United States v. Reginald Edwards

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-50165

Plaintiff-Appellee,

D.C. No.

v. 2:12-cr-00751-

GAF-1

REGINALD AARON EDWARDS, AKA

Baby R-Mac, AKA Arron Reginald

Edwards, AKA Reggie Aaron OPINION

Edwards, AKA Reginald Aron

Edwards, AKA Timothy Green,

AKA R-Mac,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of California

Gary A. Feess, District Judge, Presiding

Argued and Submitted

May 14, 2014—Pasadena, California

Filed July 31, 2014

Before: John T. Noonan, Jr., Kim McLane Wardlaw

and Raymond C. Fisher, Circuit Judges.

Opinion by Judge Fisher

2 UNITED STATES V. EDWARDS

SUMMARY*

Criminal Law

The panel affirmed the district court’s denial of a

suppression motion in a case in which police officers

responding to an anonymous 911 call found the defendant in

the vicinity of the reported shooting, discovered he matched

the description of the reported suspect, stopped him, frisked

him, found he had a gun, and arrested him.

The defendant contended that the officers’ conduct

converted his detention before the gun was discovered from

an investigatory stop into an arrest, and that even if the

defendant’s detention was merely an investigatory stop, the

officers did not have reasonable suspicion to stop him. The

panel held that the officers properly conducted an

investigatory stop and had reasonable suspicion to do so.

COUNSEL

Sean K. Kennedy, Federal Public Defender, Los Angeles,

California; and Davina T. Chen (argued), Glendale,

California, for Defendant-Appellant.

André Birotte Jr., United States Attorney, Robert E. Dugdale,

Assistant United States Attorney, Chief, Criminal Division,

Max B. Shiner (argued), Assistant United States Attorney,

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. EDWARDS 3

Violent & Organized Crime Section, Los Angeles, California,

for Plaintiff-Appellee.

OPINION

FISHER, Circuit Judge:

Reginald Aaron Edwards was arrested and charged with

being a felon in possession of a firearm after an anonymous

caller reported a shooting to a 911 dispatcher. Police officers

responding to the 911 call found Edwards in the vicinity of

the reported shooting and discovered that he matched the

description of the reported suspect. They stopped Edwards,

frisked him and found he had a gun, and then arrested him.

Edwards conditionally pled guilty and now challenges the

district court’s denial of his motion to suppress the evidence

police obtained when they stopped him. Specifically,

Edwards contends that the officers’ conduct converted his

detention before the gun was discovered from an

investigatory stop into an arrest, and that even if Edwards’

detention was merely an investigatory stop, the officers did

not have reasonable suspicion to stop him. We hold that the

officers properly conducted an investigatory stop and had

reasonable suspicion to do so.

I. Background

On May 3, 2012, at 7:40 p.m., the Inglewood Police

Department received a 911 call from an unidentified male

reporting that a “young black male” at the corner of West

Boulevard and Hyde Park Boulevard was shooting at passing

cars, including the caller’s. The caller provided additional

details about the suspect during the five-minute call, telling

4 UNITED STATES V. EDWARDS

the 911 dispatcher that the shooter was between 5 feet 7

inches and 5 feet 9 inches in height and “maybe 19, 20” years

old. The caller initially said that the shooter was wearing “all

black” but later clarified that he was wearing a black shirt and

gray khaki pants. The caller also reported that the shooter

had a black handgun and, after shooting, was entering “Penny

Pincher’s Liquor” store.

Police officers Ryan Green and Julian Baksh began

receiving information about the call from the dispatcher at

7:42 p.m. The dispatcher requested that officers “[r]espond

to shots fired in the area of Hyde Park and West” and told

officers that, according to a reporting party, a black man,

“[a]pproximately 5’7” to 5’9” wearing a black sweatshirt and

gray khaki pants,” was “[w]alking around shooting at passing

vehicles” and was now possibly inside Penny Pincher’s

Liquor. Green and Baksh arrived on the scene at around 7:45

p.m. and parked two blocks from the shooter’s reported

location. After leaving their vehicle, Green and Baksh

observed Edwards walking eastbound approximately 75 feet

from the liquor store. Green testified that Edwards matched

the description of the suspect reported in the anonymous call.

Edwards is African-American, was 5 feet 11 inches and 26

years old at the time, and was wearing a black, long-sleeve

shirt and gray pants. Green also testified that “[t]here was

only one other individual in the area, a male Hispanic,

wearing a black and green heavy jacket and blue jeans.”

