United States Court of Appeals
For the First Circuit
No. 05-2283
UNITED STATES OF AMERICA,
Appellant,
v.
AMANDO B. MONTEIRO,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Selya and Lipez, Circuit Judges,
and Saylor,* District Judge.
Theodor B. Heinrich, Assistant United States Attorney, with
whom Virginia M. Vander Jagt, Assistant United States Attorney,
and Michael J. Sullivan, United States Attorney, were on brief,
for the United States.
Kevin S. Nixon for the defendant.
May 5, 2006
____________
*
Of the District of Massachusetts, sitting by designation.
LIPEZ, Circuit Judge. Acting on Amando Monteiro's
pretrial motion, the district court suppressed from evidence two
guns the police obtained during a vehicle stop. The government
sought our review pursuant to 18 U.S.C § 1371, which authorizes
interlocutory appeals in situations such as this. We affirm.
I.
In an appeal from a suppression order, the district
court's findings of fact govern absent a showing of clear error.
Ornelas v. United States, 517 U.S. 690, 699 (1996). Neither party
suggests that the district court made such an error, so we recite
the facts as the district court found them. We also add a few
undisputed details from the record.
Shortly after 4:00 P.M. on March 25, 1999, Boston police
responded to reports of gunfire on Eastman Street, in the
Dorchester section of the city. The target of the shooting, who
escaped unharmed, was Antonio Cabral. The police knew that Cabral
was associated with a gang and that his gang and its rival had been
involved in a series of shootings. At the scene on Eastman Street,
patrol officers James Coyne and Thomas Griffiths spoke with Cabral
for about an hour. Cabral reported that two men had shot at him
through a fence, while he was standing in his driveway. Cabral
said he had no knowledge of the identity of the shooters, but
another person who had been nearby told the police that a red Mazda
had raced away from Eastman Street shortly after the shooting.
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At around 8:00 P.M. that evening, Coyne and Griffiths
returned to Eastman Street and interviewed Cabral again. This
time, Cabral's mother and brother were present. Cabral again said
he had no information for the police. The Cabrals complained that
the police "weren't doing enough in the community to stop the
violence." Coyne responded that the police could do more if
neighborhood residents would "give us information for us to solve
these shootings." Cabral then said that he had no information to
offer about his own shooting but that he had information about
another shooting that same day. Cabral said that a relative told
him that she had witnessed gunfire on Shirley Street from two cars,
a red Mazda and a red Honda with license plate 5021EV. Coyne asked
Cabral who the relative was. Coyne understood Cabral to indicate
that the relative was female, but Cabral refused to give her name
or any other information about her. The police made no further
attempts to identify or locate the unnamed relative.
That same evening, Coyne and Griffiths drove to Shirley
Street and looked for some evidence of gunfire, such as spent shell
casings or bullet damage. They found none. The officers also
searched the police department's records to see if anybody had
reported gunfire on Shirley Street. No one had. Coyne later
testified at the suppression hearing that it was typical for
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shootings in the neighborhood to be reported to 911, and for
obvious evidence of gunfire to be found at the scene.1
Coyne ran the 5021EV license plate number through the
vehicle registration database and matched the plates to a red Honda
belonging to Marcelino Rodrigues. Coyne was familiar with
Rodrigues and suspected that he was affiliated with a gang that was
a rival to Cabral's. Coyne also knew that Rodrigues had been
arrested three weeks earlier in Randolph, Massachusetts, on a
firearms possession charge.2 Coyne and Griffiths went to the
address Rodrigues had listed on his vehicle registration, but
Rodrigues was not there. That night, the officers looked for
Rodrigues around the neighborhood but did not find him. Coyne and
Griffiths radioed other officers in the area to be on the lookout
for Rodrigues and the red Honda, but no one saw Rodrigues or his
car.
A full week passed during which the police apparently
conducted no further investigation of the possible shooting on
Shirley Street. Then, on March 31st, Coyne, Griffiths, and a third
1
Specifically, Coyne testified that after shootings in the
neighborhood:
There would be parties outside. There would be
numerous 911 calls. . . . You'd get to the scene.
There would be cars, multiple cars shot up,
ballistics damage in the street.
2
The charges against Rodrigues from the Randolph arrest
eventually were dismissed.
-4-
officer were conducting a traffic stop when they saw Rodrigues and
two passengers drive by. The officers rushed to their cars,
pursued Rodrigues, and pulled him over for "field interrogation and
observation."3 There was no traffic violation or suspicious
activity. The defendant was one of Rodrigues's passengers.
