrived in Mill Hall
within seven minutes of Gentzyel’s call and proceeded down
Pennsylvania Avenue – the main roadway running through Mill
Hall – in the direction of R&M Gas. As they drove down
Pennsylvania Avenue, the troopers observed no vehicles coming
from the direction of R&M Gas. App. 117. However, as they
turned right onto Agnew Street – one of the side streets
intersecting Pennsylvania Avenue – in order to approach R&M
Gas, they immediately spotted a small, dark-colored vehicle in
front of R&M Gas about a block and a half ahead. No other
occupied vehicles were in the area. App. 199.
       At approximately 11:28 p.m.,1 Troopers Wilcox and Soo


       1
          The District Court found that the stop occurred at
approximately 11:28 p.m. The government, however, states that
a trooper had pulled over the vehicle in question at 11:26:59

                              -5-
pulled in front of the vehicle and activated their lights, causing
the vehicle to stop. At about the same time, Trooper Kirkendall
arrived from another direction and stopped behind the vehicle.
The government does not dispute that this initial stop constitutes
a seizure for Terry purposes.
        Meanwhile, just prior to the stop, at precisely 11:26:44
p.m., Gentzyel called back and reported to the PCO that the
vehicle had just pulled out “over by R&M Gas.” App. 395. He
believed, though he was not certain, that the occupants looked
like two women, and he described the driver as a “blond-haired
lady.” App. 396. He then advised the PCO that the troopers
had, in fact, pulled over the vehicle he was describing. App.
396. As the stop occurred, Gentzyel remained on the telephone
line, providing further descriptions to assist the officers in their
investigation. In particular, Gentzyel told the PCO the
following additional information:
       I fire the kilns on third shift and when I walked out they
       come across our parking lot. There was two people, two
       individuals carrying, it looked like buckets of something.
       They walked across the railroad tracks and went over to
       R&M Gas. Over behind the R&M gas plant, and then
       they were loadin’ stuff for about five minutes. I hurried
       up and run in and made a call, went back out to see if I



p.m. – the time that Trooper Kirkendall radioed in the license
plate number of the vehicle. App. 395. The government
appears to be correct as to the precise time of the stop.

                                -6-
       could get a description of the vehicle.
App. 397. Gentzyel also described the vehicle in question as a
smaller, dark-colored vehicle, like a Cavalier, and reported that
he saw the two persons “really struggling” with the container as
they carried and loaded it into the rear of the car. App. 400-02.


        Immediately after the stop, Trooper Soo exited his
vehicle and ran down the street to R&M Gas to check for other
vehicles or individuals in the area. He observed no other
activity in the area. However, between the stopped vehicle and
R&M Gas, he encountered a strong smell of ammonia and
noticed a substance scattered on the street with a cup and spoon
located nearby. To the troopers, it appeared as if the cup and
spoon had been thrown from the vehicle prior to the stop. App.
369.
        The troopers then spoke with the occupants – later
identified as Jervis Goodrich (“Goodrich”), defendant below,
appellant here, who occupied the passenger seat, and his
girlfriend Melissa Kinne (“Kinne”), the driver and owner of the
vehicle – to determine if they had seen anything suspicious in
the area. Goodrich and Kinne responded in the negative, and
further told the troopers that they had been “parking” at R&M
Gas. The troopers, however, observed within the vehicle in
plain view tools and rags, a pliers, and a flashlight. From their
prior experience, the troopers knew that these things were
commonly used during anhydrous ammonia thefts. App. 130-
31, 366-67. Moreover, at least one of the occupants matched

                               -7-
Gentzyel’s description of “a blonde-haired lady” and the car
generally matched his description of a small, dark-colored
vehicle, which information the troopers had received on police
radio during the investigatory stop.
       At some point, the troopers asked about the trunk of the
car. Goodrich stated that he had gone into the trunk to retrieve
a blanket. App. 129-30. The troopers thereupon requested
permission to search the trunk, at which point Goodrich claimed
that the key had broken off in the trunk lock and that he had
used pliers in retrieving the blanket from the trunk. Upon
examination, however, the troopers saw no key broken off in the
lock. App. 132. Kinne, in turn, had told one of the troopers that
she had lost the key to the trunk. App. 135. And when a trooper
suggested that she turn off the car to prevent it from
overheating, Kinne turned off the ignition and placed the keys
in her waistband, thereby further arousing the troopers’
suspicion. App. 135-36.
       After conducting a National Crime Information Center
check of the vehicle’s license plate number and after running
Goodrich’s and Kinne’s names and dates of birth through law
enforcement databases, the troopers learned that there was an
outstanding parole warrant in New York for Goodrich. He was
thereupon taken into custody.
        At this juncture, Gentzyel was brought to the scene and
identified the vehicle and the occupants as the same vehicle and
persons that he observed earlier in the evening. Based on
Gentzyel’s identification and the other information gathered

