stating that “we mustn’t follow” precedent that the Court has “squarely contradicted”
How later courts described this case
- stating that “we mustn’t follow” precedent that the Court has “squarely contradicted”
Written by the judges who cited it.
The opinion
Case: 20-60106 Document: 00515782505 Page: 1 Date Filed: 03/16/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
March 16, 2021
No. 20-60106 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellant,
versus
Okanlawan O. Norbert,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:19-CR-50
Before Davis, Stewart, and Oldham, Circuit Judges.
W. Eugene Davis, Circuit Judge:
The Government appeals the district court’s ruling granting
Defendant-Appellee Okanlawan O. Norbert’s motion to suppress evidence
that was critical to establish the Government’s charge of possession of a
firearm by a convicted felon. The district court determined that police
officers did not have reasonable suspicion to conduct the investigatory stop
of Norbert. Therefore, Norbert’s gun and statements to the police were
suppressed as “fruit of the poisonous tree.” Because the district court did
not err in finding that the officers did not have reasonable suspicion to
conduct an investigatory stop, we AFFIRM.
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No. 20-60106
I. BACKGROUND
Norbert was charged in a one-count indictment for possession of a
firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). Following his indictment, Norbert moved to suppress the
evidence of the gun and statements that he made to police officers before and
after discovery of the gun, arguing that the police lacked any legal basis for
the stop that resulted in discovery of the incriminating evidence.
The district court held a suppression hearing, where Investigators
Felix McClinton and Kevin Lavine from the Hinds County Sheriff’s Office
testified. Investigator McClinton testified that on the morning of
November 29, 2017, he received a phone call with an anonymous tip that
illegal drugs were being sold in the parking lot of the Millsaps Apartments in
Jackson, Mississippi. The caller said that she was in management at the
apartment complex and described the suspected dealer as a “black male, dark
skinned, slender build with gold teeth known as ‘N.O.’” who drove a black
Infiniti with a license plate of “HVK225.” The complainant told McClinton
that the alleged drug dealing was a “personal safety issue” and “the residents
of the apartment complex were in fear of coming and going.” However,
McClinton testified that “he [could] not verify that it was someone from
management” on the phone and he did not get the caller’s name or telephone
number. It was also unclear whether the caller witnessed the alleged drug
activity herself or if she was only told about it by residents. 1
1
On direct exam, McClinton said that the caller told him it was a personal safety
issue and “[she was] in fear of -- and also the residents of the apartment complex were in
fear of coming and going . . . in the parking lot.” Based on this testimony, it appears that
the caller was reporting on drug activity that residents in the complex had brought to her
attention. Later, the court asked McClinton the following question: “So the caller
identified herself as someone from management and indicated that -- did she indicate that
2
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McClinton testified that he found the tipster to be credible based on
his “training and experience.” Around 8:00 P.M., McClinton and six to eight
police officers went to the apartment complex to investigate the complaint.
Upon arrival, McClinton saw “[t]hree to four individuals standing in the
parking lot of the apartment complex standing next to some vehicles.”
McClinton said that he also saw a vehicle and an individual that matched the
description provided by the complainant, but he “did not see any drug
transactions taking place.”
The police officers approached the men in the parking lot and said that
they were investigating reported drug activity in the area. McClinton testified
that when he asked the men if any of them lived at the apartment complex,
none of them said that they did. The officers then conducted pat downs of
the men for “officer safety,” and the men identified themselves, enabling the
officers to check through dispatch to see if any of them had valid warrants or
criminal history on record. During the pat down, the officers discovered that
one man had a misdemeanor amount of marijuana in his possession, but no
evidence was found on Norbert’s person.
she had seen certain activity?” And McClinton replied, “Yes.” Based on this testimony, it
appears that the caller herself may have witnessed activity in the parking lot, although the
question about “certain activity” makes it unclear what specific activity she saw. A
reasonable view of the evidence that the district court was entitled to take was that the
caller’s statement was so ambiguous that the court was unable to find that she herself
witnessed drug activity. She could have been referring to the presence of individuals and
vehicles in the parking lot who she did not believe belonged there. The dissent argues that
it is clear the caller herself witnessed drug activity in the parking lot. However, the
Government admitted during oral argument that the only testimony from the suppression
hearing that supports this claim is that McClinton said the caller had witnessed “certain
activity,” without any further explanation of the activity. Therefore, there is ambiguity
about what the caller herself witnessed prior to calling the police.
3
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No. 20-60106
McClinton testified that he then spoke to Norbert, who confirmed
ownership of the black Infiniti, which was parked approximately 15 to 20 feet
away. McClinton said that he then walked over to the Infiniti, looked in the
window, and saw a handgun on the floorboard in front of the driver’s seat,
near the center console. He testified that he spoke to Norbert briefly, then
opened the unlocked car door to secure the handgun due to officer safety
concerns, but could not remember if Norbert had given him permission to
enter the car.
Meanwhile, Investigator Lavine testified that when the officers
arrived at the apartment complex, he saw the black Infiniti and several black
men in the parking lot. After the police officers approached the group of men,
Lavine said that Norbert walked toward the group from a courtyard area
because “he wasn’t there originally with the guys.” Lavine conducted a pat
down of Norbert. 2
After the pat down, Lavine said that he struck up a conversation with
Norbert, who “stated kind of jokingly, ‘Man, I started to run, but then I
realized there was some more of you all on the other side. So I just turned
around and came back.’” 3 Lavine testified that Norbert identified the black
2
There is ambiguity in the record on how the pat downs were conducted,
particularly whether all the men were patted down simultaneously or one at a time.
However, the Government concedes that it cannot establish that any of the pat downs
occurred before Norbert’s, including the pat down that revealed the presence of marijuana
on one of Norbert’s companions.
3
The dissent attempts to argue that the record suggests that the pat down occurred
after Norbert’s remark about running. However, the district court in its Memorandum
Opinion and Order dated January 13, 2020 laid out the same sequence of events as the
majority does: “Investigator Lavine states he conducted a brief Terry pat of Norbert.
Investigator Lavine also said that he began to speak with Norbert about Norbert’s
accent . . . Norbert told Investigator Lavine that he had ‘started to run but then . . . realized
there was some more of you all on the other side.’” “In considering a ruling on a motion to
4
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No. 20-60106
Infiniti as his. Lavine then walked over to the car, looked inside the window,
and saw a gun wedged between the driver’s seat and center console. Lavine
testified that Norbert gave the officers consent to enter the vehicle. Lavine
also said that the officers knew that Norbert had a felony conviction prior to
seeing the gun in the car because they asked all the men for their
identification and ran their names to check for criminal histories. After the
police officers confirmed with Hinds County dispatch that Norbert had a
felony conviction, Norbert was arrested.
Following the suppression hearing, the district court issued a written
order granting Norbert’s motion to suppress. The district court concluded
that: (1) Norbert’s detention was properly classified as an investigatory stop,
not an arrest; (2) the police officers lacked reasonable suspicion to conduct
an investigatory stop of Norbert based on the anonymous tip and insufficient
on-scene corroboration or verification of the tip; and (3) Norbert’s gun and
statements to the police should be suppressed because they derived solely
from the illegal stop. The Government timely filed an interlocutory appeal.
