United States v. Terrance Nelson AKA Terrence Nelson AKA Alsheries Nelson AKA Rajohn Nelson AKA Malik Jones. Terrance Nelson

AMBRO, Circuit Judge,

dissenting.

I respectfully dissent. While the majority purportedly relies on “the totality of the circumstances” in reaching its result, the record illustrates that the tip here came from an anonymous caller, offered no predictive information of future events, and was not adequately corroborated by the arresting officers. The majority’s opinion, in my view, is inconsistent with Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), and United States v. Roberson, 90 F.3d 75 (3d Cir.1996), both of which involved circumstances analogous to those present here. Following those controlling decisions, I would reverse the District Court’s ruling.

In evaluating the existence of reasonable suspicion, the Court must look at the “totality of the circumstances” measured by “what the officers knew before they conducted their search.” J.L., 529 U.S. at 271, 120 S.Ct. 1375. Where initial suspicion arises not from officer observation but from an identifiable informant’s tip, only minimal police corroboration may be needed to justify an investigative stop. Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Where the informant is identified, his veracity, basis of knowledge, and track record of providing information may suggest the tip’s inherent reliability. Id.

In contrast, “an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity inasmuch as ordinary citizens generally do not provide extensive recitations of the basis of their everyday observations and given that the veracity of persons supplying anonymous tips is by hypothesis largely unknown, and unknowable.” Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). Because of the inherent unreliability of such information, an anonymous tip must contain “something more” before reasonable suspicion arises. Id. This higher standard dictates that reasonable suspicion only arises from a “truly anonymous” 1 tip if it provides predictive future facts and the officers corroborate the information by observing illegal or unusual conduct suggesting “that criminal activity may be afoot.” Id. at 332, 110 S.Ct. 2412; J.L., 529 U.S. at 272, 120 S.Ct. 1375; see id. at 275, 120 S.Ct. 1375 (Kennedy, J., concurring); Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Both J.L. and Roberson illustrate the difficulty of finding reasonable suspicion from an anonymous tip. In J.L., an anonymous caller alleged that a “young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun.” 529 U.S. at 268, 120 S.Ct. 1375. The Supreme Court held that no reasonable suspicion arose because the tip offered no predictive future facts that the police could corroborate. Id. at 271, 120 S.Ct. 1375.

Similarly, Roberson involved an anonymous caller who alleged that “a heavy-set, black male wearing dark green pants, a white hooded sweatshirt, and a brown leather jacket was selling drugs on the *4862100 block of Chelten Avenue.” 90 F.3d at 79. Judge (now Chief Judge) Becker, writing for the majority, stated that reasonable suspicion was lacking because “the police had no basis for assessing either the reliability of the informant or the grounds on which the informant believed that a crime was being committed.” ■ Id. at 80.

Under this legal framework, we address the situation before us. During the early hours of November 5, 1997, Lieutenant Zacche was on duty in the Jersey City Police Department, Southern District. While at the precinct he answered a call on an untaped telephone used primarily by officers’ families and confidential informants. The male caller asked for Officer Goldrich, a narcotics officer in the precinct. Zacche identified himself, stated that Officer Goldrich was off-duty, and asked the caller if he could be of assistance. The caller refused to identify himself, and instead informed Zacche that “two black males in a gray BMW with a tag in the window was cruising up and down Martin Luther King Drive in the area of Steg-man.” The caller further stated that the two men were “jump out boys” from Newark who were “running our pockets.”

From these circumstances, the majority unearths reasonable suspicion justifying a stop of Nelson’s vehicle. Of concern is the majority’s conclusion that the informant’s call “was not truly anonymous,” and thus the tip need not provide “something more” before giving rise to reasonable suspicion. An informant’s call is anonymous when it is made from “an unknown location by an unknown caller.” J.L., 529 U.S. at 270, 120 S.Ct. 1375. Here, the informant offered no information from which the officers could identify his location. The call was unrecorded. Id. at 276, 120 S.Ct. 1375 (Kennedy, J., concurring) (distinguishing truly anonymous calls from those where “[vjoice recording of telephone tips might ... be used by police to locate the caller”). The tipster did not state how, when, or where he observed the alleged activity. United States v. Valentine, 232 F.3d 350, 354 (3d Cir.2000); see New York v. Herold, 282 A.D.2d . 1, 726 N.Y.S.2d 65, 66 (N.Y.App.Div.2001) (finding an informant not truly anonymous where he observed criminal activity in one apartment from a specific apartment in the same building).