                               -8-
during the investigatory stop, the troopers believed probable
cause existed to arrest Goodrich and Kinne for theft of
anhydrous ammonia. Accordingly, they placed Kinne in
custody, and informed both Goodrich and Kinne of their intent
to file theft and drug charges. And yet despite their belief that
probable cause existed for the arrests, the troopers waited for the
issuance of a warrant to search the inside of the vehicle.2
                                B.
       The United States subsequently charged Goodrich with
(1) conspiracy to manufacture and distribute controlled
substances, contrary to 21 U.S.C. § 846, (2) theft of
anhydrous ammonia, contrary to 21 U.S.C. § 864(a)(1),
(3) possession of listed chemicals, contrary to 21 U.S.C. §
841(c)(1), and (4) distribution of a controlled substance,
contrary to 21 U.S.C. § 841(a)(1). On February 13, 2003, a
grand jury sitting in the Middle District of Pennsylvania


       2
         On September 11, 2002, the day following the
investigatory stop, the troopers applied for and obtained a search
warrant to search Kinne’s vehicle. Upon searching the vehicle,
they found a plastic spoon with white powdery residue on it, a
plastic container containing an off-white chunky powder, an
empty plastic container with a metal sprout, two cans of starter
fluid, and a 20 gallon propane tank filled with anhydrous
ammonia. Laboratory analysis revealed that the residues and
contents of the objects included methamphetamine and two
chemicals used to make methamphetamine, pseudoephedrine
and ether.

                                -9-
returned a four-count indictment against Goodrich on these
charges. The United States brought no charges against Kinne,
who entered a guilty plea to state theft charges and agreed to
cooperate with the authorities.3
        Before trial, Goodrich moved to suppress any and all
evidence obtained as a result of the stop,4 arguing that the
police lacked reasonable suspicion to perform the Terry stop.
He also argued that the police lacked probable cause to either
arrest him or search the vehicle, as the facts used to support

       3
         On October 15, 2002, Kinne agreed to an interview with
the district attorney and the state police. With her counsel
present, she admitted driving Goodrich to Webb’s and assisting
him in stealing anhydrous ammonia. Kinne later testified
against Goodrich at a state court preliminary hearing. She also
testified at Goodrich’s trial in this case.

        In addition, Kinne turned over to the police prison letters
from Goodrich. In these letters, Goodrich told Kinne what to
say to investigators concerning the location of the tanks, and he
repeatedly urged her to “stick to the story.” In one letter,
Goodrich complained about how the anhydrous ammonia
burned his hands. In another notable letter, Goodrich admitted
that the propane tank recovered from Kinne’s vehicle belonged
to him.
       4
           Goodrich moved to suppress the physical evidence
seized from Kinne’s vehicle, Kinne’s inculpatory testimony, and
the letters addressed to Kinne from Goodrich and turned over to
the government.

                               -10-
probable cause had been obtained from an illegal stop. On
January 21, 2004 and February 3, 2004, the District Court
conducted hearings on the suppression motion.
       At the hearings, the government presented the testimony
of Trooper Soo. Among others, Goodrich presented the
testimony of Trooper Wilcox. Soo testified that the police
decided to conduct an investigatory stop of the vehicle based
primarily on its geographical proximity to the reported theft in
progress. He admitted that the troopers had no specific
description of either the suspects or the vehicle prior to the stop.
Soo further testified that the troopers would have stopped any
vehicle in the near vicinity of R&M Gas. Indeed, he testified on
cross-examination that had he seen three vehicles in the area, he
would have tried to stop all three. App. 167-68. Trooper
Wilcox concurred, stating that the troopers had stopped Kinne’s
vehicle because it was the only vehicle in the area.
       Based on the foregoing testimony, the District Court
concluded that the stop was unlawful. The District Court
explained:
       The informant in this case . . . did not provide any
       specific description of the individuals or vehicle in
       question until the police had already stopped the vehicle.
       Notably, the candid testimony of both Troopers Soo and
       Wilcox indicates that they would have stopped any
       vehicle or person they encountered within a two or three
       block area of R&M Gas. Trooper Soo also testified that
       he had no other evidence that the vehicle was involved in