II. DISCUSSION
A. Reasonable Suspicion
“In considering a ruling on a motion to suppress, we review the
district court’s factual findings for clear error and its legal conclusions,
including its ultimate conclusion as to the constitutionality of the law
enforcement action, de novo.” 4 “Factual findings are clearly erroneous only
suppress, we review the district court’s factual findings for clear error.” United States v.
Chavez, 281 F.3d 479, 483 (5th Cir. 2002). Nothing in the record supports a finding that
the district court’s factual finding on the sequence of events in this situation was clearly
erroneous. Accordingly, we decline to adopt the dissent’s version of events.
4
United States v. Chavez, 281 F.3d 479, 483 (5th Cir. 2002).
5
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No. 20-60106
if a review of the record leaves this Court with a ‘definite and firm conviction
that a mistake has been committed.’” 5 In addition to deferring to the district
court’s factual findings, “[w]e view the evidence in the light most favorable
to the party that prevailed in the district court,” which in this case is
Norbert. 6 A district court’s ruling on a suppression motion should be upheld
“if there is any reasonable view of the evidence to support it.” 7
“A temporary, warrantless detention of an individual constitutes a
seizure for Fourth Amendment purposes and must be justified by reasonable
suspicion that criminal activity has taken or is currently taking place;
otherwise, evidence obtained through such a detention may be excluded.” 8
To determine the reasonableness of such a detention, the court must examine
“whether the officer’s action was justified at its inception” and whether the
officer’s subsequent actions were “reasonably related in scope to the
circumstances which justified the interference.” 9 To establish that a police
officer’s actions were justified at their inception, the officer must have a
reasonable basis to suspect criminal activity. 10 The Government has the
burden of proving reasonable suspicion. 11
5
United States v. Hearn, 563 F.3d 95, 101 (5th Cir. 2009) (quoting United States v.
Hernandez, 279 F.3d 302, 306 (5th Cir. 2002)).
6
Chavez, 281 F.3d at 483.
7
United States v. Michelletti, 13 F.3d 838, 841 (5th Cir. 1994) (en banc) (citation
omitted).
8
United States v. Garza, 727 F.3d 436, 440 (5th Cir. 2013); see Terry v. Ohio, 39
U.S. 1, 29–31 (1968).
9
Terry, 392 U.S. at 20.
10
United States v. Martinez, 486 F.3d 855, 864 (5th Cir. 2007).
11
Id. at 859–60.
6
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“The Supreme Court has evinced a strong distrust of anonymous tips.
In particular, it has stated an anonymous tip that provides verifiable
information as to a person’s identity and location, without more, is
insufficient to justify an investigative stop.” 12 Only “under appropriate
circumstances” does an anonymous tip “demonstrate ‘sufficient indicia of
reliability to provide reasonable suspicion to make [an] investigatory
stop.’” 13 To determine if an informant’s tip provides reasonable suspicion
for an investigative stop, the Fifth Circuit considers various factors,
including:
the credibility and reliability of the informant, the specificity of
the information contained in the tip or report, the extent to
which the information 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. 14
The Government does not challenge the district court’s
determination that the detention and pat down of Norbert was an
investigatory stop that required reasonable suspicion. Instead, the
Government contends that the district court erred in concluding the tip was
not credible or reliable and the police officers did not properly verify the tip.
Moreover, it claims that the district court erred in balancing the factors for
determining whether the informant’s tip provided reasonable suspicion for
the investigative stop, which in turn allowed the police officers to perform a
12
Id. at 862.
13
Navarette v. California, 572 U.S. 393, 397 (2014) (quoting Alabama v. White, 496
U.S. 325, 327 (1990)).
14
Martinez, 486 F.3d at 861 (quoting United States v. Gonzalez, 190 F.3d 668, 672
(5th Cir. 1999)).
7
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No. 20-60106
protective sweep and seize the gun. This Court will consider each of the
factors, in turn.
1. Credibility and Reliability of the Informant
Tips from known informants who have given police reliable
information in the past are generally recognized as credible and reliable.15
“Unlike a tip from a known informant whose reputation can be assessed and
who can be held responsible if her allegations turn out to be fabricated . . . ‘an
anonymous tip alone seldom demonstrates the informant’s basis of
knowledge or veracity.’” 16 Even if a tip is anonymous, a specific, detailed
description of criminal behavior contemporaneously reported to emergency
services by an eyewitness “or made under the stress of excitement caused by
a startling event” may bear sufficient indicia of credibility and reliability.17
Crucially, an anonymous tip must “be reliable in its assertion of illegality, not
just in its tendency to identify a determinate person.” 18 Further, this Court
considers statements solicited by police that “fit into the end of an ongoing
investigation, rather than prompting the beginning of a new one” to be more
credible and reliable than “unsolicited information” about people unknown
to the police. 19 As a final note, when an anonymous tipster provides
15
United States v. Powell, 732 F.3d 361, 371 (5th Cir. 2013); United States v.
Holloway, 962 F.2d 451, 460 (5th Cir. 1992).
16
Florida v. J.L., 529 U.S. 266, 270 (2000) (quoting White, 496 U.S. at 329).
17
Navarette, 572 U.S. at 399–400.
18
J.L., 529 U.S. at 272 (emphasis added).
19
United States v. Blount, 123 F.3d 831, 837 (5th Cir. 1997).
8
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information about a suspect’s future activity that is verified, it offers added
credibility for the tipster. 20
The district court found that the informant’s tip lacked credibility and
reliability because the caller did not provide her name or phone number and
had no history of reliable reports of criminal activity, and the police officers
did not attempt to contact the management at the Millsaps Apartments to
determine who made the phone call.
The Government argues that the district court placed too much
emphasis on the fact that the informant did not provide her name or phone
number and failed to credit McClinton’s determination that the caller was
credible. The Government emphasizes the fact that the caller considered the
suspected drug dealing to be a “personal safety issue” for tenants, and even
though the caller was anonymous, she should not be treated any differently
from an average citizen providing information to the police. The Government
contends that the details the caller provided shows that she had a sufficient
“basis of knowledge” to “lend[] significant support to the tip’s reliability,” 21
and simply because it was not a 911 call or it lacked contemporaneousness
does not mean that the tipster was unreliable.
In this case, the caller was unknown to the police and only identified
herself as a manager of the Millsaps Apartments. She did not provide her
name, phone number, or any other identifying information, and the police
officers did not take any further steps to ascertain her identity or confirm her
position as a manager of the apartment complex. “All the police had to go on
20
See White, 496 U.S. at 332. For further analysis of tips involving a suspect’s
future activity, see factor 3.
21
See Navarette, 572 U.S. at 399.