Although this appeal is limited to the legality of the
initial vehicle stop, we relate briefly what happened thereafter.
The officers ordered Rodrigues and his passengers to step out of
the car. The third officer, who was not available to testify at
the suppression hearing, told Coyne that he had seen a gun in the
center console of the car.4 The police then handcuffed Rodrigues
and his passengers and, upon obtaining a search warrant, searched
the car and recovered two guns. These guns comprise the evidence
at issue in this appeal. At the scene, the police questioned
Rodrigues about the purported Shirley Street shooting and about the
attempted shooting of Cabral on Eastman Street. Rodrigues denied
involvement in either event.5
3
We quote this phrase, which appears to be a term of art in
the Boston Police Department, from Officer Coyne's testimony at the
suppression hearing. Coyne explained that he meant that he had
stopped Rodrigues's car to "get information" by "speaking to [the
driver]."
4
At least one of the police officers had seen Rodrigues
leaning towards the center of his car as the police pulled him
over, after the stop was initiated (the government does not rely on
this evidence in arguing for the legality of the initial stop).
5
Later, after agreeing to cooperate with the government,
Rodrigues testified at the suppression hearing that he had indeed
-5-
Subsequently, the state and federal governments indicted
the defendant on a variety of charges. In both prosecutions, the
defendant sought to suppress evidence gathered in connection with
the March 31st stop of Rodrigues's car.6 The district court held
a two-day evidentiary hearing and issued a thoughtful order. The
court concluded: "While this is a borderline case, once the tip [of
a shooting on Shirley Street] proved to be unreliable, the hunch
[that Rodrigues was involved in criminal activity] was not enough
to establish a reasonable and articulable suspicion of criminal
activity sufficient to stop the red Honda."
II.
The sole question in this interlocutory appeal is whether
the police acted reasonably in stopping Rodrigues and his
passengers on March 31st. Because only the district court's
ultimate Fourth Amendment conclusion is at issue, our review is de
novo. United States v. Paradis, 351 F.3d 21, 24 (1st Cir. 2003).
When a police officer makes "brief investigatory stops of
persons and vehicles that fall short of traditional arrest . . .
the Fourth Amendment is satisfied if the officer's action is
supported by reasonable suspicion that criminal activity may be
been involved in the attempted shooting of Cabral. Rodrigues also
testified that there had been no shooting on Shirley Street on
March 25th.
6
The state court also granted the defendant's motion to
suppress.
-6-
afoot," United States v. Arvizu, 534 U.S. 266, 273 (2002) (internal
quotation marks omitted), or if there is "reasonable suspicion,
grounded in specific and articulable facts, that [the stopped]
person . . . was involved in or is wanted in connection with a
completed felony," United States v. Hensley, 469 U.S. 221, 229
(1985). In evaluating whether reasonable suspicion existed, we
"look at the totality of the circumstances of each case to see
whether the detaining officer ha[d] a particularized and objective
basis for suspecting legal wrongdoing." Arvizu, 534 U.S. at 273
(internal quotation marks omitted). The government bears the
burden of showing such a basis. See Florida v. Royer, 460 U.S.
491, 500 (1983) (plurality opinion); Brown v. Texas, 443 U.S. 47,
52 (1979). We allow police officers "to draw on their own
experience and specialized training" in making a vehicle stop.
Arvizu, 534 U.S. at 273. But the reasonable suspicion standard
imposes meaningful limits on temporary detentions. "[A]n officer's
reliance on a mere 'hunch' is insufficient to justify a stop." Id.
at 274 (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)).
While the defendant was neither the driver of the vehicle
stopped on March 31st nor then the subject of police suspicion, he
was seized when the police stopped Rodrigues's car. Consequently,
he has the right to contest the legality of that stop. See United
States v. Woodrum, 202 F.3d 1, 5-6 (1st Cir. 2000).
-7-
III.
The government contends that the totality of the
circumstances known to the police provided adequate justification
for the March 31st vehicle stop. In its briefs, the government
suggests that the police may have suspected Rodrigues of three
types of wrongdoing: the purported shooting on Shirley Street; the
attempted shooting of Cabral on Eastman Street; and ongoing
involvement in what the government terms "gang warfare." However,
the government conceded at oral argument that there is "no"
information in the record tying Rodrigues or his car to
"involvement in the Eastman Street shooting." (Coyne had said
essentially the same while testifying at the suppression hearing.)
