Petition for Writ of Certiorari — Desmond S. Gaines, Petitioner v. United States

No.

__________________________________________________________________

IN THE

Supreme Court of the United States

________________

DESMOND S. GAINES,

v.

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

________________

PETITION FOR A WRIT OF CERTIORARI

________________

MELODY BRANNON

Federal Public Defender

PAIGE A. NICHOLS

ASSISTANT FEDERAL PUBLIC DEFENDER

Counsel of Record

KANSAS FEDERAL PUBLIC DEFENDER

117 SW 6th Ave, Ste 200

Topeka, Kansas 66603

Phone: (785) 232-9828

Email: paige_nichols@fd.org

Counsel for Petitioner

__________________________________________________________________

QUESTION PRESENTED

An anonymous tip must either be reliable on its own or be adequately corroborated

before it can provide reasonable suspicion to seize a person. This Court has analyzed

a range of tips from a “bare report” that “surely” fell on the no-reasonable-suspicion

side of the line, Florida v. J.L., 529 U.S. 266, 271 (2000), to tips that, under the

totality of circumstances, provided reasonable suspicion in “close” or “borderline”

cases, Navarette v. California, 572 U.S. 393, 404 (2014); Alabama v. White, 496 U.S.

325, 332 (1990). Despite these guideposts, courts continue to struggle with the

reasonable-suspicion spectrum when it comes to anonymous tips. Meanwhile, law

enforcement is increasingly encouraging and using anonymous tips—including via

911. The question presented here is:

If an anonymous 911 tipster implies that he saw a person sell drugs in a bustling

public area, may officers seize the person without first corroborating the tipster’s

claim of illegality?

i

TABLE OF CONTENTS

Question Presented......................................................................................................... i

Table of Contents .......................................................................................................... II

Index to Appendix ........................................................................................................ III

Table of Authorities Cited ........................................................................................... IV

Petition for Writ of Certiorari ....................................................................................... 1

Opinions Below .............................................................................................................. 1

Jurisdiction .................................................................................................................... 1

Constitutional Provision Involved ................................................................................ 1

Statement of the Case ................................................................................................... 2

1.

Legal Background ................................................................................................... 3

2.

Factual Background ................................................................................................ 6

3.

Proceedings Below .................................................................................................. 8

Reasons for Granting the Writ .................................................................................... 11

1.

How to measure the reliability of anonymous tips is an exceptionally

important question, as law enforcement increasingly encourages and uses

anonymous tips—including anonymous 911 tips. ............................................... 11

2.

Given law enforcement’s modern efforts to encourage anonymous tips,

Navarette’s confidence in the honesty and accuracy of anonymous 911

tipsters no longer holds. ........................................................................................ 14

3.

Getting the reasonable-suspicion analysis right in anonymous-tip cases is

crucial given the number of tips reported, and the risk that such tips may

be mistaken or deliberately false.......................................................................... 16

4.

The Tenth Circuit failed to hold the government to its burden of

establishing reasonable suspicion in Mr. Gaines’s case. ..................................... 17

5.

Other courts more faithfully apply this Court’s precedents when

analyzing anonymous tips. ................................................................................... 28

6.

This case is an excellent vehicle for analyzing anonymous tips. ........................ 30

Conclusion .................................................................................................................... 33

ii

INDEX TO APPENDIX

Appendix A: Tenth Circuit’s 2021 Order and Judgment

Appendix B: Tenth Circuit’s 2019 Decision

Appendix C: District Court’s Memorandum and Order on remand from the Tenth

Circuit’s 2019 decision

Appendix D: District Court’s initial Memorandum and Order

iii

TABLE OF AUTHORITIES CITED

PAGE

Cases

Alabama v. White, 496 U.S. 325 (1990) .............................................................. passim

Carter v. United States, 530 U.S. 255 (2000) .............................................................. 30

Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001) .......... 31

Eastern Assoc. Coal Corp. v. United Mine Workers of America, Dist. 17,

531 U.S. 57 (2000) .................................................................................................... 31

Ewing v. California, 538 U.S. 11 (2003) ..................................................................... 31

Florida v. J.L., 529 U.S. 266 (2000) .................................................................... passim

Florida v. Royer, 460 U.S. 491 (1983) ........................................................................... 3

Kansas v. Glover, 140 S. Ct. 1183 (2020) .......................................................... 3, 17, 28

Kaupp v. Texas, 538 U.S. 626 (2003) .......................................................................... 31

Lombardo v. City of St. Louis, 141 S.Ct. 2239 (2021) ................................................ 27

Los Angeles County, California v. Rettele, 550 U.S. 609 (2007) ................................. 30

National Archives and Records Admin. v. Favish, 541 U.S. 157 (2004) ................... 30

Navarette v. California, 572 U.S. 393 (2014) ...................................................... passim

Noreja v. Commissioner, SSA, 952 F.3d 1172 (10th Cir. 2020) ................................. 32

State v. Hneidy, 510 S.W.3d 458 (Tex. App. San Antonio 2013) ................................ 30

State v. Z.U.E., 315 P.3d 1158 (Wash App. Div. 2 2014)............................................ 29

Stinson v. State, 117 So. 3d 859 (Fla. App. Dist. 4 2013) ........................................... 29

United States v. Black, 707 F.3d 531 (4th Cir. 2013) ................................................. 26

United States v. Calandra, 414 U.S. 338 (1974) ......................................................... 23

United States v. Caruthers, 458 F.3d 459 (6th Cir. 2006) .......................................... 26

iv

United States v. Cortez, 449 U.S. 411 (1981) .............................................................. 24

United States v. Davis, 94 F.3d 1465 (10th Cir. 1996) ............................................... 25

United States v. Dye, No. 18-20094-01-DDC, 2021 WL 2515029 (D. Kan.

June 18, 2021) ........................................................................................................... 32

United States v. Griffin, 730 F.3d 1252 (11th Cir. 2013) ........................................... 26

United States v. Hauk, 412 F.3d 1179 (10th Cir. 2005) ............................................. 15

United States v. Lopez, 907 F.3d 472 (7th Cir. 2018) ................................................. 29

United States v. Lowe, 791 F.3d 424 (3d Cir. 2015) ............................................. 28, 29

United States v. Massenburg, 654 F.3d 480 (4th Cir. 2011) ...................................... 29

United States v. McHugh, 639 F.3d 1250 (10th Cir. 2011) ........................................ 18

United States v. Montero-Camargo, 208 F.3d 1122 (9th Cir. 2000)........................... 25

United States v. Roberson, 90 F.3d 75 (3d Cir. 1996) ................................................. 29

United States v. Santio, 351 Fed. Appx. 324 (10th Cir. 2009) ............................. 18, 25

United States v. Sauzameda-Mendoza, 595 Fed. Appx. 769 (10th Cir. 2014) ........... 18

United States v. Velazquez-Fontanez, 6 F.4th 205 (1st Cir. 2021) ............................. 14

Wisconsin Right to Life, Inc. v. F.E.C., 546 U.S. 410 (2006) ...................................... 31

Statutes

10 U.S.C. § 1794(b) ...................................................................................................... 12

14 U.S.C. § 2923(c)(2) .................................................................................................. 12

22 U.S.C. § 2507a(e)(3)(A) ........................................................................................... 12

28 U.S.C. § 1254(1) ........................................................................................................ 1

38 U.S.C. § 323 (c)(2) ................................................................................................... 12

42 U.S.C. § 9858j(b)(1)(B) ............................................................................................ 13

v

Cal. Educ. Code § 67382(b) .......................................................................................... 13

Cal. Pub. Res. Code § 4417.5(a)................................................................................... 13

N.Y. Educ. Law § 6446 ................................................................................................ 13

N.Y. Lab. Law § 27-a(6-a) ............................................................................................ 13

N.Y. Soc. Serv. Law § 492 ............................................................................................ 13

Other Authorities

10th Cir. R. 32.1(A) ...................................................................................................... 31

Fed. R. Evid. 803(1) ..................................................................................................... 20

Fed. R. Evid. 803(2) ..................................................................................................... 20

Joint Press Release—Denver Police Department, Colorado Bureau of

Investigation, FBI, U.S. Attorney’s Office, 2021 WL 1663958

(DOJ News Release April 26, 2021) ......................................................................... 11

Task Force Releases Child-Focused Video to Combat Violent Crime, 2021 WL

1978931 (DOJ News Release May 18, 2021) ........................................................... 11

U.S. Const. amend. IV ......................................................................................... passim

vi

PETITION FOR WRIT OF CERTIORARI

Petitioner Desmond Gaines respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals for the Tenth Circuit.

OPINIONS BELOW

The Tenth Circuit’s 2021 order and judgment (the subject of this petition) is

unpublished and is included as Appendix A. The Tenth Circuit’s 2019 decision is

published at 918 F.3d 793 and is included as Appendix B. The district court order

denying Mr. Gaines’s motion to suppress on remand from the Tenth Circuit’s 2019

decision is included as Appendix C. The original district court order denying Mr.

Gaines’s motion to suppress is included as Appendix D.

JURISDICTION

The Tenth Circuit’s judgment was entered on May 25, 2021. Pet. App. 1a. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment to the United States Constitution 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, and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be seized.

1

STATEMENT OF THE CASE

Anonymous tips are vital to law enforcement. Victims and witnesses are more

likely to report crimes if they can do so without fear of retaliation, embarrassment,

scrutiny of their own conduct, and other unwanted attention. At the same time, “an

anonymous tip alone seldom demonstrates the informant’s basis of knowledge or

veracity.” Alabama v. White, 496 U.S. 325, 329 (1990). Something more is usually

needed to protect people accused by anonymous pranksters, bullies, misguided

vigilantes, and nosey but mistaken neighbors. Id. Under this Court’s precedents, an

anonymous tip must either be sufficiently reliable on its own (“an exception to the

general rule,” id.) or else adequately corroborated by additional evidence to satisfy

the Fourth Amendment’s requirement of reasonable suspicion. Id. After all,

reasonable suspicion is the only thing that stands between any of us and a police

seizure of our person based on a nameless and unaccountable tipster’s accusation.

This Court last analyzed anonymous tips and reasonable suspicion in Navarette

v. California, 572 U.S. 393 (2014) (analyzing a tip made in 2008). Since then, law

enforcement has increasingly invited and relied on anonymous tips—including

anonymous 911 tips. Anonymous tips can now be made not only by telephone but also

via websites and mobile apps. Given the extraordinarily high number of anonymous

tips reported, and the risk that such tips may be mistaken or false, this Court’s

renewed guidance with respect to such tips and reasonable suspicion is crucial.

In Petitioner Gaines’s case, the Tenth Circuit failed to hold the government to its

burden of proving either that the anonymous tip in this case was reliable on its own

2

or that it was sufficiently corroborated to support law enforcement’s seizure of Mr.

Gaines. Other courts are more faithful to this Court’s precedents. This case is an ideal

vehicle for examining anonymous tips: it involves a number of factors common to

anonymous-tip cases, and the reasonable-suspicion question was squarely presented

and decided. This Court should grant this petition.

1. Legal Background

The Fourth Amendment prohibits unreasonable seizures of “persons, houses,

papers, and effects.” U.S. Const. Amend. IV. Once the defendant in a criminal case

has established a seizure, it is the government’s burden to establish that the seizure

was based on reasonable suspicion. Florida v. Royer, 460 U.S. 491, 500 (1983).

