United States v. Conner

FILED
United States Court of Appeals
Tenth Circuit

November 15, 2012
PUBLISH
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 12-1063
v.

CHRISTOPHER MICHAEL
CONNER,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 1:11-CR-00193-MSK-1)

John T. Carlson, Assistant Federal Public Defender, (and Raymond P. Moore,
Federal Public Defender, on the briefs), Denver, Colorado, for Defendant -
Appellant.

Ryan T. Bergsieker, Assistant United States Attorney, (and John F. Walsh, United
States Attorney, on the brief), Denver, Colorado, for Plaintiff - Appellee.

Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.

KELLY, Circuit Judge.

Defendant-Appellant Christopher Michael Conner entered a conditional

plea to being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), reserving
the right to appeal the denial of his motion to suppress. He was sentenced to 28

months’ imprisonment followed by three years’ supervised release. On appeal, he

argues that the officers who stopped and frisked him based upon an anonymous

tip violated the Fourth Amendment. Our jurisdiction arises under 28 U.S.C.

§ 1291, and we affirm.

Background

At approximately 11:00 p.m. on April 29, 2011, a man called 911 to report

that a light-skinned black male, wearing a fuzzy hunter hat, had exited a black

SUV and placed a pistol in his waistband. 2 R. 84. The caller indicated that this

had occurred after he heard someone yelling, “No, no.” Id. The caller provided

both his address and his phone number. Aplt. Open. Br. Attach. 4.

The caller stated that the black SUV was parked in the alley between

Larimer and Lawrence Streets in Denver, on the north side of 22nd Avenue. Id.

After taking this information, the operator relayed the caller’s report through the

police dispatch system. 2 R. 84. Officers Brian Snow and Kipp Terry received

the following dispatch:

Police Dispatch: 2200 Larimer. . . . Caller says there’s in the alley
between Larimer and Lawrence there’s a black SUV
parked up on the north side on 22nd. Believes the driver
may have a gun. Caller heard someone yelling no no
and then the driver got out of the car and put the gun in
his waistband. Black male, light skin. Fuzzy hunting
hat and (inaudible) shirt and jeans.
Officer: (Inaudible) . . . phone number of the (inaudible).

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 Police Dispatch: (Inaudible) down the line but it’s a 720–956-0148.

Aplt. Open. Br. Attach. 4.

At the time, the officers had been patrolling a precinct considered one of

the most dangerous due to frequent stabbings and shootings. 2 R. 84. In fact,

Officers Snow and Terry testified that there had been a shooting or stabbing in the

same area two nights before. Id. at 89. The officers feared that a person yelling,

“No, no,” coupled with the sighting of a weapon, indicated that a gun had been

pointed at someone. Id.

Upon arrival, the officers observed a black SUV in the exact location that

the caller had given. Id. at 84. They also spotted Mr. Conner: a black male

wearing a fuzzy hunting hat, just as the caller had described, who was walking

away from the location of the SUV. Id. at 84–85.

Officer Snow positioned his patrol car to block Mr. Conner’s path. Id. at

85. The officer testified that “[i]t appeared to me like he was going to run. . . .

[I]nstead of just walking down the sidewalk, he turned left into this parking lot to

start going that way. . . . [I]t’s just a downtown parking lot. There is really no

reason to go into that parking lot at that time of night.” Id. at 25. Officer Snow

remained in his car while Officer Terry approached Mr. Conner. Id. at 85. With

his gun drawn, Officer Terry told Mr. Conner to put his hands up; Mr. Conner

complied. Id. He proceeded to conduct a pat-down, during which he found a

pistol concealed in Mr. Conner’s waistband. Id.

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 In denying Mr. Conner’s motion to suppress, the district court determined

that the stop was proper. Id. at 90. Specifically, the court found that: the stop

occurred late at night in a high-crime area; there was a “temporal and geographic

association” between someone calling out, “No, no,” and the observation of a man

putting a handgun in his waistband; and the police corroborated several details of

the report. Id. at 89–90. Therefore, the district court concluded that the tip was

sufficiently reliable and, further, the tip provided officers with a reasonable

suspicion of criminal activity. Id.