                               -11-
       criminal activity other than its location proximate to
       whether [sic] the activity had been observed. . . . Quite
       clearly, the lone fact that a vehicle is proximate to an
       area of reported criminal activity is not sufficient to
       support a finding of reasonable suspicion and the stop is,
       therefore, impermissible.
District Court Opinion at 8-9.
       Having found that Terry did not authorize the
investigatory stop, the District Court proceeded to consider
whether any exceptions to the exclusionary rule were applicable.
It found that there were, concluding that the independent source
and the attenuated connection principles, both exceptions to the
general exclusionary rule, supported the admissibility of the
challenged evidence. Accordingly, the District Court denied
Goodrich’s motion to suppress.
       Goodrich’s case thereupon proceeded to trial. On August
10, 2004, a jury convicted Goodrich on the first two counts of
the indictment – conspiracy to manufacture and distribute
controlled substances and theft of anhydrous ammonia – and
found him not guilty on the remaining counts. On June 10,
2005, the District Court sentenced Goodrich to 71 months
imprisonment and 6 years of supervised release and imposed a
special assessment of $200 and restitution of $4,500. This
timely appeal followed.5

       5
       We have appellate jurisdiction pursuant to 28 U.S.C. §
1291. We review the denial of a suppression motion for clear

                              -12-
                                 II.
        Goodrich challenges the denial of his suppression
motion, essentially arguing that the contested evidence should
have been suppressed as the fruits of an illegal stop. He
contends that the District Court erred in its application of the
exclusionary rule and the exceptions relevant thereto, though he
applauds the District Court for finding an initial constitutional
violation. The government argues that the District Court erred
in finding the stop unlawful, but performed the correct analysis
in admitting the challenged evidence under the applicable
exceptions to the exclusionary rule.
       Both parties agree that the pivotal issue in this appeal is
whether the automobile stop ran afoul of the Fourth
Amendment. If the stop is found to be lawful, that is, if the
officers had “reasonable suspicion” to stop the Kinne vehicle,
we need go no further respecting the exclusion of evidence: the
evidence should have been allowed as no Fourth Amendment
violation occurred.
       We therefore turn to address the primary question
presented in Goodrich’s appeal: whether the vehicle stop


error as to the underlying facts, but exercise plenary review as
to its legality in light of the district court’s properly found facts.
United States v. Givan, 320 F.3d 452, 458 (3d Cir. 2003). We
can affirm a district court’s denial of a suppression motion on
any ground supported by the record. United States v. Agnew,
407 F.3d 193, 196 (3d Cir. 2005).

                                -13-
satisfied the constitutional requirements set forth in Terry v.
Ohio, supra, and subsequent case law. In doing so, we examine
only the validity of the initial stop, for Goodrich does not
separately challenge the reasonableness or intrusiveness of the
investigation following the stop.6 As the initial stop, and


       6
         In determining whether an investigatory stop is legal,
the court also examines its relative intrusiveness. United States
v. Rickus, 737 F.2d 360, 366 (3d Cir. 1984) (citing Terry, 392
U.S. at 18 n.15)). Terry itself recognized that “in determining
whether the seizure and search were ‘unreasonable’ our inquiry
is a dual one – whether the officer’s action was justified at its
inception, and whether it was reasonably related in scope to the
circumstances which justified the interference in the first place.”
392 U.S. at 19-20. Goodrich, however, does not challenge the
scope or intrusiveness of the investigation following the stop.
Thus only the initial stop, and not the subsequent investigation
(or search), is at issue here.

