United States v. Norbert

• Decision Date: 16 March 2021
• Docket Number: No. 20-60106,20-60106
• Parties: UNITED STATES of America, Plaintiff—Appellant, v. Okanlawan O. NORBERT, Defendant—Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

990 F.3d 968

UNITED STATES of America, Plaintiff—Appellant,

v.Okanlawan O. NORBERT, Defendant—Appellee.

No. 20-60106

United States Court of Appeals, Fifth Circuit.

FILED March 16, 2021

Gregory Layne Kennedy, Esq., Andrew Eichner, Assistant U.S. Attorneys, U.S. Attorney's Office, Southern District of Mississippi, Jackson, MS, Gaines H. Cleveland, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Mississippi, for Plaintiff - Appellant.

Abby Brumley Edwards, Esq., Assistant Federal Public Defender, Thomas Creagher Turner, Jr., Esq., Federal Public Defender's Office, Southern District of Mississippi, Jackson, MS, for Defendant - Appellee.

Before Davis, Stewart, and Oldham, Circuit Judges.

W. Eugene Davis, Circuit Judge:

The Government appeals the district court's ruling granting Defendant-Appellee Okanlawan O. Norbert's motion to suppress evidence that was critical to establish the Government's charge of possession of a firearm by a convicted felon. The district court determined that police officers did not have reasonable suspicion to conduct the investigatory stop of Norbert. Therefore, Norbert's gun and statements to the police were suppressed as "fruit of the poisonous tree." Because the district court did not err in finding that the officers did not have reasonable suspicion to conduct an investigatory stop, we AFFIRM.

I. BACKGROUND

Norbert was charged in a one-count indictment for possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Following his indictment, Norbert moved to suppress the evidence of the gun and statements that he made to police officers before and after discovery of the gun, arguing that the police lacked any legal basis for the stop that resulted in discovery of the incriminating evidence.

The district court held a suppression hearing, where Investigators Felix McClinton and Kevin Lavine from the Hinds County Sheriff's Office testified. Investigator McClinton testified that on the morning of November 29, 2017, he received a phone call with an anonymous tip that illegal drugs were being sold in the parking lot of the Millsaps Apartments in Jackson, Mississippi. The caller said that she was in management at the apartment complex and described the suspected dealer as a "black male, dark skinned, slender build with gold teeth known as ‘N.O.’ " who drove a black Infiniti with a license plate of "HVK225." The complainant told McClinton that the alleged drug dealing was a "personal safety issue" and "the residents of the apartment complex were in fear of coming and going." However, McClinton testified that "he [could] not verify that it was someone from management" on the phone and he did not get the caller's name or telephone number. It was also unclear whether the caller witnessed the alleged drug activity herself or if she was only told about it by residents.¹

McClinton testified that he found the tipster to be credible based on his "training and experience." Around 8:00 P.M., McClinton and six to eight police officers went to the apartment complex to investigate the complaint. Upon arrival, McClinton saw "[t]hree to four individuals standing in the parking lot of the apartment complex standing next to some vehicles." McClinton said that he also saw a vehicle and an individual that matched the description provided by the complainant, but he "did not see any drug transactions taking place."

The police officers approached the men in the parking lot and said that they were investigating reported drug activity in the area. McClinton testified that when he asked the men if any of them lived at the apartment complex, none of them said that they did. The officers then conducted pat downs of the men for "officer safety," and the men identified themselves, enabling the officers to check through dispatch to see if any of them had valid warrants or criminal history on record. During the pat down, the officers discovered that one man had a misdemeanor amount of marijuana in his possession, but no evidence was found on Norbert's person.

McClinton testified that he then spoke to Norbert, who confirmed ownership of the black Infiniti, which was parked approximately 15 to 20 feet away. McClinton said that he then walked over to the Infiniti, looked in the window, and saw a handgun on the floorboard in front of the driver's seat, near the center console. He testified that he spoke to Norbert briefly, then opened the unlocked car door to secure the handgun due to officer safety concerns, but could not remember if Norbert had given him permission to enter the car.