9
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in this case was the bare report of an unknown, unaccountable informant”
and while “[a]n accurate description of a suspect’s readily observable
location and appearance” will help the police correctly identify the person
being accused, “the tip does not show that the tipster has knowledge of
concealed criminal activity.” 22 “The reasonable suspicion here at issue
requires that a tip be reliable in its assertion of illegality, not just in its
tendency to identify a determinate person.” 23
Moreover, the information provided was not an emergency reported
contemporaneously to 911 that required immediate action, which
distinguishes this case from Navarette v. California. 24 In Navarette, which the
Government argues is analogous to the instant case, a tipster called 911 soon
after she had been run off the road by a driver who was driving dangerously.
The Supreme Court noted “[t]hat sort of contemporaneous report has long
been treated as especially reliable.” 25 The Court also determined that
“[a]nother indicator of veracity is the caller’s use of the 911 emergency
system” because “[a] 911 call has some features that allow for identifying and
tracing callers, and thus provide some safeguards against making false reports
with immunity.” 26 As indicated in this case, the information was not
transmitted in a 911 call and no evidence was presented that the Hinds
County Sheriff’s Office automatically records the calls it receives or the
caller’s phone number. The caller did not clearly convey what, if anything,
she saw involving illegal drug activity, and the officers obviously did not
22
See J.L., 529 at 271–72.
23
See id. at 272.
24
572 U.S. at 399–400.
25
Id. at 399.
26
Id. at 400.
10
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conclude that there was any emergency because they arrived at the apartment
complex at least eight hours after the call. Therefore, the Government’s
reliance on Navarette is misguided. Finally, although the Government argues
that McClinton deemed the caller to be credible based on his “training and
experience,” it does not otherwise explain how he reached that conclusion.
Accordingly, we conclude that the district court did not err in finding
that the credibility and reliability of the informant weighed in Norbert’s
favor.
2. Specificity of the Information in the Tip
In this case, the district court concluded that the information provided
was specific enough to identify Norbert because it included a description of
Norbert, his alias (“N.O.”), a description of his car, and his car license plate
number. The tip also gave the location of where the alleged drug sales were
occurring. Therefore, the district court determined—and the Government
agrees—that the tip was “relatively specific” enough and that this factor
weighs in the Government’s favor. Norbert argues that the description of him
as a “black male, dark skinned, slender build with gold teeth” was not
specific enough to identify him. Norbert emphasizes the fact that 82.02
percent of Jackson’s 160,080 population is “Black or African American” and
assuming about one-half of the black people in Jackson are male, there are
about 65,648 males in the city that are “Black or African American.”
This factor is a close call. On one hand, the caller did not only identify
Norbert as a black man, but also provided his nickname, the unique attributes
of his teeth, and information about his car that was mostly correct; on the
other hand, the caller simply provided information that would help identify
Norbert but did not provide sufficient detail to “be reliable in its assertion of
11
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illegality, not just in its tendency to identify a determinate person.” 27
Although the information provided was arguably sufficient to allow the police
to identify Norbert, as we discuss further below, it did not provide sufficient
detail to be reliable in its assertion of illegality. We agree with the district
court that this factor weighs in part in favor of the Government because the
tip was sufficiently specific enough to identify Norbert.
3. Verification of the Information in the Tip
Even if the credibility and reliability of an informant is not established,
police officers may still have reasonable suspicion to conduct an investigatory
stop if the officers are able to verify the tip. 28 In addition to police
observations, a tip may be verified by reports of unlawful behavior from other,
credible sources. 29 However, the corroboration of innocent information, such
as a person’s identification or whereabouts, “absent any corroboration of the
illegal activity itself” does not in and of itself provide a basis to conduct an
investigatory stop. 30 Because the tip was not presented as a 911 call or a
contemporaneous emergency, or predict future behavior, the police’s failure
to corroborate illegal activity was insufficient verification of the tip to justify
the stop. 31
27
J.L., 529 at 272.
28
See United States v. Martinez, 486 F.3d 855, 863 (5th Cir. 2007); J.L., 529 U.S.
at 270.
29
See United States v. Holloway, 962 F.2d 451, 460 (5th Cir. 1992).
30
Martinez, 486 F.3d at 864.
31
See United States v. Gomez, 623 F.3d 265, 271 (5th Cir. 2010). As discussed
earlier, it is also not clear that the caller herself witnessed the drug activity, which further
distinguishes this case from Navarette, where the “caller necessarily claimed eyewitness
knowledge of the alleged dangerous driving.” See 572 U.S. at 399.
12
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No. 20-60106
In United States v. Martinez, this Court determined that an unknown
informant’s tip that a man named “Angel” was storing weapons that had
been used in a quadruple homicide at a particular address did not provide
officers with reasonable suspicion to stop Angel when he was found at the
address. 32 This Court focused on the fact that there was no evidence in the
record to suggest a basis for finding the informant credible, such as whether
the informant had previously dealt with the police, and therefore the
reliability factor weighed against the Government. 33 Moreover, “absent any
corroboration of the illegal activity itself,” the officers did not have
reasonable suspicion to conduct a stop; “[t]hat the police might corroborate
a mountain of innocent data, such as a person’s identification and
whereabouts, does not provide any basis for executing a Terry stop on that
person.” 34 This Court concluded that the only verified information the police
had when they stopped Angel was his name and the fact that he was in a
specific residence, but “[n]otably absent” was “any verified information that
‘criminal activity may be afoot.’” 35 Therefore, the tip was insufficient to give
rise to reasonable suspicion to conduct a stop. 36
We have emphasized the importance of corroborating the fact that
criminal conduct has been or will be committed before conducting a stop. In
United States v. Roch, this Court concluded that even when an officer knows
an informant personally and previously obtained reliable information from
32
Martinez, 486 F.3d at 858, 862.
33
Id. at 861–62.
34
Id. at 864.
35
Id. at 862 (quoting United States v. Jaquez, 421 F.3d 338, 340–41 (5th Cir. 2005)).
36
Id.
13
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the informant, it was not enough for a finding of reasonable suspicion. 37 In
Roch, a confidential informant gave a detailed description of the suspect and
his white and orange pickup truck, including the fact that he was driving with
a female passenger, and told police that the suspect planned to pass forged
checks and had threatened to kill the next cop he saw. 38 Based on this tip, the
police set up surveillance for several hours and saw the suspect drive away in
the vehicle the informant described with a female passenger. 39 The police
followed the suspect’s vehicle and made an investigatory stop when he exited
the vehicle. 40 When they looked inside the vehicle, they found two guns,
which were the subject of the indictment and subsequent motion to suppress.
We reversed the district court’s denial of the motion because “[a]lthough
reasonable suspicion is a substantially lower standard than probable cause, it
still requires an indicia of reliability demonstrated by the observation of
sufficient details that corroborate the informant’s tip” and “while the agents
could corroborate that a white man was driving a white and orange truck, they
made no attempt to corroborate the driver’s identity, his felon status, or his
future activity.” 41
In this case, the district court concluded that because the anonymous
tip was not made to 911 and it did not involve an emergency or an immediate
threat to anyone’s safety, the police officers should have attempted to verify
or corroborate the information in some way. The only information that the
police officers were able to verify through their personal observations was
37
5 F.3d 894, 898–99 (5th Cir. 1993).
38
Id. at 896.
