United States v. Brown

Opinions of the United

2006 Decisions States Court of Appeals

for the Third Circuit

5-22-2006

USA v. Brown

Precedential or Non-Precedential: Precedential

Docket No. 05-1723

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 05-1723

UNITED STATES OF AMERICA

v.

KAREEM BROWN,

Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal Action No. 03-cr-00683-1)

District Judge: Honorable Timothy J. Savage

Argued January 17, 2006

Before: BARRY, AMBRO and ALDISERT, Circuit Judges

(Filed: May 22, 2006)

Thomas F. Burke, Esquire (Argued)

Law Office of William J. Brennan

123 South Broad Street, Suite 1970

Philadelphia, PA 19109

Counsel for Appellant

Patrick L. Meehan

United States Attorney

Robert A. Zauzmer

Assistant United States Attorney

Chief of Appeals

John N. Joseph

Assistant United States Attorney

Karen L. Grigsby, Esquire (Argued)

Office of United States Attorney

615 Chestnut Street

Philadelphia, PA 19106

Counsel for Appellee

OPINION OF THE COURT

AMBRO, Circuit Judge

Kareem Brown appeals the denial by the United States

District Court for the Eastern District of Pennsylvania of his

motion to suppress evidence. Brown argues that he was

2

improperly stopped and searched, and thus the incriminating

evidence uncovered by that search was not properly admitted at

his trial. We agree, and accordingly reverse the District Court’s

denial of Brown’s motion to suppress and vacate his conviction.1

I. Factual Background

Our facts are taken from the suppression hearing held by

the District Court. On the evening of June 1, 2003, Jelena

Radenkovic and Lucia Zapatero were walking in the 2100 block

of Locust Street in Philadelphia. They were approached by two

black male teenagers who attempted to grab Radenkovic’s

purse. She refused to let go, and one of the males pointed a gun

at her. She turned and walked away from him. The males then

abandoned the robbery attempt and ran south on 22nd Street.

Moments after the attackers fled, Radenkovic called 911

to report the robbery to the police. In the course of that call,

Radenkovic described the robbery suspects as African-American

males between 15 and 20 years of age, one 5' 8" and the other 6',

wearing dark, hooded sweatshirts and running south on 22nd

Street. Immediately after calling 911, Radenkovic called her

friend, William Firth, who was waiting to meet her at a nearby

restaurant. Radenkovic told Firth about the attempted robbery

1

Because we reverse on the ground that the stop of Brown

was not supported by reasonable suspicion, we express no

opinion as to the lawfulness of the frisk independent of the stop.

3

and described the suspects, providing “just the clothing, the

general description. I didn’t go into too many details, but in

enough detail.”

Minutes later, a police officer, who was not identified in

the record, arrived and took a second description from

Radenkovic. That officer then relayed the description over the

police radio. The parties contest the content of the broadcast.

The Government states the broadcast “described the two

suspects as black males in their teens or 20's with dark

clothing.” Brown asserts the printout of the radio call reads:

“Black male, black hoody, last seen on Locust, attempted to

grab female’s purse. Location: westbound on Locust2, both 16-

18. The description reads: six-one, gray hoody, black pants;

number two: five-nine, thin, navy blue hoody.” The District

Court’s findings of fact state that the broadcast consisted of the

description Radenkovic had provided in her call to the 911

operator. The Court found that, while the officer was speaking

over the radio and describing one of the suspects as 15 years old

and the other as three or four years older, Lucia Zapatero

commented that she thought the suspects were older, in their

early twenties.

Within minutes of the police broadcast, Radenkovic, who

2

At all other places in the record the suspects are described as

running southbound on 22nd Street. This discrepancy in the

printout of the radio call is not material for our opinion.

4

was sitting in the police car at this point, received a call from

Firth, who stated he had just seen two men fitting the

descriptions of the robbery suspects at 22nd and Lombard

Streets (a location three blocks south of Locust Street).3 The

Court also found that a second officer, Kathleen Pacheco, who

arrived on the scene at that time, heard Radenkovic exclaim

“that the guys who had robbed her were at 22nd and Lombard

Streets.”

Based on Radenkovic’s comments, Officer Pacheco

drove to 22nd and Lombard Streets and en route issued a radio

call with the location information provided by Radenkovic.

Upon arriving, Pacheco observed two black males, Kareem

Brown and Jerome Smith, who appeared to be coming out of a

store with cups of coffee. Pacheco issued another radio call,

stating that she “had in [her] sight the two men that were

described [in] the [broadcast].” The following exchange took

place between Officer Pacheco and the Court about her

statement that the men matched the description of the suspects:

The Court: In what way did they match the

3

There is some discrepancy between the findings of fact and

Radenkovic’s testimony that Firth told her “these may be your

guys” and that she said to police “our guys may be on 22nd and

Lombard. My friend just called me. . . . They may be our guys.”