       In any event, the record plainly indicates that the troopers
conducted a reasonable and minimally intrusive investigation
following the stop.        The informant provided real-time
information that the troopers had pulled over the right vehicle,
and the troopers took every opportunity to acquire a more
specific description from the informant; the troopers found a
spilled substance smelling of ammonia near the scene; they
noticed suspicious equipment in plain view in the car; the
occupants of the vehicle behaved in a suspicious manner,
especially concerning the trunk to the car; the troopers
conducted routine checks on law enforcement databases and

                               -14-
nothing else, constitutes the alleged constitutional violation, the
facts and circumstances known to the troopers preceding the
vehicle stop acquire particular salience. We conclude, after
considering all relevant circumstances, that the stop was lawful.
                                A.
        The Supreme Court, in Adams v. Williams, stated that
“the Fourth Amendment does not require a policeman who lacks
the precise level of information necessary for probable cause to
arrest to simply shrug his shoulders and allow a crime to occur
or a criminal to escape.” 407 U.S. 143, 145 (1972). On the
contrary, the Court explained, “it may be the essence of good
police work to adopt an intermediate response,” i.e., to maintain
the status quo with a brief stop that allows the police officer to



relied upon an outstanding warrant in taking Goodrich into
custody; and the informant was eventually brought to the scene
to identify the vehicle and occupants as the ones which he
spotted earlier in the night. Only after all this investigation did
the troopers take Kinne into custody and advise both Kinne and
Goodrich of their intent to file theft and drug charges. And
finally, it bears mention that the police waited until obtaining a
search warrant to search Kinne’s vehicle.

       Moreover, nothing in the record suggests that the troopers
attempted to harass or intimidate the occupants. Nor does the
record suggest that the stop involved public embarrassment or
physical contact. In short, the investigation did not exceed the
extent of inquiry reasonably justified by the circumstances.

                               -15-
investigate further the possibility of criminal involvement. Id.
at 145-46. In Terry, the Supreme Court had earlier held that
such an investigatory stop – now commonly referred to as a
Terry stop – is consistent with the Fourth Amendment whenever
the police officer has a reasonable, articulable suspicion that
criminal activity is afoot. Terry, 392 U.S. at 30; Illinois v.
Wardlow, 528 U.S. 119, 123 (2000).
      We recently summarized the familiar precepts which
govern the “reasonable suspicion” inquiry:
       Reasonable suspicion is an ‘elusive concept,’ but it
       unequivocally demands that ‘the detaining officers must
       have 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).
       An officer’s objective basis for suspicion must be
       particularized because the ‘demand for specificity in the
       information upon which police action is predicated is the
       central teaching of this Court’s Fourth Amendment
       jurisprudence.’ Terry, 392 U.S. at 22 n. 18. At the same
       time, we must allow ‘officers to draw on their own
       experience and specialized training to make inferences
       from and deductions about the cumulative information
       available to them that might well elude an untrained
       person.’ United States v. Arvizu, 534 U.S. 266, 273
       (2002) (internal quotation marks omitted); see also
       United States v. Nelson, 284 F.3d 472, 476 (3d Cir. 2002)
       . . . In evaluating whether there was an objective basis
       for reasonable suspicion, we consider ‘the totality of the
       circumstances-the whole picture.’ Cortez, 449 U.S. at
       417.



                              -16-
United States v. Brown, --- F.3d ----, 2006 WL 1377043, *6 (3d
Cir. May 22, 2006).
           Here we only emphasize that the “reasonable suspicion”
analysis is objective; subjective motive or intent is not relevant
for Terry purposes. See Terry, 392 U.S. at 21-22 (1968) (when
evaluating the “reasonableness of a particular search or seizure
. . . it is imperative that the facts be judged against an objective
standard: would the facts available to the officer at the moment
of the seizure or the search warrant a man of reasonable caution
in the belief that the action taken was appropriate?”) (citation
and internal quotations omitted) (emphasis added). We also
note that “reasonable suspicion” is measured before the search;
information acquired subsequent to the initial seizure cannot
retroactively justify a Terry stop. Florida v. J.L., 529 U.S. 266,
271 (2000) (“The reasonableness of official suspicion must be
measured by what the officers knew before they conducted their
search.”); Johnson v. Campbell, 332 F.3d 199, 205 (3d Cir.
2003) (“[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, and then whether that
seizure was justified by reasonable, articulable facts known to
[the officer] as of that time . . .”); United States v. Valentine, 232
F.3d 350, 358 (3d Cir. 2000) (“[I]t is true that the
‘reasonableness of official suspicion must be measured by what
the officers knew before they conducted their search’”) (quoting
J.L., 529 U.S. at 271).
       Where, as here, the Terry stop is made primarily upon the
basis of information supplied to the police by an informant, a
central issue is whether the informant’s information is
sufficiently reliable and complete to provide the police with

