IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 18, 2008
No. 06-11381
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRIAN KEITH CASPER,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
Before REAVLEY, SMITH, and DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Brian Casper appeals his conviction on the ground that his seizures and
searches were unlawful. He also appeals his sentence. We find no error and af-
firm.
No. 06-11381
I.
In May 2005, Casper drove away from his residence in Fort Worth, which
was under surveillance by a drug task force. Officers stopped him for a traffic
violation and arrested him for driving with a suspended license and for outstand-
ing arrest warrants. They searched the car and found methamphetamine, mari-
huana, scales and other drug paraphernalia, and a .40 caliber Beretta handgun.
They transported Casper to the residence, where he gave written consent to a
search of the house.
The search uncovered more methamphetamine and a sawed-off shotgun.
After being read his Miranda warning, Casper admitted responsibility for the
contraband found in the house and car.
In January 2006, two Dallas police officers responded to a complaint that
an aggravated assault with a gun had occurred at a motel. The complaint was
made via telephone, and the dispatcher relayed the information to the officers
by radio and computer. The complainant alleged that his life had been threat-
ened by a white male with a firearm who was driving a white Ford Ranger pick-
up with Illinois license plates.
On arriving at the motel, the officers witnessed Casper backing out of a
parking spot in a white Ford Ranger pickup with Illinois plates. They turned on
their lights, blocked Casper’s path, drew their weapons, and ordered him to exit
the vehicle. He complied, and the officers handcuffed him and asked whether
he had any weapons. He told them of a handgun in the truck. The officer asked
whether he had a permit for the gun. Casper admitted he did not, and the offi-
cers arrested him.
While the officer was retrieving the handgun from the truck, he observed
what he believed to be drug paraphernalia. After arresting Casper, the officers
inventoried the vehicle in preparation for impounding it. They seized the box of
paraphernalia and found scales, torches, a Bunsen burner, glassware, metham-
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No. 06-11381
phetamine, and a disassembled handgun. Casper admitted the contraband be-
longed to him.
II.
A.
Casper filed motions to suppress the evidence gathered from the searches.
The court denied Casper a hearing on the May 2005 search but held one for the
January 2006 search.
At the hearing, the government offered the testimony of the two arresting
officers. Other than the details offered above, the officers testified that they
were able to contact the complainant and bring him to the scene, where it was
determined the complaint was a hoax. The officers also testified that they did
not know the name of the complainant, though normally it would have been on
the call sheet, which they did not produce at the hearing. The call sheet did
have the complainant’s phone number, so the police were able to contact him and
bring him to the scene. The court concluded that it was not evident that the
complainant had made an anonymous tip, meaning that the officers did not have
to corroborate the tip, and thus the seizure of Casper was legal.
B.
Casper was convicted of two counts of possessing drugs with intent to dis-
tribute, 21 U.S.C. § 841(a)(1), three counts of possession of a firearm by a felon,
18 U.S.C. § 922(g), and one count of possession of an unregistered firearm, 26
U.S.C. § 5861(d). He was acquitted of two counts of possession of a firearm in
connection with a drug offense, 18 U.S.C. § 924(c).
The presentence report calculated the guideline range as 360 months to
life imprisonment. That calculation included a two-level enhancement for pos-
sessing firearms in connection with the drug trafficking offenses. The court
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No. 06-11381
adopted the calculation and sentenced Casper to 480 months’ imprisonment.
III.
Casper appeals the court’s determination that the May 2005 and January
2006 seizures and searches were legal. We address each incident in turn.
A.
With respect to the May 2005 seizure and search, Casper challenges the
district court’s denial, without a hearing, of his suppression motion.1 The court
denied the motion because it determined the uncontested facts established that
the warrantless search was conducted incident to a legal custodial arrest. We
review the determination not to hold a hearing on a motion to suppress for abuse
of discretion.2
The government contends that we ought to review for plain error, because
Casper did not object to the court’s decision not to hold a hearing; Casper claims
that is tantamount to requiring that he take an exception in contravention of
Federal Rule of Criminal Procedure 51(a). We need not address that issue, be-
cause even under the less deferential abuse-of-discretion standard, the court did
not err.
A defendant is entitled to an evidentiary hearing if he alleges sufficient
facts that, if proven, would justify relief. See Powell, 354 F.3d at 370 (citing
1
To preserve the matter for further review, Casper also avers that New York v. Belton,
453 U.S. 454, 460 (1981) (holding that the police may, as an incident of a lawful custodial ar-
rest, conduct a warrantless search of the passenger compartment of an automobile), was incor-
rectly decided. Additionally, he claims the government failed to demonstrate its alternative
justification for the warrantless search, that discovery of the contraband was inevitable be-
cause the automobile would have been inventoried before impoundment. We need not address
that claim because we are bound by Belton, which is sufficient to render this a legal warrant-
less search.