Green notified other police units of Edwards’ location,

and officers John Ausmus and Landon Poirier quickly

responded. Ausmus and Poirier detained Edwards as well as

the “male Hispanic,” while Green and Baksh covered them.

All four officers had their weapons drawn as they approached

the two men. Ausmus commanded both men to kneel on the

UNITED STATES V. EDWARDS 5

pavement. Ausmus handcuffed Edwards while he was on his

knees, and then stood Edwards up and had him spread his

legs. Ausmus began patting down Edwards and felt a hard

object above Edwards’ right knee, inside the pant leg.

Ausmus pulled on the pants to jiggle the item out, and a silver

.22-caliber revolver fell out of Edwards’ pants and onto the

pavement beside Edwards’ feet. The 911 dispatcher had a

call-back number for the reporting party, and the officers at

the scene requested the dispatcher to call back the reporting

party. The anonymous caller had already left the scene,

however, and did not want to be involved with the case.

Thereafter, the officers transported Edwards to the police

station.

A grand jury charged Edwards with being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

Edwards moved to suppress all physical evidence obtained as

a result of his initial stop and frisk. After an October 2012

hearing, the district court denied the motion to suppress under

United States v. Terry-Crespo, 356 F.3d 1170 (9th Cir. 2004),

finding that the officers did not need probable cause to detain

Edwards because they had reasonable suspicion necessary for

the stop. Edwards entered a conditional guilty plea, and the

district court sentenced him to 48 months’ imprisonment

followed by three years’ supervised release.

II. Discussion

A. Standard of Review

“We review de novo the denial of a motion to suppress.”

United States v. Crawford, 372 F.3d 1048, 1053 (9th Cir.

2004) (en banc). “The determination of whether a seizure

exceeds the bounds of [an investigatory] stop and becomes a

6 UNITED STATES V. EDWARDS

de facto arrest is reviewed de novo.” United States v. Miles,

247 F.3d 1009, 1012 (9th Cir. 2001) (internal quotation marks

omitted). “A determination whether there was reasonable

suspicion to support an investigatory ‘stop and frisk’ is a

mixed question of law and fact, also reviewed de novo.”

United States v. Burkett, 612 F.3d 1103, 1106 (9th Cir. 2010).

B. Edwards’ Detention Did Not Amount To An Arrest

Edwards challenges the district court’s determination that

his detention leading to the discovery of the gun was merely

an investigatory stop under Terry v. Ohio, 392 U.S. 1 (1968),

and not an arrest requiring probable cause.1 The totality of

the circumstances determines whether and when an

investigatory stop becomes an arrest. See Washington v.

Lambert, 98 F.3d 1181, 1185 (9th Cir. 1996). In looking at

the totality of the circumstances, we examine two main

components of the detention. See id. First is “the

intrusiveness of the stop, i.e., the aggressiveness of the police

methods and how much the plaintiff’s liberty was restricted.”

Id. Under this component, we “review the situation from the

perspective of the person seized,” assessing whether “a

1

The Supreme Court held in Terry that “where a police officer observes

unusual conduct which leads him reasonably to conclude in light of his

experience that criminal activity may be afoot and that the persons with

whom he is dealing may be armed and presently dangerous, where in the

course of investigating this behavior he identifies himself as a policeman

and makes reasonable inquiries, and where nothing in the initial stages of

the encounter serves to dispel his reasonable fear for his own or others’

safety, he is entitled for the protection of himself and others in the area to

conduct a carefully limited search of the outer clothing of such persons in

an attempt to discover weapons which might be used to assault him.”

392 U.S. at 30. Such a search is allowed under the Fourth Amendment,

and “any weapons seized may properly be introduced in evidence against

the person from whom they were taken.” Id. at 31.

UNITED STATES V. EDWARDS 7

reasonable innocent person in these circumstances would . . .

have felt free to leave after brief questioning.” United States

v. Delgadillo-Velasquez, 856 F.2d 1292, 1295–96 (9th Cir.

1988). Second is “the justification for the use of such tactics,

i.e., whether the officer had sufficient basis to fear for his

safety to warrant the intrusiveness of the action taken.”

Lambert, 98 F.3d at 1185. This “inquiry is undertaken . . .

from the perspective of law enforcement,” while bearing in

mind that “the purpose of a Terry stop is to allow the officer

to pursue his investigation without fear of violence.” United

States v. Guzman-Padilla, 573 F.3d 865, 884 (9th Cir. 2009)

(internal quotation marks and alteration omitted). “The

second inquiry frequently proves determinative.” Id.