39
Id.
40
Id.
41
Id. at 899.
14
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“innocent data,” such as Norbert’s identification and the location of his
car, 42 but not that he was engaged in any illegal activity. The district court
thus concluded that this factor weighed strongly against a finding that the
officers had reasonable suspicion to conduct an investigatory stop.
The Government alleges that the district court “went too far in
insisting” that the police officers should have done more to verify that
Norbert was engaged in drug sales before conducting an investigatory stop of
the men in the parking lot. The Government argues that none of the men
were tenants at the apartment complex and the officers found a misdemeanor
amount of marijuana on one of the men to be sufficient to give the officers
reasonable suspicion to conduct the investigatory stop.
A determination of whether an officer has reasonable suspicion to
conduct a stop is “answered from the facts known to the officer at the
time.” 43 Therefore, the Government’s reliance on the finding of the
misdemeanor amount of marijuana during the pat down of one of the men to
support a finding of reasonable suspicion is misguided, as the marijuana was
found as a result of the stop and not before it. To the extent that the
Government is arguing that the officers believed that the men were
unlawfully gathered in the parking lot, it does not explain how this supports
their informant’s complaint of drug activity; the tip did not include any
allegations of trespassing. 44
42
See United States v. Martinez, 486 F.3d 855, 864 (5th Cir. 2007).
43
United States v. Vickers, 540 F.3d 356, 361 (5th Cir. 2008).
44
Moreover, as a factual matter, the Government is incorrect to suggest that none
of the men resided at the apartment complex. Lavine testified that one of the men said that
he was residing in an unleased apartment with the permission of his father, a maintenance
man at the apartment complex.
15
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Accordingly, the district court did not err in concluding that the tip as
to illegal drug activity was not adequately corroborated by police
observations. The “facts known to the officer[s] at the time” indicate that
the officers only knew that “N.O.” and his vehicle were at the apartment
complex. 45 As we have held, “absent any corroboration of the illegal activity
itself, ‘the government had no reasonable suspicion that the criminal activity
suggested by the informant was afoot.’” 46
4. Recentness of the Tip
Whether or not a tip has gone stale “is to be determined on the facts
of each case.” 47 Staleness cannot “be determined by simply a ‘mechanical
counting of the time between’ the time the tip is received and the time the
tip is used.” 48 Instead, “whether a tip has gone stale depends upon the nature
of the tip and the nature of the criminal activity alleged.” 49 This Circuit has
45
See Vickers, 540 F.3d at 361.
46
Martinez, 486 F.3d at 864 (quoting Roch, 5 F.3d at 899). For this reason, Alabama
v. White, 496 U.S. 325 (1990), upon which the dissent relies, is also distinguishable. Central
to the Supreme Court’s conclusion in that case that the officers had reasonable suspicion
to conduct a stop was the fact that the informant provided verifiable information about the
suspect’s future illegal activity. Id. at 330–31; see also Florida v. J.L., 529 U.S. 266, 271
(2000) (classifying White as a “close call” and holding that an informant’s failure to
provide “predictive information” about illegal conduct counsels against a finding of
reliability); Martinez, 486 F.3d at 863 n.6 (“We note that the tipster did state that he
expected Angel to leave for Mexico with the guns. This is a predictive statement about
future behavior, to be sure, but it was not verified in any way and thus could not contribute
to any reasonable suspicion.”). Here, the caller provided no such information that would
have allowed the officers to confirm that drug sales were going to take place.
47
United States v. Webster, 734 F.2d 1048, 1056 (5th Cir. 1984).
48
United States v. Gonzalez, 190 F.3d 668, 673 (5th Cir. 1999) (quoting Webster, 734
F.2d at 1048).
49
Id.
16
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found a tip to be “exceedingly fresh” when officers initiated a traffic stop
“approximately two hours” after an informant’s call gave them a tip, 50 and
it has also found a two-month old tip not stale because “the informant
described a particular vehicle that had made multiple smuggling trips, thus
warranting the presumption that it was engaged in continuous activity.” 51
The district court concluded that even though McClinton received
the call from the informant in the morning and did not investigate it until the
night, the caller “alleged an ongoing pattern of illicit drug sales” and the tip
was therefore not stale under the circumstances. We agree that this factor
weighs in favor of the police officers and Government.
5. Balancing the Factors
“In reviewing a district court’s ruling on a motion to suppress, we
accept findings of fact unless clearly erroneous, but review de novo the
ultimate conclusion on Fourth Amendment issues drawn from those
facts.” 52 Still, “[w]e view the evidence in the light most favorable to the party
that prevailed in the district court,” which in this case is Norbert. 53 A district
court’s ruling on a suppression motion should be upheld “if there is any
reasonable view of the evidence to support it.” 54
In this case, the district court noted that the verification factor
controlled its decision in determining whether the police officers had
50
United States v. Powell, 732 F.3d 361, 370–71 (5th Cir. 2013).
51
United States v. Villalobos, 161 F.3d 285, 290 (5th Cir. 1998).
52
United States v. Roch, 5 F.3d 894, 897 (5th Cir. 1993) (citations omitted).
53
See United States v. Chavez, 281 F.3d 479, 483 (5th Cir. 2002).
54
United States v. Michelletti, 13 F.3d 838, 841 (5th Cir. 1994) (en banc) (citation
omitted).
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reasonable suspicion to conduct the investigatory stop. As we discuss above,
although police officers generally do not need to verify or corroborate tips
from citizens reporting crimes to emergency services, in this case, the phone
call was not made to 911 and it did not involve an emergency or immediate
threat to safety. The district court therefore concluded that the officers
should have attempted to verify the tip in some way before conducting the
investigatory stop. The district court emphasized the fact that the officers
were only able to corroborate innocent information—Norbert’s
identification and the car’s location—from the anonymous tip, which “[did]
not provide any basis for executing a Terry stop.” 55
Viewing the evidence in the light most favorable to Norbert, 56 we
conclude that the district court’s ruling should be affirmed because “there is
[a] reasonable view of the evidence to support it.” 57 In summary, the
innocent information from the tip allowed the officers to identify Norbert and
his car in the parking lot, but the officers patted all the men down after only
verifying this “innocent information.” Inexplicably, the officers did not get
the informant’s name or phone number when she called, and she did not
clearly advise the officers that she had personally observed any illegal drug
activity. The officers also did not observe any drug activity occurring, nor did
they attempt to speak with someone in the management office to identify who
had phoned in the tip. Therefore, the district court did not err in concluding
55
See United States v. Martinez, 486 F.3d 855, 864 (5th Cir. 2007).
56
Chavez, 281 F.3d at 483.
57
Michelletti, 13 F.3d at 841 (citation omitted). The dissent also fails to explain
how, using this Circuit’s standard of review, there is no “reasonable view of the evidence”
to support the district court’s ruling suppressing the evidence in this case. See id.
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that the officers lacked the reasonable basis required to conduct an
investigatory stop.
