U.S. v. Torres

• Decision Date: 23 July 2008
• Docket Number: No. 07-1669.,07-1669.
• Citation: 534 F.3d 207
• Parties: UNITED STATES of America, Appellant v. Johnny TORRES.
• Court: U.S. Court of Appeals — Third Circuit

534 F.3d 207

UNITED STATES of America, Appellant v. Johnny TORRES.

No. 07-1669.

United States Court of Appeals, Third Circuit.

Argued March 5, 2008.

Filed: July 23, 2008.

Robert A. Zauzmer (Argued), United States Attorney's Office, Philadelphia, PA, for Appellant.

Dennis J. Cogan (Argued), Cogan, Petrone & Associates, Philadelphia, PA, for Appellee.

Before: BARRY, JORDAN and HARDIMAN, Circuit Judges.

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

In this appeal arising under the Fourth Amendment, we consider whether Philadelphia police officers possessed sufficient reasonable articulable suspicion to stop a car. The traffic stop was based on information provided by a taxi driver who called 911 after he saw a man brandish a gun at a gas station. The District Court found that the 911 call did not provide police with reasonable suspicion to effectuate the traffic stop and, accordingly, suppressed the evidence gathered after the stop. Because we find that the totality of the circumstances amounted to reasonable suspicion, we will reverse.

I.

On February 22, 2005, at 2:59 p.m., the Philadelphia Police Department received a 911 call which included the following information:

CALLER: Heading to Philadelphia, Pennsylvania heading North on Broad at South Street. You got a guy with a BMW-742 or 5I. License plate F Frank Victor Able 7726. Flashed a gun at the Hess station at a Bum [sic] trying to sell roses.

DISPATCHER: Heading North bound, you said?

CALLER: No, negative, he is now turned on South Street you got a cop right in front of him and I'm in back of him.

DISPATCHER: Alright give me the description of the male. Is he Black, White, or Hispanic Sir?

CALLER: He is Hispanic, 745I Silver BMW, Frank Victor Able 7726 at 13 N. South heading towards the Delaware. You got a cop right in front of him and he is following the cop. I'm behind him in a green cab.

* * *

CALLER: He's right in front of me. He has a 45, he had it in the console between the seats. He [took] it out and waved it at the bum selling roses at the Hess station. Your cop just turned right on 12th.

DISPATCHER: All right Sir.

CALLER: All right and he still, I'm behind him. I'm still on South Street just past 12th approaching 11th. I'm in a green Avenguard cab.

DISPATCHER: Okay, we got the job put out sir. All right, a Hispanic male that's all you have?

CALLER: He's at a red light now at 10th, I'm right behind him.

DISPATCHER: Sir, do not follow him, sir, the Police will be there as soon as possible. He's heading Eastbound on South Street some one will be there sir.

CALLER: All right remember he's got a 45 looks like a Glock in the center console. I was pumping gas at [sic] adjacent pump when he waved it at the bum. All right.

DISPATCHER: All right, Thanks.

CALLER: Your [sic] welcome, I'm going to peel off.

At 3:02 p.m.—only three minutes after the 911 call was initiated—dispatch radioed officers on patrol and told them that a Hispanic male driving a silver BMW 745i with license plate FVA-7726 was driving eastbound on South Street, and that the driver had a gun.

Immediately upon receiving the report, officers in the field asked whether the dispatcher "got a complainant" for it; the dispatcher informed them that "no complainant is showing." Within minutes, plainclothes officers observed a BMW 745i matching the dispatcher's description and with license plate FVA-7726 pass them on South Street, approximately twelve blocks from where the taxi driver had initially reported it. Pursuant to department policy, the plainclothes officers relayed the information to uniformed police officers. By 3:07 p.m., uniformed officers spotted the vehicle, stopped it, and found that its driver—Defendant Johnny Torres, a Hispanic male—had a fully-loaded 9 millimeter handgun with one round in the chamber stowed in the pocket of the driver's side door.

A grand jury indicted Torres on one count of possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Torres filed a motion to suppress the weapon and ammunition, arguing that the tip from the taxi driver did not supply reasonable suspicion for the stop. The District Court granted the motion to suppress after a hearing, and the Government appealed.

II.