                                -17-
“reasonable suspicion” in stopping the designated persons or
vehicles for investigation. In evaluating “reasonable suspicion”
in this context, the court considers both the reliability of the tip
or informant and the content of the tip. See Valentine, 232 F.3d
at 355 (“The reliability of a tip, of course, is not all that we must
consider in evaluating reasonable suspicion; the content of the
tip must also be taken into account, as well as other surrounding
circumstances.”). The content of the tip, concomitantly, must
provide a particularized and objective basis for suspecting (1)
the particular persons stopped (2) of criminal activity. See J.L.,
529 U.S. at 272 (“The reasonable suspicion here at issue
requires that a tip be reliable in its assertion of illegality, not just
in its tendency to identify a determinate person.”).
        In this appeal, Goodrich does not challenge the reliability
of the tip itself or the informant.7 Rather, Goodrich challenges
the quality, or the information contained in, the tip. He argues
that it lacked the requisite degree of specificity to justify the
vehicle stop. In so arguing, he challenges the information
contained in the tip as to both essential components, viz., its


       7
         Gentzyel was a known informant providing real-time
information based upon his personal observation of suspicious
behavior, which matched a pattern of criminal activity known to
the police. See Adams, 407 U.S. at 146-47 (noting the reliability
problems of anonymous telephone tips and distinguishing
anonymous tips from a known informant whose reputation can
be assessed and whose information is immediately verifiable at
the scene) and compare United States v. Roberson, 90 F.3d 75,
79 (3d Cir. 1996) (holding that an anonymous tip containing
only information readily observable at the time the tip is made,
and thus lacking any indicia of reliability or predictive value,
does not provide reasonable suspicion for a Terry stop).

                                 -18-
tendency to (1) identify determinate persons (2) engaging in
criminal activity. We examine each of these components below,
turning first to Goodrich’s principal contention that the police
had no specific descriptions of either the suspects or the vehicle
in question.
                               B.
        It is well established that “an officer cannot conduct a
Terry stop simply because criminal activity is afoot.” United
States v. Brown, 159 F.3d 147, 149 (3d Cir. 1998). “Instead, the
officer must have a particularized and objective basis for
believing that the particular person is suspected of criminal
activity.” Id. (citing Cortez, 449 U.S. at 417-18) (emphasis
added). Goodrich argues that the police acted solely upon the
information contained in Gentzyel’s first report8 and thus
without a specific description of either the suspects or the
getaway vehicle. This information, Goodrich contends, was too
imprecise to satisfy constitutional standards. We cannot agree.


       8
         In that report, Gentzyel told the PCO that, “. . . there
was two people just carrying some kind of buckets or something
across from the Webb’s . . . and they’re just, they’re over behind
R&M Gas right now loading into some kind of a vehicle. I’m
gonna go try to get a description.” Although Gentzyel provided
additional information in the second call to the troopers, it is
unclear from the record whether any of the information he gave
to the officers was given simultaneous to the stop or
immediately after the stop. Accordingly, we will examine the
constitutionality of the stop based solely on the information
provided in Gentzyel’s first report and the other relevant factors
which we describe herein. We express no opinion on whether
information afforded simultaneous to the stop may be
considered for Terry purposes.

                              -19-
       Other relevant circumstances can provide sufficient
particularity or specificity to an otherwise general or indefinite
description. A description, in other words, must be considered
with reference to the totality of the circumstances. As one
commentator explained:
       Whether the available description is sufficiently
       particular cannot be determined in the abstract. To
       suffice, the description must permit the police to be
       reasonably selective in determining who to stop for
       investigation, and whether this may be said to be the case
       will depend upon how many persons are in the universe
       of potential suspects.
6 Wayne R. LaFave, Search and Seizure: A Treatise on the
Fourth Amendment, § 9.5(g) (4th ed. 2004) (footnotes omitted).
Accordingly, the imprecise description provided by the
informant in this case must be considered alongside any other
relevant factors which tend to more narrowly define the universe
of potential suspects and thereby constrain police discretion. At
least four such factors warrant consideration in this case: (1) the
reputation of the area in which the stop occurred for criminal
activity; (2) the time of day; (3) the geographical and temporal
proximity of the stop to the scene of the alleged crime; and (4)
the number of persons in the area. We discuss these factors
seriatim.
                      1. High Crime Area
        “An individual’s presence in an area of expected criminal
activity, standing alone, is not enough to support a reasonable,
particularized suspicion that the person is committing a crime.”
Wardlow, 528 U.S. at 124 (citing Brown v. Texas, 443 U.S. 47
(1979)). However, the Supreme Court has noted “the fact that