(emphases added). The District Court clarified this testimony

by asking: “They may be?” and Radenkovic responded: “Yes,

may be.”

5

description?

Officer Pacheco: From the radio --

The Court: What way?

Officer Pacheco: That they were two black males

with dark clothing.

The Court: That’s it?

Officer Pacheco: That’s what we received.

On the date of the attempted robbery, Brown, the appellant in

this case, was 27 years old, 6' tall, and had a full beard. Smith

was 31 years old, 5'8" tall, and also had a full beard.

Meanwhile, a third officer, Officer Marano Santiago, had

received the call with the location tip from Officer Pacheco and

arrived at 22nd and Lombard Streets at approximately the same

time. Santiago observed Smith and Brown as they were walking

across the street and hailing a taxi. He testified that the men

were walking normally and were not out of breath. He also

stated it was not unusual to see two black males at that location,

as there is a predominantly black neighborhood less than two

blocks away.

Officer Santiago testified as well that Smith and Brown

fit the description he received over the radio, in that they were

black males of the described height in dark clothing. Santiago

agreed at the suppression hearing that “two black males []

wearing dark clothing is a very general description.” In fact, at

some point before leaving his vehicle, Santiago had called for a

more specific description of the suspects, but did not receive any

6

additional information.4 Santiago summed up by stating that

4

The following exchange took place between the Court and

Officer Santiago after he testified that he had called in for

additional descriptive information:

Officer Santiago: All I was looking for was black

clothing, two black males.

The Court: That’s all you remember?

Officer Santiago: That’s correct.

The Court: So what happened when you called

and said, I want more information,

what did they give you?

Officer Santiago: They gave me– what I requested

was anymore [sic] clothing.

They keep saying, black clothing.

The Court: That’s what you recall them

saying?

Officer Santiago: That’s what I recall.

The Court: What else did they give you?

Officer Santiago: Basically, that was it, just black

clothing.

The Court: Where did you get his height from?

Officer Santiago: The height? From [the radio

broadcast].

The Court: So you had a height?

Officer Santiago: Yes.

The Court: And you had two black males.

Officer Santiago: That’s correct.

The Court: You had a gun?

Officer Santiago: Correct.

The Court: What else did they give you?

7

“[t]hey were the only two black males at that location[.] That

was the only reason why those two males were stopped by me

and they were investigated by me.” Indeed, he testified that he

would have stopped them even “if they were both five feet tall

wearing white clothes.”

Officer Santiago then approached Smith and Brown, told

the taxicab to keep moving, and informed them that they looked

like two persons who had attempted to commit a robbery and

that he wanted to talk to them.

I told them basically what

happened at 22nd and Locust. I

told them that I need to make an

investigation on both males. It was

a nice, brief conversation we had.

I let them know that we were

having the complainant, the victim

of the robbery, coming over to

22nd and Lombard to see if they

were the doers. If they weren’t,

they were free to go. At that point,

as we were waiting, I demanded

both males for my safety and their

Officer Santiago: What else? That’s all I can recall.

That was it.

8

safety that I was going to pat them

down.

Officer Santiago testified that he wanted to pat them down

because

there was a robbery committed at

22nd and Locust . . . . For my

safety at that point, I felt that I

should pat them down. Like I said,

they were not at that point – they

were not apprehended at any point.

They complied with my demands,

so I felt it was my right for me to

pat them down.

Santiago also stated, in response to questioning by the Court,

that he had decided to pat down the defendants regardless

whether they ran away or complied.

The District Court found that, as Santiago “attempted to

frisk him, Brown struggled and appeared to try to escape . . . .

While he was facing the police car, Brown attempted to place

his hand in his pocket, causing Santiago to restrain him . . . .

Santiago placed Brown in handcuffs and then recovered a gun

9

from Brown’s front belt area.”5 The moment at which “Brown

struggled and appeared to try to escape” was described in more

detail by Officer Pacheco:

Officer Santiago said to [Brown],

[‘C]ome on, I have to pat you

down. We just have a job. You

match the description.[‘] [Santiago]

takes him over to the car, stands up

against the car, turned him around,

started to pat him, and he started to

kind of like break away. With that,

[Santiago] put him over the head of

the car. You could see that he was

fidgeting. I jumped on [Santiago’s]

back to keep [Brown] from getting

his hands loose before we could

cuff him . . . .