2
See United States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003) (citing United States v.
Harrelson, 705 F.2d 733, 737 (5th Cir. 1983)).
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No. 06-11381
United States v. Mergist, 738 F.2d 645, 648 (5th Cir. 1984)). The movant gener-
ally bears the burden of production and persuasion, but “if a defendant produces
evidence that he was arrested or subjected to a search without a warrant, the
burden shifts to the government to justify the warrantless arrest or search.”
United States v. de la Fuente, 548 F.2d 528, 533 (5th Cir. 1977).
The May 2005 search was conducted without a warrant, so the government
had the burden of persuasion to justify the search. The government claimed that
Casper made an illegal right turn, was stopped by a Fort Worth police officer,
and was arrested for driving with a suspended license. The government avers
that as a search incident to a legal, custodial arrest, the search did not violate
the Fourth Amendment. The government did not offer any evidence of the
events, and Casper did not stipulate to the government’s account, but neither did
Casper offer an alternative account or specifically contest that he was arrested
before the search. His motion to suppress instead sought to cast doubt on the
holding of Belton.
The court agreed with the government and concluded that the warrantless
search was justified as a search incident to arrest under Belton, 453 U.S. at 460,
and Chimel v. California, 395 U.S. 752, 762-63 (1969). Because we are bound by
these precedents, the only question is whether the court abused its discretion by
concluding that the government satisfied its burden of persuasion by merely al-
leging that Casper was legally arrested.
Because Casper never contested the government’s assertion, let alone al-
leged facts that would, if proven, justify relief, see Powell, 354 F.3d at 370, the
court did not abuse its discretion. Without Casper presenting an alternate ac-
count, the court could not have known that there were any disputed facts that
required a hearing. Failure to stipulate to the government’s version of the facts
is insufficient to mandate a hearing. If a failure to stipulate were sufficient, an
evidentiary hearing would be necessary every time a defendant alleged there
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No. 06-11381
was no warrant, and hearings would be granted as a matter of course. The law
does not require that.
B.
When considering the denial of a motion to suppress, we review the “dis-
trict court’s factual findings for clear error and its ultimate conclusion as to the
constitutionality of the law enforcement action de novo.” United States v. Cha-
vez-Villarreal, 3 F.3d 124, 126 (5th Cir. 1993). Casper contends that his January
2006 detention and the subsequent search of his vehicle, culminating in his
arrest, were illegal because they were executed without a warrant and did not
fall within any exception. Specifically, he asserts that the complaint that led the
officers to the motel was the equivalent of an anonymous tip that the officers
failed to corroborate and that the government has failed to demonstrate was, ex
ante, reliable.
A person is seized when a show of authority is sufficient to convince a
reasonable person that he is not free to leave. Immigration & Naturalization
Serv. v. Delgado, 466 U.S. 210, 215 (1984). An investigative stop by the police,
though a seizure, is constitutionally permissible if the police have a reasonable
suspicion, supported by articulable facts, that criminal activity is afoot. See
Terry v. Ohio, 392 U.S. 1, 27 (1967); United States v. Martinez, 486 F.3d 855, 861
(5th Cir. 2007). Reasonable suspicion is a lower standard than is the probable
cause required to make an arrest. United States v. Jones, 234 F.3d 234, 241 (5th
Cir. 2000).
The Dallas police officers exhibited sufficient force for Casper to believe he
was not free to leave; in fact, he was ordered out of his truck and was handcuffed
immediately. As above, “if a defendant produces evidence that he was arrested
or subjected to a search without a warrant, the burden shifts to the government
to justify the warrantless arrest or search.” de la Fuente, 548 F.2d at 533.
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No. 06-11381
Because there is no dispute that Casper’s detention, arrest, and the search of his
truck were done without a warrant, the government bears the burden of proving
that the detention was justified by reasonable suspicion, placing it within the
protection of Terry and its progeny.
The government asserts that the complaint telephoned to the Dallas police
created reasonable suspicion to justify the investigative detention. The govern-
ment offers as articulable facts that, on arriving at the location given in the com-
plaint, the police found “Casper, who fit the description of the suspect, and was
driving a vehicle which matched exactly the description of the suspect vehicle.”
That information alone is not sufficient to establish reasonable suspicion; some-
thing needs to be known about the informant. See Florida v. J.L., 529 U.S. 266,
272 (2000).