One housekeeping matter. In his opening brief, Mr. Conner refers to the

audio recording of the 911 call, and included a transcript of the call. However,

neither the recording nor its transcript was introduced during the suppression

hearing. Mr. Conner acknowledges this and tells us that “the district court

refused to accept exhibits at the hearing.” Aplt. R. Br. at 1. A look at the hearing

transcript shows that he moved to admit “Exhibit 1,” a map, and in response, the

district court stated that “[t]he Rules of Evidence do not apply in suppression

hearings pursuant to Rule 1101. Whatever you’d like to offer, but since the Rules

of Evidence don’t apply I don’t specifically receive exhibits.” 2 R. 34.

It is true that “the rules of evidence normally applicable in criminal trials

do not operate with full force at hearings before the judge to determine the

admissibility of evidence.” United States v. Matlock, 415 U.S. 164, 172–73

(1974) (discussing Fed. R. Evid. 104(a) & 1101(d)(1)). But this principle is based

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on the assumption that more evidence should be included in a pretrial hearing

because the judge, unlike a jury, can give the evidence “such weight as his

judgment and experience counsel.” Id. at 172, 175 (reversing the district court’s

exclusion of hearsay evidence); see also United States v. Merritt, 695 F.2d 1263,

1270–71 (10th Cir. 1982) (holding that the excluded evidence required a finding

of reasonable suspicion). Insofar as suppression hearings are not constrained by

some of the rules of evidence, they compel consideration of relevant but

otherwise inadmissible evidence. See United States v. Brewer, 947 F.2d 404, 409

(9th Cir. 1991) (“‘What must be meant is that the traditional exclusionary rules do

not apply, but that procedural regulation of the process of admission and

exclusion remains applicable.’” (quoting 21 Charles Alan Wright & Kenneth W.

Graham, Jr., Federal Practice and Procedure: Evidence, § 5953 at 257 (1977))).

No objection was made to the district court’s somewhat novel approach of

not receiving exhibits. Moreover, counsel never attempted to introduce the 911

call or its transcript. Rule 103 plainly requires the proponent of evidence to have

made an offer of proof in order to appeal its exclusion. See Perkins v. Silver

Mtn. Sports Club & Spa, LLC, 557 F.3d 1141, 1146–47 (10th Cir. 2009) (citing

Fed. R. Evid. 103(a)(2)). Consequently, we do not consider it.

An appellate court will only excuse a failure to meet Rule 103’s

requirements “in instances of plain error,” which affect “substantial rights.” See

Perkins, 557 F.3d at 1147 (citing Fed. R. Evid. 103(d)). The transcript would not

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alter our conclusion that the stop was constitutional. See Aplt. Open. Br. Attach.

3. Therefore, because the contents of the call do not affect Mr. Conner’s

substantial rights, we rely exclusively on the Denver Police Department dispatch

and the suppression hearing transcript.

Discussion

When reviewing a district court’s denial of a motion to suppress, we view

the evidence in the light most favorable to the prevailing party and we accept the

district court’s factual findings unless they are clearly erroneous. United States v.

Ruiz, 664 F.3d 833, 838 (10th Cir. 2012). We review de novo the ultimate

determination of reasonableness under the Fourth Amendment. Id.

Investigative detentions are Fourth Amendment seizures of limited scope

and duration. See United States v. Madden, 682 F.3d 920, 925 (10th Cir. 2012).

In order to effect a lawful stop, police must have an objectively reasonable and

articulable suspicion that criminal activity is afoot. See United States v.

