UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-2636
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANK EUGENE ROCH,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(October 19, 1993)
Before JONES, and DeMOSS, Circuit Judges, and KAZEN*, District
Judge.
DeMOSS, Circuit Judge:
I. FACTS AND PROCEDURAL HISTORY
On the morning of February 22, 1991, a confidential informant
told a Houston Police Department (HPD) officer that a man named
Frank planned to pass some forged checks and threatened to kill the
next cop he saw. According to the informant, Frank possessed two
guns, drove a white and orange pickup truck, and was staying in a
local motel room with his girlfriend. The informant described him
*
District Judge of the Southern District of Texas, sitting
by designation.
only as a blond, white male with tattoos on large portions of his
body.
Based on the informant's tip, the HPD officer contacted Bureau
of Alcohol, Tobacco, and Firearms (ATF) agent Larry Shiver that
same morning. The officer told Shiver a suspect was staying at the
Olly Motel in Houston, Texas. The HPD officer indicated he
believed the suspect was armed and that he "felt this person was a
convicted felon."1.
Based on that information, Shiver and several other ATF agents
set up surveillance on the motel which lasted for several hours.
Around 4 p.m., the agents saw a white and orange pickup truck pull
out of the motel parking lot with a male driver and a female
passenger.
The agents followed the truck and very shortly it pulled into
a gas station. At that time, Shiver requested a nearby HPD officer
to "stop" the truck. As Roch exited the truck, the HPD officer
pulled into the station, ordered Roch to the ground at gunpoint and
handcuffed him. An ATF agent then approached the truck, peered
1
At the suppression hearing Shiver testified that the
information he had indicated the suspect had "prison-grade
tatoos"; and that the term "prison-grade" refers to cheap,
colorless tattoos that are used by prison inmate gangs to brand
their members. Shiver further testified that he did not
personally talk to the confidential informant, that the
information passed to him by the HPD officer, particularly that
there were tatoos, caused him to believe the suspect was a felon,
and that neither he nor any other investigating officer saw any
tatoos on Roch prior to his arrest. It appears therefore that
the classification of the tatoos as being "prison grade" is an
assumption which Shiver made but neither the confidential
informant nor the HPD officer who relayed the information used
those specific words.
2
inside the open door, and saw a purse on the front seat with the
butt of a gun protruding from it. Afterwards, another ATF agent
searched the truck and found a gym bag behind the front seat, which
contained a .32 caliber gun. The agents seized both guns and took
Roch to the Houston Police Department where he ultimately gave a
videotaped confession.
The grand jury indicted Roch for being a felon in possession
of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1).
Roch moved to suppress the evidence on Fourth Amendment grounds;
and an evidentiary hearing was held on that motion. The district
court's oral findings of fact and conclusion of law regarding the
suppression motion were sparse and somewhat ambiguous.
Essentially, given the most supportive interpretation, the district
court seemed to rule that while the ATF agents never had probable
cause to seek an arrest warrant, the HPD officers did have
reasonable suspicion to make an investigative stop and the weapons
were discovered as a follow-up to that stop. Accordingly, the
district court orally denied the motion. Roch then entered a
conditional plea of guilty under Fed. R. Crim. P. 11(a)(2),
expressly reserving his right to appeal the denial of his
suppression motion.
The district court sentenced Roch to 235 months imprisonment
followed by a five-year term of supervised release. The court also
imposed a $25,000 probated fine, conditioned on Roch's continued
payment of child support with his prison earnings. Roch timely
appealed.
3
II. DISCUSSION
Roch raises three issues on appeal: (1) Did his arrest and
the search of his truck violate his Fourth Amendment rights? (2)
Did the district court violate Rule 11 in failing to inform Roch of
his fine range? (3) Did the district court err in imposing a fine
on Roch? Because of our decision regarding Roch's Fourth
Amendment claim, we do not address the second or third issue.
1. Burden of Proof
In reviewing a district court's ruling on a motion to
suppress, we accept findings of fact unless clearly erroneous, but
review de novo the ultimate conclusion on Fourth Amendment issues
drawn from those facts. United States v. Diaz, 977 F.2d 163, 164
(5th Cir. 1992), United States v. Casteneda, 951 F.2d 44, 47 (5th
Cir. 1992).
While in general, on a motion to suppress, the defendant has
the burden of proving, by a preponderance of the evidence, that the
material in question was seized in violation of his constitutional
rights, there are several situations where the burden shifts to the
government. United States v. De La Fuente, 548 F.2d 528, 533 (5th
Cir.), cert. denied 431 U.S. 932 (1977).
