United States v. McCants

• Decision Date: 18 December 2018
• Docket Number: No. 17-3103,17-3103
• Parties: UNITED STATES of America v. Ibrahim MCCANTS, Appellant
• Court: U.S. Court of Appeals — Third Circuit

911 F.3d 127

UNITED STATES of America

v.Ibrahim MCCANTS, Appellant

No. 17-3103

United States Court of Appeals, Third Circuit.

Argued September 6, 2018

Filed: December 18, 2018

Leticia Olivera [Argued], Office of Federal Public Defender, 1002 Broad Street, Newark, NJ 07102, Attorney for Appellant.

Mark E. Coyne, Richard J. Ramsay [Argued], Office of United States Attorney, 970 Broad Street, Room 700, Newark, NJ 07102, Attorneys for Appellee.

Before: HARDIMAN, KRAUSE, and BIBAS, Circuit Judges

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

Ibrahim McCants appeals his judgment of conviction and sentence. McCants argues he was wrongly convicted based on evidence that was found during an unconstitutional search. He also claims his sentence cannot stand because he was wrongly designated a career offender under the United States Sentencing Guidelines. For the reasons that follow, we will affirm.

I

On the afternoon of June 28, 2015, a New Jersey woman dialed 911 to report an ongoing domestic dispute. Here’s how the call went:

CALLER: Can I have the number to East Orange Police Department.

DISPATCHER: You need where?

CALLER: East Orange Police Department. It’s [sic ] emergency.

DISPATCHER: What’s the problem?

CALLER: This guy is out here beating up his girlfriend. He’s about to kill her.

DISPATCHER: Where’s this at?

CALLER: It’s on Grove Street in East Orange.

DISPATCHER: Grove and—where on Grove?

CALLER: Grove and, and, and like Williams Street.

DISPATCHER: What is he wearing?

CALLER: He’s wearing a red hat, with braids and he’s beating her up really bad right now I wanna break—I wanna break it up but, I don’t wanna do nothing.

DISPATCHER: No—you don’t want to do that. Stay—hold on a second, ma’am.

United States v. McCants , No. 15-551, 2016 WL 4705452, at *1 (D.N.J. Sept. 7, 2016). As the operator was preparing to dispatch police to the scene of the altercation, the caller repeated "he is beating her up really badly" and stated, "I think he has a gun." Id. The caller then hung up and the operator dispatched the call in this way:

Grove and William, Grove and William, right now from a caller, it’s a male beating a female really badly, male has braids with a red hat .... Again, it’s going to be Grove and William. Male, female. Male beating a female. Male has braids red hat—at this time, I am advising the caller not to intervene .... Now she is saying she believes he has a gun .... Red hat and braids. Alright, the caller disconnected.

Id.

East Orange police were in the area at the time the call was dispatched and they found a man matching the description near 146 Grove Street within one minute. Officer Moses Sangster was the first to arrive on the scene. He "noticed a male with dreads and a red hat" walking north on Grove Street with a woman. App. 76. The couple was later identified as Appellant Ibrahim McCants and Chelsea Fulton. Two other officers—Stephen Rochester and Cory Patterson—also arrived on the scene within minutes after hearing the call. Before they approached the couple, Officer Rochester confirmed with the dispatcher that "the male actor involved had dreadlocks." App. 78. Officers Rochester and Patterson then "immediately engaged" McCants and frisked him due to the "nature of the call for service." Id. During the pat down, Officer Rochester found a loaded handgun inside a fanny pack McCants was wearing. The officers placed McCants under arrest and recovered distributable quantities of heroin.

Several written police reports described the interactions between McCants and Fulton when the officers arrived at the scene. Officer Rochester reported that he observed McCants "speaking with a black female." Id.¹ Both McCants and Fulton confirmed in separate interviews they had been arguing, though Fulton said, "at no point did the argument get physical." App. 82. Officer Crystal Singleton and Detective Jaleesa Wreh reported that Fulton showed no signs of injury.

