NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-2980
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UNITED STATES OF AMERICA
v.
CAESAR HOLLOWAY,
a/k/a Markus Jackson
CAESAR HOLLOWAY,
Appellant
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Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 09-CR-566)
District Judge: Honorable J. Curtis Joyner
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Submitted Under Third Circuit LAR 34.1(a)
July 13, 2012
Before: FUENTES, HARDIMAN, and ROTH, Circuit Judges
(Opinion Filed: July 26, 2012)
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OPINION OF THE COURT
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FUENTES, Circuit Judge.
On August 24, 2009, a grand jury indicted Caesar Holloway on one count of
possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g).
Holloway filed a motion to suppress the gun, arguing that there was not reasonable
suspicion for the traffic stop that led to its discovery and his arrest. After losing his
motion, Holloway pleaded guilty pursuant to a plea agreement, which provided that he
could appeal the District Court’s suppression ruling. Because we find that the totality of
the circumstances amounted to reasonable suspicion, we will affirm.
I.
Because we write solely for the parties, we recite only those facts relevant to this
opinion.
The parties do not dispute the following facts revealed at Holloway’s suppression
hearing. On July 17, 2009, at 10:24 and 10:26 p.m., the Philadelphia Police Department
received two 911 calls, from the same informant, reporting the location of a man driving
a burgundy Mercury with Pennsylvania license plate FPP-3616, who had ―just pulled a
gun.‖ App. 90b. The caller explained that he was driving behind the burgundy car and
updated the 911 operator as their location changed. In particular, during the second call,
the caller alerted that they were about to pass a police station. Both men were driving in
a high crime area. The caller was not asked for his name, and did not volunteer it, but his
cellular number, cellular provider, and location were available to the police. The police
dispatcher deemed the call an emergency and radioed the description of the car and
location of the suspect to patrolling officers. Within five minutes of the first 911 call, the
burgundy car was located and stopped about one mile from the location initially provided
by the caller. Holloway was the only person in the car, and a loaded black handgun was
in plain view on the driver’s side floorboard.
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A grand jury indicted Holloway on one count of possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g). Holloway filed a motion to suppress
the weapon, arguing that the officers did not have reasonable suspicion for the stop.
After the District Court denied his motion, Holloway conditionally pleaded guilty,
reserving his right to appeal. The District Court imposed a sentence of 96 months’
imprisonment, a three-year term of supervised release, a fine of $1,000, and a special
assessment of $100. Holloway now appeals the District Court’s denial of his motion to
suppress.1
II.
In reviewing a district court’s suppression ruling, we review the underlying factual
findings for clear error, and we exercise plenary review over the court’s legal
conclusions. United States v. Silveus, 542 F.3d 993, 999 (3d Cir. 2008).
Holloway first argues that the gun should be suppressed under Article 1, Section 8
of the Pennsylvania Constitution, maintaining that this provision provides more stringent
protections than the Fourth Amendment of the United States Constitution. However, this
argument is waived due to Holloway’s failure to raise it in the District Court. See United
States v. Rose, 538 F.3d 175, 177 (3d Cir. 2008) (―In our Court, suppression issues raised
for the first time on appeal are waived absent good cause…‖). In any event, even if we
were to agree that the stop violated Pennsylvania law, ―evidence obtained in accordance
with federal law is admissible in federal court—even though it was obtained by state
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291.
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officers in violation of state law.‖ United States v. Stiver, 9 F.3d 298, 300 (3d Cir. 1993)
(quoting United States v. Rickus, 737 F.2d 360 at 363-64 (3d Cir. 1984)). Thus, we will
examine Holloway’s arguments regarding the validity of the stop under federal standards.
The Fourth Amendment protects against ―unreasonable searches and seizures.‖
U.S. Const. amend. IV. A traffic stop is a seizure for purposes of the Fourth Amendment.
United States v. Johnson, 592 F.3d 442, 447 (3d Cir. 2010). ―Generally, for a seizure to
be reasonable under the Fourth Amendment, it must be effectuated with a warrant based
on probable cause.‖ United States v. Robertson, 305 F.3d 164, 167 (3d Cir. 2002) (citing
Katz v. United States, 389 U.S. 347, 356–57 (1967)). A well-established exception to the
warrant requirement permits an officer to ―conduct a brief, investigatory stop when the
officer has a reasonable, articulable suspicion that criminal activity is afoot.‖ United
States v. Lewis, 672 F.3d 232, 237 (3d Cir. 2012) (quoting Illinois v. Wardlow, 528 U.S.