                               -20-
the stop occurred in a ‘high crime area’ [is] among the relevant
contextual considerations in a Terry analysis.” Id. (citing
Adams, 407 U.S. at 144) ; see also Brown, 159 F.3d at 149-50
(noting that reputation of area for criminal activity is a relevant
Terry factor).
       Here, Goodrich was found in the near vicinity of Webb’s
and R&M Gas, an area with a reputation for theft of anhydrous
ammonia. Trooper Soo testified that the Pennsylvania State
Police had responded to ten to fifteen reported thefts of
anhydrous ammonia from Webb’s tanks preceding Goodrich’s
arrest. Contrary to Goodrich’s contention, then, the record
indicates that the area around R&M Gas constitutes a “high
crime area” for Terry purposes. See, e.g. United States v.
Rickus, 737 F.2d 360, 362, 365 (3d Cir. 1984) (noting that area
recently victimized by twelve unsolved burglaries was area of
criminal activity for Terry purposes). We thus conclude that the
reputation of the area for prior thefts of anhydrous ammonia was
one articulable fact upon which the troopers may legitimately
have relied in conducting the stop. This fact, moreover, is given
greater importance when considered with the next relevant
consideration – the time of day.
                        2. Time of Day
        The investigatory stop occurred at approximately 11:30
p.m. The lateness of the hour of the stop further supports the
inference of criminal activity, especially when considered
alongside the area’s reputation for criminal activity. See, e.g.,
Michigan v. Long, 463 U.S. 1032, 1050 (1983) (noting that “the
hour was late” as one relevant Terry circumstance); United
States v. Ramires, 307 F.3d 713, 716 (8th Cir. 2002) (listing the
fact that “it was late at night” as one circumstance justifying a
Terry stop); United States v. Lender, 985 F.2d 151, 154 (4th Cir.

                               -21-
1993) (“The lateness of the hour is another fact that may raise
the level of suspicion.”).
        This case, therefore, does not present the situation,
raising constitutional concern, where the police perform a Terry
stop in an otherwise tranquil neighborhood during the daylight
hours based only on a general description.9 The lateness of the
hour and the reputation of the area for criminal activity move
this case closer to the elusive line separating constitutional from
unconstitutional governmental action, but it is the next two
factors which, in our view, place this case squarely on the
constitutional side of the divide.
           3. Temporal & Geographical Proximity
       The informant in this case, Todd Gentzyel, reported at
approximately 11:20 p.m. that two persons were carrying
“buckets or something across from Webb’s,” and “they’re over
behind R&M Gas right now loading into some kind of vehicle.”
The troopers responded immediately and stopped Kinne’s
vehicle within seven minutes of the report. In addition, the stop
occurred in the immediate vicinity of the reported theft in
progress. The record indicates that Troopers Wilcox and Soo
stopped Kinne’s vehicle within one or two blocks of R&M Gas.
Hence, Goodrich was found near in time and geographic
proximity to the reported theft.
      United States v. Juvenile TK, 134 F.3d 899 (8th Cir.
1998), is instructive here. There, the police received two


       9
        Compare United States v. Kerr, 817 F.2d 1384, 1387
(9th Cir. 1987) (“loading boxes into a vehicle on residential
property at mid-afternoon, a time of day not raising an inference
of criminal activity”).

