U.S. v. Bold

• Decision Date: 17 March 1994
• Docket Number: D,No. 672,672
• Citation: 19 F.3d 99
• Parties: UNITED STATES of America, Appellant, v. Steven BOLD, Defendant-Appellee. ocket 93-1477.
• Court: U.S. Court of Appeals — Second Circuit

Page 99

19 F.3d 99

UNITED STATES of America, Appellant, v. Steven BOLD, Defendant-Appellee.

No. 672, Docket 93-1477.

United States Court of Appeals, Second Circuit.

Argued Dec. 13, 1993.

Decided March 17, 1994.

Judith Lieb, Asst. U.S. Atty. for Eastern Dist. of New York (Zachary W. Carter, U.S. Atty. for Eastern Dist. of New York, David C. James, Asst. U.S. Atty., of counsel), for appellant.

David A. Lewis, The Legal Aid Society, Federal Defender Services Unit, New York City, for defendant-appellee.

Before: FEINBERG, WINTER, and PRATT, Circuit Judges.

GEORGE C. PRATT, Circuit Judge:

FACTS AND BACKGROUND

On November 12, 1992, at about 4:20 p.m., five New York City policemen responded to a police radio call of an anonymous tipster that in the parking lot of a White Castle restaurant at the corner of Pennsylvania and Wortman Avenues in Brooklyn there was a four-door gray Cadillac with three black males, one of whom was armed with a gun. The armed man was reported to be 21 years old and wearing a hooded sweater.

The first policemen to reach the scene were Housing Authority police officers Timothy Brown and Richard Ferris. They entered White Castle's parking lot, and approached a gray Cadillac that was parked, alone, at the back of the lot, about eight parking spaces from the White Castle building. They drove behind the Cadillac and parked at an angle so that the car could not move out of its parking space and so they would be in the car's blind spot. Officer Brown proceeded immediately toward the rear passenger side of the Cadillac. He could not see into the car, however, because Officer Brown opened the back door of the car and looked in. Seeing two black men in the front seat, he said to them, "Gentlemen, please step out of the car." The passenger, later identified as Scott Burt, opened his door and stepped out of the car as directed. As he did so, officer Brown saw money in his lap, and more money fall from under his shirt to the ground. Officer Brown then patted Burt down, but found no weapon on him. He then moved Burt to the front of the car so the other officers could search it.

its windows were darkly tinted, a circumstance that "aroused [his] caution level."

Officer James Lavin, a foot patrolman, also responded to the radio call; he arrived at the scene as the Housing Authority officers were pulling up. Lavin approached the car and directed the driver, defendant Steven Bold, to get out; he then searched Bold for a weapon, but found nothing. While other officers searched the car, Lavin "kept the defendant on the car", that is, he had Bold keep his hands on the automobile with the officer's own "hand on the top of his back" so that Bold could not move at all. Bold was not moved from this position until he was formally placed under arrest about 25 minutes later.

Two other officers of New York City's 75th precinct, Emilio Fusco and James Kuhlmeier, responded to the radio call. After Lavin frisked Bold, Fusco looked into the car. On the floor he saw money, including $100 bills. He also saw on the floor what appeared to be a gun. When he picked the "gun" up, he realized it was a plastic toy gun.

Kuhlmeier at that point remembered that there had been a robbery earlier in the day at the Anchor Savings Bank on Liberty Avenue in Brooklyn. He radioed for a description of the robbers and obtained one that matched that of Steven Burt. He also learned that the robber had worn a tweed coat and carried a briefcase, two items that the officers had found in their search of the car. Burt and Bold were then placed under arrest and later were indicted for bank robbery.

