United States v. Monteiro

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
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 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).

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 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).
-9-
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
-11-
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).
-14-
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

-16-
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.
-18-
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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