Reasonable suspicion is “a particularized and objective basis for suspecting the

particular person stopped of criminal activity.” Kansas v. Glover, 140 S. Ct. 1183,

1187 (2020) (citations omitted). Courts must consider the “totality of the

circumstances—the whole picture” in deciding whether an anonymous tip provides

reasonable suspicion. White, 496 U.S. at 330. “Thus, 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.” Id.

This Court analyzed anonymous tips and reasonable suspicion in White (1990);

Florida v. J.L., 529 U.S. 266 (2000); and Navarette (2014). In White, an anonymous

tipster called the police to report that a drug transaction was imminent. The police

proceeded to corroborate both the physical aspects of the tipster’s report (the locations

involved and the description of the alleged seller’s car) and the activities that the

3

tipster predicted (a woman traveled from an identified apartment complex toward an

identified motel within the identified time frame). This corroboration of the tipster’s

predictive information was sufficient to establish reasonable suspicion. While anyone

could have described the car, “[w]hat was important was the caller’s ability to predict

respondent’s future behavior, because it demonstrated inside information—a special

familiarity with respondent’s affairs.” Id. at 332 (emphasis in original). Nonetheless,

this Court described White as “a close case.” Id.

In J.L., this Court held that an anonymous tip did not provide responding officers

with reasonable suspicion to detain the defendant. 529 U.S. at 270-71. The J.L.

tipster had reported that a young person was “carrying a gun”—a crime in Florida for

under-21-year-olds. Id. at 268, 273 n.*. And the tipster had described the person in

detail (“a young black male standing at a particular bus stop and wearing a plaid

shirt”). Id. at 268. This Court held that this tip did not provide reasonable suspicion

for two reasons. First, the tipster “neither explained how he knew about the [crime]

nor supplied any basis for believing he had inside information about [the alleged

suspect].” Id. at 271. And second, the tipster “provided no predictive information” that

would allow the police “to test the informant’s knowledge or credibility.” Id.

Finally, in Navarette, this Court held that an anonymous 911 tipster’s report of a

dangerous driver rose to the level of reasonable suspicion. 572 U.S. at 395. This Court

relied on three factors. First, the Navarette tipster knew that the driver was

dangerous because he had run her off the road. Id. In other words, the tipster was

not just an eyewitness to the driver’s crime; she was a victim of the driver’s crime.

4

Her basis of knowledge was clear. Second, law-enforcement was able to corroborate

the driver’s direction and location. Third, the tipster’s use of the 911 system justified

reliance on the call. Id. at 398-401. But this Court called Navarette a “close case.” Id.

at 404. This Court emphasized that “[n]one of this is to suggest that tips in 911 calls

are per se reliable.” Id. at 401. And it cautioned that “[a]n anonymous tip alone seldom

demonstrates the informant’s basis of knowledge or veracity.” Id. at 404, 397

(emphasis original to Navarette; citing White). This is because “an anonymous

tipster’s veracity is by hypothesis largely unknown, and unknowable.” Id. at 397

(internal quotation marks and citation omitted).

Reading these cases together: the tipster in J.L. did not provide law enforcement

with his basis of knowledge, nor did he provide predictive information for law

enforcement to corroborate. Absent either of these important factors, the case was

not even close; rather, it “surely” fell on the no-reasonable-suspicion side of the line.

529 U.S. at 271. The tips in White and Navarette just barely landed on the other side—

in White because the tipster provided predictive information, and in Navarette

because of the tipster’s clear basis of knowledge. But again this Court labeled these

“close” or “borderline” cases. Navarette, 572 U.S. at 399, 404; J.L., 529 U.S. at 271;

White, 496 U.S. at 332. And so if there is much daylight between J.L. and

White/Navarette, it falls mostly on the no-reasonable-suspicion side of the line:

5

2. Factual Background

Downtown Kansas City, Kansas is home to a number of social services, including

the Wilhelmina Gill Center (which houses a food kitchen) and, catty-corner across an

intersection, the Frank Williams Center (a resource center for homeless people). Pet.

App. 2a. Two parking lots sit at this intersection; one is next to the food kitchen, and

the other is across the street next to the resource center. R1.85; R1.101.1 The corner

is “a very high-trafficked area for pedestrians.” R1.85. It sits less than two blocks

west of the Robert J. Dole Federal Courthouse, and about a block away from a United

States Post Office.

On the morning of August 24, 2015, an anonymous tipster dialed 911 and claimed

that “we have a suspect in all red clothing selling juice” or “wet”2 “down here.” Pet.

App. 2a, 25a; R1.89; Exh. 1 (audio of 911 call). The tipster described the “suspect” as

a “light skinned black” man, and said that the man “just made about 20 dollars.” Pet.

App. 3a. The tipster did not say where exactly this claimed sale had taken place or

how the tipster knew about it. The tipster told the dispatcher that the officers should

go “to the parking lot,” but he did not know what kind of car the man was driving.

Pet. App. 3a. At the beginning of the call, the tipster did not even know where the

man was; he reported later during the call that he was watching the man walking up

the street and then standing on a corner. Pet. App. 3a, 14a. Nothing that the tipster

reported witnessing in real time during the call suggested illegal activity.

1 Unless otherwise noted, record citations for facts not included in the Appendix are to the record on

appeal in Tenth Circuit Appeal No. 19-3177.

2 Slang for phencyclidine (PCP). R1.90.

6

A security guard for the Frank Williams Center heard about the tipster’s report

on his police radio. Pet. App. 56a, 56c.; R1.133-34. He had earlier seen Mr. Gaines,

who was dressed in red, wiping down a white Cadillac in the food-kitchen lot, but he

had not witnessed Mr. Gaines selling any drugs. Pet. App. 4a, 56a. When the guard

saw two patrol cars driving up the street, he radioed them that Mr. Gaines was in the

white Cadillac. Pet. App. 4a.

The responding officers did not ask the guard what else he knew about Mr. Gaines.

And they made no attempt to find the anonymous tipster. Nor did they talk with any

of the many other people milling about the area. They did not run the plates of the

white Cadillac. They did not surveil the white Cadillac or approach it in a low-key

conversational style. Instead, they pulled directly up to Mr. Gaines with their patrol

lights flashing, ordered Mr. Gaines out of the white Cadillac, and seized him:

7

Pet. App. 32a-33a (image from parking-lot pole-camera video included in first Tenth

Circuit decision concluding that encounter was a seizure). This seizure led to Mr.

Gaines’s arrest and the discovery of the drugs and the gun that were the subject of

the prosecution underlying this petition. Pet. App. 5a.

3. Proceedings Below

A federal grand jury indicted Desmond Gaines for federal drug and gun crimes.

Pet. App. 5a. Mr. Gaines moved to suppress the evidence seized on August 24, 2016,

arguing that it was the fruit of an unlawful seizure. Id. At an evidentiary hearing on

Mr. Gaines’s motion, the government introduced the 911 call (Exh. 1), as well as

footage from a nearby parking-lot pole camera (Exh. 2), and from the dash camera of

one responding officer’s patrol car (Exh. 3). Pet. App. 68a, 70a. Both responding

officers testified that they approached Mr. Gaines based on the information conveyed

by the 911 tipster. Pet. App. 68a.

One officer also testified summarily that law enforcement had previously received

“complaints of narcotics sales in the area.” Pet. App. 22a, 55a. Another officer, when

asked about “drug transactions going on at the center,” answered without elucidation

that “[w]e’ve had some investigations going on.” R1.147. But the government

presented no documentary evidence of any reports of narcotics sales in the area or

investigations into drug transactions at the center. Rather, it presented evidence

that, from March 2015 through August 2015, the Kansas City, Kansas Police

Department received eight calls requesting assistance for people in the area near the

food kitchen and resource center apparently exhibiting the effects of drugs. Pet. App.

8

22a, 55a; R1.85-89; R1Supp.Exh. 7. None of those calls involved the distribution of

drugs at that location. R1Supp.Exh. 7. Neither did the government present any

evidence to suggest that, if there was trafficking in the area, it was of an unusually

high amount, that is, higher than in any other part of Kansas City. And neither did

the government present any evidence that an unusually high percentage of people

who frequent the area are involved in drug trafficking as opposed to going about their

daily activities at one of the social-service centers, at the nearby post office, or at the

federal courthouse.

The district court originally denied the motion to suppress on grounds that the

encounter between Mr. Gaines and the officers was consensual. Pet. App. 74a-77a.

Mr. Gaines proceeded to trial, where, based on the evidence seized, a jury convicted

him of all counts. Pet. App. 5a. The district court thereafter sentenced Mr. Gaines to

180 months of imprisonment followed by 8 years of supervised release. Id.

Mr. Gaines appealed to the Tenth Circuit, arguing that the district court erred in

finding the encounter consensual. Pet. App. 25a. The Tenth Circuit agreed, vacated

the district court’s order denying the motion, and remanded the case so that the

district court could decide in the first instance whether law enforcement had

reasonable suspicion when it seized Mr. Gaines (an issue the district court had not

reached in its original order denying suppression). Pet. App. 42a-43a. On remand, the

district court found reasonable suspicion, denied Mr. Gaines’s motion to suppress,

and orally reinstated the original judgment. Pet. App. 60a-65a; R1.229; R1.245.

9

Mr. Gaines appealed again to the Tenth Circuit, this time challenging the district

court’s reasonable-suspicion finding. Pet. App. 2a. The Tenth Circuit affirmed in an

unpublished order. Pet. App. 1a. The Tenth Circuit found the tipster reliable—in

large part because of his use of the 911 system—and held that the evidence of

apparent drug overdoses in the area was sufficient to corroborate the call, with a net

result of reasonable suspicion to support the officers’ detention of Mr. Gaines. Pet.

App. 13a-23a.

This timely petition follows.

10

REASONS FOR GRANTING THE WRIT

1. How to measure the reliability of anonymous tips is an exceptionally

important question, as law enforcement increasingly encourages and

uses anonymous tips—including anonymous 911 tips.

Want to be an anonymous tipster? There’s an app for that. The ReportIt® mobile

app is touted by both the Department of Justice and the Bureau of Alcohol, Tobacco,

Firearms and Explosives for anonymously reporting crimes under the ATF’s

jurisdiction.3 With a different mobile app, P3 Tips, you can submit anonymous tips to

Crime Stoppers programs across the nation, from Sacramento4 to Kansas City5 to

New York City.6 These days, law enforcement agencies heavily promote anonymous

reporting, whether by phone, mobile app, or website. See, e.g., Task Force Releases

Child-Focused Video to Combat Violent Crime, 2021 WL 1978931 (DOJ News Release

May 18, 2021) (promoting anonymous Greater Kansas City Crime Stoppers TIPS

Hotline with access via phone, mobile app, or website); Joint Press Release—Denver

Police Department, Colorado Bureau of Investigation, FBI, U.S. Attorney’s Office,

2021 WL 1663958 (DOJ News Release April 26, 2021) (promoting anonymous

Safe2Tell reporting program with access via phone, mobile app, or website).7

3 https://www.justice.gov/actioncenter/report-crime (linking to app on Google Play, the Apple App

Store, and https://reportit.com/); https://www.atf.gov/atf-tips.

4 http://www.crimealert.org/sitemenu.aspx?P=P3App&ID=609#.