5

At approximately the same time that Officer Santiago arrived

at 22nd and Lombard Streets, Officer Kenyatta Abney arrived

at that location. Officer Abney pursued Smith, who ran down

Van Pelt Street, squatted behind a car and then came up with his

hands raised in the air. Abney put Smith in handcuffs and then

surveyed the area with other police officers. The survey resulted

in the discovery of a gun behind the curbside tire of the vehicle

behind which Smith had squatted. Smith is not a party to this

appeal.

10

Officer Pacheco also stated that Brown placed his hands on the

police car before his breakaway attempt. This version of events

was supported by a report (called a “7549 report”) summarizing

the incident based on information the arresting officers provided

to detectives shortly after the arrest. The 7549 report states that

“[b]oth males had their hands placed on the hood of the police

vehicle. Brown started to struggle while handcuffs were being

placed on his hands.”

A different version of the frisk was provided by Officer

Santiago, who testified that “as soon as I requested both of them

to put their hands on the vehicle, they made the intent to put

their hands on the vehicle, they made the intent to put their

hands on top of the car, but they never did. That’s when [Smith

fled].” After Smith ran, Brown “[had] the intent also to flee, but

being that he was so close to me, I held him. We went into a

little struggle.”

Ultimately, police officers brought Radenkovic to the two

locations where Brown and Smith were being held. Radenkovic

informed the police that these were not the males who attempted

to rob her; Brown and Smith had beards and the robbers did not,

and Smith and Brown were much older than the robbers.

Brown moved to suppress the firearm found on him,

claiming there was not reasonable suspicion for the stop. After

a two-day evidentiary hearing, the District Court denied the

motion.

11

The case then went to a jury trial. Brown was found

guilty of being a convicted felon in possession of a firearm

under 18 U.S.C. §§ 922(g) and 924(e). His sentence included

180 months imprisonment and five years supervised release.

He appeals.6

II. Discussion

The Fourth Amendment prohibits “unreasonable searches

and seizures . . . .” U.S. Const. amend. IV. “Generally, for a

seizure to be reasonable under the Fourth Amendment, it must

be effectuated with a warrant based on probable cause.” United

States v. Robertson, 305 F.3d 164, 167 (3d Cir. 2002). But,

under the exception to the warrant requirement established in

Terry v. Ohio, 392 U.S. 1 (1968), “an officer may, consistent

with the Fourth Amendment, conduct a brief, investigatory stop

when the officer has a reasonable, articulable suspicion that

criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119,

123 (2000). Any evidence obtained pursuant to an investigatory

stop (also known as a “Terry stop” or a “stop and frisk”) that

does not meet this exception must be suppressed as “fruit of the

poisonous tree.” See Wong Sun v. United States, 371 U.S. 471,

487-88 (1963); United States v. Coggins, 986 F.2d 651, 653 (3d

Cir. 1993).7

6

We have jurisdiction pursuant to 28 U.S.C. § 1291.

7

The Terry analysis applies here even though the crime in

question had already been completed. United States v. Hensley,

12

Before us is whether Officer Santiago had reasonable

suspicion to stop and frisk Brown. If not, the firearm found on

him must be suppressed as the fruit of an unlawful seizure. We

review the District Court’s denial of a motion to suppress for

clear error as to the underlying factual findings and we exercise

plenary review over questions of law. United States v. Coward,

296 F.3d 176, 179 (3d Cir. 2002).

A. When was Brown seized?

We begin by determining when the seizure of Brown

occurred, as that is the moment “the Fourth Amendment

becomes relevant.” Terry, 392 U.S. at 16; see Johnson v.

Campbell, 332 F.3d 199, 205 (3d Cir. 2003). Only then can we

evaluate the presence or absence of reasonable suspicion, as we

must consider only “the facts available to the officer at the

moment of the seizure.” Terry, 392 U.S. at 21-22; see also

Florida v. J.L., 529 U.S. 266, 271 (2000); Johnson, 332 F.3d at

205.

The Government urges us to hold that Brown was not

seized until after the officers succeeded in handcuffing him,

469 U.S. 221, 229 (1985) (“[I]f police have a reasonable

suspicion, grounded in specific and articulable facts, that a

person they encounter was involved in or is wanted in

connection with a completed felony, then a Terry stop may be

made to investigate that suspicion.”).

