[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
April 30, 2004
THOMAS K. KAHN
No. 03-14811
CLERK
________________________
D. C. Docket No. 02-00526-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARIUS HEARD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 30, 2004)
Before BIRCH, MARCUS and BRUNETTI*, Circuit Judges.
BIRCH, Circuit Judge:
*
Honorable Melvin Brunetti, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
This appeal presents an issue of first impression in this circuit: when does
an anonymous tip give rise to reasonable suspicion sufficient to justify a Terry1
stop? The Supreme Court, in Florida v. J.L., 529 U.S. 266, 120 S. Ct. 375 (2000),
held that an anonymous tip, without sufficient indicia of reliability, will not
establish reasonable suspicion. Distinguishing J.L., the district court here denied
defendant-appellant's motion to suppress evidence seized and statements made
during a Terry stop-and-frisk. We AFFIRM.
I. BACKGROUND
On 25 October 2000, at about 5:00 PM, MARTA 2 police officer C.D. Gore
was patrolling the Ashby Street MARTA station when he was informed by
MARTA patrons that a fight was in progress inside the station. Gore called for
back-up, as required, and then went to investigate the fight. Inside the station,
Gore observed a woman yelling at defendant-appellant, Darius Heard, and
demanding fifty dollars. Gore stated, “What's going on? Can I help you?” and the
woman responded that Heard owed her fifty dollars. R2 at 17. Heard admitted to
Gore that he owed her money and paid the woman after Gore suggested that Heard
handle the situation “in a professional . . . manner.” Id. at 6. Gore encouraged
1
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968).
2
MARTA is metro Atlanta's rapid transportation system.
2
Heard to pay the woman because he thought “[t]hey knew each other . . . because .
. . you don't give money to just somebody you don't know.” Id. at 7. After the
exchange, Heard went towards the elevators, while Gore and the woman walked
away in the same direction.
As Gore and the woman were walking away, the woman informed Gore that
Heard was carrying a weapon. Gore turned towards Heard, made eye contact, and,
while ordering Heard to “get his hands up,” approached Heard by the elevator. Id.
at 8. According to Gore, Heard looked “stunned” that Gore was coming towards
him, id., but complied with Gore's order. As Gore was approaching Heard, he
instructed the woman to remain at the station to give a statement, but she jumped
on an arriving MARTA train, never to be seen by Gore again. Gore later testified
that, because the woman left the station, he thought that her information about
Heard carrying a weapon might be unreliable.
Nevertheless, to protect his own safety and the safety of MARTA patrons,
Gore placed Heard in handcuffs and performed a Terry frisk.3 During the pat-
down, Gore felt a hard, metal object in the front of Heard's waistband. Gore asked
Heard, “Is this something I should know about?,” id. at 9, and Heard responded
that it was “nothing,” id. at 10. Gore then grabbed the handle of the hard object
3
According to Gore's testimony, he had already decided to stop and frisk Heard before he
began to question the woman's reliability. R2 at 39.
3
and discovered that it was a Rossi .38 Special. At that point, Heard stated that he
“was holding [the weapon] for his cousin.” Id.
Heard was indicted for possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g) and 924(a), and subsequently moved to suppress
the weapon obtained and any statements made during the Terry stop-and-frisk.
Heard argued that, under Florida v. J.L., the woman's anonymous tip that he was in
possession of a weapon was unreliable and, therefore, Gore had no reasonable
suspicion to stop or frisk him. The government responded that the woman's tip
was more credible and reliable than the anonymous phone call at issue in J.L.
because she spoke face-to-face with Gore.
The magistrate judge agreed with the government and issued a report and
recommendation that the motion to suppress be denied. The magistrate judge
concluded that Gore had a reasonable suspicion that Heard was carrying a weapon
for three primary reasons: (1) because Gore's encounter with the woman was face-
to-face, Gore was able to evaluate the reliability of his informant before receiving
the tip; (2) the tip was timely and specific; and (3) Gore had a reasonable belief
that the informant and Heard had a relationship after the two argued in close
proximity and exchanged money. And, although the magistrate judge determined
4
that the woman's credibility was reduced when she ran, he also determined that it
was not “obliterate[d.]” R1-26 at 15.