Here, there is no doubt that the police were intrusive in

stopping Edwards. Four officers pointed their weapons

toward him, and he was forced to kneel and was handcuffed

before being patted down. See, e.g., Lambert, 98 F.3d at

1188 (“[I]f the police draw their guns it greatly increases the

seriousness of the stop.”); United States v. Bautista, 684 F.2d

1286, 1289 (9th Cir. 1982) (“[H]andcuffing substantially

aggravates the intrusiveness of an otherwise routine

investigatory detention and is not part of a typical Terry

stop.”). The officers used aggressive methods and restricted

Edwards’ liberty.

However, as we have repeatedly explained, “because we

consider both the inherent danger of the situation and the

intrusiveness of the police action, . . . pointing a weapon at a

suspect and handcuffing him, or ordering him to lie on the

ground, or placing him in a police car will not automatically

convert an investigatory stop into an arrest that requires

probable cause.” Lambert, 98 F.3d at 1186 (emphasis in

original). In Miles, officers responded to a report that a black

8 UNITED STATES V. EDWARDS

man wearing an oversized jacket and riding a bicycle had

fired a gun at a residence. See 247 F.3d at 1010–11. When

they found a suspect fitting the description approximately six

blocks from the residence and standing in the immediate

vicinity of a bicycle, the officers approached the suspect with

their guns drawn, ordered him to kneel and handcuffed him.

See id. at 1011. We concluded these actions were reasonable

and this initial stop did not amount to an arrest, given that the

officers “had a report of gunfire and had legitimate safety

concerns” and “made an on-the-spot assessment of the

restraint necessary to control the situation.” Id. at 1013.

Particularly relevant here, we noted that “[w]e have permitted

the use of intrusive means to effect a stop where the police

have information that the suspect is currently armed or the

stop closely follows a violent crime. Under such

circumstances, holding a suspect at gunpoint, requiring him

to go to his knees or lie down on the ground, and/or

handcuffing him will not amount to an arrest.” Id. (citation

omitted).2

Here, as in Miles, the officers’ aggressive conduct was

reasonable and did not convert Edwards’ detention into an

arrest. Edwards was the only person in the vicinity of the

liquor store who fairly matched the description of a man who

reportedly had been shooting at passing cars just minutes

before police arrived. The officers had sufficiently detailed

information from the 911 call to reasonably believe that

Edwards could be the shooter and therefore could be armed

and dangerous, possibly having just committed a violent

crime. The officers’ legitimate safety concerns justified their

2

Miles ultimately held that a motion to suppress should have been

granted, but only because the officers violated the limits of a Terry

patdown. See 247 F.3d at 1013–15.

UNITED STATES V. EDWARDS 9

on-the-spot decision to use intrusive measures to stabilize the

situation before investigating further. See id. at 1013.

C. The Officers Had Reasonable Suspicion To Stop

Edwards

Edwards also disputes that the anonymous 911 call

provided the officers with enough information to give them

reasonable suspicion to support the investigatory stop in the

first place. “The Fourth Amendment permits brief

investigative stops . . . when a law enforcement officer has a

particularized and objective basis for suspecting the particular

person stopped of criminal activity.” Navarette v. California,

134 S. Ct. 1683, 1687 (2014) (internal quotation marks

omitted). “Although a mere hunch does not create reasonable

suspicion, the level of suspicion the standard requires is

considerably less than proof of wrongdoing by a

preponderance of the evidence, and obviously less than is

necessary for probable cause.” Id. (citations and internal

quotation marks omitted). Reasonable suspicion “is

dependent upon both the content of information possessed by

police and its degree of reliability,” and “[t]he standard takes

into account the totality of the circumstances – the whole

picture.” Id. (internal quotation marks omitted).

The Supreme Court, in addressing the issue of telephone

tips and investigatory stops, has focused on whether the tips

“exhibited sufficient indicia of reliability to provide

reasonable suspicion to make the investigatory stop.”

Alabama v. White, 496 U.S. 325, 326–27 (1990). In White,

an anonymous caller telephoned a police department

reporting that a woman named Vanessa White would be

leaving a specific apartment in a specific car at a specific

time, on her way to a particular motel and in possession of

10 UNITED STATES V. EDWARDS

cocaine. See id. at 327. Officers followed White as she

drove in the specified car from the apartment to the motel,

and when they stopped her they found marijuana and cocaine.

See id. The Court held that the anonymous tip exhibited

sufficient indicia of reliability to justify the stop, because the

caller was able to accurately predict White’s future behavior

and officers were able to sufficiently corroborate the details

of the tip. See id. at 330–32.