5 http://www.kccrimestoppers.com/sitemenu.aspx?P=P3App&ID=452.

6 https://www1.nyc.gov/site/nypd/services/see-say-something/crimestoppers.page.

7 See also https://www.phillypolice.com/forms/submit-a-tip/ (Philadelphia);

https://www.slmpd.org/anonymous_tips.shtml (St. Louis); https://www.austintexas.gov/page/submittips (Austin); https://www.wilmingtonnc.gov/departments/police-department/reporting-crime

(Wilmington).

11

The Department of Justice, for instance, refers users to an anonymous online tip

form for reporting human trafficking.8 And the Federal Bureau of Investigation

actively solicits tips via its Facebook and Twitter feeds.9 Its electronic tip form advises

users that “[y]ou are not required to provide your name or other personal

information.”10 These solicitations have results: the FBI reported in 2016 that its Tip

Line web portal receives on average 1,300 tips a day (though it did not state how

many of those tips are anonymous).11

The ability to report crimes anonymously is even required by law for some types

of crimes. Examples include 10 U.S.C. § 1794(b) (“The Secretary shall ensure that

such reports [of suspected child abuse or safety violations at a military child

development center or family home day care site] may be made anonymously if so

desired by the person making the report.”); 14 U.S.C. § 2923(c)(2) (“The Commandant

shall ensure that an individual making a report [of suspected child abuse or other

deficiencies in a Coast Guard child development center or family home daycare] may

do so anonymously if so desired by the individual.”); 22 U.S.C. § 2507a(e)(3)(A) (The

President shall provide Peace Corps applicants “contact information for a 24-hour

sexual assault hotline to be established for the purpose of providing volunteers a

mechanism to anonymously . . . report sexual assault[.]”); 38 U.S.C. § 323 (c)(2) (“In

carrying out the functions of the Office [of Accountability and Whistleblower

8 https://www.justice.gov/actioncenter/report-crime (linking to form at

https://humantraffickinghotline.org/report-trafficking).

9 https://www.facebook.com/pg/FBI/posts/?ref=page_internal; https://twitter.com/fbi?lang=en.

10 https://tips.fbi.gov/.

11 https://www.fbi.gov/news/stories/fbi-tip-line-receives-actionable-tips-daily.

12

Protection], the Assistant Secretary shall ensure that the Office maintains a toll-free

telephone number and Internet website to receive anonymous whistleblower

disclosures”

regarding

the

Department

of

Veterans

Affairs.);

42

U.S.C.

§ 9858j(b)(1)(B) (The Secretary of Public Health and Welfare “shall operate . . . a

national toll-free hotline and Web site . . . “to allow persons to report (anonymously if

desired) suspected child abuse or neglect, or violations of health and safety

requirements, by an eligible child care provider that receives assistance under this

subchapter or a member of the provider’s staff.”); Cal. Educ. Code § 67382(b)

(legislative finding that certain institutes of higher education “should establish and

publicize a policy that allows victims or witnesses to report crimes to the campus

police department or to a specified campus security authority, on a voluntary,

confidential, or anonymous basis”); Cal. Pub. Res. Code § 4417.5(a) (Department of

Forestry and Fire Protection “shall, during the fire season, make a toll-free 800

telephone number available for, and establish, a program to protect the anonymity of

persons providing” information about certain arsons); N.Y. Educ. Law § 6446

(ensuring that individuals at state and city colleges and universities are advised of

options for confidentially and anonymously disclosing domestic violence, dating

violence, stalking, or sexual assault); N.Y. Lab. Law § 27-a(6-a) (mandating dedicated

webpage through which public employees may anonymously report “violations of any

state law, regulation, rule or guidance related to occupational health and safety

involving a communicable disease”); N.Y. Soc. Serv. Law § 492 (mandating hotline for

13

reports of abuse and other crimes against vulnerable persons; “[t]he hotline shall

accept anonymous calls”).

Finally—and crucially—some cities even go out of their way to assure the public

that they can call 911 anonymously.12

Law enforcement’s public efforts to encourage anonymous tips, even (and

especially) via 911, and the recent proliferation of means by which the public may

anonymously report crimes make the reliability of such tips an exceptionally

important question for this Court to address.

2. Given law enforcement’s modern efforts to encourage anonymous

tips, Navarette’s confidence in the honesty and accuracy of

anonymous 911 tipsters no longer holds.

In Navarette, this Court held that a reasonable officer in 2008 “could conclude

that a false tipster would think twice” before using 911 to sic the police on an

innocent person. 572 U.S. at 395, 401. This Court based this holding on

(1) technological and regulatory developments allowing 911 calls to be traced to the

originating telephone; and (2) an (apparent) assumption that the general public was

aware of those developments. Id.

Navarette left several questions unanswered. First, Navarette didn’t explain why

a false tipster who “think[s] twice” wouldn’t simply call 911 using a public phone, a

borrowed phone, or a burner phone to conceal his or her identity. See United States

v. Velazquez-Fontanez, 6 F.4th 205, 224-25 (1st Cir. 2021) (noting ATF Agent’s

12 https://www.facebook.com/lapdhq/videos/calling-911-anonymously/2611390979166689/ (Los

Angeles); https://www.chicago.gov/content/dam/city/depts/oemc/general/PDF/58-04%20%20911%20Caller%20Anonymity%20-%20Ald.%20Scott.pdf (Chicago);

https://crime.baltimorecity.gov/anonymous-crime-reporting (Baltimore).

14

testimony that drug traffickers “often carry multiple cell phones and use flip phones

as temporary ‘burner’ phones to evade law enforcement efforts to track and

intercept drug-related communications”). Second, Navarette didn’t account for the

fact that an anonymous tipster might be a naive mistaken tipster rather than a wily

false tipster. See United States v. Hauk, 412 F.3d 1179, 1188 (10th Cir. 2005) (“If in

Mrs. Grundy’s fertile imagination, the innocent doings of her neighbors assume the

aspect of dire criminality, her [anonymous, uncorroborated] report of her

conclusions to the police does not mean that a reasonable basis for suspicion

exists”). Third, as the Navarette dissent noted, “assuming the Court is right about

the ease of identifying 911 callers, it proves absolutely nothing in the present case

unless the anonymous caller was aware of that fact. It is the tipster’s belief in

anonymity, not its reality that will control his behavior.” 572 U.S. at 409 (Scalia, J.,

dissenting, joined by Justices Ginsburg, Sotomayor, and Kagan) (emphases in

original; internal marks and citation omitted).

Justice Scalia’s point is even stronger today given law enforcement’s modern

efforts to promote anonymous reporting. With cities from Los Angeles to Chicago to

Baltimore assuring the public that they can report crimes anonymously—even via

911—it is no longer reasonable (even if it was in 2008) for an officer to “conclude

that a false tipster would think twice” before using 911. 572 U.S. at 401. In fact the

opposite is true: the public has now been primed to believe that a person’s

anonymity will be protected if the person chooses not to identify himself or herself

when reporting a crime. In this environment, the government cannot bear its

15

burden of establishing reliability by simply noting that the tipster used 911 and

citing Navarette. This Court should grant this petition in order to revisit the

government’s reliance on 911 calls in-and-of themselves to bear its burden of

establishing reasonable suspicion.

3. Getting the reasonable-suspicion analysis right in anonymous-tip

cases is crucial given the number of tips reported, and the risk that

such tips may be mistaken or deliberately false.

We cannot know what percentage of anonymous tips are mistaken or deliberately

false. But available statistics suggests that only a small percentage of anonymous

tips are sufficiently corroborated to support arrests. WeTip, for instance, has

maintained an anonymous-tip hotline since 1972.13 In 2018, WeTip boasted “over

1,336,138 crimes reported,” 75% of which were drug related, “and NOT ONE

informant ever revealed.”14 And yet over a million anonymous reports resulted in only

16,391 arrests (1.23%) and 8,396 convictions (0.63%). Id. That leaves 1,319,747

anonymous reports that did not result in arrests (much less convictions).

Greater Kansas City Crime Stoppers reports a higher percentage success rate,

with 159,250 anonymous tips resulting in 11,450 arrests.15 But that number still only

amounts to 7.19%, leaving an overwhelming majority of tips (147,800) not resulting

in arrests. That may be for a variety of reasons. Some people commit crimes and flee;

others die or get caught for different crimes. Some crimes may generate multiple tips.

13 https://www.wetip.com/about-wetip/

14 https://www.wetip.com/anonymous-tips/10-reasons-why-you-should-support-wetip-the-crime-

stopping-anonymous-tip-service-this-holiday-season/ (capitalization in original)

15 http://www.kccrimestoppers.com/sitemenu.aspx?ID=452&

16

But surely these statistics also suggest that a large number percentage—surely far

more than half—of anonymous tips simply prove to be unreliable.

In Glover, this Court held that, absent specific cause to believe otherwise, it is

reasonable for a police officer to infer that a person with a revoked driver’s license

may continue driving. 140 S.Ct. at 1188-89. This Court relied in part on statistical

evidence that 75% of drivers with suspended or revoked licenses continue to drive.

Id. at 1188. No comparable evidence supports a presumption that anonymous tips are

reliable—to the contrary, the available evidence suggests that this Court was right

in White when it observed that anonymous tips alone seldom provide reasonable

suspicion. 496 U.S. at 329. And yet law enforcement continues to promote a culture

of anonymous reporting. This may well be a desirable culture—so long as law

enforcement does the work required to corroborate the reports it generates. This

Court should grant this petition to refine the reasonable-suspicion spectrum when it

comes to anonymous tips.

4. The Tenth Circuit failed to hold the government to its burden of

establishing reasonable suspicion in Mr. Gaines’s case.

In its decision affirming the district court, the Tenth Circuit did not mention that

the government bore the burden of establishing reasonable suspicion. Pet. App. 1a23a. Neither did the court acknowledge that the cases it relied on from this Court

(Navarette and White) were “close” or “borderline” cases. Navarette, 572 U.S. at 399,

404; J.L., 529 U.S. at 271; White, 496 U.S. at 332. Consequently, in considering the

totality of circumstances, the Tenth Circuit read the facts in a light unduly favorable

to law enforcement, and found reasonable suspicion despite the absence of factors

17

that were crucial in Navarette (basis of knowledge, 572 U.S. at 399) and White

(predictive information, 496 U.S. at 332).16 Along the spectrum of reasonable

suspicion, Mr. Gaines’s case is closer to J.L. (no reasonable suspicion) than to

Navarette and White (reasonable suspicion, but “close”), and the Tenth Circuit erred

in concluding otherwise. To explain, we will walk briefly through the eight factors

that the Tenth Circuit held contributed to reasonable suspicion and then touch on

one factor that the Tenth Circuit disregarded.

First, the Tenth Circuit misapplied Navarette when it concluded that the

anonymous tipster’s mere implication that he witnessed the man in red selling drugs

lent meaningful credibility to the tipster’s veracity. Pet. App. 13a. The Navarette

tipster was run off the road by the driver she reported; her basis of knowledge (as the

victim of a crime) was clear and lent “significant support to the tip’s reliability,”

ultimately supporting reasonable suspicion. 572 U.S. at 395, 399, 404. That basis of

knowledge was missing in Mr. Gaines’s case.