13

which was after his attempted breakaway and the finding of the

gun. Brown contends that he was seized earlier in the

encounter, at the moment he submitted to Officer Santiago’s

show of authority by turning and placing his hands on the police

vehicle. The benefit to the parties of having their

characterization of the seizure adopted is significant – if the

seizure occurred after Brown’s apparent escape attempt, we

must include that attempt in our analysis of reasonable

suspicion. In contrast, if the seizure occurred before the

attempted escape, it plays no role in the reasonable suspicion

analysis. See, e.g., Johnson, 332 F.3d at 210. Flight from a

lawful frisk or arrest can contribute to a finding of reasonable

suspicion; thus, the timing of the seizure could tip the finding in

favor of one party or the other. See, e.g., Wardlow, 528 U.S. at

124 (“[h]eadlong flight . . . is . . . suggestive of [wrongdoing]”);

United States v. Brown, 159 F.3d 147, 149 (3d Cir. 1998)

(“flight combined with other factors may support a warrantless

stop and frisk”).

A seizure occurs when there is either (a) “a laying on of

hands or application of physical force to restrain movement,

even when it is ultimately unsuccessful,” or (b) submission to “a

show of authority.” California v. Hodari D., 499 U.S. 621, 626

(1991). Put another way, when a seizure is effected by even

“the slightest application of physical force,” it is immaterial

whether the suspect yields to that force. Id. at 625-26. In

contrast, if a suspect in the absence of physical force does not

submit to an officer’s show of authority, there is no seizure and

14

no Fourth Amendment claim. Id. at 626-27. “[T]he test for

existence of a ‘show of authority’ is an objective one: not

whether the citizen perceived that he was being ordered to

restrict his movement, but whether the officer’s words and

actions would have conveyed that to a reasonable person.” Id.

at 628.

Here there was a clear show of authority when Santiago

told Brown and Smith that a robbery victim was being brought

over to identify them as possible suspects and, if they were not

identified, they would be free to go – necessarily implying that

they were not free to leave. Santiago also said he “demanded”

that the men submit to a pat-down. This instruction “would

have conveyed [] to a reasonable person” that “he was being

ordered to restrict his movement.” Id.; see also United States v.

Mendenhall, 446 U.S. 544, 554 (1980) (suggesting that a

reasonable person would not feel free to leave when he or she is

confronted with “the threatening presence of several officers, the

display of a weapon by an officer, some physical touching of the

person of the citizen, or the use of language or tone of voice

indicating that compliance with the officer’s request might be

compelled”); Johnson, 332 F.3d at 206 (“interaction became a

stop” when officer persisted in asking defendant to roll down his

car window after defendant had refused officer’s first request).

Brown clearly submitted to this show of authority. As

Officer Pacheco testified, and the 7549 report confirms, Brown

turned to face the police car and placed his hands on the vehicle

15

in response to Santiago’s demand. (This conclusion is not

meaningfully contradicted by Santiago’s testimony that Brown

had begun to move his hands to the vehicle, but did not

complete the action.) Moreover, Brown’s initial submission is

not undercut by any subsequent attempt to flee. The facts before

us are similar to those of United States v. Coggins, where a

police officer began questioning the defendant and his

companions, the defendant stood up and asked to go to the

bathroom, the officer told him to wait, the defendant sat back

down, then again stood and ran off. 986 F.2d at 652-53. We

held that the defendant “initially yielded to [the officer’s]

authority by sitting back down,” and there was thus a seizure

“[e]ven though he fled soon thereafter.” Id. at 654. Unlike the

defendant in United States v. Valentine, Brown demonstrated

more than “momentary ‘compliance’” with the arresting

officers’ demands. 232 F.3d 350, 359 (3d Cir. 2000) (“Even if

Valentine paused for a few moments and gave his name, he did

not submit in any realistic sense to the officers’ show of

authority.”) Brown first yielded to Santiago’s authority by

turning to face the police car and placing (or moving to place)

his hands on the vehicle. It was only after this initial submission

that he began to struggle.

16

B. Was the seizure of Brown based on reasonable

suspicion?

Having determined when the seizure of Brown occurred,

was it based on reasonable, articulable suspicion that Brown and

his companion might be the robbery suspects? Terry, 392 U.S.

at 19 (determining reasonableness after establishing moment of

seizure). Reasonable suspicion is an “elusive concept,” but it

unequivocally demands that “the detaining officers must have a

particularized and objective basis for suspecting the particular

person stopped of criminal activity.” United States v. Cortez,

449 U.S. 411, 417-18 (1981). An officer’s objective basis for

suspicion must be particularized because the “demand for

specificity in the information upon which police action is

predicated is the central teaching of this Court's Fourth

Amendment jurisprudence.” Terry, 392 U.S. at 22 n.18. At the

same time, we must allow “officers to draw on their own

experience and specialized training to make inferences from and

deductions about the cumulative information available to them

that might well elude an untrained person.” United States v.