In contrast, the Court in Florida v. J.L., 529 U.S. 266, 268

(2000), dealt with an anonymous caller who told the police

“that a young black male standing at a particular bus stop and

wearing a plaid shirt was carrying a gun.” Police proceeded

to the bus stop, frisked J.L. – who was black and was wearing

a plaid shirt – and seized a gun from his pocket. See id. The

Court held this tip insufficient to justify the investigatory

stop. See id. at 274. It “lacked the moderate indicia of

reliability present in White and essential to the Court’s

decision in that case” because “[t]he anonymous call

concerning J.L. provided no predictive information and

therefore left the police without means to test the informant’s

knowledge or credibility.” Id. at 270–71. The Court

explained that the tip leading to J.L.’s arrest was “[a]n

accurate description of a subject’s readily observable location

and appearance” but “d[id] not show that the tipster ha[d]

knowledge of concealed criminal activity. . . . [R]easonable

suspicion . . . requires that a tip be reliable in its assertion of

illegality, not just in its tendency to identify a determinate

person.” Id. at 272. The Court also declined to speculate

about situations in which “the danger alleged in an

anonymous tip might be so great as to justify a search even

without a showing of reliability,” such as “a report of a

person carrying a bomb.” Id. at 273.

UNITED STATES V. EDWARDS 11

With J.L. in mind, we focused our attention in United

States v. Terry-Crespo, 356 F.3d 1170 (9th Cir. 2004), on the

emergency situation that the Supreme Court had declined to

reach. In Terry-Crespo, a man called 911, identified himself

and his general location, and then described in detail a man he

said threatened him with a .45-caliber gun three minutes

earlier. See id. at 1172. An officer stopped Ariel Terry-

Crespo as a suspect and found that he had a .45-caliber gun.

See id. at 1173. We held that the 911 call supported

reasonable suspicion justifying the investigatory stop, see id.

at 1174, for four main reasons: (1) the “call was not

anonymous and therefore was entitled to greater reliability,”

id. at 1174; (2) “an emergency 911 call is entitled to greater

reliability than an anonymous tip concerning general

criminality,” id. at 1176; (3) “[m]erely calling 911 and having

a recorded telephone conversation risks the possibility that

the police could trace the call or identify [the caller] by his

voice,” so the caller “risked any anonymity he might have

enjoyed and exposed himself to legal sanction,” id.; and

(4) “the police could place additional reliability on [the

caller’s] tip because his call evidenced first-hand information

from a crime victim laboring under the stress of recent

excitement,” id. at 1176–77.

The district court here relied primarily on J.L. and Terry-

Crespo in its reasoning. However, in the time since the

district court issued its decision, the Supreme Court has

weighed in on this issue once again, this time addressing an

anonymous call about an emergency situation. See Navarette

v. California, 134 S. Ct. 1683 (2014). In Navarette, a 911

caller – assumed by the Court to be anonymous – reported

that a vehicle ran her off the road. See id. at 1686, 1688.

After a dispatcher relayed the tip, which included the nature

of the incident and the location and a specific description of

12 UNITED STATES V. EDWARDS

the offending vehicle, officers pulled the vehicle over and

found 30 pounds of marijuana. See id. at 1686–87. The

Court held that the anonymous call provided reasonable

suspicion to justify this investigatory stop, see id. at 1692,

emphasizing four points: (1) the caller claimed eyewitness

knowledge of the alleged dangerous activity, lending

“significant support to the tip’s reliability,” id. at 1689;

(2) the caller made a statement about an event “soon after

perceiving that event,” which is “especially trustworthy,” id.;

(3) the caller used 911, which “has some features that allow

for identifying and tracing callers, and thus provide some

safeguards against making false reports with immunity,” id.;

and (4) the caller created reasonable suspicion of an ongoing

and dangerous crime – drunk driving – rather than “an

isolated episode of past recklessness,” id. at 1690. The Court

distinguished the anonymous call in Navarette from the

“bare-bones tip” in J.L., “where the tip provided no basis for

concluding that the tipster had actually seen the gun” and

where “[t]here was no indication that the tip . . . was

contemporaneous with the observation of criminal activity or

made under the stress of excitement caused by a startling

event.” Id. at 1689, 1692.

In this case, the tip was an anonymous 911 call from an

eyewitness reporting an ongoing and dangerous situation and

providing a detailed description of a suspect. In light of

Navarette, we conclude that the anonymous call leading to

Edwards’ detention exhibited sufficient indicia of reliability

to provide the officers with reasonable suspicion. There are

several circumstances that lead us to this conclusion.

