U.S. v. Valentine

• Decision Date: 02 November 2000
• Docket Number: No. 00-1425,00-1425
• Citation: 232 F.3d 350
• Parties: (3rd Cir. 2000) UNITED STATES OF AMERICA, APPELLANT V. LARRY VALENTINE, A/K/A HASSAN DELOA TCH, A/K/A HASSAN DELOACH, A/K/A SHAWN VALENTINE
• Court: U.S. Court of Appeals — Third Circuit

Page 350

232 F.3d 350 (3rd Cir. 2000)

UNITED STATES OF AMERICA, APPELLANT

V.

LARRY VALENTINE, A/K/A HASSAN DELOA TCH, A/K/A HASSAN DELOACH, A/K/A SHAWN VALENTINE

No. 00-1425

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued October 6, 2000

Filed November 2, 2000

On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 99-cr-00345-1) District Judge: Honorable Katharine S. Hayden

[Copyrighted Material Omitted]

George S. Leone, Esq. Michael F. Buchanan, Esq. (Argued) Office of the United States Attorney 970 Broad Street, Rm. 700 Newark, NJ 07102 Counsel for Appellant

Kevin F. Carlucci, Esq. (Argued) Office of the Federal Public Defender 972 Broad Street Newark, NJ 07102 Counsel for Appellee

Before: Nygaard, Greenberg and Cowen, Circuit Judges

OPINION OF THE COURT

Cowen, Circuit Judge

After receiving a tip from an informant, two officers stopped Larry Valentine on a city street late at night and discovered a gun. The gun was subsequently suppressed, however, when the government prosecuted Valentine for being a felon in possession of a firearm in violation of 18 U.S.C. S 922(g)(1) and (2).

In suppressing the gun, the District Court reasoned that under Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375 (2000) the informant's tip about Valentine and the surrounding circumstances did not provide reasonable suspicion that Valentine was engaged in crime. The District Court also concluded that Valentine's actions after the officers ordered him to stop should not be considered, notwithstanding the Supreme Court's analysis of seizures under the Fourth Amendment in California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547 (1991).

We will reverse. We hold that the officers had reasonable suspicion before ordering Valentine to stop. This case is distinguishable from J.L. and our recent decision in United States v. Ubiles, 224 F.3d 213 (3d Cir . 2000). We also conclude that the District Court erred in interpreting Hodari D. Valentine's acts after the officers ordered him to stop should have been considered.

I.

Around 1:00 a.m. on May 8, 1999, Officers Woodard and Contreras were patrolling near the intersection of Columbia and 18th Avenues in Irvington, New Jersey, an area that the officers described in uncontradicted testimony as "very bad" with "[a] lot of shootings." App. at 63. As the officers approached the intersection, a young black man in his early twenties flagged them down and explained that he had just seen a man with a gun.

The informant said that the gunman was wearing a blue sweat top, blue pants, and a gold chain around his neck. He added that the suspect was dark skinned, had a beard, and was accompanied by a young man. When asked to identify himself, the informant refused, a response that Officer Woodard testified is common, and one that is understandable if the informant feared retribution from the armed man or entanglement with the police. The officers did not question the informant further and immediately went in search of the gunman.

About 50 to 100 feet north of the intersection where the officers had met the informant, Woodard and Contreras saw three men standing in a well-lit parking lot near a chicken restaurant. One of the men matched the informant's description of the armed suspect given moments ago, and another was a young male in his twenties, also as the informant described. The third was an older man who appeared to be in his sixties.

The officers, who were in uniform and in a marked car, stopped and stepped out of their vehicle. The three men in the parking lot reacted by walking away, northwards. Contreras ordered the young male with Valentine to stop, and he obeyed, putting his hands up and walking toward the squad car. But when Woodard told Valentine, who was about ten feet away, to come over and place his hands on the car, Valentine responded, "Who, me?" and charged southwards toward Woodard. As Valentine ran, trying to push aside Woodard's outstretched arms, the officer grabbed his shirt and wrestled him to the ground. During the scuffle, Woodard heard a ting as Valentine's silver, fully-loaded handgun hit the ground. Neither officer had seen the gun before that moment.