Heard objected to the magistrate judge’s report and recommendation,
arguing, inter alia, that J.L. was dispositive. The district court adopted the
magistrate judge's report and recommendation over Heard’s objections and denied
the motion to suppress. Heard subsequently agreed to a conditional guilty plea,
reserving the right to appeal the denial of his motion to suppress. The district court
then sentenced Heard to fifty-four months of imprisonment, and Heard now
appeals the district court's denial of his motion to suppress.
II. DISCUSSION
“A district court’s ruling on a motion to suppress presents a mixed question
of law and fact.” United States v. Chanthasouxat, 342 F.3d 1271, 1275 (11th Cir.
2003) (citation omitted). We review the district court’s findings of fact for clear
error and its application of law to the facts de novo, viewing all facts in the light
most favorable to the party that prevailed in the district court. Id.
Generally, “the Fourth Amendment to the United States Constitution
prohibits state actors from making searches or seizures of the person in the absence
of probable cause.” United States v. Dunn, 345 F.3d 1285, 1288 (11th Cir. 2003),
petition for cert. filed, __ U.S.L.W. __ (U.S. Mar. 4, 2004) (No. 03-9323).
5
However, Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), announced an
exception to the probable cause requirement: “minimally intrusive searches and
seizures of the person are permissible when a law enforcement officer has an
objectively reasonable suspicion that ‘criminal activity may be afoot.’” Dunn, 345
F.3d at 1289 (emphasis added).
Reasonable suspicion, while dependent upon the “totality of the
circumstances,” including both the content of the information and its reliability,
“can arise from information that is less reliable than that required to show probable
cause.” Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416 (1990)
(citation omitted). Even an anonymous tip can, under certain circumstances, give
rise to reasonable suspicion, as long as the information provided contains
“sufficient indicia of reliability to justify the investigatory stop.” Id. at 332, 110 S.
Ct. at 2417. J.L. confirmed that the reliability of the tip––tested by the reliability
of the tipster––is the key to whether an anonymous tip can provide an officer with
a reasonable suspicion sufficient to permit a Terry stop.
In this case, considering the “totality of the circumstances,” we must decide
whether the anonymous face-to-face tip given to Gore contains “sufficient indicia
of reliability” such that Gore had a reasonable suspicion to stop and frisk Heard.
We conclude that the tip was sufficient and that Gore properly performed the
6
protective pat-down. We begin our analysis with a consideration of the Supreme
Court's recent decision in Florida v. J.L., and then discuss why the anonymous tip
in this case is reliable.
A. Florida v. J.L.
This is the first opportunity we have had to interpret J.L. since our decision
in United States v. Holloway, 290 F.3d 1331 (11th Cir. 2002), cert. denied, 537
U.S. 1161, 123 S. Ct. 966 (2003).4 In J.L., an anonymous telephone caller
informed police that a young black man, waiting at a particular bus stop and
wearing a plaid shirt, was carrying a gun. 529 U.S. at 268, 120 S. Ct. at 1377. At
some later time, police proceeded to the bus stop, where they observed three black
men hanging out. One of the men, J.L., was wearing a plaid shirt. The anonymous
call was the police's only grounds for suspicion of illegal activity. There was no
visual evidence of a firearm on J.L.'s person, nor did he make any suspicious
moves. Nevertheless, the police approached him, ordered him to put his hands up,
frisked him, and found a gun in his pocket. Id.
4
In United States v. Holloway, 290 F.3d 1331 (11th Cir. 2002), we upheld a warrantless
search based on emergency circumstances even though the police were responding to
information given by an anonymous telephone informant. Id. at 1334. We distinguished J.L.,
finding that the emergency circumstances permitted the police to conduct a search based solely
on anonymous information. Id. at 1338-39. Thus, because we focused on the emergency
exception, the decision is not on-point in this case.
7
Reviewing the anonymous tip, the Court identified the primary reason why
allowing an anonymous tip to serve as the sole basis for a Terry stop is
problematic: reliability. Id. at 270, 120 S. Ct. at 1378. Anonymous tips provide
little or no opportunity for law enforcement officers to test the informant's
truthfulness or the basis of his knowledge. Id. The Court concluded that the
anonymous tip in J.L.––lacking sufficient indicia of reliability––was insufficient to
establish reasonable suspicion. Id. at 274, 120 S. Ct. at 1380. Unlike the
anonymous tip in J.L., however, officer Gore had an opportunity to judge the
reliability of the face-to-face informant in this case.