The government admitted in the district court that “the caller never explicitly says

how he knows of the illegal conduct,” and that “we ultimately cannot be sure the

16 The Tenth Circuit didn’t come out and say so here, but it has often said that it reviews the ultimate

question of reasonable suspicion in the light most favorable to the government when the government

prevailed in the district court. See, e.g., United States v. Sauzameda-Mendoza, 595 Fed. Appx. 769,

774 (10th Cir. 2014) (holding on undisputed facts “that the facts surrounding the traffic stop, when

viewed in their entirety and in the light most favorable to the government, gave Officer Alvarez

reasonable suspicion to extend the traffic stop for a canine sniff”) (emphasis added); United States v.

McHugh, 639 F.3d 1250, 1257–58 (10th Cir. 2011) (holding on undisputed facts “that the facts, viewed

in their entirety and in the light most favorable to the government, establish that reasonable suspicion

existed to justify the stop”) (emphasis added); and United States v. Santio, 351 Fed. Appx. 324, 330

(10th Cir. 2009) (unpublished) (holding on undisputed facts that, “based on the totality of the

circumstances and in viewing the evidence in the light most favorable to the government, we conclude

the district court did not err in finding a reasonable suspicion existed that Mr. Santio was involved in

criminal activity sufficient to justify the initial stop”) (emphasis added).

18

tipster was in a similar position to the caller in Navarette.” R1.174. And the district

court found only that the tipster “implie[d] that he personally observed Defendant’s

drug sale.” Pet. App. 61a (emphasis added). But this was not a finding (nor did the

evidence support a finding) that the tipster in fact personally observed any drug sale.

Mr. Gaines’s case is more like J.L. than Navarette. In J.L. the tipster likewise

implied that he had personal knowledge when he said that a young man standing at

a bus stop was carrying a gun. 529 U.S. at 268. But the tipster there did not explain

how he knew about the gun, id. at 271, just as the tipster here did not explain how

he knew about the claimed drug sale. Absent any evidence of the tipster’s basis of

knowledge, J.L. fell on the no-reasonable-suspicion side of the line. Id. at 271. The

point of the basis-of-knowledge analysis is to separate unreliable tips from reliable

tips. The closer the tipster claims to be to the action, the more reliable the tip is

presumed to be. A tipster who artfully “implies” personal observation of criminal

conduct is not as trustworthy as a caller who directly states: “This crime happened to

me,” or “I watched this crime take place.” The tipster here did not provide a basis for

his claimed knowledge. This factor weighed against a finding that the tipster was

reliable enough to provide reasonable suspicion for Mr. Gaines’s detention.

Second, the Tenth Circuit misapplied Navarette again when it found that the

tipster “undoubtedly made a ‘contemporaneous report’ of Mr. Gaines’s activities, both

non-criminal and criminal alike,” thereby negating the likelihood that his statements

were false. Pet. App. 14a. In Navarette, this Court noted a “substantial

contemporaneity” between the 911 call and the driver’s criminal activity (running the

19

caller off the road). 572 U.S. at 399-400 (citing Fed. R. Evid. 803(1) and (2)). This

Court found that this contemporaneity weighed in favor of the tipster’s veracity for

the same reason that present sense impressions and excited utterances are deemed

sufficiently reliable to admit through hearsay—their temporal proximity to the

reported event is presumed to negate the likelihood of (or opportunity for)

misrepresentation. Id. But the analogy to present sense impressions doesn’t work

absent personal observation of the thing allegedly impressed upon the speaker’s

senses—a crucial factor that, as noted above, distinguishes Mr. Gaines’s case from

Navarette. The present-sense-impression rule requires that the statement be made

“while the declarant was perceiving the event or condition, or immediately

thereafter.” Fed. R. Evid. 803(1) (emphasis added). The tipster’s mere implication

that he witnessed a drug sale did not establish that he in fact witnessed a drug sale;

his report of criminal activity was not a present sense impression and did not negate

any likelihood that he was either mistaken or lying.

The Tenth Circuit emphasized that the tipster made contemporaneous

observations when he described watching the man in red walking up the hill “right

now.” Pet. App. 14a. True enough. But the credibility of that part of the call was not

in question. What was in question was the tipster’s report that the man at some point

before the call engaged in criminal activity. In Navarette, the tipster’s “present sense

impression” was of the very criminal activity she called to report. 572 U.S. at 399–

400. In Mr. Gaines’s case, in contrast, even the government conceded in the district

court that “the caller here does not describe any criminal activity contemporaneously

20

with his observations.” R1.175. The government recognized that this fact “weakens

the reliability of the criminal allegations.” Id. (emphasis added). The Tenth Circuit

erred in reaching the opposite conclusion.

Third, the Tenth Circuit held that the tipster’s use of 911 was an “important”

factor under Navarette. Pet. App. 14a-15a. But the Tenth Circuit overread Navarette

on this point. Navarette held only that a tipster’s use of the 911 system is a “relevant

circumstance[ ],” 572 U.S. at 401—not that it is “important.” Additionally, the

government presented no evidence in Mr. Gaines’s case that the tipster’s use of the

911 system in fact put his identity at risk (nor was there any evidence that he believed

it would). It was the government’s burden to establish the tipster’s reliability; it

cannot satisfy that burden merely by invoking the tipster’s use of 911 and citing

Navarette.

Fourth, the Tenth Circuit held that the tipster was not “truly anonymous”

because he used the 911 system, told the dispatcher where he was calling from, and

stayed on the line for over two minutes. Pet. App. 15a. The Tenth Circuit concluded

that, taken together, these facts gave the police “quite possibly (if not likely) . . .

sufficient details to render the tipster readily identifiable.” Id. (internal marks and

citation omitted). But calling this tipster anything other than anonymous requires

pure imagination because the government (which, again, bore the burden here)

presented no evidence that he was “readily identifiable.”

The tipster did not give the dispatcher either his name or a call-back number. The

government presented no evidence that Mr. Gaines or anyone else knew the tipster

21

or would have been able to identify his recorded voice. The government presented no

evidence that the call was in fact traceable, or in fact traced, or for that matter

whether the tipster was using his own, traceable phone, as opposed to a third party’s

phone, a phone belonging to the Wilhelmina Gill Center, a pay phone, a “burner”

phone, or a smart phone with a caller-ID spoof app.

In addition to overlapping with the third (use of 911) factor, this not-trulyanonymous “factor” finds no support in this Court’s cases. In Navarette, this Court

treated the tip at issue as anonymous despite the fact that the caller used 911, told

the dispatcher where she was on the highway, and even, apparently, identified

herself by name. 572 U.S. at 398 & 398 n.1. And anyway, the tipster here was, in fact,

truly anonymous. We have no idea who he was. The tipster reported calling from a

food kitchen on an urban corner that a security guard testified was “a very hightrafficked area for pedestrians.” R1.85. Video footage from a pole camera confirms the

busy nature of the area. Exh. 2. If the tipster was still on the scene when the officers

arrived, he certainly didn’t volunteer his presence to them, and they made no effort

to find him there before seizing Mr. Gaines. The government never provided any

discovery of his identity. The Tenth Circuit’s strained law-enforcement-friendly

reading of the record to call this tipster “not truly anonymous” failed to hold the

government to its burden on this “factor.”

Fifth, the Tenth Circuit held that an additional indicia of reliability was the fact

that “the tipster never declined to give his name,” but rather, “the 911 operator did

not ask for it.” Pet. App. 16a. The fact that a 911 dispatcher doesn’t ask an anonymous

22

tipster for his name cannot possibly add to the tipster’s reliability. Indeed, it would

be odd for law enforcement’s failure to check the reliability of an anonymous tipster

to weigh in the government’s favor. Such a rule would create an affirmative

disincentive for law enforcement to ask any 911 callers to identify themselves—a

result directly contrary to the effect the exclusionary rule is meant to have. See United

States v. Calandra, 414 U.S. 338, 347 (1974) (“the rule’s prime purpose is to deter

future unlawful police conduct and thereby effectuate the guarantee of the Fourth

Amendment against unreasonable searches and seizures”). Law enforcement may

accommodate a caller’s wish for anonymity so long as it does the legwork to

corroborate that caller’s story. But it may not earn reliability credit when it neither

asks for a tipster’s identity nor bothers to corroborate his story before acting on the

tipster’s report.

Sixth, the Tenth Circuit concluded that the tipster’s manner was “measured and

circumspect,” suggesting “good faith” or at least the absence of a “malicious motive.”

Pet. App. 16a-17a. The tipster’s tone may well be in the ear of the beholder, but to

our ears the tipster a little too much enjoyed calling the law on the man in red and

using police-speak to accuse him of a crime (“we have . . . a suspect”). Ex. 1. His

manner was suspiciously gleeful. Id. This is another example of the Tenth Circuit

presuming the tipster reliable instead of holding the government to its burden.

Seventh, the Tenth Circuit found that the tipster’s credibility was enhanced by

the fact that he “identified the suspect’s physical appearance and location with a

fairly high degree of specificity.” Pet. App. 17a. Well of course he did. He wanted the

23

police to arrest the “suspect.” Mr. Gaines’s case is no different from J.L. in this regard.

And as this Court cautioned in J.L.: “An accurate description of a subject’s readily

observable location and appearance . . . will help the police correctly identify the

person whom the tipster means to accuse. Such a tip, however, does not show that

the tipster has knowledge of concealed criminal activity. 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.” 529 U.S. at 272. The Tenth Circuit’s

reliance, for reasonable-suspicion purposes, on the tipster’s description of his target’s

readily observable location and appearance contravenes J.L., and was error.

Eighth, the Tenth Circuit held that the anonymous tip was bolstered by the

responding officers’ knowledge of drug activity around the Wilhelmina Gill Center.

Pet. App. 21a-23a. But evidence that drug activity had previously been reported in

the area did nothing to corroborate the tipster’s claim that the man in red was

involved in such activity. The officers were required to have more than a reasonable

suspicion that someone might be selling drugs; they were required to 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) (emphasis

added).

Additionally, the officers approached Mr. Gaines in the middle of a weekday in a

public parking lot in a high-trafficked area where people frequently come and go

while pursuing legitimate daily activities at, for instance, the food kitchen, the

resource center, the post office, and the federal courthouse. In other words, this case

24

did not involve an actual “high crime” area frequented for no purpose other than

crime. See, e.g., United States v. Davis, 94 F.3d 1465, 1468 (10th Cir. 1996) (fact that

defendant was approaching a known criminal establishment did not give rise to

reasonable suspicion, “especially since the record shows that the establishment also

offered legitimate activities to its patrons”); United States v. Santio, 351 Fed. Appx.

324, 330–31 (10th Cir. 2009) (unpublished) (contrasting defendant’s suspicious

behavior while wearing gang apparel at 3:30 a.m. in “high crime area” near stolen

vehicle with Davis defendant’s presence at 10:00 p.m. near “a business offering both

illegal and legitimate activities”); United States v. Montero-Camargo, 208 F.3d 1122,

1139 n.32 (9th Cir. 2000) (contrasting value of “high crime area” designation in case

involving barren area at side of highway “which apparently served no purpose other

than as a site for criminal activity” with same designation “[w]ith respect to populated

areas, or areas in which people typically carry on legitimate activities”).

Finally, the government made no effort to establish that, if there was drug

trafficking (as opposed to mere use) in the area, it was of an unusually high amount,

that is, higher than in any other part of Kansas City. And neither did the government

present any evidence that an unusually high percentage of people who frequent the

area are involved in drug trafficking as opposed to going about their daily activities.