We have jurisdiction under 18 U.S.C. S 3731, and conduct plenary review of the District Court's determination of whether the officers had reasonable suspicion to stop and frisk Valentine. Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657 (1996); United States v. Riddick , 156 F.3d 505, 509 (3d Cir. 1998).

II

Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968) and subsequent cases, "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. Wardlaw, 528 U.S. 119, 120 S.Ct. 673, 675 (2000). Reasonable suspicion is "a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence." 120 S.Ct. at 675-76. Elaborating on this point, the Supreme Court has said, "Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause." Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416 (1990). The question we must address is whether Officers Woodard and Contreras had the "minimal level of objective justification" necessary for a Terry stop. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585 (1989). And in evaluating reasonable suspicion, "we must consider `the totality of the circumstances--the whole picture.' " Sokolow, 490 U.S. at 8, 109 S.Ct. at 1585 (quoting United States v. Cortez, 499 U.S. 411, 417, 101 S.Ct. 690, 696 (1981)).

We begin our analysis with the Supreme Court's recent opinion, J.L., the case that prompted the District Court to reconsider its initial denial of Valentine's suppression motion. In J.L. the Supreme Court held that police officers lacked reasonable suspicion to make a Terry stop when an anonymous caller reported that "a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun." Florida v. J.L., 120 S.Ct. at 1377. The Supreme Court explained that the precise issue before the Court was "whether the tip pointing to J.L. had [sufficient] indicia of reliability." 529 U.S. at ___ 120 S.Ct. at 1378. Finding the tip unreliable, the Court did not consider under what circumstances a reliable tip that someone was carrying a gun would provide the police with reasonable suspicion. Instead, the Court concluded, "All the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L." 529 U.S. at ____, 120 S.Ct. at 1379.

Discussing the reliability of anonymous tips, the Court explained, "Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, see Adams v. Williams, 407 U.S. 143, 146-147, 92 S.Ct. 1921, 1923-24 (1972), `an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity.' " J.L., 120 S.Ct. at 1378 (quoting Alabama v. White, 496 U.S. at 329, 110 S.Ct. at 2415). Nevertheless, even in the context of probable cause, the Court has rejected its earlier, inflexible two-prong test for tips set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584 (1969). Under Aguilar and Spinelli, the government could not rely on a tip unless the government could demonstrate both the basis of the informant's knowledge and the informant's reliability or veracity. The Court now uses a flexible standard that assesses the relative value and reliability of an informant's tip in light of the totality of the circumstances. See, e.g., Illinois v. Gates, 462 U.S. 213, 230-35, 103 S.Ct. 2317, 2328-30 (1983); Alabama v. White, 496 U.S. at 329, 110 S.Ct. at 2415.

The informant's tip in our case is different from the telephone call in J.L. First, unlike J.L., 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. At the suppression hearing, Officer Woodard was asked, "Did [the informant] say how long ago that he saw the individual carrying a gun?" Woodward replied, "About--maybe a second ago, two seconds ago." App. at 68. So the officers could expect that the informant had a reasonable basis for his beliefs. The Supreme Court has recognized the greater weight carried by a witness's recent report, such as when "the victim of a street crime seeks immediate police aid and gives a description of the assailant." Adams v. Williams, 407 U.S. at 147, 92 S.Ct. at 1924.

Second, the officers had more reason to believe that the informant was credible than the officers did in J.L., for a tip given face to face is more reliable than an anonymous telephone call. As the Fourth Circuit recently explained, when an informant relates information to the police face to face, the officer has an opportunity to assess the informant's credibility and demeanor . United States v. Christmas, 222 F.3d 141, 144 (4th Cir . 2000). And when an informant gives the police information about a neighbor (as in Christmas) or someone nearby (as in our case), the informant is exposed to a risk of retaliation from the person named, making it less likely that the informant will lie. Id. Similarly, as the Fourth Circuit noted, "citizens who personally report crimes to the police thereby make themselves accountable for lodging false complaints." Id....