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 and our jurisdiction arises under 18 U.S.C. § 3731. The Government argues that the District Court erred in suppressing the handgun and the ammunition. The parties agree that the decision to suppress turns on the question of whether the officers had a right to stop Torres's vehicle pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

"In reviewing a suppression order, we exercise plenary review over the District Court's legal conclusions, and we review the underlying factual findings for clear error." United States v. Laville, 480 F.3d 187, 190-91 (3d Cir.2007) (citation omitted). We review de novo the District Court's legal conclusion that the officers lacked sufficient reasonable articulable suspicion to effectuate a Terry stop. See Johnson v. Campbell, 332 F.3d 199, 206 (3d Cir.2003).

III.

The Fourth Amendment prohibits "unreasonable searches and seizures...." U.S. Const. amend. IV. "Generally, for a seizure to be reasonable under the Fourth Amendment, it must be effectuated with a warrant based on probable cause." United States v. Robertson, 305 F.3d 164, 167 (3d Cir.2002) (citation omitted). Under the exception to the warrant requirement established in Terry, however, "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. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (citation omitted). "Any evidence obtained pursuant to an investigatory stop (also known as a `Terry stop' or a `stop and frisk') that does not meet this exception must be suppressed as `fruit of the poisonous tree.'" United States v. Brown, 448 F.3d 239, 244 (3d Cir.2006) (citations omitted).

The initial step of a Fourth Amendment suppression analysis requires us to determine the timing of the seizure. "[U]nder Terry, in evaluating whether [the officer's] interaction with [the defendant] prior to his arrest amounted to an unreasonable seizure, we must first determine at what moment [the defendant] was seized...." Johnson, 332 F.3d at 205. In the case at bar, the District Court found—and the parties do not dispute—that Torres was seized when the officers stopped his car.

Having pinpointed the time of the Fourth Amendment seizure, we next ask "whether that seizure was justified by reasonable, articulable facts known to [the officer] as of that time...." Id. When officers are told to investigate a situation by a police dispatcher, as was the case here, the court must look beyond the specific facts known to the officers on the scene to the facts known to the dispatcher. See United States v. Nelson, 284 F.3d 472, 481 (3d Cir.2002) (analyzing the reasonableness of a Terry stop by asking whether the officer who, functioning as a dispatcher, had "sufficient grounds to view the tip as reliable and issue the radio bulletin pursuant to which the car was stopped") (citation omitted); see also Rogers v. Powell, 120 F.3d 446, 453 (3d Cir. 1997) ("The legality of a seizure based solely on statements issued by fellow officers depends on whether the officers who issued the statements possessed the requisite basis to seize the suspect.") (emphasis in original). In other words, the knowledge of the dispatcher is imputed to the officers in the field when determining the reasonableness of the Terry stop.

The Government concedes that the unidentified taxi driver's tip was "the only information" known by the police when they seized Torres. When the Government relies upon a tip from an unidentified informant as the basis for reasonable suspicion, assessing the reasonableness of a Terry stop becomes more intricate. See Adams v. Williams, 407 U.S. 143, 146-47, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (noting the reliability problems of anonymous telephone tips and distinguishing anonymous tips from tips given by a known informant whose reputation can be assessed and whose information is immediately verifiable at the scene). The Supreme Court has made clear that "an informant's `veracity,' `reliability,' and `basis of knowledge' ... [are] `highly relevant in determining the value of his report.'" Alabama v. White, 496 U.S. 325, 328, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) (quoting Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). The honesty of the caller, the reliability of his information, and the basis of his knowledge are "closely intertwined issues that may usefully illuminate the commonsense, practical question" of whether there is reasonable suspicion to support a Terry stop. Gates, 462 U.S. at 230, 103 S.Ct. 2317; see also White, 496 U.S. at 328-29, 110 S.Ct. 2412 (applying the Gates analysis to reasonable suspicion context). This Court has identified the specific aspects of tips which indicate their reliability:

(1) The tip information was relayed from the informant to the officer in a face-to-face interaction such that the officer had an opportunity to appraise the witness's credibility through observation.

(2) The person providing the tip can be held responsible if her allegations turn out to be fabricated.

(3) The content of the tip is not information that would be available to any observer....

(4) The person providing the information has recently witnessed the alleged criminal activity.

(5) The tip predicts what will follow, as this provides police the means to test the informant's knowledge or credibility

See Brown, 448 F.3d at 249-50 (citations and internal quotation marks omitted). Other factors can bolster what would otherwise be an insufficient tip, such as "[the p]resence of a...