Furthermore, while the police suspected Rodrigues of being a gang
member, the government does not contend that there was any reason
to suspect that Rodrigues and his passengers were involved in
criminal activity when the stop took place on March 31st, or that
they were about to be so involved.
The government does argue that the police had a
reasonable suspicion, grounded in specific and articulable facts,
that Rodrigues had committed a crime on Shirley Street on March
25th. (Coyne testified that investigation of this purported crime
was his actual motivation in stopping the Honda on March 31st.)7
7
Of course, reasonable suspicion is an "objective legal
standard," Ornelas, 517 U.S. at 701, and does not "depend[] on the
actual motivations of the individual officers involved," Whren v.
-8-
The tip from Cabral's unidentified relative is the focus
of the government's argument. Therefore, in section A, we evaluate
the appropriate place in the reasonable suspicion analysis i) of
that tip and ii) of the factors that the government argues
corroborated it. We conclude that the minimally corroborated tip
did not alone provide reasonable suspicion for a vehicle stop on
March 31st. In section B, we consider the tip and its minimal
corroboration with the other information known to the police on
March 31st. We conclude that the totality of the circumstances,
including the tip, did not provide reasonable suspicion to stop the
car on March 31st.
A. The Tip From Cabral's Relative
The only indication that a shooting actually had occurred
on Shirley Street was the hearsay statement of Cabral's unnamed
relative, as relayed to the police by Cabral. Three Supreme Court
cases provide the basic parameters for determining whether an
informant's tip provides reasonable suspicion for a Terry stop.
The first of these cases is Adams v. Williams, 407 U.S. 143 (1972).
In Adams, the Supreme Court concluded that a police officer was
warranted in conducting a Terry stop on the basis of an in-person
tip from a "person known to him" that a man "seated in a nearby
vehicle [in a high-crime area] was carrying narcotics and had a gun
at his waist." Id. at 144-45. The Court so held in large part
United States, 517 U.S. 806, 813 (1996).
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because the informant was known personally to the police officer,
and "had provided him with information in the past," and because
the informant would be subject to prosecution for supplying false
information to the police. Id. at 146. As a leading academic
commentator on the Fourth Amendment has written, Adams makes clear
that "suspicious circumstances reported to the police by a reliable
[known] person in a nonconclusory fashion" may in certain
circumstances be sufficient to warrant a Terry stop. 4 W. LaFave,
Search and Seizure 576 (4th ed. 2004).
Anonymous tips are a different matter. The second
relevant Supreme Court case, Alabama v. White, 496 U.S. 325 (1990),
involved an anonymous telephone call to the police, which stated
"that Vanessa White would be leaving 235-C Lynwood Terrace
Apartments at a particular time in a brown Plymouth station wagon
with the right taillight lens broken, that she would be going to
Dobey's motel, and that she would be in possession of about an
ounce of cocaine." 496 U.S. at 327. The Supreme Court majority
termed the resulting question of reasonable suspicion a "close
case." Id. at 332. The Court concluded that a reasonable
suspicion existed largely because the tip's assertion of White's
destination had been "significantly corroborated," id. at 331, and
because the tip demonstrated "the caller's ability to predict
[White's] future behavior" and "a special familiarity with [her]
affairs," id. at 332. Given all the circumstances, the Court
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reasoned, the anonymous tip in White bore sufficient "indicia of
reliability" to justify a Terry stop.
The third and most recent Supreme Court case dealing with
tips in the context of Terry stops is Florida v. J.L., 529 U.S. 266
(2000). In J.L., "an anonymous caller reported to the Miami-Dade
Police that a young black male standing at a particular bus stop
and wearing a plaid shirt was carrying a gun." Id. at 268. The
police arrived and found a young man matching that description.
The Supreme Court concluded that the mere fact that the tip
identified a specific person and alleged possession of a gun did
not provide "indicia of reliability of the kind contemplated in
Adams and White." Id. at 274. An anonymous tip not properly
corroborated, the Court concluded, "does not justify a [Terry]
stop." Id.