An informant’s tip can provide reasonable suspicion, depending on the
credibility and reliability of the informant, the specificity of the in-
formation contained in the tip or report, the extent to which the in-
formation in the tip or report can be verified by officers in the field,
and whether the tip or report concerns active or recent activity, or
has instead gone stale.
Martinez, 486 F.3d at 861 (quotation marks and citation omitted). Where the tip
is anonymous, the credibility and reliability of the informant cannot be deter-
mined, and the government must establish reasonable suspicion based on some
or all of the other factors.3
The government agrees that if the source of the information were anony-
mous, it would be more difficult to establish the veracity of the tip and to con-
clude the tip provided reasonable suspicion. The government contends, however,
that the complainant was not anonymous, but rather a citizen reporting a crime.
3
See J.L., 529 U.S. at 270 (noting that corroboration can establish that an anonymous
tips exhibits sufficient indicia of reliability to provide reasonable suspicion); Martinez, 486 F.3d
at 862.
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No. 06-11381
We have agreed with other circuits that a citizen reporting a crime is more
reliable, because such citizens are exposed to criminal liability for false com-
plaints. United States v. Basey, 816 F.2d 980, 988-89 (5th Cir. 1987). Reliability
is the central concern. Thus, in Basey the tipster was reliable because the depu-
ties conducting the Terry stop knew the citizen informant. Id. at 988. In con-
trast, in Martinez, 486 F.3d at 861-62, where the government “never introduced
any evidence about the informant whatsoever and made no effort to illustrate his
or her reliability in the district court,” the tip was the “functional equivalent of
an anonymous tip. To characterize it as anything else would be to assume the
very credibility and reliability that the government has the burden of proving.”
In the instant case, the government must establish the reliability of the
informant, base its reasonable suspicion on other factors named in Martinez, or
both. The government offers that the informant was not anonymous because he
could be identified by his phone number and held accountable for a false tip if
that became necessary.4 We agree that, where instant caller identification al-
lows the police to trace the identity of an anonymous telephone informant, the
ready identifiability of the caller increases the reliability of such tips. See J.L.,
529 U.S. at 276 (Kennedy, J., concurring).5 Additionally, an informant who ex-
plains the basis for his knowledge increases his reliability, see id. at 271, espe-
cially if he is a person relating the details of a crime he has personally suffered,
see Adams v. Williams, 407 U.S. 143, 147 (1972).
4
Ultimately, the tip was false and the informant was identified. That knowledge, how-
ever, is unhelpful for determining whether the officers had reasonable suspicion ex ante.
5
Casper counters that, in assessing the reliability of an informant, the important ques-
tion is whether the informant knows he has opened himself up to liability for false tips. Thus,
if the tipster thinks he will remain anonymous, even though the police will capture his tele-
phone number, he is less reliable, because he does not think he can be held accountable for a
false accusation. Instant caller identification is so pervasive today that no one fails to grasp
that the police, who have long been able to trace a call, are able to capture the number and ini-
tiate a trace.
8
No. 06-11381
Based on the captured telephone number and the victim status of the call-
er, the government has established some reliability and credibility for the in-
stant informer, thereby creating reasonable suspicion. The specificity of the in-
formation in the tip and the fact that the tip addressed very recent events also
indicate reliability and create reasonable suspicion. See Martinez, 486 F.3d at
861. In light of these factors, the officers had reasonable suspicion to justify an
investigative stop of Casper, which permitted the protective search of Casper’s
truck that resulted in the probable cause necessary to justify his arrest, render-
ing the subsequent search of the vehicle permissible as incident to that arrest
or as an inventory.
IV.
Casper alleges that his sentence is unreasonable because his acquittal on
both counts of possessing a firearm in connection with a drug offense, § 924(c),
increased the maximum sentence for which he was eligible under the sentencing
guidelines. Though at first glance this appears to be the typical acquitted-con-
duct argument foreclosed by United States v. Watts,6 it is not.
Casper concedes that the court’s consideration of his acquitted conduct in
calculating his guideline range is permitted under Watts. Instead, he objects to
the 480-month sentence, which he contends is less than the maximum sentence
resulting from his acquittal but greater than the maximum had he been convict-
ed of the same conduct. According to Casper, it is one thing for acquitted con-
duct to result in the same sentence as the convicted conduct; it is something else
for the acquitted person to receive a greater sentence than he would have re-
ceived had he been convicted of the same conduct. This amounts to punishment
6
519 U.S. 148, 157 (1997) (“[A] jury’s verdict of acquittal does not prevent the sentenc-
ing court from considering conduct underlying the acquitted charge, so long as that conduct has
been proved by a preponderance of the evidence.”).
