United States v. Watson

• Decision Date: 17 August 2018
• Docket Number: No. 17-1651,17-1651
• Citation: 900 F.3d 892
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David WATSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

900 F.3d 892

UNITED STATES of America, Plaintiff-Appellee,

v.David WATSON, Defendant-Appellant.

No. 17-1651

United States Court of Appeals, Seventh Circuit.

Argued April 25, 2018

Decided August 17, 2018

David E. Hollar, Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.

Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, Peter W. Henderson, Attorney, Office of the Federal Public Defender, Urbana, IL, for Defendant-Appellant.

Before Manion, Hamilton, and Barrett, Circuit Judges.

Barrett, Circuit Judge.

The police received an anonymous 911 call from a 14-year-old who borrowed a stranger’s phone and reported seeing "boys" "playing with guns" by a "gray and greenish Charger" in a nearby parking lot. A police officer then drove to the lot and blocked a car matching the caller’s description. The police found that a passenger in the car, David Watson, had a gun. He later conditionally pleaded guilty to possessing a firearm as a felon, 18 U.S.C. § 922(g)(1), but preserved for appeal his argument that the court should have suppressed the gun because the stop lacked reasonable suspicion.

We agree with Watson that the police did not have reasonable suspicion to block the car. The anonymous tip did not justify an immediate stop because the caller’s report was not sufficiently reliable. The caller used a borrowed phone, which would make it difficult to find him, and his sighting of guns did not describe a likely emergency or crime—he reported gun possession, which is lawful. We therefore vacate the judgment and remand for further proceedings.

I.

Around 9:30 a.m. on Sunday, July 5, 2015, an unidentified caller in Gary, Indiana, phoned 911 to report that "boys" were "playing with guns and stuff" in a parking lot at an address that the caller specified. He explained that the boys "were standing there" by a "gray and greenish Charger" and "just out there playing with they guns." The caller said that he was 14 years old and was calling from a McDonald’s across the street. The 911 operator elicited a few more details: the "boys" were black, were in a group of four to five, and had two guns. The caller added that he was calling from a phone that he had just borrowed from "this man" and that he would "try to stay close" to it.

The 911 operator radioed this information to Officer Anthony Boleware of the Gary Police Department: "Have a man with a gun 1532 West Fifth Avenue. 1-5-3-2 West Fifth Avenue. Have five male blacks in the parking lot across from McDonald’s in a green—check that, a gray and green Charger displaying weapons. 1-5-3-2 West Fifth Avenue [inaudible]." Boleware testified at the suppression hearing that after hearing the dispatch, he identified the address as "a heavy area for crime" where the police were frequently called. He thought that this particular call was urgent because "[i]f it was described like three or four guys displaying weapons, they might [be] about to shoot somebody." Officer Wayne Dodson, another officer who responded to the call, also testified that he knew that address to be "a hot area" and considered the call urgent because "[a]ny time you have males with weapons, there’s always a sense of urgency ‘cause anything could happen."

Boleware drove to the address and saw in the parking lot "a Charger with about four guys sitting in it." Using his patrol car, he blocked the Charger before approaching it on foot. All of the occupants denied having any weapons in the car. Within nine minutes, three other officers arrived in response to Boleware’s request for backup, and each officer blocked a car door. At that point, Boleware told the other officers to take each occupant out of the car and frisk him for weapons. When another officer ordered Watson, the front seat passenger, out of the car, Watson threw a gun onto the backseat floor. Boleware grabbed the gun and noticed another gun inside the pouch in front of the backseat passenger.

Watson was charged with possessing a firearm as a felon, see 18 U.S.C. § 922(g)(1). He moved to suppress the two firearms recovered from the car. At a hearing, Boleware and Dodson testified as recounted above, and the court received the recording and transcript of the 911 call, the recording of the dispatch, and the surveillance video of the parking lot.

Watson argued that Boleware unlawfully seized him by blocking the Charger without reasonable suspicion that a crime had occurred or was imminent. The 911 caller, Watson said, reported only gun possession, which is lawful in Indiana, and did not establish the reliability of his anonymous tip. The government countered that under Navarette v. California , 572 U.S. 393, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014), the anonymous tip was reliable and established reasonable suspicion of a crime because the caller reported his own contemporaneous observations about persons playing with guns in a high-crime area. And the government contended that the collective-knowledge doctrine permitted the court to rely on facts that the dispatcher knew but did not convey to Boleware to support reasonable suspicion.