Sokolow, 490 U.S. 1, 7 (1989). In determining whether reasonable suspicion

exists, we look at the totality of the circumstances. United States v. McHugh, 639

F.3d 1250, 1256 (10th Cir. 2011). Further, we “need not rule out the possibility

of innocent conduct.” United States v. Arvizu, 534 U.S. 266, 277 (2002). In fact,

reasonable suspicion may exist even where “it is more likely than not that the

individual is not involved in any illegality.” United States v. Johnson, 364 F.3d

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1185, 1194 (10th Cir. 2004). Reasonable suspicion requires only “some minimal

level of objective justification.” Sokolow, 490 U.S. at 7 (internal quotation marks

omitted).

On appeal, Mr. Conner argues that his seizure violated the Fourth

Amendment. Aplt. Open. Br. at 11. First, he maintains that the 911 call did not

possess the requisite indicia of reliability. Aplt. R. Br. at 3–9. Second, he argues

that the call—even if considered reliable—failed to establish a reasonable

suspicion of criminal activity. Id. at 10–14. We address each argument in turn.

A. Was the 911 Call Reliable?

To determine whether a 911 call possessed sufficient indicia of reliability,

we consider the totality of the circumstances. “[R]elevant factors include: (1)

whether the informant lacked ‘true anonymity’ . . . ; (2) whether the informant

reported contemporaneous, firsthand knowledge; (3) whether the informant

provided detailed information about the events observed; (4) the informant’s

stated motivation for reporting the information; and (5) whether the police . . .

corroborate[d] information provided by the informant.” United States v. Chavez,

660 F.3d 1215, 1222 (10th Cir. 2011).

Mr. Conner argues that an unidentified caller’s tip is not trustworthy,

relying upon Florida v. J.L., 529 U.S. 266 (2000). In J.L., an anonymous caller

reported that a black male was standing at a bus stop and carrying a gun. See id.

at 268. The informant failed to provide any information about himself or the

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basis of his knowledge. See id. at 271. The Court held that the call was

unreliable and, therefore, did not justify a Terry stop. See id. at 271–72. But the

Supreme Court explained that “there are situations in which an anonymous tip,

suitably corroborated, exhibits sufficient indicia of reliability to provide

reasonable suspicion to make the investigatory stop.” Id. at 270 (internal

quotation marks omitted). Further, we have repeatedly distinguished J.L.’s

anonymous tipster from persons who divulge “sufficient details . . . to render

[themselves] readily identifiable by police.” United States v. Brown, 496 F.3d

1070, 1076 (10th Cir. 2007). In other words, “[t]he fact that the officers did not

know the caller’s name is not dispositive on the question of anonymity.” Id. at

1075.

Here, the caller did not disclose his name but provided enough information

to render himself readily identifiable—he gave the operator his phone number and

address. See, e.g., Chavez, 660 F.3d at 1222–23 (finding the caller “readily

identifiable” where he did not provide his name but indicated he was a Wal-Mart

employee at a specific store); United States v. Copening, 506 F.3d 1241, 1247

(10th Cir. 2007) (holding that an anonymous tip supported a Terry stop where the

informant provided several details but refused to give his name); Johnson, 364

F.3d at 1191 (tip was sufficiently reliable where caller did not give his name or

address but provided his phone number). Therefore, this was not a situation

where an anonymous tipster could lead police astray by accusing a suspect

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without fear of accountability; rather, police could have found the caller had his

tip proved false. See Brown, 496 F.3d at 1075 (distinguishing a situation where

police have information about a tipster from J.L., where all police had was the

bare report of an unknown, unaccountable caller).

Second, the caller in this case stated that he personally heard someone yell,

“No, no,” and saw a man place a gun into his waistband. Further, he indicated

that these events had just occurred. Consequently, the caller’s immediate,

firsthand knowledge added to the reliability of his statements. See Illinois v.

Gates, 462 U.S. 213, 234 (1983) (concluding that informant’s tip was entitled to

“greater weight” where informant claimed to have observed the event “first-

hand”); Chavez, 660 F.3d at 1222; Copening, 506 F.3d at 1247; Brown, 496 F.3d

at 1076; United States v. Hauk, 412 F.3d 1179, 1191 (10th Cir. 2005) (“[A] claim

of first-hand knowledge[] and information about the circumstances of learning the

information[] lends weight to the credibility of the tip.”).