Finally, the Government does not challenge the district court’s
conclusion that the gun and Norbert’s statements should be suppressed as
“fruit of the poisonous tree” of the unlawful investigatory stop. 58 Rather, the
Government only argues that the police officers had reasonable suspicion to
conduct the stop in the first place. Thus, because the gun was found and the
statements were made as a result of the unlawful stop, the district court did
not err in concluding that they should be excluded as fruit of the poisonous
tree.
The main problem with the dissent is its refusal to recognize the
standard of review that we must apply in this case. The district court found
that the informant’s tip lacked credibility and reliability. The district court
then proceeded to fault the police officers for relying on an anonymous tip
from an informant they did not know who claimed to be one of the managers
of an apartment complex. The officers did not get the informant’s name or
her telephone number and, without verifying any of this information, arrived
at the apartment complex eight hours later to investigate. The court
emphasized that the officers were only able to corroborate innocent
58
The district court concluded that “[b]ased on the record, the gun and Norbert’s
statements were derived solely from the illegal Terry stop” because the deputies were only
able to identify the car as Norbert’s after he was stopped. The police officers also stated
that they discovered Norbert’s criminal history from either the statements he made during
the stop or from their call to dispatch after requesting his identification, neither of which
would have occurred absent the unlawful stop. The district court found that there was no
“break in the chain of events sufficient to refute the inference that the evidence was a
product of a Fourth Amendment violation” and therefore, Norbert’s statements and the
gun had to be suppressed as fruit of the poisonous tree. The Government does not challenge
the district court’s conclusion that the gun and Norbert’s statements should be suppressed
as “fruit of the poisonous tree” of the unlawful stop.
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No. 20-60106
information, such as the defendant and car’s description, and this did not
support executing a Terry stop.
The testimony of McClinton, the investigating officer, reflects that
the informant’s call was predicated primarily on tenants’ reports of drug
activity and their safety concerns. The dissent accepts the Government’s
interpretation of the informant’s statement that she “saw certain activity”
to mean that she personally witnessed drug activity in the parking lot. Given
that the law requires us to view the evidence in the light most favorable to
Norbert—the prevailing party in district court—it is not unreasonable to
conclude that this statement that the informant “saw certain activity” was
not definitive enough to mean that she personally saw illegal drug activity. As
we indicate earlier in the opinion, the district court could have reasonably
found that the activity the informant saw was increased or unusual activity in
the parking lot. Although she gave the officers a description of the defendant
and a description of his automobile, including a license plate number (just
one digit off), this information could have easily been relayed to an apartment
manager by her tenants. We must uphold the district court’s ruling “if there
is any reasonable view of the evidence to support it.” 59 It is clear to us that
the district court was not obliged to accept the Government’s interpretation
of the vague term “certain activity” to mean that the informant personally
witnessed illegal activity.
The dissent accuses us of ignoring Navarette and disregarding White.
The majority opinion reflects that we have a detailed discussion of each case
that explains why we think they do not control. In Navarette, for example, the
Supreme Court allowed a 911 emergency call to serve as the basis for
59
See Michelletti, 13 F.3d at 841.
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reasonable suspicion, but that case is distinguishable from this case, where
the call did not report an emergency and the investigation was conducted
some eight hours later with ample opportunity for the officers to verify the
anonymous tip. Moreover, in each of those cases, the Court was reviewing a
district court’s order denying the motion to suppress. Accordingly, these two
Supreme Court cases are distinguishable from the case at hand.
III. CONCLUSION
Viewing the evidence in the light most favorable to Norbert, and
because there is a reasonable view of the evidence supporting the district
court’s ruling, we AFFIRM the district court’s order suppressing the gun
and Norbert’s statements.
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Andrew S. Oldham, Circuit Judge, dissenting:
Today’s majority holds that a police officer cannot conduct a Terry
stop until he personally witnesses the commission of a crime and hence has
probable cause to make an arrest. Of course, Terry itself held that officers
need mere reasonable suspicion—far less than probable cause—to stop
someone. See Terry v. Ohio, 392 U.S. 1 (1968). More than 50 years of Fourth
Amendment cases depend on that distinction. So the majority’s decision to
underrule it will have grave consequences that extend far beyond this case. I
respectfully but emphatically dissent.
I.
Ordinarily, I’d start with the constitutional text and the original public
understanding of it. The Fourth Amendment provides: “The right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated . . . .” U.S.
Const. amend. IV. That text says nothing about suppression. See United
States v. Leon, 468 U.S. 897, 906 (1984) (“The Fourth Amendment contains
no provision expressly precluding the use of evidence obtained in violation of
its commands.”). To the contrary, the common-law rule at the Founding
rejected suppression as a Fourth Amendment remedy. See Bishop Atterbury’s
Trial, 16 How. St. Tr. 323, 640 (1723); William J. Cuddihy, The
Fourth Amendment: Origins and Original Meaning 602–
1791, at 431 (2009) (“The common law . . . rejected the exclusionary rule
decisively in Bishop Atterbury’s Case. . . .”).
Suppression instead is a post-Founding, “judicially created” remedy.
Leon, 468 U.S. at 906 (quotation omitted); accord United States v. Beaudion,
979 F.3d 1092, 1097 (5th Cir. 2020). Therefore, the question presented is
whether Supreme Court precedent commands suppression of the evidence
against Norbert. It does not. To the contrary, Supreme Court precedent
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unambiguously says that the officers had reasonable suspicion to stop
Norbert. And once they had reasonable suspicion, everyone agrees the case
is over.
A.
Let’s start with the officers’ right to stop Norbert. The Supreme
Court’s landmark Terry decision holds that “[a] temporary, warrantless
detention of an individual constitutes a seizure for Fourth Amendment
purposes and must be justified by reasonable suspicion that criminal activity
has taken or is currently taking place.” United States v. Garza, 727 F.3d 436,
440 (5th Cir. 2013) (citing Terry, 392 U.S. at 30–31). “Reasonable suspicion”
is not a concept that appears in the Constitution. But Supreme Court
precedent tells us that it is not difficult to find. See United States v. Sokolow,
490 U.S. 1, 7 (1989) (requiring officers to have “some minimal level of
objective justification for making [a] stop” (quotation omitted)). The
requisite suspicion “is ‘considerably less than proof of wrongdoing by a
preponderance of the evidence,’ and ‘obviously less’ than is necessary for
probable cause.” Navarette v. California, 572 U.S. 393, 397 (2014) (quoting
Sokolow, 490 U.S. at 7).
This “minimal” standard also applies when officers make a stop based
on a tip. See ibid. (“We have firmly rejected the argument that reasonable
cause for an investigative stop can only be based on the officer’s personal
observation . . . .” (quotation omitted)). The question is simply whether a tip
carries “sufficient indicia of reliability” for officers to act on it. Ibid. (quoting
Alabama v. White, 496 U.S. 325, 327 (1990)).
The Supreme Court’s decisions in White and Navarette are
instructive. White involved an anonymous tip that a woman would transport
cocaine from a particular apartment building to a particular motel in a
particular vehicle. See 496 U.S. at 327. After confirming some of the innocent
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details, the officers stopped the vehicle and discovered cocaine. See ibid. The
Supreme Court acknowledged that “not every detail mentioned by the
tipster was verified.” Id. at 331. It also noted that “the tip g[ave] absolutely
no indication of the basis for the caller’s predictions.” Id. at 329 (quotation
omitted). But it still upheld the stop as supported by reasonable suspicion.