The defendant argues that the tip here was anonymous and
uncorroborated (like the tip in J.L.). The government avers that
the tip was neither truly anonymous (and so somewhat comparable to
the tip in Adams) and that the tip was corroborated (like the tip
in White). Our analysis takes two parts. We explain i) that the
tip in this case, whether or not it can rightly bear the technical
moniker "anonymous,"8 was akin to the anonymous tips analyzed by
8
There are differing views on whether the police must
normally treat as anonymous a hearsay tip, received from a known
individual, that an unnamed third party has witnessed a crime.
Compare United States v. Fernandez-Castillo, 324 F.3d 1114, 1117-18
(9th Cir. 2003) (finding tip non-anonymous where state highway
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the Supreme Court in J.L. and White in that it could not provide
reasonable suspicion unless corroborated; and ii) that because, as
in J.L. and unlike in White, it was not sufficiently corroborated,
the tip could not, by itself, provide reasonable suspicion for the
vehicle stop.
i. The Tip Itself
The government contends that the hearsay tip in this case
was more reliable than the anonymous tip analyzed in J.L. because
of the police officers' interactions with Cabral, and because
Cabral was able to report a crime supposedly witnessed by his
unnamed relative.
Certain of the government's arguments have superficial
appeal. More so than in J.L., the police here had some limited
means of narrowing the class of people who might have provided the
tip. See J.L. at 270 (noting danger when informant cannot "be held
responsible" for false information). And Cabral's description of
department reported to police that unnamed highway department
worker had witnessed erratic driving); and United States v. Tucker,
305 F.3d 1193 (10th Cir. 2002) (finding tip non-anonymous where
government employee reported to the police that her former
coworkers at another government agency had observed one of their
coworkers viewing child pornography); with Ferdandez-Castillo, 324
F.3d at 1126-27 (Ferguson, J., dissenting) (arguing that J.L.
controlled); and Commonwealth v. Barros, 755 N.E.2d 740, 745 n.7
(Mass. 2001) (explaining that J.L. does not distinguish among types
of anonymous informants). Because the circumstances here are
somewhat unusual, we decline to analyze hearsay tips from unnamed
informants in the abstract and focus on the specific tip in this
case.
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his relative's report provided some small measure of context for
the information that may not have been present if, as in J.L., the
police had received a bare tip, out of the blue, alleging the same
facts.9
Contrary to the government's suggestion, however, the tip
in this case bears some important badges of unreliability not
present in the cases relied upon by the government. First, there
is the hearsay problem. While the police or a 911 operator often
can make some rough judgments about the age, cognitive ability, and
motivations of an anonymous informant based on her tone of voice
(if the tip occurs via the telephone), or appearance and demeanor
(if the tip is delivered in person even by a complete stranger),
the police here had no way of knowing the state of mind of Cabral's
relative when she gave her information, or whether she was a person
who could be relied on to relate events accurately. In cases where
uncorroborated hearsay tips have been deemed reliable in
contributing to reasonable suspicion, there has been a stronger
indication that the informant can be trusted. In Tucker, 305 F.3d
at 1196, and in Fernandez-Castillo, 324 F.3d at 1116, for instance,
9
Still, while the government analogizes to cases in which a
person tells the police about things he has seen himself, this is
simply not a case where the police received a "personal
observation" or "first-hand account" of a crime. Cabral, from whom
the police received the tip, had not observed anything on Shirley
Street. See United States v. Cochran, 896 F.2d 635, 641 (1st Cir.
1990) (contrasting "personal observation" with "hearsay"); see also
United States v. Greenburg, 410 F.3d 63, 67 (1st Cir. 2005).
-13-
the police knew that the unnamed hearsay informant was a government
employee.
Second, there was a higher risk of fabrication here. The
J.L. Court deemed anonymous tips inherently unreliable largely
because such tips carry with them a risk of fabrication by the
informant. See J.L., 529 U.S. at 271. The hearsay tip in this
case provided two distinct opportunities for fabrication. The tip
was suspect 1) because Cabral may have had a motive to get a rival
gang member into trouble with the law and could have fabricated
both the Shirley Street shooting and the supposed communication
from his relative, and 2) because even if Cabral was honest in his
interactions with the police, his unnamed relative may have had her
own motive for fabricating incriminating evidence about a rival
gang member whom she may have suspected of harboring ill will
towards a member of her family.10 There is no indication in any of
the cases cited by the government that either a hearsay informant
10
The government emphasizes Coyne's ability to observe
Cabral's demeanor as he related the tip from his relative, and
hence to evaluate the possibility that Cabral was fabricating that
tip. These observations, however, did not address the possibility
that the unnamed relative had fabricated the tip. The tip from
Cabral's relative simply cannot be deemed more reliable by virtue
of Cabral's face-to-face interaction with the police. Compare
J.L., 529 U.S. at 276 (Kennedy, J., concurring). See also Adams,
407 U.S. at 146-47 (distinguishing known face-to-face informant
from anonymous phone tipper); United States v. Romain, 393 F.3d 63,
73-74 (1st Cir. 2004) (distinguishing J.L. in a case where the
police had face-to-face encounters with an unnamed informant that
allowed them to gauge her reliability and because her appearance
was known and she could be recognized and "held accountable" for
the information she had provided).