Third, the caller provided specific details about what he had heard and

seen. He reported hearing someone yelling, “No, no.” He described seeing a

light-skinned black male, wearing a fuzzy hunting hat, who exited from a black

SUV and placed a gun in his waistband. Further, the caller provided the specific

location of the SUV. The number and precision of these details added to the tip’s

reliability. See, e.g., Gates, 462 U.S. at 234 (ascribing added weight to a tip

where it contained an “explicit and detailed description”); Chavez, 660 F.3d at

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1222 (finding that the tipster’s “detailed information about the events he

witnessed” strengthened the tip’s reliability); Copening, 506 F.3d at 1247; Hauk,

412 F.3d at 1191; United States v. Tucker, 305 F.3d 1193, 1201 (10th Cir. 2002).

Fourth, although the caller did not explicitly state his motivation for

reporting the information, the fact that he provided his name and address to the

911 operator suggests that he was acting as a concerned citizen rather than a

“malicious tipster,” as Mr. Conner posits. Aplt. Open. Br. at 29; see Chavez, 660

F.3d at 1222 (finding an innocuous motivation where the unidentified caller

reported a disturbance in his employer’s parking lot). The caller’s desire to

remain anonymous “provide[s] no indication that [he] had iniquitous intentions.”

Copening, 506 F.3d at 1247. Rather, the caller’s reluctance to disclose his name

“suggests [he] refused to do so not because he was lying, but because he was

afraid of the armed man he was implicating.” Brown, 496 F.3d at 1078.

“Residents of neighborhoods are [often] in the best position to monitor activity on

the streets. But residents, also fearful of the consequences, may not always wish

to identify themselves and volunteer their names.” United States v. Perkins, 363

F.3d 317, 326 (4th Cir. 2004).

Finally, the officers corroborated several details of the 911 call. They

discovered the black SUV in the precise location provided by the caller. See

Chavez, 660 F.3d at 1222 (finding an unidentified caller’s tip reliable where the

responding officer verified the tipster’s report of a black pickup truck and white

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Cadillac in a specific parking lot). Further, they spotted a light-skinned black

male in a fuzzy hunting hat, just as the caller had described. See Copening, 506

F.3d at 1247 (emphasizing the fact that an officer corroborated the informant’s

report before initiating a stop); Brown, 496 F.3d at 1077–78 (same); Johnson, 364

F.3d at 1191 (holding tip to be sufficiently reliable where the officer confirmed

an informant’s description of the suspect’s appearance and location, though the

officer did not personally witness any criminal behavior). In fact, Mr. Conner’s

counsel acknowledged at oral argument that the officers had enough information

from the tip to identify Mr. Conner and, accordingly, made a proper identification

based on that information.

In sum, the 911 call possessed the requisite indicia of reliability.

B. Did Police Have a Reasonable, Articulable Suspicion that Criminal Activity
Was Afoot?

The Fourth Amendment permits police to effect a brief stop in order to

investigate the possibility of criminal involvement if they have a “reasonable,

articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528

U.S. 119, 123 (2000). Police must have a particularized and objective basis for

suspecting wrongdoing. Arvizu, 534 U.S. at 273. But “[t]he Fourth Amendment

does not require a policeman who lacks the precise level of information necessary

for probable cause to arrest to simply shrug his shoulders and allow a crime to

occur.” Adams v. Williams, 407 U.S. 143, 145 (1972). Instead, “Terry

recognizes that it may be the essence of good police work to adopt an

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intermediate response.” Id.

Reasonable suspicion may exist even where a 911 call fails to allege

criminal activity and the responding officers do not observe any illegal conduct.