As stated in De La Fuente, one of the other situations where
the government bears the ultimate burden of proof is:
if a defendant produces evidence that he was
arrested or subject to search without a
warrant, the burden shifts to the government
to justify the warrantless search.
548 F.2d at 533.
4
Consequently, in the present case, where the facts are
undisputed that the arrest and seizures were made without benefit
of warrants of any kind, we hold the government bears the burden of
proving it had reasonable suspicion to seize Roch.2
2. Reasonable Suspicion
In analyzing this case, we start with the determination that
the actions taken by the arresting officer escalated instantly
beyond what can be categorized as an "investigative stop." Roch
voluntarily stopped his truck in a gas station and was outside his
vehicle when police arrived on the scene. No questions were asked
and no actions by Roch occurred which could be interpreted as a
threat to the officer. The first words spoken by the police
officer who had his gun drawn was a command for Roch to get face
down on the ground, and then, without further inquiry, Roch was
handcuffed. At this point, he was "arrested or seized" in the
clearest sense of those words, without investigation of any kind.
The critical issue in this case then becomes whether the ATF agents
and HPD officers had reasonable suspicion to seize or arrest Roch
for being a felon in possession of a firearm. Even an investigatory
stop would be proper only if based on reasonable suspicion that
2
While we recognize that United States v. Casteneda, 951
F.2d 44, 48 (5th Cir. 1992), contains inconsistent language
regarding the burden of proof in suppression hearings, we do not
find Casteneda to be controlling precedent. Casteneda followed
the general rule (that the movant carries the burden of proof in
a suppression hearing) without noting the important exception set
out in De La Fuente, 548 F.2d at 533, (that the burden of proof
shifts to the government in suppression hearings dealing with
warrantless searches). De La Fuente remains as the controlling
precedent for warrantless search suppression hearings, and we
follow it here.
5
"criminal activity is afoot." Terry v. Ohio, 392 U.S. 1, 30
(1968). If an officer observes suspicious activity, the Fourth
Amendment requirement is satisfied if there is a "minimal level of
objective justification for the officer's actions, measured in the
light of the totality of the circumstances." United States v.
Rideau, 969 F.2d 1572, 1574 (5th Cir. 1992) (en banc) (citing
United States v. Sokolow, 490 U.S. 1, 6-8 (1989)).
We note that the ATF agents and HPD officers did not observe
any activity during the surveillance which would support a finding
of reasonable suspicion that Roch was a felon in possession of a
firearm. The surveillance of the motel began in the morning and
continued through 4:00 PM. During that time, the agents did not
see any tattoos on Roch's body corroborating his felon status or
observe Roch carrying or attempting to conceal a gun. In fact, the
surveillance failed to provide reasonable suspicion of any crime.
The agents did not see Roch commit a criminal offense,3 engage in
any questionable behavior,4 or break any traffic laws. The only
activity the agents observed was a man and woman leaving the motel
parking lot in an white and orange pickup truck, and driving to a
filling station.
3
See e.g., United States v. Lopez-Gonzales, 916 F.2d 1011,
1014 (5th Cir. 1990) (holding reasonable suspicion existed to
justify a Terry stop near the Mexico border after United States
Border Patrol officers observed illegal activity).
4
See e.g., United States v. Watson, 953 F.2d 898, 896 (5th
Cir. 1992) (holding reasonable suspicion existed when an officer,
at 3:30 AM, saw an individual in a car appear to conceal or
retrieve something on the car floor).
6
Reasonable suspicion, however, does not have to be based on a
personal observation. It can be based on information provided by
a confidential informant, if the information possesses "an indicia
of reliability." Id.; Adams v. Williams, 407 U.S. 143, 147
(1972). In examining the totality of the circumstances, the
"informant's veracity, reliability, and basis of knowledge ...
[are] important factors; however, `a deficiency in one may be
compensated for, in determining the overall reliability of a tip,
by a strong showing as to the other, or some other indicia of
reliability.'" United States v. Jackson, 818 F.2d 345, 348 (5th
Cir. 1987) (quoting Illinois v. Gates, 462 U.S. 213, 233 (1983)).
The government contends the information it possessed had a
sufficient indicia of reliability because Agent Shiver knew the
informant personally, the informant had previously given reliable
information that had resulted in warrants and convictions, and the
information was based on direct contact with the suspect.
While first-hand interaction has often provided a sufficient
basis of knowledge to find an indicia of reliability, we note the
information provided by the informant here lacks considerable
detail. The suspect is only identified as Frank. His last name is
not provided. Frank is described only as a white male with blond
hair with numerous tattoos. Approximations of his height and
weight are absent. The pickup truck is only described by its
orange and white color; there is no make, model, year of
manufacture, or license number.
