RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 United States v. Patterson No. 01-6001
ELECTRONIC CITATION: 2003 FED App. 0290P (6th Cir.)
File Name: 03a0290p.06 Appellant. Camille R. McMullen, UNITED STATES
ATTORNEY, Memphis, Tennessee, for Appellee.
UNITED STATES COURT OF APPEALS MARTIN, C. J., delivered the opinion of the court, in
which DAUGHTREY, J., joined. KENNEDY, J. (pp. 8-10),
FOR THE SIXTH CIRCUIT delivered a separate dissenting opinion.
_________________
_________________
UNITED STATES OF AMERICA , X
OPINION
Plaintiff-Appellee, - _________________
-
- No. 01-6001
v. BOYCE F. MARTIN, JR., Chief Circuit Judge. Michael
-
> Patterson proffered a conditional plea of guilty to possession
, of a firearm by a convicted felon in violation of Title 18
MICHAEL PATTERSON, - U.S.C. § 922(g). He reserved his right to appeal the district
Defendant-Appellant. - court’s denial of his motion to suppress evidence seized
N during a police search of his person. The district court
Appeal from the United States District Court sentenced Patterson to ten years imprisonment, followed by
for the Western District of Tennessee at Memphis. three years of supervised release. Patterson now appeals the
No. 01-20033—Jon Phipps McCalla, District Judge. district court’s denial of his motion to suppress. For the
reasons set forth below, we REVERSE.
Argued: March 28, 2003
On October 19, 2000, Officer Myron Fair of the Memphis
Decided and Filed: August 15, 2003 Police Department was given between fifteen to twenty
citizen complaints to investigate. One of those complaints
Before: MARTIN, Chief Circuit Judge; KENNEDY and regarded a group of males at the corner of Foster and Willet
DAUGHTREY, Circuit Judges. streets who were conducting illegal drug sales. Officer Fair
had at the time ten years of experience with the police
_________________ department, two of which were with the vice-narcotics
division. At trial, he described the corner of Foster and
COUNSEL Willett as a “hot spot,” a constant source of complaints
ranging “from domestic violence to shots fired, from drugs,
ARGUED: Randolph W. Alden, OFFICE OF THE carjackings . . . all day every day.”
FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for
Appellant. Camille R. McMullen, UNITED STATES Fair, along with his partner Felip Boyce, arrived at the
ATTORNEY, Memphis, Tennessee, for Appellee. corner on the day in question in an unmarked vehicle. As
ON BRIEF: Stephen B. Shankman, OFFICE OF THE they approached they saw “at least eight male blacks standing
FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for from the curb to the sidewalk to the top of the driveway” in
1
No. 01-6001 United States v. Patterson 3 4 United States v. Patterson No. 01-6001
front of 1564 Foster, which is “about a house length” from the reasonable suspicion to justify the stop. According to Terry,
intersection of Foster and Willett. Patterson was one of the id., this type of warrantless search is legal if
individuals in this group. The group did not alter their
behavior until the officers got out of their car dressed in a reasonably prudent man in the circumstances would be
police gear. At that point, the group moved away while warranted in the belief that his safety or that of others
tucking their hands in their pockets. The officers observed was in danger . . . And in determining whether the officer
one of the individuals, not Patterson, making a throwing acted reasonably in such circumstances, due weight must
motion towards the bushes. Seeing this, the officers be given . . . to the specific reasonable inferences which
requested that all of the individuals stop, take their hands out he is entitled to draw from the facts in light of his
of their pockets, and place them on a nearby vehicle. The experience.
officers claim this was to search for weapons and drugs and
to ensure the officers’ safety. Other officers arrived in a The Court expounded on Terry in United States v. Cortez, 449
second unmarked car shortly thereafter. U.S. 411, 417-418 (1981), stating that
Officer Fair conducted a pat down of Patterson and found [a]n investigatory stop must be justified by some
a .40 caliber revolver in his right side waistband. Patterson objective manifestation that the person stopped is, or is
was subsequently handcuffed and arrested. about to be, engaged in criminal activity . . . the totality
of the circumstances--the whole picture--must be taken
On February 21, 2001, a federal grand jury in the Western into account. Based upon that whole picture the detaining
District of Tennessee returned an indictment charging officers must have a particularized and objective basis for
Michael Patterson with possession of a firearm by a convicted suspecting the particular person stopped of criminal
felon in violation of Title 18 U.S.C. § 922(g). The defendant activity.