See Copening, 506 F.3d at 1243–47; see also Wardlow, 528 U.S. at 125–26;

Terry, 392 U.S. at 22–23. The Supreme Court “has often spoken of the

wrongdoing itself in general terms.” United States v. Pack, 612 F.3d 341, 356

(5th Cir. 2010). At times, actions “consistent with innocent behavior . . . may

give rise to a reasonable suspicion of criminal activity.” Oliver v. Woods, 209

F.3d 1179, 1188 (10th Cir. 2000). Ultimately, we must evaluate the totality of the

circumstances to determine whether reasonable suspicion existed. Sokolow, 490

U.S. at 7–8.

The fact that a stop occurred in a high-crime area is a relevant

consideration in the Terry analysis. See Wardlow, 528 U.S. at 124; McHugh, 639

F.3d at 1257; United States v. DeJear, 552 F.3d 1196, 1201 (10th Cir. 2009).

Here, the officers testified to the area’s reputation as one of the most dangerous in

Denver, as well as their personal knowledge of and experience with the location’s

high crime rate.

Another factor in determining the existence of reasonable suspicion is the

time of night. See, e.g., Michigan v. Long, 463 U.S. 1032, 1050 (1983);

McHugh, 639 F.3d at 1257 (“[T]he fact that an incident occurred late at night or

early in the morning is relevant to the Terry analysis.”); Gallegos v. City of

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Colorado Springs, 114 F.3d 1024, 1029 (10th Cir. 1997). The district court

determined that the stop occurred at 11:00 p.m., and we agree that the late hour

lends weight to the reasonableness of the officers’ suspicion.

Although the district court did not rely on it, viewing the facts in the light

most favorable to the government allows us to consider Officer Snow’s perception

that Mr. Conner walked into a parking lot upon seeing police when there appeared

to be no reason to do so. Though Mr. Conner did not run, Officer Snow’s

perception of evasive behavior is a minor factor that also supports a finding of

reasonable suspicion.

Further, there was a “temporal and geographic association” between

someone yelling “No, no,” and the observation of a man putting a handgun in his

waistband. One obvious inference from the call was that a gun may have been

pointed at someone (or someone felt threatened), and Mr. Conner was

responsible. Though the officers did not observe a confrontation when they

arrived at the scene, they had reason to investigate. In Copening, we upheld a

Terry stop where an unidentified caller reported seeing a man drop a pistol

outside a convenience store and then stash the pistol in his car. See 506 F.3d at

1243. Despite the fact that neither the caller nor the police observed explicit

illegal conduct, the totality of the circumstances gave rise to a reasonable

suspicion of criminal activity. See id. at 1246–47. Indeed, Mr. Conner admits

that officers plainly had a sufficient basis to identify him and would have been

derelict had they not investigated him, given the report that he was armed with a

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concealed handgun. Aplt. Open. Br. at 34. His position is that the officers should

have begun with a voluntary, consensual encounter, but Fourth Amendment

reasonableness is broad enough to defer to law enforcement in this case. 1

Therefore, we conclude that “[t]his is clearly not a case of police officers

arbitrarily stopping an individual walking down the sidewalk during the middle of

the afternoon.” McHugh, 639 F.3d at 1259 (internal quotation marks omitted).

Nor is this a case of police officers arbitrarily stopping an individual walking

down an alley late at night in a high-crime area. Here, the officers had a

sufficiently reliable tip and a reasonable suspicion of criminal activity—they

believed Mr. Conner might have been involved in an armed confrontation.

“Reasonable suspicion requires a dose of reasonableness and simply does not

require an officer to rule out every possible lawful explanation for suspicious

circumstances before effecting a brief stop to investigate further.” United States

v. Cortez-Galaviz, 495 F.3d 1203, 1208 (10th Cir. 2007).

AFFIRMED.

1
We conclude that the facts in this case are more analogous to those in
United States v. Valentine, 232 F.3d 350 (3d Cir. 2000) (upholding a Terry stop),
than they are to the facts presented in United States v. Ubiles, 224 F.3d 213 (3d
Cir. 2000) (finding insufficient grounds for reasonable suspicion).

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