                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-16-1996

United States v. Roberson
Precedential or Non-Precedential:

Docket 95-1827




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Recommended Citation
"United States v. Roberson" (1996). 1996 Decisions. Paper 101.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/101


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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                       ____________________

                              NO. 95-1827
                          ____________________

                        UNITED STATES OF AMERICA

                                  v.

                            LESTER ROBERSON,
                                          Appellant
                       _________________________

           Appeal from the United States District Court
             For the Eastern District of Pennsylvania
                    D.C. Crim. No. 94-00069-01
                    _________________________

                      Argued: May 15, 1996
        BEFORE: BECKER, NYGAARD, AND LEWIS, Circuit Judges

                        (Filed: July 16, 1996)

Michael R. Stiles, Esquire
Walter S. Batty, Jr., Esquire
Nancy B. Winter, Esquire
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA   19106

Nina A. Pala, Esquire (ARGUED)
Office of United States Attorney
Chemical Bank Plaza, Suite 1100
1201 Market Street
P.O. Box 2046
Wilmington, DE   19899-2046

Counsel for Appellee

Elizabeth Hey, Esquire (ARGUED)
Robert Epstein, Esquire
Elaine DeMasse, Esquire
Maureen Kearney Rowley, Esquire
Defender Association of Philadelphia
Federal Court Division
437 Chestnut Street
Lafayette Building, Suite 800
Philadelphia, PA   19106-2414

Counsel for Appellant
                     _______________________

                       OPINION OF THE COURT
                     _______________________

BECKER, Circuit Judge.

         This appeal from a criminal conviction challenges the
district court's denial of the defendant's motion to suppress
physical evidence seized by the police. The question we must
decide is whether an anonymous tip that contains only information
readily observable at the time the tip is made may supply
reasonable suspicion for a Terry stop in the absence of police
observations of any suspicious conduct. We conclude that it may
not. We will therefore reverse the judgment of the district
court.

                                I.
         On the evening of September 29, 1994, a Philadelphia
Police Department 911 operator received an anonymous call stating
that a heavy-set, black male wearing dark green pants, a white
hooded sweatshirt, and a brown leather jacket was selling drugs
on the 2100 block of Chelten Avenue. The 911 operator had no
information as to the reliability of the caller or the source of
this information.
         At approximately 7:18 p.m., the informer's tip was
relayed over the police radio. Officers Steven Nathan and Steven
Hellmuth, who were patrolling in a marked police Ford Bronco,
responded. About thirty to forty seconds after receiving the
call, they arrived at the 2100 block of Chelten and saw a man
meeting the tipster's description standing on the corner.
According to the police officers, that corner was a known "hot