The district court concluded that the seizure was lawful and denied Watson’s motion to suppress. The court reasoned that the anonymous caller, like the tipster in Navarette , reported activity that he witnessed contemporaneously and provided enough detail to supply reasonable suspicion of a crime. In addition, the court agreed with the government that the collective-knowledge doctrine applied.¹ Following this ruling, Watson pleaded guilty to unlawfully possessing the gun but reserved the right to appeal the denial of his suppression motion. He was sentenced to 30 months in prison and 2 years of supervised release.

II.

Under the Fourth Amendment, an officer cannot stop someone to investigate potential wrongdoing without reasonable suspicion that "criminal activity may be afoot." Terry v. Ohio , 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Reasonable suspicion turns on "the totality of the circumstances" and whether the officer had "a particularized and objective basis for suspecting the particular person stopped of criminal activity." Navarette , 134 S.Ct. at 1687 (quoting United States v. Cortez , 449 U.S. 411, 417–18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) ). The government bears the burden of establishing reasonable suspicion, United States v. Uribe , 709 F.3d 646, 650 (7th Cir. 2013), and we review the reasonableness of a stop de novo. United States v. Miranda-Sotolongo , 827 F.3d 663, 666 (7th Cir. 2016).

Because anonymous tips relayed to a police officer "seldom demonstrate[ ] the informant’s basis of knowledge or veracity," they alone usually are not reliable enough to establish reasonable suspicion. Florida v. J.L. , 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (quoting Alabama v. White , 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) ). But the Supreme Court, in its most recent anonymous-tip case (which it called a "close case"), identified three factors that make an anonymous tip reliable enough to create reasonable suspicion: the tipster (1) asserts eyewitness knowledge of the reported event; (2) reports contemporaneously with the event; and (3) uses the 911 emergency system, which permits call tracing. Navarette , 134 S.Ct. at 1689–90. In that case, the Court ruled that an anonymous caller’s 911 report that a specified truck had just run her off the road gave the responding officer reason to stop the truck and its driver on suspicion of drunk driving. Id. at 1689–92.

The government argues that Navarette controls because its three factors are present here, thereby making the tip about "boys" "playing with guns" sufficiently reliable. The anonymous caller claimed to have personally observed two guns; he reported the event when he was just across the street from the guns; and he made the report via 911, which allowed the call to be traced. Several factors, however, distinguish this case from Navarette .

First and most significantly, Navarette ’s rationale for deeming 911 calls reliable has much less force here. The Supreme Court concluded that 911 calls are more dependable because their features "provide some safeguards against making false reports with immunity." Navarette , 134 S.Ct. at 1689. Specifically, the calls are recorded, so a victim of a false report may be able to identify the anonymous caller’s voice later, and the calls can be traced back to a particular phone number and geographic location. Id. at 1690. But here, the caller borrowed a stranger’s phone, limiting the usefulness of the system’s tracing ability. Any phone number identified would not lead back to the caller because he had no permanent connection to the phone, and the phone’s geographic location at the time of the call would be useful only so long as the caller remained near the phone. Under these circumstances, it is not obvious that the young caller would be worried about getting caught providing false information and therefore "think twice" before doing it. Id.

The second distinction is that the tip in Navarette reported conduct that the officers reasonably suspected to be criminal. There, the caller reported being run off the road by a truck, which "created reasonable suspicion of an ongoing crime such as drunk driving as opposed to an isolated episode of past recklessness." 134 S.Ct. at 1690–91. In contrast, the caller’s report in this case about the presence of guns did not create a reasonable suspicion of an ongoing crime, because carrying a firearm in public is permitted with a license in Indiana. See IND. CODE § 35-47-2-1(a). To be sure, the presence or use of guns is not always legal. The caller’s reference to "boys" might have meant minors, who generally cannot legally possess firearms in Indiana. See IND. CODE § 35-47-10-5(a). And "playing with guns" might mean using them illegally or dangerously, including by pointing a gun at another or engaging in "tumultuous...