9
No. 06-11381
for being acquitted, for putting the government to its burden. Casper urges that
this particular application of the guidelines produced an unreasonable sentence
in violation of United States v. Booker, 543 U.S. 220, 260 (2005).
After Booker, we typically review the reasonableness of a sentence, wheth-
er inside or outside the guideline range, for abuse of discretion. Gall v. United
States, 128 S. Ct. 586, 594 (2007). Where the defendant has failed to object on
specific grounds to the reasonableness of his sentence, thereby denying the court
the opportunity to identify and correct any errors, we review for plain error.
United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007), cert. denied, 2008
U.S. LEXIS 5228 (June 23, 2008) (No. 07-8978). Casper never argued to the dis-
trict court that his sentence was unreasonable because it fell outside the 384- to
465-month range that arguably would have applied had he been convicted of one
§ 924(c) count, nor did he object to the presentence report’s 360 months-to-life
range.
Thus, we review Casper’s 480-month sentence for plain error. “We may
correct the sentencing determination only if (1) there is error (and in light of
Booker, an ‘unreasonable’ sentence equates to a finding of error); (2) it is plain;
and (3) it affects substantial rights.” Id. at 392 (citing United States v. Olano,
507 U.S. 725, 732 (1993)). Additionally, “the decision to correct the forfeited er-
ror [is] within the sound discretion of the court of appeals, and the court should
not exercise that discretion unless the error seriously affect[s] the fairness, in-
tegrity or public reputation of judicial proceedings.” Id. (quotation marks omit-
ted) (second alteration in the original).
To determine whether the court erred, we must determine whether the
sentence is reasonable. Id. The sentence enjoys a presumption of reasonable-
ness, because it is within the properly calculated range, 360 months to life. See
United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005); see also Gall, 128 S.
Ct. at 591. A presumption can be overcome, and if Casper were correct that his
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No. 06-11381
sentence was greater because of his acquittal than it would have been had he
been convicted of one § 924(c) charge, the presumption would likely be overcome.
We need not reach that question, however, because any error was not plain.
Casper claims that had he been convicted of a single § 924(c) charge,7 his
sentencing range would have been lower because U.S.S.G. § 2K2.4 commentary
note 4, denying the application of any specific offense characteristics for posses-
sion of a firearm where the defendant was convicted of a separate firearm of-
fense such as § 924(c), would not have applied. Thus, he would have received
only the sixty-month statutory minimum under § 924(c), to be served consecu-
tively, and not the two-level enhancement for the specific offense characteristic
that made life imprisonment the high-end of his sentencing range. It is also
plausible, however, to read commentary note 4 as suggesting that, had Casper
been convicted of only one § 924(c) charge, he would have received the sixty-
month statutory minimum and the two-level enhancement.8
“Plain errors are ‘obvious,’ ‘clear,’ or ‘so conspicuous that the trial judge
and prosecutor were derelict in countenancing [them], even absent the defen-
dant’s timely assistance in detecting [them].’” United States v. Puckett, 505 F.3d
377, 384 (5th Cir. 2007) (citation omitted), petition for cert. filed (Mar. 3, 2008)
(No. 07-9712). The sentence was within the properly calculated guideline range,
and there is a colorable argument against Casper’s claim that his sentence is
higher than the maximum had he been convicted of a single § 924(c) charge;
without an objection and Casper’s instant argument, there is no reason to expect
7
Had Casper been convicted of both § 924(c) charges, he would have had at least a 25-
year mandatory minimum sentence to be served consecutively, extending far beyond the 480-
month sentence he received. See § 924(c)(1)(C)(i); U.S.S.G. § 2K2.4(b).
8
“[I]f a defendant is convicted of two armed bank robberies, but is convicted under 18
U.S.C. § 924(c) in connection with only one of the robberies, a weapon enhancement would ap-
ply to the bank robbery which was not the basis for the 18 U.S.C. § 924(c) conviction.” § 2K2.4
cmt. n.4 (2005).
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No. 06-11381
the court or prosecutor should have recognized this as error. Even assuming er-
ror, however, it was not plain.
In summary, the denial of the motions to suppress is AFFIRMED. The
sentence is likewise AFFIRMED.
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No. 06-11381
DENNIS, Circuit Judge, specially concurring and concurring in the judgment:
1.