Nor did the anonymous informant offer any information suggesting his true identity. J.L., 529 U.S. at 275, 120 S.Ct. 1375 (Kennedy, J., concurring) (distinguishing a truly anonymous tipster from an informant who has a proven track record of providing reliable information); Valentine, 232 F.3d at 354 (distinguishing face-to-face informants from truly anonymous tipsters). The tip was also untraceable. J.L., 529 U.S. at 276, 120 S.Ct. 1375 (Kennedy, J., concurring) (distinguishing truly anonymous tips from those where “the ability of the police to trace the identity of anonymous telephone informants may be a factor which lends reliability”); see Arizona v. Gomez, 198 Ariz. 61, 6 P.3d 765, 768 (App.2000) (stating that a tipster placed her credibility at risk by calling from her traceable private home phone).

From the tipster’s mere mention of an officer’s name, the majority concludes that the caller was not anonymous. To the contrary, the tipster’s specific request for Officer Goldrich only suggested, at best, his willingness to disclose or compromise his identity, a predisposition upon which he never acted. Further, nothing in the record suggests that the caller actually possessed that willingness. “The whole picture” here shows that the call was made from “an unknown location by an unknown caller,” and thus the caller remained cloaked in anonymity with the ability to “he with impunity.” J.L., 529 U.S. at 275, 120 S.Ct. 1375.

*487Further, Lieutenant Zacche, the supervising officer in the case, believed that the tip was an anonymous one. At the suppression hearing, he offered the following statement:

Q: Now, the information that you got over the phone after you left the bathroom was an anonymous tip. Correct?
A: Yes, sir.
Q: You have no idea who provided with you [sic] the information. Is that right?
A: No, I don’t.

The majority purports to give Lt. Zacche’s “perception” of the call “great deference ... almost to the point of permitting it to be the focal point of the analysis.” Maj. Op. at 482. Yet the majority fails to give any deference to Lt. Zacche’s statement regarding the issue of anonymity.

As noted above, an anonymous tip may provide reasonable suspicion if independent police observation corroborates its prediction of the suspect’s future acts. White, 496 U.S. at 332, 110 S.Ct. 2412. The majority concedes, as it must, that the anonymous tip here provided no predictive future facts.2 The majority attempts to circumvent this requirement by stating that a reliable tip need only show that the informant possesses “inside information that connoted the caller’s familiarity with the conduct being reported.” In the context of an anonymous tip, however, the Supreme Court has never applied this relaxed “inside information” standard. Indeed, the Supreme Court has only found an anonymous tip reliable when it contained significant predictive future facts. Id.

Even under the majority’s “inside information” standard, the record refutes its assertion that the tip offered “particularized” knowledge relating to “a pattern of criminal activity known to the police, but not to the general public.” Unfortunately, robberies of this kind were common occurrences in this particular area, as Lt. Zac-che acknowledges in his testimony:

Q: How common is drug dealing in that area?
A: Stegman — Stegman between the areas of Ocean, MLK, Stegman, that small two block radius is one of the most popular drug locations in the city.
Q: And how do you know that?
A: I spent nearly 10 years in narcotics and six of them I was assigned in the Southern District as a narcotics sergeant.
Q: How common are robberies in that area?
A: We had a big rash of robberies where we were having rival groups from either areas of Jersey City or out-of-towners coming in and they were sticking up the local dealers.
Q: Okay. I was going to ask, how common are robberies in particular regarding drug dealers in that area?
A: Too many robberies.

From this testimony I find it a stretch to infer that “inside information” known only to the police was being reported to them. Further, Lt. Zacche states that these robberies were common among “rival groups,” suggesting a motive for why an anonymous tipster might offer false information.3 In *488Roberson, Chief Judge Becker warned that “anyone of us could face significant intrusion on the say-so of an anonymous prankster, rival, or misinformed individual.” 90 F.3d at 80-81 (emphasis added). This ease is the Chief Judge’s admonition come to life.