Basing reasonable suspicion to seize a person on evidence that drug activity has been

reported in an area where poor people go for social services (including drug-recovery

services)—without any basis for comparison—exposes an already vulnerable

population to unnecessarily intrusive police action. As one jurist has observed,

25

“labeling an area ‘high-crime’ raises special concerns of racial, ethnic, and

socioeconomic profiling.” United States v. Caruthers, 458 F.3d 459, 467 (6th Cir.

2006); accord United States v. Black, 707 F.3d 531, 542 (4th Cir. 2013) (“[T]he

demographics of those who reside in high crime neighborhoods often consist of racial

minorities

and

individuals

disadvantaged

by

their

social

and

economic

circumstances. To conclude that mere presence in a high crime area at night is

sufficient justification for detention . . . is to accept carte blanche the implicit

assertion that Fourth Amendment protections are reserved only for a certain race or

class of people.”); United States v. Griffin, 730 F.3d 1252, 1254–55 (11th Cir. 2013)

(“because neighborhoods described as ‘high-crime’ are almost always poor

communities of color, excessively-broad police discretion to frisk suspects in such

neighborhoods facilitates the disproportionate targeting of poor people of color by law

enforcement, contributing to unjustifiable levels of racial and socioeconomic

disparities in the criminal justice system”) (Barkett, J., dissenting from denial of

rehearing en banc).

The officers’ knowledge of drug activity in the area did not corroborate the

anonymous tipster’s claim that the man in red was selling drugs there, and did not—

even when added to the 911 call—provide reasonable suspicion for the officers to seize

Mr. Gaines.

Lastly, the Tenth Circuit unduly downplayed the fact that the tipster failed to

offer predictive information regarding either innocent or criminal activity. Pet. App.

17a-20a. The tipster had no idea what kind of car the man was driving and was

26

unable to predict so much as where the man in red was headed as he walked up the

hill. Pet. App. 3a., 14a, Exh. 1. As this Court cautioned in J.L., the absence of

predictive information leaves the police “without means to test the informant’s

knowledge or credibility.” 529 U.S. at 271. The absence of predictive information here

weighed against a finding of reasonable suspicion, and the Tenth Circuit failed to give

this absence its proper weight.

In the end, the Tenth Circuit cobbled together weak and problematic factors—

some of which this Court rejected as meaningful in J.L.—to find reasonable suspicion,

and ignored the absence of factors that were critical in White and Navarette. The

totality of circumstances did not support law enforcement’s seizure of Mr. Gaines.

The officers lacked reasonable suspicion for the seizure, and the Tenth Circuit erred

in concluding otherwise.

Review is necessary to correct the Tenth Circuit’s reasonable-suspicion analysis,

or, at the very least, because it is not clear that the Tenth Circuit properly held the

government to its burden of establishing reasonable suspicion. See Lombardo v. City

of St. Louis, 141 S.Ct. 2239, 2241-42 (2021) (granting petition for certiorari and

remanding excessive-force case where circuit court either failed to analyze relevant

evidence or characterized it as insignificant, thereby suggesting that court had

contravened “the careful, context-specific analysis required by this Court’s excessive

force precedent”).

27

5. Other courts more faithfully apply this Court’s precedents when

analyzing anonymous tips.

“[E]ach case is to be decided on its own facts and circumstances.” Glover, 140 S.Ct.

at 1191 (citations omitted). That said, other circuit and state courts are less willing

than the Tenth Circuit was in Mr. Gaines’s case to conclude that the police may detain

a person based on an anonymous tip without first corroborating the tipster’s claim of

illegality.

In United States v. Lowe, for instance, the Third Circuit emphasized that “the

Government bears the burden at a suppression hearing where, as here, the search or

seizure was conducted without a warrant.” 791 F.3d 424, 432 n.4 (3d Cir. 2015). The

Third Circuit consequently declined the government’s invitation to “indulge in

hypotheticals and interpret alleged ambiguity in the District Court’s findings in favor

of the party with the burden of proof—the Government.” Id. In Lowe, officers

responding to an anonymous tip about a “black male wearing a gray hoodie with a

gun in his waistband” in a high-crime area precipitously seized the defendant without

reasonable suspicion. Id. at 434–35. As the Third Circuit observed, the officers had

“many tools at their disposal to gather additional evidence” before the seizure,

including “investigation, surveillance, and even approaching the suspect without a

show of authority to pose questions and to make observations about the suspect’s

conduct and demeanor.” Id. at 436. Because they failed to use available tools to

develop reasonable suspicion before the seizure, the fruit of the seizure should have

been suppressed. Id.

28

Lowe relied in part on an earlier Third Circuit case, United States v. Roberson, 90

F.3d 75 (3d Cir. 1996), which is factually similar to Mr. Gaines’s case. In Roberson,

an anonymous 911 caller described a “heavy-set, black male wearing dark green

pants, a white hooded sweatshirt, and a brown leather jacket” at a drug “hot spot,”

and alleged he was selling drugs. Id. at 75. The police stopped and frisked a man at

the location fitting the caller’s description, despite seeing no drug activity. Even

though “the caller could have been looking out his window . . . at the time of his 911

call,” the Third Circuit held that the call did not provide reasonable suspicion of drug

activity absent independent corroboration of that claim. Id. at 79–80.

Other jurisdictions have similarly emphasized the need to corroborate claims of

illegality made by anonymous (or identified but untested) tipsters. See, e.g., United

States v. Massenburg, 654 F.3d 480, 487 (4th Cir. 2011) (“even a ‘nearly

contemporaneous report’ of a drug transaction the tipster reportedly saw was

unreliable in the absence of ‘[s]ome corroboration,’ since ‘a fraudulent tipster can

fabricate her basis of knowledge’”) (citations omitted); United States v. Lopez, 907

F.3d 472, 481, 483 (7th Cir. 2018) (absent corroboration, tip did not provide

reasonable suspicion; “[i]nstead of doing the police work required to substantiate the

tip, the officers pounced as soon as they saw Lopez leave his garage”); State v. Z.U.E.,

315 P.3d 1158, 1168 (Wash App. Div. 2 2014) (where officers “did not corroborate the

presence of actual or potential criminal activity,” “observations of innocuous facts

were insufficient to support an investigatory stop”); Stinson v. State, 117 So. 3d 859,

864 (Fla. App. Dist. 4 2013) (where the “sole basis for the officer’s stop and detention

29

of the defendant was the anonymous tip, which the officer was unable to corroborate,”

“the totality of the facts and circumstances did not provide reasonable suspicion to

stop and detain the defendant”); State v. Hneidy, 510 S.W.3d 458 (Tex. App. San

Antonio 2013) (observations of identifying information insufficient to corroborate

tipster’s claim of illegality; where officer testified “that he did not corroborate any of

the information that was relayed to him by dispatch,” and absent any other sufficient

basis, traffic stop not supported by reasonable suspicion).

The question of when an anonymous tip provides reasonable suspicion will

continue to arise with frequency in both state and federal courts. This Court’s

guidance is necessary to ensure that anonymous tips are analyzed for reliability and

corroboration with consistency across jurisdictions.

6. This case is an excellent vehicle for analyzing anonymous tips.

This case is an excellent vehicle for analyzing anonymous tips. It involves a

number of factors that are common in anonymous-tip cases: a 911 call; questions of

reliability and corroboration; and an alleged “high crime” area, to name a few. The

question presented was fully preserved below, and there is no procedural

impediment to this Court’s consideration.

The fact that the Tenth Circuit’s decision is unpublished does not weigh against

granting this petition. Publication is not a prerequisite to review or a reliable

measure of a decision’s importance. See, e.g., Carter v. United States, 530 U.S. 255

(2000) (reviewing unpublished circuit court decision); Los Angeles County,

California v. Rettele, 550 U.S. 609 (2007) (same); National Archives and Records

Admin. v. Favish, 541 U.S. 157 (2004) (same); Cooper Industries, Inc. v. Leatherman

30

Tool Group, Inc., 532 U.S. 424 (2001) (same); Eastern Assoc. Coal Corp. v. United

Mine Workers of America, Dist. 17, 531 U.S. 57 (2000) (same); Wisconsin Right to

Life, Inc. v. F.E.C., 546 U.S. 410 (2006) (reviewing unpublished three-judge district

court decision); Kaupp v. Texas, 538 U.S. 626 (2003) (reviewing unpublished Texas

Court of Appeals decision); Ewing v. California, 538 U.S. 11 (2003) (reviewing

unpublished California Court of Appeal decision).

Here, the government thought that the Tenth Circuit’s decision was important

enough to move for its publication. Gov’t Mot. to Publish filed 06/10/2021. In its

motion, the government described the decision as “synthesiz[ing] the vast and

sometimes unwieldy body of caselaw relating to the reliability of anonymous tips in

the reasonable suspicion analysis, referring to cases from the Supreme Court, [the

Tenth Circuit], and other federal circuit courts of appeal, in a thorough and

insightful opinion.” Id. at 2-3. The government further predicted that “[f]uture

defendants, prosecutors, district courts, and litigants before this Court will

undoubtedly devote considerable time, energy, and resources responding to similar

issues decided by the panel in this case and interpreting the cases interpreted by

the panel in this case.” Id. at 3.

While the Tenth Circuit denied the government’s motion, its rules permit the

citation of unpublished decisions “for their persuasive value.” 10th Cir. R. 32.1(A).

Indeed, the Tenth Circuit itself “generally follows that principle, looking in

appropriate circumstances to an unpublished opinion if its rationale is persuasive

and apposite to the issue presented.” Noreja v. Commissioner, SSA, 952 F.3d 1172,

31

1176 (10th Cir. 2020) (citing examples). The government will undoubtedly rely on

Gaines as persuasive authority in future cases, and district courts will undoubtedly

endeavor to harmonize their decisions with Gaines. This latter prediction has

already come to pass. See United States v. Dye, No. 18-20094-01-DDC, 2021 WL

2515029 (D. Kan. June 18, 2021) (“Gaines is unpublished and not controlling, but it

extensively analyzed a set of facts that resemble certain elements of Mr. Dye’s case.

The court thus finds the case useful.”).

Finally, Mr. Gaines would not have been convicted had his motion to suppress

been granted. At trial, the government relied almost entirely on the evidence

discovered as a result of law enforcement’s August 24, 2015 seizure of Mr. Gaines to

prove the drug and gun charges against Mr. Gaines. See, e.g., Appeal No. 17-3270,

R2.144 at 77-81 (officer describing drugs found in black bag thrown on roof); id. at

144-47 (officer describing drugs found in Cadillac); id. at 189-91 (officer describing

gun found in Cadillac); Appeal No. 17-3270, R2.145 at 40-66 (forensic scientist

identifying weight and types of drugs found in black bag and Cadillac); Appeal No.

17-3270, R2.146 at 122-154 (expert opining that quantity of drugs found in black

bag and Cadillac indicated distribution as opposed to personal use, and discussing

relationship of guns to drug distribution). The government did not, for instance,

present any witnesses who claimed to have either bought drugs from Mr. Gaines or

seen Mr. Gaines handle the gun, or any confession from Mr. Gaines. Instead, the

main factual dispute at trial was whether the Cadillac and the items in it belonged

to Mr. Gaines. See, e.g., Appeal No. 17-3270, R2.146 at 5-19 (registered owner of car

32

testifying to Mr. Gaines’s use of the Cadillac and denying ownership of items seized

on August 24, 2015). In other words, the government would not have had a case

without the items seized by law enforcement on August 24, 2015. If this Court

grants certiorari and reverses the Tenth Circuit, Mr. Gaines’s conviction will be

vacated and he will be released.