7
This information is significantly less detailed than other
situations where reasonable suspicion has been found. In United
States v. Wangler, 987 F.2d 228, 229 (5th Cir. 1993), a
confidential informant told police that Wangler would deliver a
shipment of cocaine at a particular convenience store and would be
driving a 1987 Dodge pickup truck, license plate number 313-5LL.
This Court held that after he observed Wangler arrive in the truck
described by the informant and corroborated the tip through
independent police work and direct observation, the officer had
reasonable suspicion to stop Wangler.
In Alabama v. White, 110 S. Ct 2412 (1990), the police
received an anonymous telephone tip that Vanesa White would be
leaving Lynwood Terrace Apartment 235-C at a particular time in a
brown Plymouth station wagon with a broken right taillight, that
she would be carrying a brown attache case with an ounce of cocaine
inside, and that she would be going to Dobey's Motel. The police
went to the apartment complex where they saw White leave the
apartment in the described brown station wagon and take the most
direct route to the hotel. The police stopped White just short of
the motel, and asked her if they could search her car. She agreed,
and the police found marijuana and cocaine.
On appeal the Supreme Court held reasonable suspicion existed.
The Court relied heavily on the anonymous tipster's prediction of
White's future behavior, which was later corroborated by the
observations of the police. The Court reasoned "[w]hat was
important was the caller's ability to predict . . . [White's]
8
future behavior, because it demonstrated inside information--a
special familiarity with . . . [White's] affairs." Id.
While the information received from the informant in this case
may have been derived from direct contact with Roch, the absence of
significant details and a prediction of future behavior prevents us
from holding that such information provided a sufficient basis for
a reasonable suspicion finding.
Sometimes independent police work can corroborate details in
an informant's tip. See Illinois v. Gates, 462 U.S. 213, 241
(1983). In Gates, the Police Department of Bloomingdale, IL,
received an anonymous letter stating the defendants, Lance and
Susan Gates, were drug dealers. The tip detailed the defendants'
plan to fly to Florida and drive back to Illinois with drugs hidden
in the trunk of their car. Acting on the tip, the police officer
determined the defendants' addresses and learned the husband had
made a reservation to fly to Florida. Drug Enforcement
Administration surveillance corroborated the husband's presence on
the flight to Florida, his departure from Florida heading north in
a car bearing Illinois license plates, and other significant
details in the letter. The Court held that a state magistrate had
probable cause to issue a warrant to search their car and home
based on the corroboration of the information in the anonymous
letter.
9
Although reasonable suspicion is a substantially lower
standard than probable cause,5 it still requires an indicia of
reliability demonstrated by the observation of sufficient details
that corroborate the informant's tip. In this case, while the
agents could corroborate that a white man was driving a white and
orange truck, they made no attempt to corroborate the driver's
identity, his felon status, or his future activity. During the
several hours that the pickup truck was under surveillance at the
motel, neither HPD nor ATF agents made any effort to run a title
check on the truck through its license plates or to check the
registration list in the office of the motel to determine the names
of the occupants who arrived in the truck. The HPD officer who
actually put Roch on the ground and handcuffed him did not testify
at the suppression hearing; so there is no way to know what
information or instructions, if any, he had when he made this
"seizure" of the defendant. The record would infer however that
the HPD officer asked no questions and received no further
information which would corroborate any of the informant's
information prior to putting Roch on the ground at gun point and
handcuffing him.
The final case relied upon by the government is Adams v.
Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972).
In that case, the Court held that a known informant's tip to a
police officer that a suspect sitting in a nearby vehicle was
5
United States v. Rideau, 969 F.2d 1572, 1574 (5th Cir.
1992) (en banc).
c:br:opin:92-2636p.fnl 10
carrying narcotics and had a gun at his waist "carried enough
indicia of reliability to justify the officer's forcible stop of
Williams." Id. at 147.
Adams is distinguishable from the present case. In Adams, the
information justifying criminal activity as to which the government
asserted reasonable suspicion concerned the possession of
narcotics, an act that is per se illegal. In this case, the
criminal activity as to which the government sought to raise a
reasonable suspicion was that Roch was a felon and possessed a gun.
The critical element necessary to such suspicion is that the
possessor is a felon. In this case, absent any corroboration of
Roch's status as a convicted felon, the government had no
reasonable suspicion that the criminal activity suggested by the
informant was afoot.
III. CONCLUSION
Because the government failed to meet its burden to show that
the ATF agents and HPD officers had reasonable suspicion to seize
Roch for being a felon in possession of a firearm, we REVERSE the
conviction.
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