                               -22-
dispatches, forty minutes apart, that a man had broken into a
gray vehicle and brandished a gun. The police had no license
plate number for the vehicle in question, but the second dispatch
located the suspect at a particular gas station. About seven
minutes after the second dispatch, the police noticed a gray
vehicle making a U-turn in a commercial parking lot about one-
and-a-half blocks to two blocks from the gas station identified
in the second dispatch. The police proceeded to stop the
vehicle, which had three occupants. Two of the occupants were
arrested for violating the curfew law and for public intoxication.
No weapon was ever discovered.
       After the United States charged one of the occupants with
various crimes, including robbery and assault with a dangerous
weapon, the occupant moved to suppress any evidence seized or
gathered as a result of the stop, arguing that the police lacked
reasonable suspicion in making the stop. On appeal, the Eighth
Circuit affirmed the validity of the stop, relying in significant
part on the “temporal and geographical proximity of the car to
the scene of the crime.” 134 F.3d at 903-04.
       Other cases have reached similar conclusions, sustaining
the detention of an individual found in the proximity of a
recently perpetrated offense. See, e.g., United States v. Brown,
334 F.3d 1161, 1165 (D.C Cir. 2003) (suspects’ car found
parked in lot where late night shots had been fired; location
relevant Terry factor); United States v. Wimbush, 337 F.3d 947,
950 (7th Cir. 2003) (noting as a relevant factor the fact that
suspect was found eight blocks away from reported crime);
Brown, 159 F.3d at 150 (suspect’s presence in “close proximity
to the crime scene a few minutes after the [report]” a factor
supporting finding of reasonable suspicion); United States v.
Raino, 980 F.2d 1148, 1150 (8th Cir. 1992) (holding that a Terry

                              -23-
stop was supported by the fact that “the officers were
responding to a late-night call that shots had been fired in
precisely the area appellant’s car was parked”). Accordingly, it
is clear to us that the geographical and temporal proximity of
Kinne’s vehicle (and therefore Goodrich himself) to the scene
of the reported theft in progress is another important factor
militating strongly in favor of the validity of the stop.
                4. Number of Persons in Area
        Troopers Wilcox and Soo both testified that they
observed no other occupied vehicles in the vicinity of R&M Gas
prior to the stop. The absence of any other vehicles in the area
was another fact known to the troopers at the moment of the
stop, supporting the reasonable belief that the occupants of the
vehicle were probably the perpetrators. Perhaps this case would
have been different had there been two, or three, or four other
vehicles in the area prior to the stop.10 As it was, however, no
other vehicles were in the area.



       10
          Both Goodrich and the District Court place particular
emphasis on the testimony of Troopers Soo and Wilcox that
they would have stopped any vehicle within a several block
radius of R&M Gas. However, as we have stated, the
“reasonable suspicion” analysis is objective. See Terry, 392
U.S. at 21-22 (1968). The Supreme Court, moreover, recently
reiterated the basic principle that the subjective motivations of
officers are not relevant to determining whether governmental
conduct violates the Fourth Amendment. See Brigham City,
Utah v. Stuart, --- S.Ct. ----, 2006 WL 1374566, *4 (May 22,
2006). It is therefore irrelevant that Trooper Soo may have
testified that had he seen three vehicles in the area, he would
have tried to stop all three.

                              -24-
        United States v. Moore, 817 F.2d 1105 (4th Cir. 1987),
is similar to this case in several respects. There, the court upheld
the validity of a stop and frisk where there was no description of
the perpetrator. Within two or three minutes of a purported
burglary, the police noticed the defendant within 30 or 40 yards
of the site of the apparent burglary. The police stopped and
frisked the defendant, uncovering a concealed weapon. The
defendant was then arrested. In upholding the validity of the
stop, the Fourth Circuit emphasized that the “appellant was the
only person in the vicinity.” 817 F.2d at 1107. The court also
noted the following relevant considerations: (1) only two or
three minutes had elapsed from the dispatcher’s report, (2) the
call came late at night, and (3) the area was a “high crime
neighborhood.” Id. “These circumstances,” the court
concluded, “in combination support a reasonable suspicion that
appellant was involved in the break-in.” Id.
       We, too, conclude that even without a detailed
description of either the suspects or their vehicle, there were
enough objective facts present here to provide “reasonable
suspicion” to warrant the Terry stop. Indeed, upon considering
each of the foregoing factors, we are persuaded that the troopers
would have been remiss had they declined to investigate the
occupants of Kinne’s vehicle.11


       11
          We inquired at oral argument as to what other course
of action the troopers should have taken. It was suggested that
the officers could have followed the vehicle until they obtained
a more precise description from the informant. Yet the course
of action taken by the troopers here, given the particular
circumstances, passes the Terry test, which as stated requires
only “reasonable suspicion.”