No future case will be better positioned for this Court to revisit anonymous tips.

This Court should grant this petition.

CONCLUSION

For the above reasons, this petition for a writ of certiorari should be granted.

Respectfully submitted,

MELODY BRANNON

Federal Public Defender

PAIGE A. NICHOLS

ASSISTANT FEDERAL PUBLIC DEFENDER

Counsel of Record

KANSAS FEDERAL PUBLIC DEFENDER

117 SW 6th Ave, Ste 200

Topeka, Kansas 66603

Phone: (785) 232-9828

Email: paige_nichols@fd.org

Counsel for Petitioner

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United States Court of Appeals

Tenth Circuit

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

May 25, 2021

Christopher M. Wolpert

Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

No. 19-3177

(D.C. No. 2:15-CR-20078-JAR)

(D. Kan.)

v.

DESMOND S. GAINES,

Defendant - Appellant.

ORDER AND JUDGMENT*

Before HARTZ, KELLY, and HOLMES, Circuit Judges.

In September 2017, a jury convicted Desmond S. Gaines of five federal offenses

involving illegal drugs and a firearm. Before his trial began, Mr. Gaines moved to

suppress certain evidence as the fruit of an unlawful seizure. The district court denied the

motion. It concluded that Mr. Gaines’s initial encounter with police—which led to the

discovery of the illegal drugs and firearm—was consensual and not a seizure. The

encounter itself was precipitated by an anonymous 911 tip.

This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Federal Rule of Appellate Procedure

32.1 and Tenth Circuit Rule 32.1.

*

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In a prior appeal, we reversed. We held that Mr. Gaines’s initial encounter with

police was a Fourth Amendment seizure and not consensual. As a result, we vacated Mr.

Gaines’s conviction and remanded so the district court could determine whether the

seizure was justified by reasonable suspicion. On remand, the district court concluded the

police officers had a reasonable suspicion to seize Mr. Gaines. It again denied his motion

to suppress evidence and reinstated the original judgment.

The issue now before us is whether the district court erred in concluding that

reasonable suspicion existed to seize Mr. Gaines. We hold that the court did not err.

Therefore, exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I

One morning in August 2015, an anonymous tipster called 911 to report that a man

was selling phencyclidine, or PCP, near the Wilhelmina Gill Center and the Frank

Williams Center in downtown Kansas City, Kansas. The Wilhelmina Gill Center houses

a food kitchen; the Frank Williams Center offers resources to the homeless. The 911 call

lasted nearly two-and-a-half minutes. At the beginning of the call, the tipster indicated

that he was in downtown Kansas City near the two centers.1 Then he said, “we have a

suspect in all red clothing selling juice,” i.e., PCP. Gov’t Ex. 1 at 0:10–0:14 (911 Call).

The district court refers to the tipster using the pronouns for the male

gender (e.g., “he”), even though it does not appear to have explicitly found that the tipster

was male. We follow suit. Insofar as the court’s use of male-gender pronouns amounts

to a tacit finding that the tipster was male—based on our review of the audio recording of

the tipster’s 911 call—this finding would not be clearly erroneous.

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The 911 operator asked about the alleged suspect’s race and the tipster replied, “light

skinned black.” Id. at 0:21–0:23. The tipster continued: “I don’t know what kind of car

he’s driving today, but he’s down here at the Gill Center, and he has on all red, red hat,

red shirt, big red shorts.” Id. at 0:25–0:34. According to the tipster, the man in red “just

made about 20 dollars.” Id. at 0:46–0:49.

The 911 operator asked for the exact address where the tipster and man in red were

located. “I don’t even know,” the tipster replied. Id. at 0:53–0:54. But then he said, “let

me go inside and ask.” Id. at 0:59–1:01. It is not clear where the tipster went, but he

subsequently confirmed that his location was “645 Nebraska.” Id. at 1:10–1:17. The 911

operator then asked where the officers should go when they arrived. The tipster said, “to

the parking lot.” Id. at 1:22–1:23. The operator asked what kind of car the man in red

was driving. The tipster again said “I don’t know,” but volunteered to try to find out. Id.

at 1:34–1:39. The tipster then stated, “I’m watching him right now,” id. at 1:40–1:41, and

said that the man in red was “still not going to his car yet,” id. at 2:02–2:05, but was

instead “just standing on the corner,” id. at 2:07–2:10. Near the end of the call the tipster

commented, “after this guy we have only one more supplier, and that’s it.” Id. at

1:55–2:00.

Shortly before 10:00 a.m., two Kansas City police officers—one male and one

female—responded to the call. While approaching the Wilhelmina Gill Center, the male

officer saw a man in the parking lot who matched the description provided by the tipster.

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The man was Mr. Gaines. As Mr. Gaines entered a white Cadillac, the officers received a

call over their police radio from an off-duty police officer who had been working at the

Frank Williams Center that morning. The off-duty officer had kept his police radio on

and heard the officers dispatched in response to the 911 call. Earlier that morning, he had

noticed a man dressed in all red in the Frank Williams Center parking lot. The off-duty

officer radioed to the responding officers, “that’s him in that white Cadillac.” R., Vol. I,

at 137 (Test. of Mark Wilcox, dated Mar. 8, 2017).

The officers parked close to the Cadillac that Mr. Gaines occupied and turned on

their emergency lights. Both officers exited their vehicles. Mr. Gaines did the same and

shut his door. Mr. Gaines asked the male officer what he was doing. The officer replied

that he had received a call that a person matching Mr. Gaines’s description was selling

drugs in the parking lot. Mr. Gaines said it was not him. The male officer then asked Mr.

Gaines for identification. Mr. Gaines said it was in his car trunk and reopened the

Cadillac’s driver’s side door to open the trunk. With the door and trunk open, the male

officer smelled a strong chemical odor coming from the vehicle. The officer believed it

was PCP. He also noticed an open alcohol container in the front console—an arrestable

offense.

The male officer informed Mr. Gaines that he would have to handcuff and detain

him for the open container. As the officer tried to handcuff Mr. Gaines, he quickly pulled

away, grabbed a black bag from the driver’s side floorboard, shoved the officer, and ran

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away. The responding officers chased Mr. Gaines on foot and eventually apprehended

him. They also recovered the black bag. It contained PCP, cocaine, and marijuana.

Later, police discovered a black handgun and more cocaine in Mr. Gaines’s Cadillac .

A federal grand jury indicted Mr. Gaines on five counts involving illegal drugs and

a firearm.1 Mr. Gaines moved to suppress the drugs and firearm evidence, arguing it was

the fruit of an unlawful seizure. The district court denied the motion. It held Mr.

Gaines’s initial encounter with police officers—from the time the officers first

approached his car to when one officer saw the open alcohol container—was consensual.

The case proceeded to trial and a jury convicted Mr. Gaines on all five counts. The

district court sentenced Mr. Gaines to 180 months’ imprisonment and eight years of

supervised release.

Mr. Gaines appealed. We reversed and held that the initial encounter between Mr.

Gaines and the police—before the officer spotted the open alcohol container—was a

Fourth Amendment seizure. We noted that the seizure “would have been permissible if

the police had a reasonable ground to suspect Mr. Gaines of a crime,” but the district

The five counts listed in the indictment were (1) possession with intent to

distribute twenty-eight grams or more of crack cocaine, in violation of 28 U.S.C.

§ 841(a)(1) and (b)(1)(B)(iii); (2) possession with intent to distribute marijuana, in

violation of 28 U.S.C. § 841(a)(1) and (b)(1)(D); (3) possession with intent to distribute

PCP, in violation of 28 U.S.C. § 841(a)(1) and (b)(1)(C); (4) possession of a firearm in

furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c); and

(5) possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1) and

18 U.S.C. § 924(a)(2). R., Vol. I, at 26–28 (Indictment, filed Sept. 2, 2015).

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court did not address “the reasonableness of the police’s suspicion.” United States v.

Gaines, 918 F.3d 793, 802 (10th Cir. 2019). We declined to opine on this matter in the

first instance. Instead, we reversed the district court’s order denying Mr. Gaines’s

suppression motion and remanded so the district court could consider whether the officers

had a reasonable suspicion to justify the seizure. Id. at 803.

On remand, the district court found reasonable suspicion existed to seize Mr.

Gaines. The court’s conclusion rested in part on factors similar to those highlighted in

Navarette v. California, 572 U.S. 393, 399–400 (2014), where the Supreme Court upheld

an investigatory stop based on an anonymous tip. Specifically, the district court noted

that “the caller told the operator where he was, [ ] stayed on the phone for over two

minutes, and [ ] answered every question that was put to him, including answering the

operator honestly that he did not know what type of car [the] [d]efendant was driving.”

R., Vol. I, at 238 (Mem. and Order, dated Aug. 9, 2019). Additionally, the court credited

the responding officers’ first-hand knowledge of drug-related activity around the

Wilhelmina Gill Center, and the off-duty officer’s observations. Taken together, the

court held these facts provided responding officers with reasonable suspicion to conduct

an investigatory stop. The court, therefore, denied Mr. Gaines’s motion to suppress and

reinstated its original judgment. This appeal followed.

II

The Fourth Amendment protects against “unreasonable searches and seizures.”

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U.S. CONST. amend. IV. However, this mandate does not prevent police officers from

making a brief investigatory stop of a person when they 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); see also United States v. McHugh, 639

F.3d 1250, 1255 (10th Cir. 2011) (noting that an investigatory stop is justified “if the

specific and articulable facts and rational inferences drawn from those facts give rise to a

reasonable suspicion a person has or is committing a crime” (quoting United States v.

DeJear, 552 F.3d 1196, 1200 (10th Cir. 2009))). The “reasonable suspicion” needed to

justify a stop depends “upon both the content of information possessed by police and its

degree of reliability.” Alabama v. White, 496 U.S. 325, 330 (1990). We look to “the

totality of the circumstances—the whole picture” to determine whether police have a

reasonable suspicion. Cortez, 449 U.S. at 417; see also United States v. Sanchez, 519

F.3d 1208, 1213 (10th Cir. 2008) (explaining that we assess the “reasonableness of the

officer’s suspicions . . . by an objective standard taking the totality of the circumstances

and information available to the officers into account” (quoting United States v. Johnson,

364 F.3d 1185, 1189 (10th Cir. 2004))).

A mere hunch is not enough; nevertheless, a reasonable suspicion requires

“considerably less than proof of wrongdoing by a preponderance of the evidence,” and

“obviously less” than the proof needed for probable cause. United States v. Sokolow, 490

U.S. 1, 7 (1989); see also United States v. Chavez, 660 F.3d 1215, 1221 (10th Cir. 2011)

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(“Although ‘reasonable suspicion requires [an] officer to act on something more than an

inchoate and unparticularized suspicion or hunch, the level of suspicion required . . . is

considerably less than proof by a preponderance of the evidence or that required for

probable cause.’” (quoting McHugh, 639 F.3d at 1255–56)).