Arvizu, 534 U.S. 266, 273 (2002) (internal quotation marks

omitted); see also United States v Nelson, 284 F.3d 472, 476 (3d

Cir. 2002). “The ultimate question is whether a reasonable,

trained officer standing in [Santiago’s] shoes could articulate

specific reasons justifying [Brown’s] detention.” Johnson, 332

F.3d at 206.

In evaluating whether there was an objective basis for

17

reasonable suspicion, we consider “the totality of the

circumstances – the whole picture.” Cortez, 449 U.S. at 417;

Robertson, 305 F.3d at 167. As our Court has observed,

[t]he Supreme Court has repeatedly

recognized that a reasonable

suspicion may be the result of any

combination of one or several

factors: specialized knowledge and

investigative inferences (United

States v. Cortez), personal

observation of suspicious behavior

(Terry v. Ohio), information from

sources that have proven to be

reliable, and information from

sources that – while unknown to

the police – prove by the accuracy

and intimacy of the information

provided to be reliable at least as to

the details contained within that tip

(Alabama v. White).

Nelson, 284 F.3d at 478.

The factors that informed Officer Santiago’s decision to

stop and frisk Brown were (a) the police radio broadcast of a

description of the robbery suspects and the extent to which

Brown and Smith matched that description, (b) the radio call

18

from Officer Pacheco conveying the location tip provided by

Firth, and (c) Santiago’s personal observation of Brown and

Smith at 22nd and Lombard Streets. Although Santiago

conceded that Brown and Smith being “the only two black

males at that location . . . was the only reason why those two

males were stopped by me and they were investigated by me,”

we must consider only whether “a reasonable, trained officer

standing in [Santiago’s] shoes could articulate specific reasons

justifying” the investigative stop of Brown. Johnson, 332 F.3d

at 206. Thus, even if the initial radio broadcast and the conduct

of Brown and Smith did not factor into Santiago’s reasonable

suspicion analysis, they must be included in ours. Although we

examine each of the three factors in turn, our ultimate

determination of reasonable suspicion requires us to consider

these items not “in isolation from each other,” but (as noted) as

part of the “totality of the circumstances.” Arvizu, 534 U.S. at

274.

1. The radio broadcast

The first factor contributing to the totality of the

circumstances was the initial radio broadcast describing the

attempted robbery suspects and the extent to which Brown and

Smith matched that description. The fact that “every detail

provided [in a description] matched the details observed by the

officers” can contribute to a finding of reasonable suspicion.

Nelson, 284 F.3d at 483. The broadcast description in this case,

however, fails to satisfy the Fourth Amendment’s “demand for

19

specificity.” Terry, 392 U.S. at 21 n.18.

The broadcast, as described in the District Court’s

findings of fact, identified the suspects as African-American

males between 15 and 20 years of age, wearing dark, hooded

sweatshirts and running south on 22nd Street, where one male

was 5' 8" and the other was 6'.8 In the more stringent context of

probable cause, we have concluded that, “armed with

information that two black males driving a black sports car were

believed to have committed three robberies in the area some

relatively short time earlier, [the officer] could not justifiably

arrest any African-American man who happened to drive by in

any type of black sports car.” United States v. Kithcart, 134

F.3d 529, 532 (3d Cir. 1998) (though offering no opinion on

whether there was sufficient reasonable suspicion for a Terry

stop). Similarly, even the less stringent standard of reasonable

8

Over 43% of Philadelphia’s population is African-American.

Jesse McKinnon, U.S. Dep’t of Commerce, No. C2KBR/01-5,

The Black Population: 2000, at 7 fig. 3 (2001), available at

http://www.census.gov/prod/2001pubs/c2kbr01-5.pdf. The

medium height for men age 20 and older in the United States is

approximately 5' 8". Margaret A. McDowell et al., U.S. Dept.

of Health & Human Servs., No. 361, Anthropometric Reference

Data for Children and Adults: U.S. Population, 1999–2002, at

26 tbl.31 (2005). Officer Santiago also gave uncontested

testimony that “it was in no way unusual to see two black males

at that intersection” given the racial makeup of the

neighborhood.

20

suspicion cannot be met by a description that paints with this

broad of a brush.

By way of contrast, consider the facts of United States v.

Harple, 202 F.3d 194, 196-97 (3d Cir. 1999), where reasonable

suspicion was supported, along with other factors, when the

suspects’ car “substantially matched the description,” including

the two-toned color of the car, the presence of a third brake light

in the rear window, and five or more young, white, male

passengers. See also Nelson, 284 F.3d at 481 n.5 (finding

support for reasonable suspicion when there was an “exact

match of the unique description – car, plates, occupants and

direction of travel”).