filed a motion to suppress evidence on March 22. The district
court conducted an evidentiary hearing on the motion on With these tests in mind, we now look to the evidence
April 6. At the conclusion of the hearing, the court issued an articulated by the officers to support their reasonable
oral ruling denying the motion. The defendant entered a suspicion to search the group at Foster and Willet. The entire
conditional guilty plea, reserving his right to appeal the denial incident began with an anonymous call to a drug hotline for
of the motion to suppress evidence, and on August 7, he was the reporting of drug-related crimes. The message on the
sentenced to the maximum penalty of ten years imprisonment hotline complained about drug sales at the corner of Foster
with three years of supervised release. and Willett at some earlier time on the day in question. At
9:30 pm, over five and a half hours after Officer Fair received
We review a district court’s legal conclusions with respect the complaint, he and Officer Boyce arrived at the location.
to a motion to suppress de novo. United States v. McLevain, At a house near the corner, the officers observed eight black
310 F.3d 434, 438 (6th Cir. 2002). males at the front of a house. When the police officers
revealed that they were police officers, the group put their
In Terry v. Ohio, 392 U.S. 1, 27 (1968), the Supreme Court hands in their pockets and began walking away from the
held that officers have the authority under the Fourth officers. At this, the officers instructed the group to stop
Amendment to stop and temporarily detain citizens with only moving and put their hands on the car. At this point, the
officers needed to have reasonable suspicion in order to stop
No. 01-6001 United States v. Patterson 5 6 United States v. Patterson No. 01-6001
the defendant. United States v. Buchanon, 72 F.3d 1217, suspicion to stop and frisk a person. To allow the tip alone to
1226 (6th Cir. 1995). establish reasonable suspicion would allow officers carte
blanche to search every person in the vicinity.
In Florida v. J.L., 529 U.S. 266 (2000), police officers
received an anonymous tip that a young black male wearing Without the anonymous tip, the officers merely observed a
a plaid shirt was at a bus station and carrying a firearm. In group of individuals walking away from the area, in isolation
that case, the Court held that the anonymous tip was not an innocuous behavior unless the officers have detained them.
enough, despite the inclusion of age, race, clothing type, and Florida v. Royer, 460 U.S. 491, 498 (1983). Walking in the
specific location of the defendant, to justify reasonable opposite direction from the police could be considered an
suspicion. Id. at 271. In this case, Officers Fair and Boyce indication of a person’s fear of being caught participating in
had none of that information. The tip merely described drug illegal activities, but it also could be purely innocent activity.
activity without any details as to the perpetrators. An We addressed innocent activity in the context of reasonable
anonymous tip’s reliability stems from its ability to predict suspicion in United States v. Smith, 263 F.3d 571, 593-594
future activities. Alabama v. White, 496 U.S. 325, 332 (6th Cir. 2001) (internal citations omitted) when we said the
(1990). The anonymous tip in this case offered no reliable or following:
meaninfgul information in support of reasonable suspicion
because it was not specific enough as to a prediction of future This Court is aware that under the totality of the
unlawful activities. circumstances test it is possible that "objective facts,
meaningless to the untrained" can provide the basis for
A comparable case to this one is United States v. Roberson, reasonable suspicion. However, some factors may be
90 F.3d 75 (3rd Cir. 1996). In that case, the police acted "outrightly dismissed," because they are "so innocent or
immediately on an anonymous tip that indicated that there susceptible to varying interpretations as to be
was illegal activity occurring at a drug “hot spot” and gave a innocuous." . . . It is possible for factors, although
description of the perpetrator as “a heavy-set, black male insufficient individually, to add up to a reasonable
wearing dark green pants, a white hooded sweatshirt, and a suspicion--that is the nature of the totality of the
brown leather jacket.” Id. The Third Circuit held that even circumstances test. But we think it impossible for a
this detailed tip alone was not enough to grant reasonable combination of wholly innocent factors to combine into
suspicion, because the tip had no basis for reliability. Id. at a suspicious conglomeration unless there are concrete
81. Here, however, we do not have the degree of specificity reasons for such an interpretation . . . Although the
of the tip, nor do we have the closeness in time of the trip to government presented several factors which could, under
the stop. The hotline tip is of little value as to establishing different circumstances, and in combination with other
reasonable suspicion. factors, support a finding of reasonable suspicion, under
the facts of this case, they merit little, if any, weight in
We do, however, recognize the difficulty in fighting drug our analysis.
crimes and the great success that cities like Memphis have
had in catching and prosecuting drug-related offenders We believe that Patterson walking away from the police when
through tools like this hotline. The problem arises when they got out of their unmarked car constitutes a factor to be
officers use vague information about an intersection already outrightly dismissed. Patterson’s behavior is innocent and
known as a “hot spot” as the sole basis for reasonable insufficient to provide the police with reasonable suspicion.
