U.S. v. Gibson

• Decision Date: 19 September 1995
• Docket Number: No. 94-4104,94-4104
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Oliver L. GIBSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 617

64 F.3d 617

UNITED STATES of America, Plaintiff-Appellee, v. Oliver L. GIBSON, Defendant-Appellant.

No. 94-4104.

United States Court of Appeals Eleventh Circuit.

Sept. 19, 1995.

Luis I. Guerra, Asst. Federal Public Defender, Miami, FL, for appellant.

Kendall Coffey, U.S. Atty., Jeanne Mullenhoff, Linda Collins Hertz, Miami, FL, for appellee.

Appeal from the United States District Court for the Southern District of Florida.

CORRECTED OPINION

Before COX, Circuit Judge, HILL and REYNALDO G. GARZA ^*, Senior Circuit Judges.

REYNALDO G. GARZA, Senior Circuit Judge:

On August 10, 1993, a federal grand jury returned a one count indictment against Oliver L. Gibson ("Gibson") for being a convicted felon in knowing possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1). Gibson pled not guilty to the charge and filed a motion to suppress the firearm. The district court denied the motion, finding that public policy permits the stop and frisk of an individual when police have a partially corroborated anonymous tip that the individual has a firearm. ¹

On November 8, 1993, Gibson was tried and convicted by a jury of his peers and was subsequently sentenced to a fifteen year imprisonment term, five years of supervised

release, and a $50 special assessment. Gibson appeals both the district court's failure to suppress the physical evidence and the sentence it imposed. For the reasons discussed below we affirm the district court's judgement.

BACKGROUND

On the evening of February 28, 1993, the Miami Police Department received an anonymous telephone call informing it that two African-American men at Tiny's Bar were believed to be armed. Although it was unknown at that time, the call was placed by the bar's manager. ² She described one of the individuals as wearing beige pants and a white shirt and the other as wearing a long black trench coat. Police Officers J.R. Green ("Green") and Kevin McNair ("McNair") arrived at the scene between one and two and a half minutes after the phone call was received.

The officers observed an African-American male, wearing beige pants and a white shirt, standing outside the club. After Officer Green made eye contact with him, the subject walked quickly from the bar. The officers were unable to stop or apprehend him. ³ The officers then entered the bar and scanned the room. They quickly established that Gibson, an African-American male, was the only individual wearing a long black trench coat and therefore approached him. Both officers testified that Gibson, who had his back to them, turned to face them and simultaneously reached behind his back with both hands. At that point, Officer Green unholstered his weapon and pointed it at Gibson while explaining that he was believed to be carrying a firearm. Officer McNair frisked Gibson, felt a hard bulge in the right trench coat pocket, and removed the object. It was an ammunition clip. Officer Green re-holstered his weapon, frisked Gibson, and removed a firearm from his back waist area underneath the trench coat. Gibson was placed under arrest.

The officers testified that, when they entered Tiny's Bar, they had no facts on which to base the investigatory stop and frisk apart from the information provided by the anonymous caller. However, Officer McNair did testify that he knew weapons were common in the area. Officer McNair also testified that though he was not afraid of Gibson, he nevertheless unfastened the safety snap on his holster when he approached him. Officer Green, on the other hand, testified that he felt fear and apprehension as he approached Gibson due to the fact that he was allegedly armed. Furthermore, as we already noted, both officers testified to Gibson's reaction when he was confronted.

DISCUSSION

I.

Gibson states that the anonymous tip did not exhibit sufficient indicia of reliability to justify the stop and frisk. He argues that the information provided by the tipster was vague and relayed nothing more than easily obtained facts, that is, a description of the clothes worn by Gibson and the second individual. He alleges that the anonymous information failed to predict his future behavior and that the officers failed to conduct an independent investigation to corroborate the information provided by the anonymous caller. Gibson adds that he did not do anything suspicious at the bar that would lead the officers to believe the tipster's information was reliable. Accordingly, he maintains that the evidence should be suppressed on the ground that it was the fruit of an unlawful stop and frisk because it was made without reasonable suspicion.

The Supreme Court addressed the reliability of anonymous tips in Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). In that case, the Montgomery Police After reviewing the totality of the circumstances, the Court held that the independently corroborated anonymous tip exhibited sufficient indicia of reliability to justify an investigatory stop of the defendant's vehicle. Id. at 332, 110 S.Ct. at 2417. The Court reasoned that the "independent corroboration by the police of significant aspects of the informer's predictions imparted some degree of reliability to the other allegations made by the caller." Id. ⁴ The Court also believed it important, as in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (dealing with anonymous tips in probable cause context), that

Department had received an anonymous phone call stating that a woman would be leaving 235-C Lynwood Terrace Apartments at a particular time. The caller predicted that she would drive a brown Plymouth station wagon with a broken right taillight lens, that she would drive to Dobey's Motel, and that she would be in possession of a brown attache case containing approximately one ounce of cocaine. Two officers proceeded to the Lynwood Terrace Apartments and established surveillance on the defendant's apartment. At the designated time, the officers observed a woman, with nothing in her hands, exit the building and leave in the station wagon. The officers followed the vehicle, but stopped the driver before she reached the Dobey Motel and informed her of their suspicions. The officers obtained her permission to search the car and found a brown attache case. After the woman provided the officers with the combination to the case, marijuana was discovered. She was placed under arrest. Additionally, while the defendant was being processed at the police station, officers discovered three milligrams of cocaine in her purse. The defendant attempted to suppress the marijuana and cocaine but the motion was denied by the district court. This ruling was later reversed by the Court of Criminal Appeals of Alabama on the basis that the officers did not have the reasonable suspicion necessary to justify the investigatory stop. The Supreme Court granted certiorari.

"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." [Gates ], at 245, 76 L.Ed.2d 527, 103 S.Ct. 2317. 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 respondent's affairs. The general public would have had no way of knowing that respondent would shortly leave the building, get in the described car, and drive the most direct route to Dobey's Motel. 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. See id. at 245, 76 L.Ed.2d 527, 103 S.Ct. 2317. When significant aspects of the caller's predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop.

White, 496 U.S. at 332, 110 S.Ct. at 2417 (original emphasis). The Court concluded that the stop was justified, though, admittedly, it was a "close call." Id. Therefore, the Court established that anonymous tips corroborated by independent police work can be reliable enough to provide reasonable suspicion to make investigatory Terry ⁵ stops.

This Circuit has not squarely addressed the extent to which a tipster must detail the In United States v. Clipper, 973 F.2d 944 (D.C.Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1025, 122 L.Ed.2d 171 (1993), the police department received an anonymous telephone call reporting that an armed African-American male was in a particular area. According to the caller, the individual was wearing a green and blue jacket and a black hat. Two officers responded immediately to the tip. After they arrived at the designated area, they observed an individual matching the description of the suspect. The officers detained him and performed a protective frisk. Although no firearm was recovered, they discovered a wad of currency and a bag of crack cocaine. The suspect was arrested for possession of a cocaine substance with the intent to distribute.

                facts relating to an individual before the information given becomes sufficiently "reliable" to justify an investigatory stop and frisk under White.   More importantly, we have not addressed the issue in this particular context, i.e., where the police receive an anonymous phone call detailing innocent details and warning of an armed or potentially armed individual.  However, at least two of our sister courts have addressed this issue.  We turn to these courts for guidance
                

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