To make matters worse, the match of Brown and Smith

to even this most general of descriptions was hardly close.

Among other things, the robbery suspects were described as

between 15 and 20 years of age, but on the date of the stop

Brown was 28 years old and Smith was 31 years old. Moreover,

both Brown and Smith had full beards and the description of the

suspects included no mention of any facial hair. Indeed, about

the only thing Brown and Smith had in common with the

suspects was that they were black. What we have is a

description that, while general, is wildly wide of target. By no

logic does it, by itself, support reasonable suspicion.

21

2. The location tip

When, as here, one officer (Santiago) conducts a stop and

frisk based on information provided by another officer

(Pacheco), “a finding of reasonable suspicion to justify the stop

require[s] the presentation of evidence by the government that

the officer who issued the radio bulletin [Pacheco] had

reasonable suspicion, not simply that it was reasonable for the

arresting officer [Santiago] to have relied on the bulletin.”

Coward, 296 F.3d at 180; see also United States v. Hensley, 469

U.S. 221, 233 (1985) (when “the police make a Terry stop in

objective reliance on a flyer or [radio] bulletin, we hold that the

evidence uncovered in the course of the stop is admissible if the

police who issued the flyer or [radio] bulletin possessed a

reasonable suspicion justifying a stop.”) (emphasis in original);

Nelson, 284 F.3d at 481 (when officers’ stop was based on

match of defendants with broadcast information, “the

reasonableness of the stop . . . depends on the reliability of the

tip itself”); Rogers v. Powell, 120 F.3d 446, 453 (3d Cir. 1997)

(“The legality of a seizure based solely on statements issued by

fellow officers depends on whether the officers who issued the

statements possessed the requisite basis to seize the suspect.”)

(emphasis in original). Our focus is thus the first source –

Officer Pacheco. Would the location tip give “a reasonable,

trained officer standing in [her] shoes” reasonable suspicion to

order the stop? Johnson, 332 F.3d at 206.

Pacheco’s information regarding the location of the

22

suspects was based on comments by the victim, Radenkovic,

relaying observations by Radenkovic’s friend, William Firth.

“It is well settled that reasonable suspicion can be based on

information gathered from another person.” Robertson, 305

F.3d at 168; see also Johnson, 332 F.3d at 206 (noting that

“officers may rely on a trustworthy second hand report, if that

report includes facts that give rise to particularized suspicion”).

Both our Court and the Supreme Court have considered the

reliability of tips from citizens in several Terry stop cases, but

almost always in the context of anonymous informants. In the

typical case, an unidentified person calls the police and reports

a man with a gun standing at a particular location wearing

specified clothing. See, e.g., J.L., 529 U.S. at 268 (anonymous

caller reported that a young black male wearing a plaid shirt and

standing at a particular bus stop was carrying a gun).

The record before us does not fit neatly into the typical

anonymous tip framework, as Firth made no effort to hide his

identity and was known to Radenkovic. Despite this distinction,

we may still borrow underlying principles from the anonymous

tip context to evaluate the reliability of Firth’s tip. Cf.

Robertson, 305 F.3d at 169 (distinguishing “anonymous

informant” case from “hot pursuit case, aided by a bystander’s

informative tip,” but still applying standards of reliability from

anonymous tip cases).

In the context of anonymous tips, the Supreme Court has

made clear that “an informant’s ‘veracity,’ ‘reliability,’ and

23

‘basis of knowledge’. . . [are] ‘highly relevant in determining the

value of his report.’” Alabama v. White, 496 U.S. 325, 328

(1990) (quoting Illinois v. Gates, 462 U.S. 213, 230 (1983)).

When considering fully all the facts about a tip, the honesty of

the caller, the reliability of his information and the basis of his

knowledge are “closely intertwined issues that may usefully

illuminate the commonsense, practical question” whether there

is reasonable suspicion to support a Terry stop. Gates, 462 U.S.

at 230; see also White, 496 U.S. at 328-29 (holding Gates

analysis applicable to reasonable suspicion context); Valentine,

232 F.3d at 354 (Supreme Court “uses a flexible standard that

assesses the relative value and reliability of an informant’s tip in

light of the totality of the circumstances”).

The following specific aspects of tips indicate reliability:

(1) The tip information was relayed from the informant to

the officer in a face-to-face interaction such that the

officer “had an opportunity to appraise the witness’s

credibility through observation.” Nelson, 284 F.3d at

480; see also Valentine, 232 F.3d at 354.