No. 01-6001 United States v. Patterson 7 8 United States v. Patterson No. 01-6001
Finally, in articulating the basis for their reasonable _______________
suspicion to stop Patterson, the officers argue that their
observation at the scene of one of the group throwing an DISSENT
object away contributed to the totality of the circumstances _______________
supporting their reasonable suspicion to stop the group. The
Supreme Court has made clear, however, that a warrantless KENNEDY, Circuit Judge, dissenting. Contrary to the
search must be based on individualized suspicion. Chandler majority, I believe that under the totality of circumstances test
v. Miller, 520 U.S. 305, 313 (1997). In order to search the officers’ decision to stop Patterson was supported by a
Patterson, the officers only could factor in Patterson’s actions reasonable suspicion that Patterson was engaged, or about to
and the circumstances surrounding him alone in order to be engaged in, drug sales. Accordingly, I respectfully dissent.
constitute reasonable suspicion. Because the officers might
have seen one member of the group throw something lends The Supreme Court has recently clarified the proper
little more to the totality of the circumstances surrounding application of the totality of circumstances test. In United
Patterson. See id. States v. Arvizu, the Court made clear that courts are not to
view in isolation the factors upon which police officers base
For the foregoing reasons, the judgment of the district court their reasonable suspicion. See 534 U.S. 266, 274 (2002)
is REVERSED. This case is REMANDED for further (stating that “[t]he court’s evaluation and rejection of seven
proceedings in accordance with this opinion. of the listed factors in isolation from each other does not take
into account the ‘totality of circumstances,’ as our cases have
understood that phrase.”). Rather, courts must consider all of
an officer’s observations, giving due credit to any inferences
drawn by an officer based experience or training. Id. at 275-
77.
The majority dismisses the import of the citizen complaint
that brought the officers to the intersection of Foster and
Willett on the grounds that the information conveyed by the
tip was not specific enough to allow the officers to predict
future criminal activities at the named location or by the
described persons. The majority dismisses out right the
notion that Patterson’s conduct in concealing his hands and
walking away from the officers’ approach could be
considered evasive conduct that could reasonably raise an
officer’s suspicion. And finally, the majority dismisses the
relevance of the officers observing a man in the group
throwing something into the bushes before concealing his
hands in his pockets.
No. 01-6001 United States v. Patterson 9 10 United States v. Patterson No. 01-6001
While I agree that the tip alone would not support stopping when considered in light of the totality of circumstances
Patterson, the officers were not acting only on the tip. Officer provided a basis for the officers to reasonably suspect that he
Boyce testified that the complaint was about “people hanging was engaged or about to be engaged in illegal drug sales. I
out in that corner of the area selling drugs.” The complaint would, therefore, affirm the district court’s decision to deny
provided a framework for observing the street scene and its Patterson’s motion to suppress.
participants and applying the officers’ professional expertise
in regards to this neighborhood and the street level sale of
drugs. Officer Fair, a ten-year veteran of the police
department and a two-year veteran of the vice-narcotics unit,
testified that the Foster and Willett area is a “hot spot” for
criminal activity and that he had investigated numerous drug
complaints in the immediate vicinity. Officer Boyce, also a
veteran of the vice-narcotics unit, testified that his suspicion
was raised when the men congregated in front of 1564
Willett attempted to evade contact with the officers once the
men recognized that police officers were approaching them.
Officer Boyce also testified that one of the men made a
throwing motion towards some bushes, conduct Officer
Boyce believed was consistent with disposing of drugs. This
testimony makes clear that the officers reasonably suspected
that the men, Patterson included, were engaged in street drug
sales because the men were loitering after dark in a location
that was both generally known for street level drug sales and
the subject of a recent drug sales complaint, the men
attempted to evade police detection of their activity by
concealing their hands and walking away, and one man in the
group surreptitiously disposed of something in the bushes
prior to concealing his hands. This court must give due credit
to the inferences drawn by Officers Fair and Boyce based on
their specialized training as officers in narcotics division and
Officer Fair’s experience with drug sales in this
neighborhood. Due credit is not given when factors such as
the citizen complaint and evasive conduct are dismissed
outright.
As the Arvizu Court pointed out, “[a] determination that
reasonable suspicion exists . . . need not rule out the
possibility of innocent conduct.” Id. at 277. Though
Patterson’s conduct may have been innocent, his conduct