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or a party relaying a hearsay tip to the police had so obvious a
motive to lie as existed in this case.
Finally, crucially, and unlike in J.L., the police had
specific reasons to doubt the tip by the time they made their stop.
In J.L., "there [were] no factors that cast doubt on the
reliability of the tip." 529 U.S. at 271. In this case, there was
no physical evidence of gunfire on Shirley Street (as there usually
was after shootings in the neighborhood). No one had called the
police to complain (usually neighborhood residents called 911 upon
hearing gunfire). While officers in the city were alerted to be on
the lookout, none saw Rodrigues or his car in the hours after the
purported shooting or remembered seeing the car in the area of the
purported shooting earlier that day. The government does not
suggest, moreover, that in the week after the hearsay tip, the
tipster or Cabral came forward with additional information; that
any other witnesses to a Shirley Street shooting were found; or
that physical evidence of a shooting or unexplained gunshot wounds
in local hospitals emerged. When an initial police investigation
into a tip of illegal activity reveals factors inconsistent with
the tip, the reasonable suspicion analysis must take these indicia
of unreliability into account along with any indicia of
reliability. See Adams, 407 U.S. at 147; see also Terry, 392 U.S.
at 30; Brent v. Ashley, 247 F.3d 1294, 1303 (11th Cir. 2001).
Here, the investigation the police had conducted actually
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undermined the tip's reliability.
ii. Corroboration
The fact that the license plate number mentioned in the
tip led to Rodrigues provides a solid means of identification, but
it does not corroborate the tip's assertion that there had been a
shooting on Shirley Street. When police officers stop a person in
reliance on a tip, "reasonable suspicion . . . requires that a tip
be reliable in its assertion of illegality, not just in its
tendency to identify a determinate person." J.L., 529 U.S. at 272.
The positive identification of Rodrigues did nothing to bolster the
tip's "assertion of illegality." Id.
The government also argues that Rodrigues's recent arrest
and reputation as a gang member provided corroboration for the tip.
While "knowledge of a person's prior criminal involvement (to say
nothing of a mere arrest) is alone insufficient to give rise to the
requisite reasonable suspicion," United States v. Sandoval, 29 F.3d
537, 542 (10th Cir. 1994) (collecting cases); see also United
States v. Jerez, 108 F.3d 684, 693 (7th Cir. 1997), there may be
Terry-stop cases in which corroboration comes in part from an
individual's gang affiliation and/or recent arrests for conduct
related to the activity referred to in a tip. Criminal history
certainly can be considered in a reasonable suspicion analysis.
See United States v. Daoust, 916 F.2d 757, 759 (1st Cir. 1990)
(Breyer, C.J.). And cases in other circuits have recognized that
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a history of crime and gang involvement can corroborate other
evidence to establish reasonable suspicion that criminal conduct
has occurred or is occurring. See United States v. Feliciano, 45
F.3d 1070, 1074 (7th Cir. 1995) (Posner, J.) (holding that police
officer's knowledge that search subject was "a gang member recently
released from prison," combined with observations and citizen
complaint suggesting that subject had just attempted to mug a
passerby and might do so again, contributed to reasonable
suspicion). As the Feliciano court recognized, an individual's
affiliation with a violent gang and prior criminal conduct may be
probative of the likelihood that he has or is about to complete
another, similar crime. Id.
But, here, the officers' awareness of Rodrigues's
involvement in gang activity and his prior arrest is not linked to
any reliable information about criminal activity on Shirley Street.