See id. at 332. The lack of complete corroboration was unproblematic
“because an informant [who] is shown to be right about some things . . . is
probably right about other facts that he has alleged, including the claim that
the object of the tip is engaged in criminal activity.” Id. at 331. And the
tipster’s unexplained basis of knowledge was unproblematic because “the
caller’s ability to predict respondent’s future behavior . . . demonstrated
inside information—a special familiarity with respondent’s affairs.” Id. at
332. So “under the totality of the circumstances,” the partially corroborated
and fully unexplained tip “exhibited sufficient indicia of reliability to justify
the investigatory stop.” Ibid.
Navarette reached the same conclusion. The police in that case
received an anonymous 911 call from a driver who reported being run off the
road by a pickup truck with an identified license plate at a specific time and
location. See 572 U.S. at 395. After spotting the truck and following it for five
minutes, an officer pulled it over and discovered marijuana. See ibid. The
Supreme Court again held that reasonable suspicion justified the stop. See id.
at 404. It found “significant support [for] the tip’s reliability” in the fact that
“the caller . . . claimed eyewitness knowledge of the alleged dangerous
driving.” Id. at 399. It also noted that “a reasonable officer could conclude
that a false tipster would think twice before using . . . a [911] system” that
records calls and other information about the caller. Id. at 400–01. And it
dismissed the suggestion that the officer’s failure to corroborate illegal
activity in the five minutes he followed the truck somehow negated the
reasonable suspicion he had just acquired. See id. at 403–04. As the Court put
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it, “we have consistently recognized that reasonable suspicion ‘need not rule
out the possibility of innocent conduct.’” Id. at 403 (quoting United States v.
Arvizu, 534 U.S. 266, 277 (2002)).
These principles definitively prove that officers had reasonable
suspicion to Terry stop Norbert. First, the informant was an eyewitness. She
told Officer McClinton “that she had seen” the drug-dealing. So just like the
caller in Navarette, the caller here “claimed eyewitness knowledge” of the
tip’s substance. 572 U.S. at 399.
Second, our informant was far from anonymous. She provided a
substantial amount of information about herself. She told the police that she
worked at the Millsaps Apartments in Jackson, Mississippi, that she was a
manager there, and that she had lodged the same complaint with other law
enforcement agencies in the past.
That makes our tipster even more reliable than those in White and
Navarette. The tipster in White failed to “indica[te] . . . the basis for” his
complaint. 496 U.S. at 329 (quotation omitted). The tipster here did not—
she specified that she personally witnessed the drug-dealing for days. The
tipsters in both White and Navarette were completely “anonymous.” See
White, 496 U.S. at 327; Navarette, 572 U.S. at 396 n.1, 398. The tipster here
was not—she identified herself as the manager of the apartment complex
where Norbert was dealing drugs. And the tipster in Navarette was likely
unaware that police could trace the tip to its source. See 572 U.S. at 409
(Scalia, J., dissenting) (“There is no reason to believe that your average
anonymous 911 tipster is aware that 911 callers are readily identifiable.”). The
tipster here was acutely aware—she identified herself and pleaded for police
to help with the repeated and rampant drug-dealing in her parking lot. Our
tipster was not some anonymous woman on the road somewhere; our tipster
begged the police to come to her and restore the safety of her workplace.
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Third, the informant’s tip was corroborated. Consider all the details
the informant provided that officers confirmed before they performed their
Terry stop:
• Norbert’s location
• Norbert’s physical description
• Norbert’s nickname
• Norbert’s presence among multiple suspects
• The location of Norbert’s car
• The color of Norbert’s car
• The make of Norbert’s car
• The model of Norbert’s car
• The license plate on Norbert’s car
• The ongoing nature of the reported activity
That is more than enough corroboration to create reasonable suspicion
according to White and Navarette. See White, 496 U.S. at 327 (finding
reasonable suspicion upon corroboration of vehicle, time, and location);
Navarette, 572 U.S. at 395 (same).
The single detail that police were unable to verify was Norbert’s
personal participation in drug activity. And that detail is irrelevant. Had the
police corroborated that, they would’ve left the lesser realm of reasonable
suspicion and arrived at probable cause to arrest Norbert on the spot. See
Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (“If an officer has
probable cause to believe that an individual has committed even a very minor
criminal offense in his presence, he may, without violating the Fourth
Amendment, arrest the offender.”). In fact, the officers may have had
probable cause on the facts as they are, even without corroborated drug
activity. See Illinois v. Gates, 462 U.S. 213, 225–27, 243 (1983) (finding a
“compelling” showing of probable cause to support a drug search where
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police corroborated information provided by an anonymous tipster without
corroborating any drug activity); id. at 242 (“[I]n making a warrantless arrest
an officer may rely upon information received through an informant, rather
than upon his direct observations, so long as the informant’s statement is
reasonably corroborated by other matters within the officer’s knowledge.”
(quotation omitted)). So it’s difficult to see how the officers lacked
reasonable suspicion—a standard that is “obviously less than . . . probable
cause.” Navarette, 572 U.S. at 397 (quotation omitted). 1
B.
Once it’s established that officers had reasonable suspicion to Terry
stop Norbert, everyone agrees his suppression motion fails. Norbert’s sole
argument before the district court and on appeal is that the Government
lacked sufficient suspicion for its stop. The district court adopted Norbert’s
framing of the case. And the majority adopts it too. See ante, at 20–21.
Because Supreme Court precedent squarely supports the officers’ stop,
Norbert’s suppression motion must be denied.
1
Police had reason to be suspicious even apart from the tip and its corroboration.
For example, one officer testified that he asked the group in the parking lot whether they
lived in the apartment complex “and [they] all said, no, . . . they did not.” Cf. United States
v. Andrews, 103 F. App’x 855, 856 (5th Cir. 2004) (per curiam) (finding reasonable
suspicion of drug activity where officers spotted the suspect in a parking lot known for drug
trafficking and the suspect admitted he didn’t live nearby). Another officer testified that
Norbert “stated kind of jokingly, ‘Man, I started to run, but then I realized there was some
more of you all on the other side. So I just turned around and came back.’” Cf. Illinois v.
Wardlow, 528 U.S. 119, 124 (2000) (finding reasonable suspicion based on a suspect’s
“unprovoked flight upon noticing the police” because “[h]eadlong flight . . . is the
consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly
suggestive of such”). The majority says that Norbert’s remark about running occurred
“[a]fter the pat down.” Ante, at 5. But the record says the opposite; Officer Lavine
indicated that the comment came at the very beginning of his interaction with Norbert.
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II.
So why does the majority toss the Government’s evidence? First, the
majority misstates the facts. Second, it misstates the law. Both mistakes are
regrettable. But the majority’s misstatement of law is particularly
problematic because it disregards Supreme Court precedent and leaves
considerable confusion over the Fourth Amendment in its wake.