Meanwhile, Investigator Lavine testified that when the officers arrived at the apartment complex, he saw the black Infiniti and several black men in the parking lot. After the police officers approached the group of men, Lavine said that Norbert walked toward the group from a courtyard area because "he wasn't there originally with the guys." Lavine conducted a pat down of Norbert.²

After the pat down, Lavine said that he struck up a conversation with Norbert, who "stated kind of jokingly, ‘Man, I started to run, but then I realized there was some more of you all on the other side. So I just turned around and came back.’ "³ Lavine testified that Norbert identified the black Infiniti as his. Lavine then walked over to the car, looked inside the window, and saw a gun wedged between the driver's seat and center console. Lavine testified that Norbert gave the officers consent to enter the vehicle. Lavine also said that the officers knew that Norbert had a felony conviction prior to seeing the gun in the car because they asked all the men for their identification and ran their names to check for criminal histories. After the police officers confirmed with Hinds County dispatch that Norbert had a felony conviction, Norbert was arrested.

Following the suppression hearing, the district court issued a written order granting Norbert's motion to suppress. The district court concluded that: (1) Norbert's detention was properly classified as an investigatory stop, not an arrest; (2) the police officers lacked reasonable suspicion to conduct an investigatory stop of Norbert based on the anonymous tip and insufficient on-scene corroboration or verification of the tip; and (3) Norbert's gun and statements to the police should be suppressed because they derived solely from the illegal stop. The Government timely filed an interlocutory appeal.

II. DISCUSSION

A. Reasonable Suspicion

"In considering a ruling on a motion to suppress, we review the district court's factual findings for clear error and its legal conclusions, including its ultimate conclusion as to the constitutionality of the law enforcement action, de novo."⁴ "Factual findings are clearly erroneous only if a review of the record leaves this Court with a ‘definite and firm conviction that a mistake has been committed.’ "⁵ In addition to deferring to the district court's factual findings, "[w]e view the evidence in the light most favorable to the party that prevailed in the district court," which in this case is Norbert.⁶ A district court's ruling on a suppression motion should be upheld "if there is any reasonable view of the evidence to support it."⁷

"A temporary, warrantless detention of an individual constitutes a seizure for Fourth Amendment purposes and must be justified by reasonable suspicion that criminal activity has taken or is currently taking place; otherwise, evidence obtained through such a detention may be excluded."⁸ To determine the reasonableness of such a detention, the court must examine "whether the officer's action was justified at its inception" and whether the officer's subsequent actions were "reasonably related in scope to the circumstances which justified the interference."⁹ To establish that a police officer's actions were justified at their inception, the officer must have a reasonable basis to suspect criminal activity.¹⁰ The Government has the burden of proving reasonable suspicion.¹¹

"The Supreme Court has evinced a strong distrust of anonymous tips. In particular, it has stated an anonymous tip that provides verifiable information as to a person's identity and location, without more, is insufficient to justify an investigative stop."¹² Only "under appropriate circumstances" does an anonymous tip "demonstrate ‘sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop.’ "¹³ To determine if an informant's tip provides reasonable suspicion for an investigative stop, the Fifth Circuit considers various factors, including:

the credibility and reliability of the informant, the specificity of the information contained in the tip or report, the extent to which the information in the tip or report can be verified by officers in the field, and whether the tip or report concerns active or recent activity, or has instead gone stale.¹⁴

The Government does not challenge the district court's determination that the detention and pat down of Norbert was an investigatory stop that required reasonable suspicion. Instead, the Government contends that the district court erred in concluding the tip was not credible or reliable and the police officers did not properly verify the tip. Moreover, it claims that the district court erred in balancing the factors for determining whether the informant's tip provided reasonable suspicion for the investigative stop, which in turn allowed the police officers to perform a protective sweep and seize the gun. This Court will consider each of the factors, in turn.

1. Credibility and Reliability of the Informant

Tips from known informants who have given police reliable information in the past are generally recognized as credible and reliable.¹⁵ "Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated ... ‘an anonymous tip alone seldom demonstrates the informant's basis of knowledge...