II

A grand jury charged McCants with unlawful possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) and possession with intent to distribute heroin in violation of 21 U.S.C. §§ 841(a) and (b)(1)(C). McCants filed a pretrial motion to suppress the firearm and drugs and requested an evidentiary hearing on the motion, arguing the officers did not have reasonable suspicion that he was engaged in criminal activity before they frisked him. The Government opposed the motion, and the District Court denied it without oral argument. The Court found that the stop was based on reasonable suspicion because the caller’s "anonymous tip bore sufficient indicia of reliability." McCants , 2016 WL 4705452, at *7.

The District Court then conducted a stipulated bench trial, and McCants was found guilty as charged on both counts. The United States Probation Office prepared a Presentence Investigation Report (PSR) in which it designated McCants a career offender. McCants objected to the PSR, arguing that his two previous second-degree robbery convictions in New Jersey did not qualify as crimes of violence under § 4B1.2 of the Sentencing Guidelines. Had the convictions not qualified as crimes of violence, his advisory range would have been lowered from 168–210 months to 63–78 months under Guidelines § 2K2.1. The District Court overruled McCants’s objection, concluding that his two prior robbery convictions qualified as crimes of violence. At sentencing, the Court varied downward, imposing a sentence of 120 months’ imprisonment followed by three years of supervised release. McCants timely appealed.

III

The District Court had jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). McCants argues that the District Court erred in denying his motion to suppress and in finding that his prior robbery convictions qualified as crimes of violence under Guidelines § 4B1.2. We review the District Court’s factual findings for clear error and its legal conclusions de novo. United States v. Lowe , 791 F.3d 424, 427 (3d Cir.2015). We review de novo the Court’s determination that a conviction constitutes a "crime of violence" under the Guidelines. United States v. Chapman , 866 F.3d 129, 131 (3d Cir.2017).

IV

We begin by addressing McCants’s argument that he was wrongly convicted because the District Court admitted into evidence the fruits (drugs and a gun) of an unconstitutional search. The dispositive question underlying this argument is whether the anonymous 911 tip provided sufficient indicia of reliability for reasonable suspicion of ongoing criminal activity.

The Fourth Amendment prohibits "unreasonable searches and seizures." U.S. CONST. amend. IV. Although searches generally require warrants supported by probable cause, officers may conduct brief investigatory stops under Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), if they have "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). Such reasonable suspicion requires "at least a minimal level of objective justification for making the stop" and more than an "inchoate and unparticularized suspicion or ‘hunch’ " of criminal activity. Id. at 123–24, 120 S.Ct. 673 (internal quotation marks omitted) (quoting Terry , 392 U.S. at 27, 88 S.Ct. 1868 ). We evaluate the totality of the circumstances in considering "whether a reasonable, trained officer standing in [the officer’s] shoes could articulate specific reasons justifying [the] detention." United States v. Brown , 448 F.3d 239, 246–47 (3d Cir.2006) (internal quotation marks omitted) (quoting Johnson v. Campbell , 332 F.3d 199, 206 (3d Cir.2003) ).

A body of caselaw has developed over the years involving anonymous reports to police of criminal activity. These tips can provide reliable information helpful to investigations and can create reasonable suspicion of ongoing criminal activity. Navarette v. California , 572 U.S. 393, 397, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014). Whether an anonymous tip provides enough information for reasonable suspicion depends "upon both the content of information possessed by police and its degree of reliability." Alabama v. White , 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).

Our Court has identified five factors that indicate reliability for anonymous tips:

(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[.]

United States v. Torres , 534 F.3d 207, 211 (3d Cir.2008) (ellipsis in original). In assessing the reliability of a tip, courts within the Third Circuit must consider these factors with reference to the totality of the circumstances presented in each case. Id.

Here, the District Court found that "the [c]aller’s anonymous tip bore sufficient indicia of reliability," which provided the officers with reasonable suspicion to stop and frisk McCants consistent with Terry . McCants , 2016 WL 4705452, at *7. In the District Court’s view, the tip sufficed because the caller used the 911 system to report firsthand knowledge of ongoing domestic violence, and she gave an accurate description that was quickly confirmed by the police.

McCants argues that the 911 call could not have provided the officers with reasonable suspicion to justify the stop for two main reasons: (1) the tip was vague and did not demonstrate sufficient indicia of reliability; and (2) the officers did not find corroborating evidence of domestic violence at the scene. These...