A.
The majority’s resolution of this case is built on counterfactual
assertions. For example, the majority repeatedly says this case involves an
“anonymous” tip, ante, at 2, 6, 8, 9, 20, from an “unknown, unaccountable
informant,” id. at 11 (quoting Florida v. J.L., 529 U.S. 266, 271 (2000)). It’s
true that the informant in J.L. was “anonymous,” “unknown,” and
“unaccountable”; “nothing [wa]s known about the informant.” 529 U.S. at
268. But here the officers knew a great deal about their caller. See supra Part
I.A. And based on that knowledge they had plenty of reasons to trust her. See
ibid.
The majority also says it’s “unclear whether the caller witnessed the
alleged drug activity herself or if she was only told about it by residents.”
Ante, at 3. The purported lack of clarity comes from an exchange at the
suppression hearing in which the district court asked Officer McClinton if
the caller had personally “seen certain activity” and McClinton responded
“Yes.” According to the majority, the question’s focus on “certain” activity
instead of “criminal” activity means we can’t be sure the caller ever saw
drugs. See id. at 3 n.8. Perhaps she merely saw “individuals and vehicles in
the parking lot [that] she did not believe belonged there.” Ibid.
Once again, the record forecloses the majority’s counterfactual
narrative. Here is the entirety of Officer McClinton’s responses to the
district court’s cross-examination:
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Q. The caller indicated that he or she—he or she—do you
recall whether it was—which one, he or she?
A. I do.
Q. What was it?
A. It was a female.
Q. Okay. So the caller identified herself as someone from
management and indicated that—did she indicate that she had
seen certain activity?
A. Yes.
Q. And that she had complained about it to others?
A. Yes.
Q. And wanted you all to come check on it, because nobody else
did?
A. Yes, sir.
Who could read this transcript and think the “certain activity”—mentioned
only by the district court—was anything other than drug activity? The entire
record in this case makes one thing clear and undisputed: the apartment
manager repeatedly called the police to complain about drug activity. That’s
what the officers said.2 That’s what the police report said. 3 That’s what
everyone said. At no point did anyone complain to police officers about
individuals congregating in the apartment parking lot to do anything other
than deal drugs. Contra ante, at 3 n.8. The majority’s contrary speculation is
2
McClinton testified that he “received a complaint to [his] office of illicit narcotics
activity taking place in the parking lot of th[e] apartment complex.” He also testified that
“the complaint identif[ied] . . . subjects that were out dealing in illicit narcotics.”
3
The police report said: “On Wednesday November 29, 2017, I, investigator Felix
McClinton received a complaint that illicit narcotics were being sold in the parking lot of
the Millsaps Apartments located at 333 Millsaps Avenue in the City of Jackson.”
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built on nothing but what-ifs, maybes, and the phraseology of a question
asked by the district court.
What’s worse, the majority’s insistence on changing the facts does
nothing to justify its judgment. Let’s suppose for a moment that only the
residents saw the drugs, while the manager-informant only saw the alleged
drug dealers congregating in the parking lot of an apartment building for
hours and days at a time while none of them lawfully resided there. That is
directly analogous to Navarette. The 911 caller in that case did not assert
personal knowledge of drunk driving; she asserted personal knowledge of
suspicious behavior consistent with drunk driving. See 572 U.S. at 401–03
(holding that “the 911 caller’s report of being run off the roadway created
reasonable suspicion of an ongoing crime such as drunk driving”); id. at 409
(Scalia, J., dissenting) (opining that the 911 call “neither asserts that the
driver was drunk nor even raises the likelihood that the driver was drunk”
(emphasis omitted)). Even so, the Navarette caller still “claimed eyewitness
knowledge” of unusual activity—and “[t]hat basis of knowledge len[t]
significant support to the tip’s reliability.” Id. at 399. The same is true of the
caller here. And it remains true even on the majority’s counterfactual
rendition of what happened.
B.
The majority next misstates the law. Its entire opinion rises and falls
on a single legal contention: “absent any corroboration of the illegal activity
itself, the government had no reasonable suspicion that the criminal activity
suggested by the informant was afoot.” Ante, at 17–18 (quotation omitted);
see also id. at 14, 15, 16, 19, 20 (reiterating this principle). But the Supreme
Court recently and emphatically rejected that claim. And with good reason.
The majority’s rule turns the Fourth Amendment on its head.
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1.
In Navarette, the police did nothing to independently corroborate
criminal activity. An officer located the suspect vehicle and followed it for
five minutes but failed to detect even the slightest hint of a traffic violation or
anything suspicious. See 572 U.S. at 403; id. at 411–12 (Scalia, J., dissenting).
In other words, the police lacked “any corroboration of the illegal activity
itself.” Ante, at 17–18 (quotation omitted). But the Supreme Court still found
reasonable suspicion. See Navarette, 572 U.S. at 404. That alone proves that
the foundational premise of the majority opinion is wrong.
And the reasoning in Navarette poses even more problems for the
majority. The Court began with its “consistent[] recogni[tion] that
reasonable suspicion need not rule out the possibility of innocent conduct.”
Id. at 403 (quotation omitted). Then it added:
[T]he absence of additional suspicious conduct, after the
vehicle was first spotted by an officer, [did not] dispel the
reasonable suspicion of drunk driving. It is hardly surprising
that the appearance of a marked police car would inspire more
careful driving for a time. Extended observation of an allegedly
drunk driver might eventually dispel a reasonable suspicion of
intoxication, but the 5-minute period in this case hardly
sufficed in that regard. Of course, an officer who already has
such a reasonable suspicion need not surveil a vehicle at length
in order to personally observe suspicious driving. Once
reasonable suspicion of drunk driving arises, the
reasonableness of the officer’s decision to stop a suspect does
not turn on the availability of less intrusive investigatory
techniques.
Id. at 403–04 (citations and quotations omitted). That passage should be the
end of this case; today’s majority can do nothing but ignore it.
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2.
The majority offers three responses. First, it quotes Supreme Court
precedent for the proposition that a “tip must ‘be reliable in its assertion of
illegality, not just in its tendency to identify a determinate person.’” Ante, at
9, 11 (quoting J.L., 529 U.S. at 272) (emphasis added by the majority). That’s
certainly true. But the whole point of Navarette is that a tip can reliably assert
illegality even when the illegality itself isn’t corroborated. See 572 U.S. at 398
(explaining that “confirming the innocent details” often leads to reasonable
suspicion because “an informant who is proved to tell the truth about some
things is more likely to tell the truth about other things, including the claim
that the object of the tip is engaged in criminal activity” (emphasis added)
(quotation omitted)); id. at 403–04 (holding officers had reasonable suspicion
even though they hadn’t corroborated illegality).
Second, the majority relies on circuit precedent for its strict
corroboration requirement. See ante, at 14–16 (discussing United States v.
Roch, 5 F.3d 894 (5th Cir. 1993); United States v. Martinez, 486 F.3d 855 (5th
Cir. 2007)). But that line of defense fails too.