Bold moved to suppress the evidence found in the car as well as some incriminatory statements he later made, on the ground that they were the fruits of the search and seizure in the White Castle parking lot, which were unlawful because they were made without reasonable suspicion. Specifically, Bold argued (1) that, "standing alone", an anonymous tip of a man with a gun does not amount to reasonable suspicion justifying a seizure, (2) that the reliability of the anonymous tip is not shown simply by corroborating easily obtained facts existing at the time of the tip, (3) that mere confirmation that a gray Cadillac was located at a specific White Castle could not add to the reliability of the report that one of the Cadillac's occupants had a gun, and (4) that there were here none of the factors present in other cases--prior information about the informant, significant observations at the scene giving credence to the tip, or the location being noteworthy for the type of crime alleged--that would raise the tip to the level of a reasonable suspicion. The district court properly focused its analysis on whether the officers had, at the time they opened the car doors, a "reasonable suspicion" under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). As the district court said,

[T]he suppression motion turns on the resolution of the issue of whether the information from the anonymous caller gave rise to the "reasonable suspicion" required for the police officers to open the doors of the Cadillac and order the occupants out so they could be frisked.

United States v. Bold, 825 F.Supp. 25, 28 (E.D.N.Y.1993).

The district court suppressed the evidence. Relying on Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), it held that an anonymous tip does not provide the basis for reasonable suspicion if it is corroborated only by "easily obtained facts and conditions existing at the time of the tip" and that "independent corroboration by the police of significant aspects of the informer's predictions" was required. Bold, 825 F.Supp. at 28. The court then examined the possible sources of corroboration for the tip in this case, and found none sufficient to establish reasonable suspicion under White. Specifically, the court held (1) that there was Unfortunately for Bold, four months after the district court suppressed the evidence, we held, in circumstances closely analogous to those in this case, that an anonymous tip of a suspect with guns created a reasonable suspicion justifying a brief detention and search. United States v. Walker, 7 F.3d 26 (2d Cir.1993). Walker requires reversal in this case.

insufficient corroboration for the anonymous "911" call, (2) that the caller's information did not include any predictions of future behavior by the defendant, and (3) that the officers had not made any "significant" observations at the scene that lent credence to the tip. Id. Judge Korman therefore granted the suppression motion.

DISCUSSION

In reviewing a district court's ruling on a motion to suppress, we will uphold findings of fact--what information the officers had, what acts were performed, and what statements were made--unless they are clearly erroneous. United States v. Uribe-Velasco, 930 F.2d 1029, 1032 (2d Cir.1991). We review de novo, however, the district court's legal conclusion of whether the police had reasonable suspicion. Walker, 7 F.3d at 29; see also United States v. Springer, 946 F.2d 1012, 1015 (2d Cir.1991).

A police officer may, in appropriate circumstances and in an appropriate manner, stop a person for purposes of investigating possibly criminal behavior, even though there is no probable cause to make an arrest. Terry v. Ohio, 392 U.S. at 22, 88 S.Ct. at 1880. The test is whether

a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger * * *. And in determining whether the officer acted reasonably in such circumstances due weight must be given, not to his inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.

Id. at 27, 88 S.Ct. at 1883 (citations and footnote omitted); see also United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (officer must be able to articulate something more than inchoate and unparticularized suspicion or hunch).

Reasonable suspicion depends upon both the content of the information possessed and its degree of reliability. White, 496 U.S. at 330, 110 S.Ct. at 2416. When evaluating tips from informants, courts must examine the totality of the circumstances. United States v. Salazar, 945 F.2d 47, 50 (2d Cir.1991) (required reasonable suspicion for Terry stop), cert. denied, --- U.S. ----, 112 S.Ct. 1975, 118 L.Ed.2d 574 (1992).

In contrast to an informant the police have previously dealt with, see Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), or a face-to-face informant, see, e.g., Salazar, 945 F.2d at 50-51 (face-to-face informant must be thought more reliable than an anonymous telephone tipster, for former runs the greater risk that he may be held accountable if his information proves false), anonymous tips generally fail to demonstrate the informant's basis of knowledge and/or independent veracity sufficient to provide the reasonable suspicion necessary for a Terry stop. White, 496 U.S. at 329, 110 S.Ct. at 2415. "[I]f a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip was more reliable." Id. at 330, 110 S.Ct. at 2416.

Like this appeal, Walker involved the issue of whether reasonable suspicion existed after police were able partially to confirm an anonymous tip. In Walker, the anonymous tip was that a black man would arrive in New York that day on a train from the south and...