The majority believes that the officers had reasonable suspicion based on their corroboration of the reported observable characteristics, ie., the car’s description, its location, and the number, race, and gender of its occupants. The Supreme Court rejected an identical claim in J.L.\

An accurate description of a subject’s readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.

529 U.S. at 272, 120 S.Ct. 1375 (emphasis added). The Court thus made it clear that corroboration of the tip’s alleged criminal activity is essential. Id.; see also Roberson, 90 F.3d at 80 (holding that even though the police corroborated the tip’s “readily observable facts,” no reasonable suspicion arose because the officers did not notice “unusual or suspicious conduct on [the suspect’s] part”). As in J.L. and Roberson, the police here failed to corroborate the tip’s claim of criminal activity. Further, the police observed no unusual or suspicious behavior by the passengers in the BMW, and the vehicle was not being driven in a swerving, erratic, or evasive manner. The officers’ only observation was of two black men in a BMW lawfully driving down a street, and that, as far as I know, is not illegal, unusual, or suspicious. Unwilling or unable to corroborate the tip’s allegation of criminal activity, the police instead fabricated a traffic violation to mask the absence of reasonable suspicion. Fortunately for these officers, the majority conjures what an anonymous tip and minimal police work could not: the reasonable suspicion necessary to justify stopping Nelson’s vehicle.

The majority also argues that a second 911 call helped corroborate the first anonymous tip. However, the record suggests that this 911 call is irrelevant to our determination of reasonable suspicion. “The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search.” J.L., 529 U.S. at 271, 120 S.Ct. 1375 (emphasis added). Contrary to the majority’s reading, there is no evidence that Officers Le-gowski and Petrovcik knew of this 911 call before stopping Nelson’s vehicle. Thus, the second call cannot factor into the reasonable suspicion analysis.4

*489In J.L., the Supreme Court held that no reasonable suspicion arose based on a set of facts involving (1) an anonymous tip, (2) an allegation that a “young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun,” (3) no predictive future facts, and (4) no police corroboration of the alleged criminal activity. 529 U.S. at 268-71, 120 S.Ct. 1375.

In Roberson, this Court held that no reasonable suspicion arose based on a set of facts involving (1) an anonymous tip, (2) an allegation that “a heavy-set, black male wearing dark green pants, a white hooded sweatshirt, and a brown leather jacket was selling drugs on the 2100 block of Chelten Avenue,” (3) no predictive future facts, and (4) no police corroboration of the alleged criminal activity. 90 F.3d at 79-80.

As in J.L. and Roberson, the “whole picture” before us involves (1) an anonymous tip, (2) an allegation that two black males in a gray BMW were riding on MLK Drive robbing drug dealers, (3) no predictive future facts, and (4) no police corroboration of the alleged criminal activity-

J.L. and Roberson, in my view, control this case. Thus I respectfully dissent.

. As discussed later, a tip is "truly anonymous” if it is made from "an unknown location by an unknown caller.” J.L., 529 U.S. at 270, 120 S.Ct. 1375; see id. at 275, 120 S.Ct. 1375 (Kennedy, J., concurring).

. For example, in White, which the Supreme Court considered "a close case,” the anonymous tipster offered predicative future facts regarding the alleged criminal’s time of departure, intended destination, and likely route. 496 U.S. at 331, 110 S.Ct. 2412.

. In fact, the police made no efforts to verify whether the passengers in the gray BMW actually committed any stickups.

. Two additional arguments warrant brief response. The majority reads too much into the caller's statement that the suspects were "running our pockets.” This situation is much different from those where the police had identifiable evidence of the informant's status as a victim or witness. See Adams, 407 U.S. at 147, 92 S.Ct. 1921 (discussing tips from known informants); Valentine, 232 F.3d at 354 (involving a face-to-face informant who witnessed criminal activity). Moreover, the tip here offered no information regarding how or when the informant observed the alleged activity. Valentine, 232 F.3d at 354.

Second, the majority relies on the fact that the alleged activity took place in a high crime area. While this fact is part of the "whole picture,” Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), its presence is not crucial. Indeed, this factor was also present in Roberson, and we still found reasonable suspicion lacking under circumstances analogous to those present here. 90 F.3d at 80; see Wardlow, 528 U.S. at 124, *489120 S.Ct. 673 (“An individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.’’).