First, even though we gave weight to the caller’s self-

identification in Terry-Crespo, see 356 F.3d at 1174, the

Supreme Court’s decision in Navarette makes explicitly clear

UNITED STATES V. EDWARDS 13

that the “principles” underlying Terry stops and reasonable

suspicion “apply with full force to investigative stops based

on information from anonymous tips,” 134 S. Ct. at 1688

(emphasis added). It is now clearly established that “under

appropriate circumstances, an anonymous tip can demonstrate

‘sufficient indicia of reliability to provide reasonable

suspicion to make [an] investigative stop.’” Id. (alteration in

original) (quoting White, 496 U.S. at 327).

Second, the anonymous caller here reported an ongoing

emergency situation even more dangerous than the suspected

drunk driving in Navarette. See id. at 1691 (“[S]he alleged a

specific and dangerous result of the driver’s conduct: running

another car off the highway. That conduct bears too great a

resemblance to paradigmatic manifestations of drunk driving

to be dismissed as an isolated example of recklessness.”).

The call was not simply one “concerning general

criminality.” Terry-Crespo, 356 F.3d at 1176. Rather, the

caller said right at the outset of his call that someone was

“shooting at cars as they [are] going down the street,”

implying that the shooting was still taking place as he called

911. Such a dire situation distinguishes this case from J.L.,

which “merely involved a report of general criminality,

namely, a minor’s possession of a firearm in violation of

Florida law.” Id. (citing United States v. Holloway, 290 F.3d

1331, 1339 (11th Cir. 2002)); see also Holloway, 290 F.3d at

1338 (“A crucial distinction between J.L. and this case is the

fact that the investigatory stop in J.L. was not based on an

emergency situation. This difference was expressly

contemplated by J.L. . . . .”).

Third, the reporting party here had eyewitness knowledge

of the shooting. See Navarette, 134 S. Ct. at 1689 (“[T]he

caller necessarily claimed eyewitness knowledge of the

14 UNITED STATES V. EDWARDS

alleged dangerous driving. That basis of knowledge lends

significant support to the tip’s reliability.”). When asked by

the emergency dispatcher whether the shooter hit any

vehicles, the caller described part of what he witnessed,

explaining that “[h]e didn’t hit any vehicles because when he

got to mine, it looked like the gun might have jammed but I

heard the pow, pow pow.” Additionally, at one point during

the call, he exclaimed: “Oh, my god.” Thus, there are

indications that the call also was a “‘statement relating to a

startling event’” which was “‘made while the declarant was

under the stress of excitement that it caused,’” lending further

credibility to the allegations. Id. (quoting Fed. R. Evid.

803(2)); see also Terry-Crespo, 356 F.3d at 1176 (“[T]he

police could place additional reliability on [the caller’s] tip

because his call evidenced first-hand information from a

crime victim laboring under the stress of recent excitement.”).

Fourth, the caller, although anonymous, used the 911

emergency system, also lending further credibility to his

allegations. See Navarette, 134 S. Ct. at 1689–90 (“A 911

call has some features that allow for identifying and tracing

callers, and thus provide some safeguards against making

false reports with immunity. . . . Given the foregoing

technological and regulatory developments . . . a reasonable

officer could conclude that a false tipster would think twice

before using such a system.”); Terry-Crespo, 356 F.3d at

1176 (“Merely calling 911 and having a recorded telephone

conversation risks the possibility that the police could trace

the call or identify [the caller] by his voice.”).

UNITED STATES V. EDWARDS 15

Applying Navarette and Terry-Crespo, we hold that the

officers in this case reasonably relied on the anonymous call

in stopping Edwards, as the district court properly found.3

III. Conclusion

The district court properly determined that the officers’

conduct did not convert Edwards’ detention into an arrest and

that they had reasonable suspicion based on the anonymous

911 call to stop Edwards.

AFFIRMED.

3

Edwards also contends the 911 dispatcher’s knowledge could not be

imputed to the officers for purposes of reasonable suspicion, citing United

States v. Colon, 250 F.3d 130, 134–38 (2d Cir. 2001). Colon, however,

is factually distinguishable. There, the dispatcher made a brief call for

officers to respond, calling the situation a “man with a gun case” and

providing a location and short description of the suspect. Id. at 132. Here,

the officers received much more information from the dispatcher,

including statements specifying exactly which information came from the

reporting party, the suspect’s possible locations, a full description of the

suspect, a full description of the incident and updates as the reporting

party provided new information. Thus, the officers had enough

information to assess what was happening during this ongoing emergency;

they did not have to rely on imputed knowledge.