For one thing, the facts in Roch and Martinez are far afield. Roch
involved a minimally detailed, mostly uncorroborated tip. See 5 F.3d at 898
(indicating that the suspect vehicle was “only described by its . . . color”
without the “make, model, year of manufacture, or license number”); id. at
899 (observing that police failed to “corroborate the driver’s identity, his
felon status, or his future activity”). And that’s far from what we have here.
See supra Part I.A. Martinez involved a truly “anonymous” tipster. See 486
F.3d at 861 (noting that the Government “never introduced any evidence
about the informant whatsoever” and “knew only that the police department
had received information ‘from another person’”). Again, that’s not close to
today’s case. See supra Parts I.A, II.A.
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The law in Roch and Martinez doesn’t help the majority either. Roch
expressly recognized that “[r]easonable suspicion . . . does not have to be
based on a[n] [officer’s] personal observation” of criminal activity. 5 F.3d at
898. And while Martinez inexplicably abandoned that rule, the rule it created
is squarely contradicted by Navarette. Compare Martinez, 486 F.3d at 864
(“That the police might corroborate a mountain of innocent data, such as a
person’s identification and whereabouts, does not provide any basis for
executing a Terry stop on that person.”), with Navarette, 572 U.S. at 398,
403–04 (holding police obtained reasonable suspicion by “confirming the
innocent details” of an anonymous tip). So we mustn’t follow it. See Gahagan
v. U.S. Citizenship & Immigr. Servs., 911 F.3d 298, 302 (5th Cir. 2018)
(“Three-judge panels abide by a prior Fifth Circuit decision until the
decision is overruled, expressly or implicitly, by . . . the United States
Supreme Court . . . . Fifth Circuit precedent is implicitly overruled if a
subsequent Supreme Court opinion establishes a rule of law inconsistent with
that precedent.” (quotations omitted)).
Navarette binds us. It is the Supreme Court’s most-recent decision on
this topic. And it postdates Martinez by 7 years. We have zero excuse for
ignoring Navarette.
Third, the majority says we can ignore Navarette because unlike the
tip in that case, “the information provided [here] was not an emergency
reported contemporaneously to 911 that required immediate action.” Ante,
at 11, 14. That’s puzzling to say the least. When it comes to reliability, the
differences between the phone call in this case and the 911 call in Navarette
actually help the Government. See supra Part I.A. And when it comes to
corroboration, Navarette’s emergency posture has nothing to do with its
general recognition that police can have reasonable suspicion without
“personally observ[ing] suspicious [activity].” 572 U.S. at 404. For example,
Navarette relied on White for its observation that tipsters who are “proved to
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tell the truth” about “innocent details” are “more likely to tell the truth”
about the defendant’s “criminal activity.” Id. at 398 (quotation omitted).
And White was a non-emergency drug case just like this one. See id. at 397;
supra Part I.A. 4 The only link the Navarette Court made between
emergencies and corroboration was its statement that drunk-driving cases
“would be a particularly inappropriate context” to abandon the “settled
rule” that “the reasonableness of the officer’s decision to stop a suspect does
not turn on the availability of less intrusive investigatory techniques.” 572
U.S. at 404 (quotation omitted). The Supreme Court stuck with its settled
rule, and the majority should have too.
3.
Two important consequences follow the majority’s refusal to do so.
First, the majority prohibits police work that the text of the Constitution
expressly permits. The Fourth Amendment contemplates searches and
seizures based “upon probable cause.” U.S. Const. amend. IV. Probable
cause requires “a fair probability” that a suspect has committed a crime.
Gates, 462 U.S. at 238. But the majority requires absolute certainty—even
“mountain[s] of . . . data” are not enough unless the police personally
corroborate an ongoing crime. Ante, at 15 (quotation omitted). And the
majority applies its absolute-certainty requirement to a reasonable-suspicion
framework that demands even less than the “fair probability” of probable
4
The majority says we can ignore White too—apparently because the informant in
that case predicted “the suspect’s future illegal activity” while the informant here did not.
Ante, at 18 n.88. The majority’s contention is factually untrue. The informant here made a
prediction: she reported an ongoing pattern of drugs in the parking lot that would likely
recur. The majority’s contention is also legally irrelevant. The police in White didn’t verify
any illegal activity before the stop. See 496 U.S. at 327. Yet White still held that “when the
officers stopped respondent, the anonymous tip had been sufficiently corroborated to
furnish reasonable suspicion that respondent was engaged in criminal activity.” Id. at 331.
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cause. See supra Part I.A. Our court has rejected that position in other cases.
See United States v. Williams, 880 F.3d 713, 718–19 (5th Cir. 2018) (“This
court has recognized that under Terry, officers may briefly detain an
individual on the street for questioning, without probable cause, when they
possess reasonable, articulable suspicion of criminal activity.” (quotation
omitted)); United States v. Tellez, 11 F.3d 530, 532 (5th Cir. 1993)
(“Reasonable suspicion is considerably easier for the government to establish
than probable cause.” (quotation omitted)). I fail to see how we can embrace
it here.
Second, the majority’s criminal-corroboration rule creates a circuit
split. See, e.g., United States v. Wanjiku, 919 F.3d 472, 488 (7th Cir. 2019)
(“Although . . . there may be innocent explanations for some of the facts on
which the officers relied, reasonable suspicion need not rule out the
possibility of innocent conduct.” (quotation omitted)); United States v.
Matchett, 802 F.3d 1185, 1192 (11th Cir. 2015) (“Although [police] did not
observe any illegal activity, a reasonable suspicion of criminal activity may be
formed by observing exclusively legal activity.” (quotation omitted)); United
States v. Diaz, 802 F.3d 234, 239–40 (2d Cir. 2015) (reversing district court’s
grant of motion to suppress because it ignored circuit precedent holding that
“reasonable suspicion need not rule out the possibility of innocent conduct”
(quotation omitted)); United States v. Alvarez, 899 F.2d 833, 838 (9th Cir.
1990) (“It is not uncommon for seemingly innocent conduct to provide the
basis for reasonable suspicion. The fact that the officers did not actually
observe any criminal activity is irrelevant . . . .” (citations and quotations
omitted)). That only heightens the unfortunate confusion sown by today’s
mistake.
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* * *
The Fourth Amendment is not a judicial license to promulgate our
Wishlist of Best Police Practices. See United States v. Kahn, 415 U.S. 143, 155
n.15 (1974) (noting that warrants often “pass muster under the Fourth
Amendment” even when they do not comply with “best practice”); United
States v. Scully, 951 F.3d 656, 665 (5th Cir. 2020) (upholding police action
even “[t]hough the Government could have done more”); United States v.
Glenn, 966 F.3d 659, 661 (7th Cir. 2020) (Easterbrook, J.) (“The Fourth
Amendment does not require best practices in criminal investigations.”).
The majority’s speculations—about what the officers could’ve done, what the
majority wishes they would’ve done, and what the majority therefore surmises
they should’ve done—are beside the point. Decades of Supreme Court
decisions support what the officers actually did. That same precedent
squarely forecloses the majority opinion. I respectfully dissent.
36