spot" where drugs were sold to passing motorists. Officer Nathan
and the man, later to be identified as the defendant, Lester
Roberson, made eye contact. According to Nathan, the defendant
then walked "casually" over to a car parked facing the wrong way
on Chelten Avenue and leaned in as if to speak with the vehicle's
occupants. The police observed no indicia of drug activity.
         At this point, the officers exited their Bronco, with
guns drawn, and ordered the defendant away from the parked car.
As they approached him, they observed the butt of a gun
protruding from his pants. They patted him down, and seized from
his person a 9mm semi-automatic pistol with 13 rounds of
ammunition, two plastic bags containing numerous packets of
cocaine, a pill bottle containing 47 valium pills, a half-full
bottle of cough syrup, and $319 in U.S. currency. The defendant
was placed under arrest, and was subsequently indicted for
possession of a firearm by a convicted felon in violation of 18
U.S.C.   922(g)(1).
         Defendant moved to suppress the evidence seized by the
police. He argued that the officers did not have reasonable
suspicion that he was involved in criminal activity and that
their stop was, therefore, in violation of the Fourth Amendment
under Terry v. Ohio, 392 U.S. 1 (1968). The government countered
that Officers Nathan and Hellmuth saw Roberson's gun before
exiting their vehicle. Because possession of a firearm is a
crime, the officers had, in the government's submission, probable
cause for an arrest, and, a fortiori, reasonable suspicion for a
Terry stop.
         After an evidentiary hearing, the district court
rejected the government's contention, finding that the officers
did not observe the "defendant's gun [until] some time after they
exited their vehicle with their weapons in hand," and therefore
that they did not have probable cause for the seizure. United
States v. Roberson, No. 95-69, slip op. at 4 (E.D. Pa. May 17,
1995). However, according to the court, lack of probable cause
was not fatal to the government's case because the officers'
conduct in leaving their vehicle with their guns drawn was not an
arrest for which probable cause was necessary. Id. at 4-6.
These aspects of the district court's ruling are not challenged
on appeal.
         The district court turned next to the Terry issue and
reasoned that the officers' arrival on the scene "less than one
minute after receiving the radio dispatch" and their
identification of the "defendant as a clear match to the radio
call's detailed description of the suspect" constituted
reasonable suspicion for their stop. Id. at 6-7. The court also
noted that "the eye contact that occurred between the defendant
and the officers and the defendant's interaction with the people
in the car" bolstered the officers' suspicion. Id. at 7. It
thus denied defendant's motion to suppress the evidence. The
case proceeded to a jury trial and, after conviction, the
defendant was sentenced to 240 months in jail. The principal
question presented on appeal is the propriety of the district
court's suppression ruling. Although its factual findings must
be reviewed for clear error, we review the district court's
finding of reasonable suspicion de novo. See Ornelas v. United
States, 116 S.Ct. 1657, 1662-63 (1996).