In the cases the government relies upon, courts have found that an
individual's criminal history corroborated reliable information,
such as a police officer's own observations, in constituting
reasonable suspicion. In United States v. Christmas, 222 F.3d 141,
143-45 (4th Cir. 2000), the police conducted a Terry stop of a man
they knew to be a convicted criminal, after receiving a face-to-
face complaint by the man's neighbor, who risked retaliation for
asking the police to intervene, and viewing objective indications
of ongoing criminality. In Feliciano, it was the police officers'
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own observations of suspicious activity that led them to follow and
identify the individual they stopped. 45 F.3d at 1074. In these
cases, the police officers observed conduct indicating that an
individual was engaged in criminal behavior, and their knowledge of
the individual's criminal history helped to dispel any likelihood
that the observed conduct actually was innocent.11 Here, the danger
was that no criminal activity had occurred on Shirley Street at
all.12 Given the objective indications that there had been no
Shirley Street shooting, Rodrigues's arrest and reputation are, at
best, only a minimal indication that the criminal activity
complained of in the hearsay tip had occurred.
Where "a tip has a relatively low degree of reliability,
more information will be required to establish the requisite
quantum of suspicion than would be required if the tip were more
11
The government also cites United States v. Mitchell, 256
F.3d 734 (7th Cir. 2001). In that case, the police responded
within 90 seconds to an anonymous report of a shooting and found
the defendant, who matched the description of the shooter. The
police asked the defendant a question and then, after observing
his behavior and realizing that he was a convicted felon known for
his violence, conducted a Terry stop because they feared that they
would be shot in the back if they proceeded without patting the
defendant down. Id. at 737. The government does not suggest any
similar justification for the stop in this case.
12
The situation here also is far different from one in which
an anonymous tipster accurately forecasts another individual's "not
easily predicted movements" in a manner that confirms the tipster's
knowledge of the subject's criminal intentions. J.L., 529 U.S. at
269 (internal quotation marks omitted). In this case, nothing the
police learned after the tip falls into the category of information
that could "not easily [be] predicted" by a tipster intending to
mislead the police.
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reliable." White, 496 U.S. at 330. See also 4 LaFave, supra, at
589 (reasoning that a tip with "lesser 'indicia of reliability'"
provides reasonable suspicion "only when other facts and
circumstances indicate no substantial risk of fabrication"). Here,
as in White, the tip could not be deemed reliable in and of itself.
Compare Adams, 407 U.S. at 144-47 (evaluating a tip from a "known"
individual, who had "provided [] information in the past"). And,
as in J.L., even with the minimally corroborative factors cited by
the government, the police had uncovered nothing of importance that
could indicate the reliability of the hearsay tip. To the
contrary, the initial police investigation did more to discredit
the hearsay tip than to corroborate it. Compare White, 496 U.S. at
331-32 (concluding that tipster's "honest[y]" and "inform[ation]"
were corroborated when informant "demonstrated . . . a special
familiarity with the [stopped individual's] affairs"). For these
reasons, we conclude that the tip standing by itself was
insufficient to provide reasonable suspicion for the March 31st
vehicle stop.
B. The Totality of the Circumstances on March 31st
The government argues that even if it was insufficient by
itself, the hearsay tip, evaluated in light of Rodrigues's arrest
and reputation as a gang member, when combined with other
circumstances -- the Eastman Street shooting and the "ongoing gang
warfare" -- justified the vehicle stop. We disagree.
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First, what happened (and did not happen) in the week
between the hearsay tip and the stop reduced the weight that the
tip could carry in the reasonable suspicion analysis. In Hensley,
which also involved an investigatory stop conducted several days
after a crime, the Supreme Court indicated that the reasonable
suspicion analysis should take into account the passage of time
between a reported crime and a Terry stop. The Hensley Court
explained that the "factors in the balance" of determining whether
a Terry stop is permissible, "may be somewhat different when a stop
to investigate past criminal activity is involved rather than a
stop to investigate ongoing criminal conduct." Hensley, 469 U.S.
at 229.
This is because the governmental interests and
the nature of the intrusions involved in the
two situations may differ. . . . A stop to
investigate an already completed crime does
not necessarily promote the interest of crime
prevention as directly as a stop to
investigate suspected ongoing criminal
activity. . . . [Additionally,] officers
making a stop to investigate past crimes may
have a wider range of opportunity to choose
the time and circumstances of the stop.
Id. See also United States v. Hudson, 405 F.3d 425, 434-37 (6th
Cir. 2005) (discussing Hensley standard in the context of an
informant's tip); United States v. Quarles, 330 F.3d 650, 653-56
(4th Cir. 2003) (same); 4 LaFave, supra, at 288 (noting that Terry
stops to investigate past criminal activity "require somewhat
different analysis").