(2) The person providing the tip can be “held responsible if

her allegations turn out to be fabricated.” Valentine, 232

F.3d at 354 (internal quotations and citation omitted); see

also J.L., 529 U.S. at 270; Adams v. Williams, 407 U.S.

143, 146-47 (1972); Nelson, 284 F.3d at 482.

24

(3) The content of the tip is not information that would be

available to any observer. Nelson, 284 F.3d at 483

(citing White, 496 U.S. at 332 (1990)). A “not truly

anonymous” tip is accorded greater weight when “the

specific details of language, type of activity and location

matched a pattern of criminal activity known to the

police, but not to the general public,” and “the tip could

not have been generated by the general public, nor based

solely on observation.” Id. at 482, 484; see also United

States v. Roberson, 90 F.3d 75, 79 (3d Cir. 1996)

(affording tip less weight when information could have

been gained by “caller . . . looking out of his window . .

. at the time of his 911 call”).

(4) The person providing the information has recently

witnessed the alleged criminal activity. See Gates, 462

U.S. at 234 (informant’s “statement that the event was

witnessed first-hand” entitles tip to greater weight);

Adams, 407 U.S. at 147 (citing situation “when the

victim of a street crime seeks immediate police aid and

gives a description of his assailant” as example of tip that

could support reasonable suspicion); Nelson, 284 F.3d at

482 (tip was more reliable when “posture of the caller

allowed the officer to infer that the caller was himself a

victim of the criminal activity”).

(5) The tip predicts what will follow, as this provides police

the “means to test the informant’s knowledge or

25

credibility.” J.L., 529 U.S. at 271; see also White, 496

U.S. at 332 (“When significant aspects of the caller’s

predictions were verified, there was reason to believe not

only that the caller was honest but also that he was well

informed, at least well enough to justify the stop.”);

Gates, 462 U.S. at 245. Predictive information is also

useful in that it “can reflect particularized knowledge.”

Nelson, 284 F.3d at 484.

With these indicators, “we assess whether the

communication[] [J.L.originating from Firth] to the police

possessed sufficient indicia of reliability, when considering the

totality of the circumstances, for us to conclude that the officers

possessed an objectively reasonable suspicion sufficient to

justify a Terry stop.” Nelson, 284 F.3d at 481. We conclude

that this factor does not support reasonable suspicion to stop and

frisk Brown.

It is true Firth did not make an anonymous call; the police

would certainly have been able to find him and hold him

accountable had his tip proved to be inaccurate. Moreover,

nothing in the record suggests that Firth was dishonest. See

Wardlow, 528 U.S. at 125 (“the determination of reasonable

suspicion must be based on commonsense judgments and

inferences about human behavior”). Reasonable suspicion,

however, requires that there must be some “reason to believe

not only that the caller was honest but also that he was well

informed.” White, 496 U.S. at 332. With little information to

26

go on, Firth made inferences not based in fact. For example, he

stated that Smith and Brown looked like the robbery suspects,

but he had never seen the suspects and heard only a general

description from Radenkovic.

Bad information in leads to bad information out. But

how is a professional like Officer Pacheco to know this? First,

a reasonable, trained officer would assume, from the context of

the call, that Firth did not witness the attempted robbery; he had

never seen the people he was attempting to identify. Second, a

reasonable, trained officer would recognize that Firth’s tip

provided no information that would reflect any “particularized

knowledge” or that he was “well-informed.” Third, and most

important, a reasonable, trained officer would realize Firth was

merely providing information “that could be observed by

anyone.” Nelson, 284 F.3d at 483. Specifically, Firth was

providing Officer Pacheco with nothing more than his

observation that there were two black males at 22nd and

Lombard Streets.

A tip is not reliable merely because “its description of the

suspect’s visible attributes prove accurate.” J.L., 529 U.S. at

271. “[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; see also White, 496 U.S. at 332.

Firth was undoubtedly sincere, but his tip was nothing more than

Brown’s “readily observable location and appearance,” and was

thus insufficient on its own to support reasonable suspicion.

27

J.L., 529 U.S. at 272. “[O]ne citizen’s subjective feelings are

not enough to justify the seizure of another where the objective

facts do not point to any articulable basis for suspicion.”

Johnson, 332 F.3d at 210. The tip in the record, sincere as Firth

was, does not provide objective facts justifying the seizure of

Brown and would not have established reasonable suspicion in

the mind of a reasonable, trained officer.

3. Officer Santiago’s observations

With Firth’s call imparting information a reasonably

trained officer would suspect, was there anything observed

personally by the police that would justify a stop of Brown?