                               II.
                                A.
         In Terry, the Supreme Court held that law enforcement
officers have the authority under the Fourth Amendment to stop
and temporarily detain citizens short of an arrest, and that such
a stop is justified by less than the probable cause necessary for
an arrest. 392 U.S. at 25-27. Under Terry, a police officer may
detain and investigate citizens when he or she has a reasonable
suspicion that "criminal activity may be afoot." Id. at 30. In
this case, we must determine whether officers Nathan and Hellmuth
had such reasonable suspicion.
         There is a well developed Supreme Court jurisprudence
as to whether an informant's tip can provide either probable
cause for an arrest or reasonable suspicion for a Terry stop.
The Supreme Court initially set forth a two-pronged approach for
determining whether an informant's tip established probable
cause. See Spinelli v. United States, 393 U.S. 411, 416 (1969);
Aguilar v. Texas, 378 U.S. 108, 114 (1964). Under those cases,
to be credible, an informant's tip had to indicate both the basis
for the informant's knowledge as well as facts sufficient to
establish his veracity or reliability.
         In Illinois v. Gates, 462 U.S. 213 (1983), the Court,
again dealing with probable cause, abandoned this two-pronged
test in favor of a totality of the circumstances approach for
evaluating an anonymous tip. It wrote:
         Moreover, the "two-pronged test" directs
         analysis into two largely independent
         channels -- the informant's "veracity" or
         "reliability" and his "basis of knowledge."
         There are persuasive arguments against
         according these two elements such independent
         status. Instead, they are better understood
         as relevant considerations in the totality-
         of-the-circumstances analysis that
         traditionally has guided probable-cause
         determinations: a deficiency in one 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.
Id. at 233. (citations omitted). In Alabama v. White, 496 U.S.
325 (1990), the Court adopted the totality of the circumstances
test to determine whether an anonymous tip could provide
reasonable suspicion for a Terry stop. In concluding that the
Gates tip provided probable cause and the White tip provided
reasonable suspicion, the Court stressed two factors: (1) an
officer's ability to corroborate significant aspects of the tip,
and (2) the tip's ability to predict future events.
         Returning to Gates, there the Bloomingdale Police
Department had received an anonymous letter stating that Lance
and Sue Gates were Illinois drug dealers and that Mrs. Gates
would drive the family car to Florida on May 3, leave the car to
be loaded with drugs, and fly home. Several days later,
according to the letter, Mr. Gates would fly to Florida and drive
the car -- now packed with over $100,000 worth of drugs -- home
to Bloomingdale. The letter also represented that the Gateses
had over $100,000 worth of drugs in their basement. Id. at 225.
An Illinois detective learned that Mr. Gates had made a
reservation to fly to Florida on May 5. Id. at 225-26. The Drug
Enforcement Administration set up surveillance and observed Mr.
Gates deplane in West Palm Beach, go to a hotel room registered
to his wife, leave that room the next morning with an
unidentified woman, enter a car with Illinois license plates
registered to him, and drive back to Illinois. Id. at 226.
         The detective signed an affidavit setting forth these
facts and submitted it, together with the anonymous letter, to
the local court. The magistrate determined that there was
probable cause and issued a search warrant for the Gateses'
residence and automobile. Id. The Illinois Supreme Court found
that no probable cause existed, but the U.S. Supreme Court
reversed.
         First, according to the Court, the facts obtained from
the investigation, standing alone, suggested that the Gateses
were involved in drug trafficking. Florida is a well-known drug
source, and Gates' quick overnight stay was suggestive of a drug
run. Id. at 243. Second, investigators were able to verify
numerous details including that the Gateses' car would be in
Florida, that Lance Gates would fly to Florida in the next day or
so, and that he would drive the car back towards Illinois. Id.
at 244. Stressing the value of corroboration, the court
concluded that because the informant had been right about these
facts, his other assertions about illegal activity were also
probably true. Id. Furthermore, the letter "contained a range
of details relating not just to easily obtained facts and
conditions existing at the time of the tip, but to future actions
of third parties ordinarily not easily predicted." Id. at 245.
Emphasizing the insider quality of predictive information, the
Court concluded that if the informant "had access to accurate
information of this type, a magistrate could properly concluded
that it was not unlikely that he also had access to reliable
information of the Gateses' alleged illegal activities." Id.
         Building on Gates in Alabama v. White, 496 U.S. 325
(1990), the Court considered whether an anonymous informant's tip
would provide reasonable suspicion for a Terry stop -- the
situation present in this case. In that case, the Montgomery
police department received an anonymous telephone call at 3:00
p.m. that:
         Vanessa White would be leaving 235-C Lynwood
         Terrace Apartments at a particular time in a
         brown Plymouth station wagon with the right
         taillight lens broken, that she would be
         going to Dobey's Motel, and that she would be
         in possession of about an ounce of cocaine
         inside a brown attache case.