I fully concur in the majority’s affirmance of the defendant’s conviction for
the possession charges related to the May 5, 2005 warrantless search. The issue
is controlled by New York v. Belton, 453 U.S. 454 (1981).1 I concur specially
because I do not subscribe to the majority’s reliance upon Justice Kennedy’s
concurring opinion in Florida v. J.L., 529 U.S. 266, 276 (2000) (Kennedy, J.,
concurring) as justification for characterizing the informant’s anonymous phone
call that led to the January 6, 2006 warrantless search as a readily traceable and
therefore reliable tip.
Citing Justice Kennedy’s concurring opinion, the majority agrees with the
government that the informant’s tip was not anonymous simply because the
police department’s caller identification technology could determine that the
phone used by the informant was located in a local motel. That assumes too
much in this case in which the anonymous call to police came from a phone at
an undisclosed location in the motel. Without additional evidence arguably
linking the phone to a particular person, police knowledge that the call
originated from the motel does not ex ante increase the reliability of the
informant’s tip. Equally unwarranted is the assumption in the majority
opinion’s footnote 5 that anonymous calls are now generally reliable because of
the pervasiveness of caller identification technology. This assumption has not
been demonstrated to be well founded, and if followed would drastically and
unrealistically narrow the scope of anonymous tips that be should considered
unreliable unless further corroborated.
1
Relevant to this case, the Supreme Court has recently granted cert on this issue: “Does
the Fourth Amendment require law enforcement officers to demonstrate a threat to their
safety or a need to preserve evidence related to the crime of arrest in order to justify a
warrantless vehicular search incident to arrest conducted after the vehicle's recent occupants
have been arrested and secured?” in Arizona v. Gant, 128 S.Ct. 1443 (Mem), (2008).
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No. 06-11381
Instead of adopting any bright line rule, courts must examine the factual
circumstances surrounding each anonymous phone tip to determine whether
the police reasonably could have considered it to be sufficiently reliable
information as a basis for their actions. See United States v. Villalobos, 161 F.3d
285, 288 (5th Cir. 1998) (“[S]ince ‘reasonable suspicion’ is a fact-intensive test,
each case must be examined from the totality of the circumstances known to the
agent, and the agent's experience in evaluating such circumstances.”) (internal
quotation omitted). Reasonable police conduct requires that they examine the
surrounding factual circumstances of an anonymous call to determine if there
is a sufficient factual basis for the police to know ex ante that a phone number,
combined with other facts given in the call, is sufficient information for the
police to locate the caller and hold him accountable for any false information
provided. See United States v. Hopes, 286 F.3d 788, 789-90 (5th Cir. 2002)
(noting the importance of “accountability” in determining whether a tip is
anonymous). Justice Kennedy in his concurring opinion in J.L. did not endorse
the broad assumption of anonymous caller reliability the majority advocates;
instead, he suggests that caller identification technology may bolster the
reliability of anonymous tips if there are facts to suggest the police are able to
use the phone number to find the informant. See J.L., 529 U.S. at 276 (Kennedy,
J., concurring) (“[T]the ability of the police to trace the identity of anonymous
telephone informants may be a factor which lends reliability to what, years
earlier, might have been considered unreliable anonymous tips.”). The
government does not provide any evidence in the record that the police knew
facts ex ante that the phone number would ultimately lead them to the
anonymous informant.
While I would find the call anonymous, other important fact-specific
indices of reliability are found in this case. First, the informant’s call did not
deal with general criminality but concerned a serious and specific
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No. 06-11381
contemporaneous emergency event. See United States v. Terry-Crespo, 356 F.3d
1170, 1176 (9th Cir. 2004). The victim was allegedly just threatened with his life
and a dangerous suspect was still in the victim’s vicinity. Second, as noted by
the majority, the informant was the alleged victim, which renders a tip more
reliable. This is a very close case, but considering the specific facts in this case,
I ultimately concur in the judgment that the police, in the totality of the
circumstances, had sufficient reasonable suspicion to conduct the search.
2.
I also concur in the majority’s affirmance of the district court’s sentence
under the plain error standard of review. However, I am greatly troubled that
a district court can use conduct acquitted by a jury for a sentence enhancement
that significantly increases a sentence beyond that the defendant would have
obtained had he been convicted by the jury for that same conduct. Nevertheless,
despite strong reasons against the use of acquitted conduct in this way, see, e.g.,
United States v. Ibanga, 454 F. Supp.2d 532 (E.D. Va. 2006), vacated, United
States v. Ibanga, 2008 WL 895660, at *3 (4th Cir. Apr. 1., 2008) (unpublished),
the majority correctly concludes that the district court did not plainly err.
For these reasons, I specially concur and concur in the judgment.
15