Put another way, “if 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 reliable.” White, 496 U.S. at 330; see also Nelson,

284 F.3d at 480 (“If, for example, a tip on its own carries few

indicia of reliability, much corroborating information is

necessary to demonstrate reasonable suspicion.”); Roberson, 90

F.3d at 80 (“omissions [in tip] probably would not have

invalidated the stop, if, after corroborating readily observable

facts, the police officers had noticed unusual or suspicious

conduct on [the suspect’s] part”).

The following factors have been identified by the

Supreme Court and our Court as suggesting suspicious behavior;

alone they may be insufficient to establish reasonable suspicion,

28

but if observed by police they can serve to corroborate an

otherwise insufficient tip.

(1) Presence of a suspect in a high crime area. Wardlow,

528 U.S. at 124; Adams, 407 U.S. at 147-48; Johnson,

332 F.3d at 206; Nelson, 284 F.3d at 483; United States

v. Ubiles, 224 F.3d 213, 217 (3d Cir. 2000); Valentine,

232 F.3d at 356; Brown, 159 F.3d at 149.

(2) A suspect’s presence on a street at a late hour. Adams,

407 U.S. at 147-48; Nelson, 284 F.3d at 483; Valentine,

232 F.3d at 356; Brown, 159 F.3d at 148, 150.

(3) A suspect’s “nervous, evasive behavior,” or flight from

police. Wardlow, 528 U.S. at 124; see also United States

v. Bonner, 363 F.3d 213, 217 (3d Cir. 2004); Ubiles, 224

F.3d at 217; Valentine, 232 F.3d at 357; Brown, 159 F.3d

at 150.

(4) A suspect behaves in a way that conforms to police

officers’ specialized knowledge of criminal activity.

Arvizu, 534 U.S. at 276; Nelson, 284 F.3d at 482.

Notably, none of these factors was observed by Officer

Santiago. It was not alleged that Brown and Smith were in a

high crime area. Neither were they on the street late at night.

Nothing about their behavior was evasive or suspicious. Brown

and Smith were walking normally; Santiago testified that they

29

were not running nor were they out of breath. See Roberson, 90

F.3d at 80 (stating that “walk[ing] casually” is “behavior that

does not indicate criminal activity”). The two men were hailing

a cab. While Officer Santiago thought this was “more to try to

flee the area,” he also agreed that the men “were flagging it

down like an ordinary person would.” Moreover, Brown and

Smith were cooperative when approached by Santiago, who

testified that he had a “nice, brief conversation” with the two

men and that they were “cooperative” and “complied with all

[his] demands.”9 In sum, as Officer Santiago testified, Brown

and Smith “weren’t doing anything suspicious other than hailing

a taxicab.”

Although legal, innocent behavior at times corroborates

other information to raise reasonable suspicion, the suspects’

act of hailing a cab in this case hardly corroborates the

unreliable tip of Firth. See, e.g., United States v. Sokolow, 490

U.S. 1, 10 (1989) (in making a determination of reasonable

suspicion, “‘the relevant inquiry is not whether particular

conduct is “innocent” or “guilty,” but the degree of suspicion

that attaches to particular types of noncriminal acts’”) (quoting

9

We do not mean to suggest that had Brown not been

cooperative, reasonable suspicion would have been established.

“[T]he Supreme Court has ‘consistently held that a refusal to

cooperate, without more, does not furnish the minimal level of

objective justification needed for a detention or seizure.’”

Johnson, 332 F.3d at 208 (quoting Florida v. Bostick, 501 U.S.

429, 437 (1991)).

30

Gates, 462 U.S. at 245 n.13). In light of the unreliability of the

tip from Firth, some unquantifiable but significant amount of

corroborating information is required to establish reasonable

suspicion to stop Brown, and the record is devoid of that

evidence.

* * * * *

We conclude that Brown was seized before his aborted

escape attempt, and each of the factors argued to support

reasonable suspicion to stop and frisk him – the radio broadcast,

the location tip, and Officer Santiago’s observations of Brown

and Smith – underwhelms. We recognize nonetheless that,

under a totality of the circumstances test, even factors

independently “susceptible to innocent explanation” can

collectively amount to reasonable suspicion. Arvizu, 534 U.S.

at 274, 275. We are confident, however, that in this case an

excessively general description, combined with an honest but

unreliable location tip in the absence of corroborating

observations by the police, does not constitute reasonable

suspicion under the “narrowly drawn authority” of Terry v.

Ohio. 392 U.S. at 27. We thus reverse the District Court’s

denial of Brown’s motion to suppress and vacate his conviction.

31