Id. at 327. The police set up surveillance outside the Lynwood
Terrace Apartments. They saw a brown Plymouth station wagon with
a broken taillight and observed a woman leave the 235 building
empty-handed and enter the station wagon. The officers followed
the vehicle as it drove the most direct route to Dobey's Motel.
When the car reached the Highway on which the motel was located,
the police stopped the vehicle (at approximately 4:18 p.m.), and
White granted them permission to search the car for cocaine.
Discovering marijuana in a brown attache case in the car, they
placed White under arrest. At the police station, the officers
found cocaine in White's purse. Id.
         The Alabama Court of Criminal Appeals held that the
officers did not have reasonable suspicion under Terry, and
reversed her conviction. The U.S. Supreme Court reversed. Id.
at 328. The Court applied the totality of the circumstances
approach of Gates, and concluded that it must review both the
quantity and quality of information provided by the tip. Id. at
330. In doing so, the Court emphasized that, in the Terrycontext, this
information need only give rise to a lower level of
suspicion. Id. ("'We have held that probable cause means "a fair
probability that contraband or evidence of a crime will be
found," and the level of suspicion required for a Terry stop is
obviously less demanding than for probable cause.'") (citingUnited States
v. Sokolow, 490 U.S. 1 (1989)) (citations omitted).
         The Court went on to hold that while "[t]he tip was not
as detailed, and the corroboration was not as complete, as in
Gates," the tip provided appropriate grounds for the stop because
the "required degree of suspicion was likewise not as high." Id.
at 329, 332. Importantly, the officers were able to corroborate
numerous details supplied by the tipster; namely that a woman
left the 235 building, got into the car described by the caller,
traveled the most direct route to the motel, and that this all
happened in the time frame predicted by the informant. Id. at
331. Referencing Gates, the Court concluded that because the
tipster had been right about these things, "he is probably right
about other facts that he has alleged, including the claim that
the object of the tip is engaged in criminal activity." Id. at
331-32.
         As in Gates, the Court placed great emphasis on the
tip's predictive value. It wrote:
         We think it also important that, as in Gates,
         "the anonymous [tip] contained a range of
         details relating not just to easily obtained
         facts and conditions existing at the time of
         the tip, but to future actions of third
         parties ordinarily not easily predicted."
         The fact that the officers found a car
         precisely matching the caller's description
         in front of the 235 building is an example of
         the former. Anyone could have "predicted"
         that fact because it was a condition
         presumably existing at the time of the call.
         What was important was the caller's ability
         to predict respondent's future behavior,
         because it demonstrated inside information --
         a special familiarity with the respondent's
         affairs. . . . Because only a small number of
         people are generally privy to an individual's
         itinerary, it is reasonable for police to
         believe that a person with access to such
         information is likely to also have access to
         reliable information about that individual's
         illegal activities.
Id. at 332. (citations omitted) (emphasis added).    Thus, the
court concluded that while it was a "close call," this predictive
anonymous tip, as corroborated, "exhibited sufficient indicia of
reliability to justify the investigatory stop of [White's] car."
Id. (emphasis added).
                                B.
         Against this legal landscape, we must determine whether
the anonymous tip indicating that a heavy-set, black man wearing
green pants, a brown leather jacket, and a white hooded
sweatshirt was selling drugs on the 2100 block of Chelten Avenue
-- together with the subsequent observations by officers Nathan
and Hellmuth -- provided reasonable suspicion under Alabama v.
White for an investigative stop. We conclude that it does not.
         As we have noted, in assessing reasonable suspicion for
a stop pursuant to an anonymous tip, Alabama v. White stressed
corroboration and predictiveness. In the instant situation, it
is no doubt true that the officers were able to corroborate most
of the tipster's information. But to use the Court's language,
"Anyone could have 'predicted'" the facts contained in the tip
because they were "condition[s] presumably existing at the time
of the call." Alabama v. White, 496 U.S. at 332. Indeed, the
caller could have been looking out his window at a heavy-set
black man in green pants, brown leather jacket, and white hooded
sweat shirt at the time of his 911 call.
         By contrast, the tipster in Illinois v. Gates indicated
that on a certain date Mrs. Gates would drive the family car to
Florida, that Mr. Gates would fly to Florida several days
thereafter, meet the car, and drive it back to Illinois. 462
U.S. at 225. This type of information is not readily known or
observable to members of the public. Likewise, in Alabama v.
White, the informant predicted that White would shortly leave a
particular building, enter a described car, and drive a certain
route. 496 U.S. at 327. Because the tipster had accurate