B. Reliability of the Tip in this Case
A face-to-face anonymous tip is presumed to be inherently more reliable
than an anonymous telephone tip because the officers receiving the information
have an opportunity to observe the demeanor and perceived credibility of the
informant. See, e.g., U.S. v. Valentine, 232 F.3d 350, 354 (3d Cir. 2000)
(reasoning that face-to-face anonymous tip is more reliable than anonymous
telephone tip because officers can judge the informant's reliability); U.S. v.
Christmas, 222 F.3d 141, 144 (4th Cir. 2000) (citing cases supporting the
proposition that face-to-face anonymous informants are more reliable than
anonymous telephone tipsters for same reason); United States v. Sierra-Hernandez,
8
581 F.2d 760, 763 (9th Cir. 1978) (“Unlike a person who makes an anonymous
telephone call, this informant confronted the agent directly.”).
In this case, Gore had an opportunity to judge the demeanor and credibility
of the unknown woman. Gore stated that the woman seemed frightened when she
reported Heard's weapon, and Gore reasonably presumed that Heard and the
unidentified woman had some sort of relationship––they were arguing over money
and Heard paid the woman the amount she demanded. See, e.g., Christmas, 222
F.3d at 144 (police reasonably concluded that informant, who lived two doors
down from suspect, had knowledge of criminal activities occurring at her
neighbor's home). Thus, reasoning that Heard knew the woman, Gore could
reasonably conclude that she would have reliable information about whether Heard
possessed a weapon.
Heard, on the other hand, contends that Gore did not have reasonable
suspicion to search him because Gore had concluded that the informant was
unreliable after she fled the MARTA station. Gore testified, however, that he had
decided to frisk Heard before the woman ran. The reliability of a tip is considered
in light of all relevant circumstances, which include—but is not limited to—a
consideration of whether the officer can track down the tipster again.5 In this case,
5
United States v. Sierra-Hernandez, 581 F.2d 760 (9th Cir. 1978), for example, involved
a factual scenario very similar to the facts in this case. The anonymous tipster in Sierra-
9
although the unknown woman fled the MARTA station, because she and Heard
apparently knew each other, she may have subjected herself to reprisal from Heard
based on the tip she gave to Gore––which makes her more reliable. See, e.g.,
Christmas, 222 F.3d at 144 (informant who notified police that her neighbor was
involved in illegal activity could have “exposed herself to the risk of reprisal . . .
[from] someone associated with the illegal activity.”). Considering the totality of
the circumstances in this case, Gore reasonably concluded that the unknown
woman's tip was reliable.
Heard also argues that Gore had no independent reason to suspect him of
criminal activity because he looked “stunned” when asked to put his hands up and
complied with Gore's instructions. Heard's reaction to Gore, however, does not
diminish the reliability of the tip provided by the unknown woman. While a
suspect's adverse reaction to police may independently corroborate information
provided by an anonymous informant, a compliant reaction does not
correspondingly undermine the tip's reliability.
Hernandez was driving in an automobile along the United States-Mexico border when he
stopped to provide a border patrol agent with information related to nearby drug smuggling. 581
F.2d at 762. The tipster did not provide his name or contact information before the agent
focused his attention on investigating the potential criminal activity. Id. The Ninth Circuit,
when analyzing the reliability of the anonymous tip, considered the fact that the tipster could
have been identified based on a description of his car. Id. at 763. This factor was not
determinative, however: “whether the information is sufficient to justify a stop must be
evaluated with reference to the facts of each case, for there is no per se rule of reliability.” Id.
10
III. CONCLUSION
Heard objected to the admissibility of evidence seized and statements made
during a Terry stop-and-frisk conducted after a MARTA officer Gore received an
anonymous face-to-face tip that Heard was carrying a concealed weapon. We
conclude that a tip given by a face-to-face informant––with, as here, sufficient
indicia of reliability—may provide an officer with a reasonable suspicion sufficient
to permit a protective pat-down. In this case, the anonymous tip was sufficiently
reliable for Gore to form a reasonable suspicion sufficient to justify the
investigatory stop. Accordingly, the district court's judgment denying Heard's
motion to suppress is AFFIRMED.
11