United States v. Darius Heard

[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.

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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.

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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

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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).

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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

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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.

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 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,

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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.

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 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.

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