information about Ms. White's upcoming itinerary, details not
known to the general public, it was reasonable for the officers
to conclude that the tipster had accurate information about Ms.
White's illegal activities. Id. at 332.
         The tip in the case at bar contained no "details of
future actions of third parties ordinarily not easily predicted."
Alabama v. White, 496 U.S. 325, 332 (1990) (quoting Illinois v.
Gates, 462 U.S. 213, 245 (1983)). Thus, no future actions could
be corroborated, and an important basis for forming reasonable
suspicion was absent. Moreover, because they were dealing with
an anonymous and bare-bones tip, the police had no basis for
assessing either the reliability of the informant or the grounds
on which the informant believed that a crime was being committed
-- the two Aguilar/Spinelli prongs, which were not abandoned in
Illinois v. Gates but were made important ingredients in the
"totality." See Illinois v. Gates, 462 U.S. at 232-233.
         These omissions probably would not have invalidated the
stop, if, after corroborating readily observable facts, the
police officers had noticed unusual or suspicious conduct on
Roberson's part. But they did not. Cf. United States v.
Clipper, 973 F.2d 944, 949 (D.C. Cir. 1992) ("While it is true
that the Court said, in [Alabama v. White], that the police's
ability to corroborate the informant's predictions was important,
Alabama v. White does not establish a categorical rule
conditioning a Terry stop (when police are acting on an anonymous
tip) on the corroboration of predictive information."), cert.
denied, 506 U.S. 1070 (1993). After their arrival on Chelten
Avenue, the police first saw the defendant standing on the
corner, and they then observed him walk to a car parked across
the street and lean in as if to talk to the vehicle's
occupant(s). None of this was unusual. Officer Nathan testified
that it was normal for residents of that neighborhood to stand on
the corner. App. at 51a ("[T]he information that we received was
he was on the corner, which was no great big deal, because guess
what that's where everybody hangs up there is on the corner.").
         Furthermore, defendant's walk to the car did not
indicate that he was about to engage in drug transactions.
First, according to Nathan's own testimony, the defendant walked
"casually" to the car -- behavior that does not indicate criminal
activity. Second, as the government admits in its brief, because
the defendant had already seen the marked police car, it would be
"highly unlikely that he would engage in drug transactions at
that moment." Brief at 9. Indeed, common sense indicates that
the vehicle's occupants were not likely to purchase drugs from
the defendant at that time. According to the Government, drugs
are purchased on Chelten Avenue by passing motorists, who drive
to "hot corners," make their purchases, and drive quickly away.
The car the defendant approached was parked across the street
from the defendant, facing the wrong way, a posture inconsistent
with a quick exit and the alleged style of drug transactions in
this neighborhood.
         All that the Government is left with then is the fact
that the defendant was apprehended on a "hot corner." This is
not enough. The 2100 block of Chelten Avenue is a residential
neighborhood. We simply cannot accept the Government's position
that any resident of (or visitor to) that neighborhood who,
without otherwise engendering suspicion, is unlucky enough to be
the subject of a non-predictive anonymous tip, is subject to a
Terry stop simply because the neighborhood is known for narcotics
sales. Even Alabama v. White was referred to by the Supreme
Court as a "close call," 496 U.S. at 332. The circumstances of
this case are far less compelling.
         Refusing to stretch Alabama v. White any further, we
hold that the police do not have reasonable suspicion for an
investigative stop when, as here, they receive a fleshless
anonymous tip of drug-dealing that provides only readily
observable information, and they themselves observe no suspicious
behavior. To hold otherwise would work too great an intrusion on
the Fourth Amendment liberties, for any citizen could be subject
to police detention pursuant to an anonymous phone call
describing his or her present location and appearance and
representing that he or she was selling drugs. Indeed anyone of
us could face significant intrusion on the say-so of an anonymous
prankster, rival, or misinformed individual. This, we believe,
would be unreasonable.

         We note that the government was not powerless to act on
the non-predictive, anonymous tip they received. The officers
could have set up surveillance of the defendant. See United
States v. Clipper, 973 F.2d at 951 ("If there is any doubt about
the reliability of an anonymous tip in [a drug case], the police
can limit their response to surveillance or engage in 'controlled
buys.'"). If the officers then observed any suspicious behavior
or if they had observed suspicious behavior as they approached
the defendant in this case, they would have had appropriate cause
to stop -- and perhaps even arrest -- him. This, however, they
did not do. In the absence of any observations of suspicious
conduct or the corroboration of information from which the police
could reasonably conclude that the anonymous tipster's allegation
of criminal activity was reliable, we must conclude that there
was no reasonable suspicion to stop the defendant.

                               III.
         For the reasons stated above, the judgment of the
district court will be reversed.
