U.S. v. Roberson, 95-1827

• Decision Date: 16 July 1996
• Docket Number: No. 95-1827,95-1827
• Citation: 90 F.3d 75
• Parties: UNITED STATES of America v. Lester ROBERSON, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 75

90 F.3d 75

UNITED STATES of America v. Lester ROBERSON, Appellant.

No. 95-1827.

United States Court of Appeals, Third Circuit.

Argued May 15, 1996.

Decided July 16, 1996.

Michael R. Stiles, Walter S. Batty, Jr., Nancy B. Winter, Office of United States Attorney, Philadelphia, PA, Nina A. Pala (argued), Office of United States Attorney, Wilmington, DE, for Appellee.

Elizabeth Hey (argued), Robert Epstein, Elaine DeMasse, Maureen Kearney Rowley, Defender Association of Philadelphia, Federal Court Division, Philadelphia, PA, for Appellant.

Before BECKER, NYGAARD, and LEWIS, Circuit Judges.

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, 88 S.Ct. 1868, 20 L.Ed.2d 889 (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, 1995 WL 314714 (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. ¹ 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. ² 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, --- U.S. ----, ---- - ----, 116 S.Ct. 1657, 1662-63, 134 L.Ed.2d 911 (1996).

II.

A.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), 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. 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, 88 S.Ct. at 1884. 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. 410, 416, 89 S.Ct. 584, 589, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964). Under those cases, to be credible, an informant's tip had to indicate both the basis for the informant's knowledge and facts sufficient to establish his veracity or reliability.

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (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, 103 S.Ct. at 2329. (citations omitted). In Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (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, 103 S.Ct. at 2325. An Illinois detective learned that Mr. Gates had made a reservation to fly to Florida on May 5. Id. at 225-26, 103 S.Ct. at 2325-26. 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, 103 S.Ct. at 2325-26.

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 Mr. Gates's quick overnight stay was suggestive of a drug run. Id. at 243, 103 S.Ct. at 2334-35. 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, 103 S.Ct. at 2335. Stressing the value of corroboration, the court...