“These principles apply with full force to investigative stops based on information

from anonymous tips.” Navarette, 572 U.S. at 397. The Supreme Court has struck a

delicate balance on when an anonymous tip can provide a reasonable suspicion for an

investigatory stop. The Court has noted that “an anonymous tip alone seldom

demonstrates the informant’s basis of knowledge or veracity,” and therefore seldom

supplies reasonable suspicion. White, 496 U.S. at 329. Yet, the Court nonetheless has

acknowledged that “under appropriate circumstances, an anonymous tip can demonstrate

‘sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory

stop.’” Navarette, 572 U.S. at 397 (quoting White, 496 U.S. at 327); see also United

States v. Madrid, 713 F.3d 1251, 1258 (10th Cir. 2013) (“A confidential tip may justify

an investigatory stop if under the totality of the circumstances the tip furnishes both

sufficient indicia of reliability and sufficient information to provide reasonable suspicion

that criminal conduct is, has, or is about to occur.” (quoting United States v. LeosQuijada, 107 F.3d 786, 792 (10th Cir.1997))).

The Supreme Court has identified several key indicia of reliability when it comes

to anonymous tips. In Alabama v. White, a tipster told police that a woman would drive

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from a specific apartment building to a specific motel in a specific kind of car, while

transporting cocaine. The police corroborated the benign details—the apartment, the

motel, and the car type—before making a stop. The Supreme Court held that the

corroboration of these details made the tip sufficiently reliable to justify a stop. The

Court emphasized, however, that the corroborated details related “not just to easily

obtained facts and conditions existing at the time of the tip, but to future actions of third

parties ordinarily not easily predicted.” White, 496 U.S. at 332 (quoting Illinois v. Gates,

462 U.S. 213, 245 (1983)). If a tipster can accurately predict an individual’s future

behavior, it implies that the tipster has “a special familiarity with [the individual’s]

affairs” and, in particular, “access to reliable information about that individual’s illegal

activity.” Id.

But if a tip “provide[s] no predictive information and therefore le[aves] the police

without means to test the informant’s knowledge or credibility,” it will often not justify an

investigatory stop. Florida v. J.L., 529 U.S. 266, 271 (2000). This was true of the tip in

Florida v. J.L. In that case, the tipster merely said that a young Black man who was

wearing a plaid shirt and standing at a particular bus stop was carrying a gun. All the

police had was “the bare report of an unknown, unaccountable informant who neither

explained how he knew about the gun nor supplied any basis for believing he had inside

information about J.L.” Id. In holding that the police lacked reasonable suspicion to stop

and frisk the defendant—who was wearing a plaid shirt—the Court noted that an

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“accurate description of a subject’s readily observable location and appearance” is

reliable only in a “limited sense”: it will “help the police correctly identify the person

whom the tipster means to accuse.” Id. at 272. However, such a tip “does not show that

the tipster has knowledge of concealed criminal activity.” Id. To help establish

reasonable suspicion, a tip must be “reliable in its assertion of illegality, not just in its

tendency to identify a determinate person.” Id.

But, corroborated predictive information—of the kind present in White, but not in

J.L.—is not necessarily required for an anonymous tip to support a reasonable-suspicion

finding. In the case that the district court here relied on, Navarette, a tipster called 911 to

report that a truck had just run her off the road. The tipster supplied no predictive

information. Yet, she provided the truck’s make, model, color, and license plate number.

In holding that the tip had sufficient indicia of reliability, and thus supplied a reasonable

suspicion for an investigatory stop, the Court focused on three factors. First, the caller

“necessarily claimed eyewitness knowledge of the alleged dangerous driving,” precisely

because the caller was run off of the road by the dangerous driver. Navarette, 572 U.S.

at 399. Second, “the caller reported the incident soon after she was run off the road.” Id.

As to this point, the Court explained that this sort of “contemporaneous report has long

been treated as especially reliable.” Id. This is so because, under the law of evidence,

“statements about an event and made soon after perceiving that event are especially

trustworthy because ‘substantial contemporaneity of event and statement negate the

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likelihood of deliberate or conscious misrepresentation.’” Id. at 400 (quoting FED. R.

EVID. 803(1) advisory committee’s note). Third, the caller used the 911 system. Because

a 911 call “has some features that allow for identifying and tracing callers” it provides

“some safeguards against making false reports with immunity.” Id.

Furthermore, without reference to predictive information, we, too, have identified

certain factors that often suggest the reliability of an anonymous tip. In United States v.

Chavez, we succinctly summarized the most important factors we usually consider:

Although no single factor is dispositive, relevant factors include:

(1) whether the informant lacked “true anonymity” (i.e., whether the

police knew some details about the informant or had means to discover

them); (2) whether the informant reported contemporaneous, firsthand

knowledge; (3) whether the informant provided detailed information

about the events observed; (4) the informant’s stated motivation for

reporting the information; and (5) whether the police were able to

corroborate information provided by the informant.

Chavez, 660 F.3d at 1222. Though we place a premium on information related “to future

actions of third parties [which are] ordinarily not easily predicted,” such details are not

necessarily required to render an anonymous tip reliable. United States v. Hauk, 412 F.3d

1179, 1189 (10th Cir. 2005) (quoting Gates, 462 U.S. at 245).

A tipster is not truly anonymous if he “provides sufficient details regarding his

identity to render him readily identifiable by police,” such as where he works or lives.

United States v. Brown, 496 F.3d 1070, 1076 (10th Cir. 2007). Contemporaneous,

firsthand knowledge also differs from that which is acquired “through the report of a third

party or reported sometime later than the described events.” Madrid, 713 F.3d at

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1260–61; see also Brown, 496 F.3d at 1076 (“We consider it another important indicium

of reliability that the caller claimed firsthand knowledge of the alleged conduct.”). We

likewise credit “detailed information about the events [a tipster] witnessed.” Chavez, 660

F.3d at 1222. Additionally, motivations bolster reliability when they “bespeak an

ordinary citizen acting in good faith,” particularly to protect others. United States v.

Copening, 506 F.3d 1241, 1247 (10th Cir. 2007). Lastly, police corroboration of any

information provided by a tipster is also potentially relevant. See Brown, 496 F.3d

at 1078–79 (deeming even “limited police corroboration of facts provided by the caller”

relevant to the determination that “the 911 caller [ ] bore sufficient indicia of reliability to

generate a reasonable suspicion”).

III

We “review de novo the ultimate question of reasonableness under the Fourth

Amendment.” United States v. McNeal, 862 F.3d 1057, 1061 (10th Cir. 2017). In doing

so here, we conclude the officers had a reasonable suspicion to seize Mr. Gaines for an

investigatory stop. We first consider the relevant indicia of reliability displayed by the

anonymous tipster’s 911 call. Then, after acknowledging the absence of predictive

information in the tip, we explain why it supported the district court’s finding of a

reasonable suspicion. We then distinguish the tip in this case from the one in Florida v.

J.L. Finally, we address why the drug-related activity near the area of Mr. Gaines’s arrest

is relevant to our reasonable-suspicion inquiry.

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A

We begin with the three indicia of reliability highlighted in Navarette: that is,

(1) “claimed eyewitness knowledge of” the illegal activity, (2) a contemporaneous

report—“soon after”—the occurrence of the activity, and (3) the “use [of] the 911

emergency system.” Navarette, 572 U.S. at 399–400.

As to the first factor, the district court found that the anonymous tipster “implie[d]

that he personally observed [Mr. Gaines’s] drug sale.” R., Vol. I, at 236. This finding is

not clearly erroneous. When the 911 call began, the tipster identified his location and

then stated, “we have a suspect in all red clothing selling juice.” Gov’t Ex. 1

at 0:10–0:14. And, significantly supportive of the district court’s finding, the tipster also

reported that the man in red “just made about 20 dollars,” id. at 0:46–0:49 (emphasis

added), implying that the tipster possessed eyewitness knowledge of an illegal drug sale.2

We recognize that, in some of our other cases, the tipster seemingly

communicated in more explicit terms eyewitness knowledge of unlawful activity. See,

e.g., Brown, 496 F.3d at 1076 (“The caller in this case specifically told the 911 operator

that he was present when an armed man entered [a woman’s] apartment and that he saw

the man’s gun.”); Copening, 506 F.3d at 1247 (noting that “the caller told dispatch he saw

the . . . weapons incident”). But we conclude that the district court’s finding that the

tipster “implie[d] that he personally observed [Mr. Gaines’s] drug sale,” R., Vol. I, at 236,

means the first Navarette factor “weigh[s] in favor of the caller’s veracity,” Navarette,

572 U.S. at 400—even if it does not do so strongly. Cf. Brown, 496 F.3d at 1078–79

(noting that even though there was “limited police corroboration of facts provided by the

caller” it was relevant to the determination that “the 911 caller here bore sufficient indicia

of reliability to generate a reasonable suspicion”). Furthermore, we underscore that the

reasonable-suspicion determination is grounded on the totality of the circumstances and

no one factor—including those highlighted in Navarette—is determinative.

2

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Furthermore, the other two Navarette factors are both clearly satisfied here. The

tipster undoubtedly made a “contemporaneous report” of Mr. Gaines’s activities, both

non-criminal and criminal alike. Indeed, most of the tipster’s statements appeared to

provide a real-time report of Mr. Gaines’s activities: “I’m watching him right now,” the

tipster said. Id. at 1:40–1:41. “Yeah, he’s still walking up the hill.” Id. at 1:49–1:50.

“He’s just standing on the corner.” Id. at 2:07–2:10. And, as noted, the tipster reported

that “[h]e just made about 20 dollars,” implying that it was from a drug sale. Id.

at 0:46–0:49. We have ample reason, then, to conclude that the “substantial

contemporaneity of event and statement negate the likelihood of deliberate or conscious

misrepresentation.” Navarette, 572 U.S. at 400 (quoting FED. R. EVID. 803(1) advisory

committee’s note); see also United States v. Conner, 699 F.3d 1225, 1229 (10th Cir 2012)

(“[T]he caller’s immediate, firsthand knowledge added to the reliability of his

statements.”). We thus conclude that the second Navarette factor here “weigh[s] in favor

of the caller’s veracity.” Navarette, 572 U.S. at 400

Finally, the tipster called 911 to report his observations. Again, this factor is

important 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.”

Navarette, 572 U.S. at 400. The Supreme Court noted two such safeguards in Navarette:

a recorded call “provides victims with an opportunity to identify the false tipster’s voice

and subject him to prosecution,” and callers cannot “block call recipients from obtaining

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their identifying information.” Id. at 400–01. We do not suggest that “tips in 911 calls

are per se reliable.” Navarette, 572 U.S. at 401. But the tipster’s use of the 911 system is

“one of the relevant circumstances that, taken together, justified the officer[s’] reliance on

the information.” Navarette, 572 U.S. at 401.

On the whole, then, the three indicia of reliability highlighted in Navarette favor

concluding that the anonymous tip provided reasonable suspicion justifying the stop.

Looking beyond Navarette, other factors here also demonstrate the tipster’s reliability.