                               -25-
                                 C.
        Finally, this court has reiterated that the activity of which
the detainee is suspected must actually be criminal. See United
States v. Ubiles, 224 F.3d 213, 218 (3d Cir. 2000). Goodrich
argues that the police had no reason to believe that criminal
activity of any sort was afoot. He contends that it is “not illegal
to walk through the grounds of Mill Hall Clay Products.” App.
Br. at 23. In other words, whatever the degree of specificity as
to the particular suspects, Goodrich argues that the only
information known to the troopers at the relevant time was that
two persons were carrying buckets of some kind across from
Webb’s, a perfectly legal activity. In so arguing, he relies
heavily on United States v. Ubiles, supra. We find such reliance
to be misplaced.
       In Ubiles, the police received information from an
anonymous informant that a man was carrying a gun during the
J’ouvert Carnival, a periodic celebration in the U.S. Virgin
Islands. Based on this information, the police approached the
man and proceeded to frisk him, uncovering a loaded gun on his
person. The gun was unregistered and its serial number had
been obliterated. The United States subsequently charged the
defendant with violations of federal gun laws.
       In reversing the district court’s denial of defendant’s
motion to suppress, this court emphasized that the authorities
had no reason to believe that the defendant was “involved in
criminal activity.” 224 F.3d at 217. As the court noted, “[i]t is
not necessarily a crime to possess a firearm in the Virgin
Islands.” Id. Accordingly, we found that the police lacked
reasonable suspicion of criminal activity to justify the stop.
       Ubiles recognized, however, that “[a] reasonable

                                -26-
suspicion of criminal activity may be formed by observing
exclusively legal activity.” Id. What matters is whether the
defendant’s behavior points to the presence of illegal activity.
Id. Ubiles had exhibited no unusual or suspicious behavior prior
to the stop. Also, there was no evidence to suggest that the
officers were “aware of any articulable facts suggesting that the
gun Ubiles possessed was defaced or unlicensed, that Ubiles
posed a safety risk to the authorities or the [carnival] celebrants,
or that Ubiles was acting in a manner indicating that he was
involved in a different crime.” Id. at 218. “For all the officers
knew,” we there concluded, “even assuming the reliability of the
tip that Ubiles possessed a gun, Ubiles was another celebrant
lawfully exercising his right under Virgin Islands law to possess
a gun in public.” Id.
       This case is far different from Ubiles, and more closely
resembles United States v. Valentine, 232 F.3d 350 (3d Cir.
2000). In Valentine, the police received a tip from an
anonymous informant that a man was carrying a gun in the area.
About 50 to 100 feet north of where the officers met the
informant, they spotted a group of men standing in a parking lot,
one of whom matched the informant’s description of the armed
suspect. We affirmed the validity of the subsequent stop and
frisk. In so doing, we distinguished Ubiles, noting that the
suspect was found at 1:00 a.m. in a high crime area known for
shootings. 232 F.3d at 356.
        Here, Goodrich and Kinne were spotted in the vicinity of
a known high crime area near midnight. They were carrying
some sort of buckets or containers, walking in the near vicinity
of Webb’s anhydrous ammonia tanks. They were observed
trying to load the containers into a vehicle. Their actions, while
perhaps perfectly legal if considered in the abstract, must be

                               -27-
considered from the proper vantage. We have elsewhere noted
that, “the Supreme Court has upheld a number of stops based on
an officer’s observation of entirely legal acts, where the acts,
when viewed through the lens of a police officer’s experience
and combined with other circumstances, led to an articulable
belief that a crime was about to be committed.” Johnson v.
Campbell, 332 F.3d 199, 207 (3d Cir. 2003) (discussing Terry
and Wardlow). In view of the lateness of the hour and the
reputation of the area for theft of anhydrous ammonia, we have
no difficulty concluding that Goodrich’s behavior provided
reasonable suspicion of criminal activity – i.e., theft of
anhydrous ammonia.
                              III.
       For the foregoing reasons, we hold that the Terry stop
was the product of “reasonable suspicion” and therefore, this
being so, the evidence which Goodrich has challenged was
properly admitted. Accordingly, we will affirm the District
Court’s denial of Goodrich’s motion to suppress that evidence.




                              -28-