119, 123 (2000)). A reasonable, articulable suspicion must be supported by ―specific and
articulable facts which, taken together with rational inferences from those facts,
reasonably warrant [the] intrusion.‖ Johnson v. Campbell, 332 F.3d 199, 205 (3d Cir.
2003) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)).
Holloway contends that the stop of his car was unreasonable because the officers
relied exclusively on an anonymous tip, which, he argues, did not establish a sufficient
basis of suspicion. Both this Court and the Supreme Court have acknowledged that an
anonymous tip that a person has a gun, without additional corroboration, lacks the indicia
of reliability needed to justify a stop under the reasonable suspicion standard. Florida v.
J.L., 529 U.S. 266, 270 (2000); see United States v. Brown, 448 F.3d 239, 249 (3d Cir.
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2006). However, an anonymous tip can be the basis for reasonable suspicion if
accompanied by specific indicia of reliability. J.L., 529 U.S. at 270. To determine
whether there are specific indicia of reliability, an inquiry into the totality of the
circumstances is necessary to determine whether ―the officers possessed an objectively
reasonable suspicion sufficient to justify a Terry stop.‖ United States v. Torres, 534 F.3d
207, 211 (3d Cir. 2008) (citation omitted).
In United States v. Torres—a case with facts strikingly similar to those in this
case—we outlined five factors to assess whether a tip is reliable:
(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[.]
Id. at 211 (quoting Brown, 448 F.3d at 249-50). Additionally, we recognized other facts
which may bolster an otherwise insufficient tip, including:
the presence of a suspect in a high crime area, a suspect’s presence on a
street at a late hour, a suspect’s nervous, evasive behavior, or flight from
police, and a suspect’s behavior that conforms to police officers’
specialized knowledge of criminal activity.
Id. (citation and internal quotation marks omitted). In evaluating these factors in Torres,
we held that a 911 call from an unnamed taxi driver reporting that a man was brandishing
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a gun in his car possessed sufficient indicia of reliability. We recognized that the caller
was an eyewitness to a recently committed crime, the tip included a detailed description
of the suspect’s car—including the make, model, and license plate number—and location,
and the caller provided the name of his employer. Id. at 211-12. Additionally, we noted
that the taxi driver did not request to remain anonymous, but was simply not asked to
identify himself. Id. at 212-13.
These facts are directly analogous to the instant case: here, the caller was an
eyewitness to a recently committed crime, the tip provided a detailed description of the
vehicle—including the make, color, and license plate number—while contemporaneously
describing the movement of the vehicle, and the caller informed the dispatcher when he
and Holloway were about to pass a police station, providing the police with ample
opportunity to identify him. This information was credibly available to the caller and it
accurately predicted what would follow, namely that Holloway would be found near the
reported location with a gun. In addition, the tip was further bolstered by the fact that
Holloway was driving in a high-crime area, at a late hour.
Holloway argues that his case is distinguishable from Torres for two reasons: first,
the tipster in the instant case did not report that he was ―brandishing‖ the gun; and
second, the taxi driver in Torres was less anonymous than the tipster in this case because
the taxi driver provided his cab company to the 911 operator. Both of these arguments
are unavailing. Despite Holloway’s first contended distinction, it is a crime to possess a
handgun on a public street in Philadelphia. See 18 Pa. Cons. Stat. § 6108; see also
Commonwealth v. Bigelow, 399 A.2d 392, 396 (Pa. 1979) (recognizing that licensure is
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merely an affirmative defense). And his second distinction, regarding the level of
anonymity, also fails because the caller in this case made no effort to conceal his identity
and likely knew that he could be identified by his cellular phone. See, e.g., United States
v. Copening, 506 F.3d 1241, 1247 (10th Cir. 2007) (―The caller should have expected
that 911 dispatch tracks incoming calls and that the originating phone number could be
used to investigate the caller’s identity.‖).
―Thus, the totality of the circumstances leads us to conclude that the caller was an
innominate (i.e., unidentified) informant who could be found if his tip proved false rather
than an anonymous (i.e., unidentifiable) tipster who could lead the police astray without
fear of accountability.‖ Torres, 534 F.3d at 213 (citation omitted). Accordingly, we
conclude that ―the officers had reasonable articulable suspicion sufficient to justify a
Terry stop.‖ Id.
III.
For the foregoing reasons, we will affirm the District Court’s judgment.
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