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As we indicated above, by the time the stop occurred, a
full week after the hearsay tip, the police had investigated the
tip and found no corroboration, excluding Rodrigues's reputation
and his arrest three weeks earlier, that a Shirley Street shooting
had occurred. Questionable Terry stops may become even less
reasonable if "the police have had the time to develop" better
grounds for the stop but have failed to do so. United States v.
Hudson, 405 F.3d 425, 437 (6th Cir. 2005) (explaining that Hensley
incorporates an expectation that police will make efforts to
investigate crimes, and that "courts will hold the police to this
expectation in appropriate cases"). By March 31st, the tip could
provide only a marginal benefit to the government in a reasonable
suspicion analysis.
Similarly, while there may be a rationale for according
special weight to anonymous tips in cases of an imminent threat to
public safety, there was no imminent threat in this case. See
J.L., 529 U.S. at 273-74 (recognizing that in some cases, such as
"a report of a person carrying a bomb," "the danger alleged in an
anonymous tip may be so great as to justify a search without a
showing of reliability"). True, if the vehicle stop had occurred
immediately after the tip on March 25th, and before any opportunity
for investigation, the government might have argued that an
imminent threat existed -- facing two reported shootings, the
police may have had legitimate reasons to fear that another
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shooting might soon occur. But the police did not report any
reason to suspect that Rodrigues and his car posed a danger on
March 31st, and the government does not argue that there was any
such reason. The lack of any indication of an immediate threat to
the public also differentiates this case from many in which a stop
has been based on a corroborated anonymous tip of ongoing criminal
activity, see, e.g., United States v. Wheat, 278 F.3d 722 (8th Cir.
2001) (reckless driving); State v. Walshire, 634 N.W.2d 625 (Ia.
2001) (drunk driving); 4 LaFave, supra, at 596-97. In these cases,
there were strong exigent rationales for quick police action (e.g.,
imminent danger to the public and loss of evidence) that are
altogether absent here.
Furthermore, contrary to the government's assertion, we
are not persuaded that there were any other substantial
"governmental interests," Hensley, 469 U.S. at 229, involved in the
March 31st vehicle stop. In a Terry stop to investigate a
completed crime, there normally is either a reasonable suspicion
that the person stopped is the known individual wanted for a crime
that is known to have occurred, see, e.g., Hensley, 469 U.S. at
224 (police department had issued "wanted flyer" for driver) or a
reasonable suspicion that the stop will uncover evidence of a
recently-committed crime, see, e.g., United States v. Tilmon, 19
F.3d 1221, 1225 (7th Cir. 1994) ("exact match" of subject and his
car to those described as involved in bank robbery two hours
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earlier). Some of these rationales might plausibly have been
articulated if Coyne and Griffiths had seen and stopped Rodrigues
on March 25th, before there was time for any investigation and
shortly after the purported Shirley Street shooting was supposed to
have taken place. (At that point, for instance, the officers might
have expected to detect fleeting physical evidence of a recent
shooting, such as a hot gun, gunpowder residue, or the odor of
gunpowder on Rodrigues's person.) But none of these rationales
applies to the March 31st stop.
This also might have been a different case if the police
had demonstrated that they had no better way to question Rodrigues
a week after the purported crime on Shirley Street. We can
envision circumstances where a Terry stop to investigate a
completed crime may be justified in part because the police have
searched for a suspect in all his usual haunts but failed to find
him. In those circumstances, a suspect's unusual absence may be
probative of an effort to elude the police and an articulable
indication of specific past criminal activity. But there is no
evidence that this was such a case.
In the end, the police had little more reason to suspect
Rodrigues of specific criminal activity on March 31st than they did
before receiving the hearsay tip. The police suspected Rodrigues
of being affiliated with a gang and knew of his recent arrest. And
the police knew that there had been gang violence in the
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neighborhood. But the government does not suggest that the police
had information tying Rodrigues, personally, to any of this
violence. The only possible crime to which the police could tie
Rodrigues -- the Shirley Street shooting -- was one that appeared,
in all likelihood, never to have occurred. After considering all
of the circumstances relevant to the March 31st stop, we conclude
that the district court correctly suppressed the evidence derived
therefrom.
Affirmed.
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United States v. Monteiro
Court: Court of Appeals for the First Circuit
Date filed: 2006-05-05
Citations: 447 F.3d 39
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