First, as we have framed the matter, the tipster was not truly anonymous. As

previously mentioned, he used the 911 system. But that is not all. He confirmed the

precise address of his physical location. See Madrid, 713 F.3d at 1260 (observing that

“giving the address [of where the crime took place and of the caller’s own location] was

at least an ‘indicium of reliability’” (quoting Robinson v. Howes, 663 F.3d 819, 829 (6th

Cir. 2011))); cf. United States v. Williams, 403 F.3d 1188, 1194 n.5 (10th Cir. 2005)

(noting that an anonymous restaurant patron who reported seeing another patron with a

firearm was not truly anonymous because the tip placed the tipster at the particular

restaurant at a particular time). Furthermore, the tipster here spoke for over two minutes

in a known location, making it likelier that police could unearth witnesses who might help

identify him. Taken together, the police quite possibly (if not likely) had “sufficient

details” to “render [the tipster] readily identifiable.” Brown, 496 F.3d at 1076.

Moreover, throughout the call, the tipster answered every question asked by the

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operator. For example, he took time to retrieve the exact address of his location when

asked. The tipster also did not obviously withhold any information. Indeed, he appeared

to answer honestly that he did not know what type of car Mr. Gaines was driving. And,

importantly, the tipster never declined to give his name. Instead, the 911 operator did not

ask for it. This, too, is an indicium of reliability. See Madrid, 713 F.3d at 1260 (deeming

it significant that “the 911 operator never asked the caller for his name or other

identifying information and there [was] no reason to believe he would not have provided

this information if requested”); United States v. Torres, 534 F.3d 207, 212 (3d Cir. 2008)

(noting that although the tipster never gave his name, “he was not asked to do so”).

We also have often inquired into a tipster’s motivations, and here “the 911

transcripts provide no indication that the caller had iniquitous intentions.” Copening, 506

F.3d at 1247. In particular, it strikes us as improbable that an individual intending to

falsely attribute criminal conduct to another would speak to a 911 operator in the kind of

measured and circumspect manner displayed by the tipster here—who, for example,

freely admitted when he did not know the answer to the 911 operator’s questions. The

length of the call is also relevant: the tipster did not rush to lodge a hasty false allegation

and dash off unidentified. See Johnson, 364 F.3d at 1191 (crediting the length of an

anonymous tipster’s call as an indicium of reliability). If anything, the 911 call suggests

that the tipster possibly acted with an commendable motive—seeking to rid the area

around the Wilhelmina Gill Center of drug-related activity. Specifically, near the end of

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the call the tipster said, “And after this guy, we only have one more supplier, and that’s

it.” Gov’t Ex. 1 at 1:55–2:00. This comment would appear to “bespeak an ordinary

citizen acting in good faith.” Copening, 506 F.3d at 1247. At the very least, nothing in

the call suggests that the tipster had a malicious motive.

Moreover, throughout the call, the tipster provided detailed information about Mr.

Gaines’s appearance, location, and movements. We have said that when a tipster

“provide[s] detailed information about the events he [is] observing,” it is “another

indicium of reliability.” Madrid, 713 F.3d at 1261; see also Conner, 699 F.3d at 1230

(“The number and precision of [a tipster’s] details added to the tip’s reliability.”). We

value detailed tips because “[o]verly generic tips, even if made in good faith, could give

police excessive discretion to stop and search large numbers of citizens.” Johnson, 364

F.3d at 1191. The anonymous tip in this case “did not provide the officers with excessive

discretion to stop and search a large number of citizens.” Sanchez, 519 F.3d at 1214.

Instead, the tipster identified the suspect’s physical appearance and location with a fairly

high degree of specificity. In that way, because “the description’s considerable detail

significantly circumscribed the number of people police could have stopped in reliance on

it,” we deem the tip’s details another indicium of reliability. Johnson, 364 F.3d at 1191.

B

We acknowledge the tipster did not provide the kind of predictive information that

often renders an anonymous tip reliable. In particular, we cannot say that the information

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provided here described “future actions of third parties ordinarily not easily predicted.”

White, 496 U.S. at 332 (quoting Gates, 462 U.S. at 245). Relatedly, at first blush, the tip

here might seem similar to the tip in Florida v. J.L.—the one the Supreme Court held did

not supply reasonable suspicion for a stop. In this case and in J.L., the tipster

communicated to law enforcement that a person of a certain description, wearing certain

clothing, was at a particular location doing something illegal. However, we nevertheless

conclude that the tip here significantly supports a reasonable-suspicion finding and that

J.L. is distinguishable.

First, the Supreme Court has never indicated that an anonymous tipster must

provide corroborated predictive information to support a finding of reasonable suspicion.

See Parker v. Chard, 777 F.3d 977, 980 (8th Cir. 2015) (noting that in J.L. and White the

Supreme Court “did not hold that corroboration of predictive elements is the exclusive

measure of a tip’s reliability”). After all, this inquiry must take into account the totality of

the circumstances, and not solely whether a tipster supplies predictive information that

police corroborate.

Second, since Florida v. J.L., we have repeatedly suggested that police

corroboration of even non-predictive information provided by a tipster—especially in

conjunction with other relevant factors—can be indicative of reliability. See, e.g., Hauk,

412 F.3d at 1189 (“Corroboration of information other than predictive facts, such as the

basis of the informant’s knowledge, the circumstances under which it was obtained, and

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the amount of detail about the alleged criminal activity, can also justify reliance on an

anonymous tip in appropriate circumstances.”); Conner, 699 F.3d at 1230 (finding an

anonymous tipster reliable when police “discovered the black SUV in the precise location

provided by the caller” and “spotted a light-skinned black male in a fuzzy hunting hat,

just as the caller had described”); Chavez, 660 F.3d at 1222 (crediting as an indicium of

reliability the fact that officers verified “that there was a black pickup truck and a white

Cadillac in the parking lot” specifically identified by the tipster); Johnson, 364 F.3d

at 1191 (emphasizing that the tipster’s “descriptions of [the defendants’] appearance and

location” were confirmed by an officer’s observations). This does not mean that,

standing alone, law enforcement corroboration of such non-predictive information can

“be used to confirm the reliability of an anonymous informant for the purpose of

establishing . . . reasonable suspicion.” United States v. Tuter, 240 F.3d 1292, 1297 (10th

Cir. 2001). But, in light of the totality of the circumstances, it is still significant that the

police corroborated non-predictive information provided by the tipster—namely, that a

light-skinned Black man in all red clothing was located at a particular parking lot.3

On this point, we also find it worth mentioning—though it is admittedly a

factor of modest weight—that the off-duty officer radioed to the responding officers

when they arrived on the scene, “that’s him in that white Cadillac.” R., Vol. I, at 137.

The off-duty officer had seen a man fitting Mr. Gaines’s description at the Frank

Williams Center parking lot that morning. Of course, the off-duty officer corroborated

neither predictive information nor criminal activity. But his statement nonetheless helped

corroborate the identity of “the person whom the tipster mean[t] to accuse.” J.L., 529

U.S. at 272.

3

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Furthermore, we conclude that the tip at issue in Florida v. J.L.—upon close

inspection—is significantly different from the one here. Our prior discussion highlights

why. The tipster in this case used the 911 system and was not truly anonymous. Cf. J.L.,

529 U.S. at 268 (recounting as to J.L.’s tip, that “[s]o far as the record reveals, there is no

audio recording of the tip, and nothing is known about the informant”). Moreover, the

tipster here contemporaneously reported his first-hand observations. Cf. id. (noting, as to

J.L.’s tip, that “[s]ometime after the police received the tip—the record does not say how

long—two officers were instructed to respond” (emphasis added)). Furthermore, the

tipster in this case made the tip from a known location. Cf. id. at 270 (noting that the tip

in J.L. came from “an unknown location”). Also, adding to his credibility, the tipster in

this case withheld no information, appeared to have a benign motive, and answered all the

questions put to him (if he could) over a somewhat lengthy call. These factors were not

available to support the tipster’s credibility in J.L.; indeed, “nothing [was] known about

the [tipster].” Id. at 269. Accordingly, J.L. is distinguishable and does not lead us to alter

our conclusion regarding the reliability of the tip here.

Our reasonable-suspicion inquiry is a holistic one—which takes account of the

totality of the circumstances. No single consideration is determinative. Viewed through

this all-encompassing lens, the relevant factors in the anonymous-tipster inquiry here

weigh in favor of a determination that the 911 call was sufficiently reliable to support an

investigatory stop. This is so despite the absence of predictive information.

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C

Importantly, the district court’s reasonable-suspicion determination did not solely

rest on evidence of the anonymous tip. In addition to the tipster’s call, evidence of drugrelated activity in the area of the Wilhelmina Gill Center was a legitimate contributing

factor in creating a reasonable suspicion for the investigatory stop.

Mr. Gaines’s mere “presence in a high-crime area is not, ‘standing alone,’ enough

to provide reasonable suspicion.” United States v. Dennison, 410 F.3d 1203, 1208 (10th

Cir. 2005) (quoting Illinois v. Wardlow, 528 U.S. 119, 124 (2000)). However, “the fact

that conduct occurs in an area known for criminal activity [is an] appropriate factor[] to

consider in determining whether reasonable suspicion exists.” DeJear, 552 F.3d at 1201;

see also United States v. Pena-Montes, 589 F.3d 1048, 1055 (10th Cir. 2009) (noting that

whether a stop occurs “in a high-crime area is a relevant consideration” for a

reasonable-suspicion analysis); Dennison, 410 F.3d at 1208 (acknowledging that a

defendant’s “presence in a high crime area . . . may be a ‘relevant contextual

consideration’” (quoting Wardlow, 528 U.S. at 124)). After all, “officers are not required

to ignore the relevant characteristics of a location in determining whether the

circumstances are sufficiently suspicious to warrant further investigation.” Wardlow, 528

U.S. at 124.

In reaching its reasonable-suspicion determination, the district court partially relied

on significant evidence of drug-related activity near the Wilhelmina Gill Center. Both

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arresting officers testified about this activity. The female officer testified she knew about

“a lot of medical-type calls [for] individuals on PCP, along with complaints of narcotics

sales in the area.” R., Vol. I, at 126 (Trial Test. of Shenee Davis, dated Mar. 8, 2017).

The other (male) officer testified that he has responded to “a lot of narcotics complaints”

around the Wilhelmina Gill Center. Id. at 86 (Trial Test. of Carl Rowland, dated Mar. 8,

2017). He told the court that in the period leading up to the arrest of Mr. Gaines, “[w]e

had [ ] increased contact with individuals under the influence of PCP.” Id. He also

recalled that police sometimes received “multiple [calls] within a few minutes in that

general area [concerning] individuals exhibiting behavior that [suggested] they were

under the influence of PCP.” Id. at 86–87. Furthermore, other evidence presented at trial

confirmed that, in the two months prior to Mr. Gaines’s arrest, police had been called to

the area three times for drug overdoses.

In short, the area around the Wilhelmina Gill Center attracted drug-related activity.

Consequently, a reasonable officer in the shoes of the arresting officers here would have

almost certainly taken this fact into consideration in determining whether Mr. Gaines’s

conduct was sufficiently suspicious to justify an investigatory stop. And we conclude that

the district court properly determined that this evidence of drug-related activity provided

support for the reasonableness of the officers’ stop.

Of course, standing alone, this evidence of drug-related activity would not have

given the officers reasonable suspicion to conduct an investigatory stop of an individual

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in the vicinity of the Wilhelmina Gill Center. See, e.g., Dennison, 410 F.3d at 1208. But,

this evidence did not stand alone. In conjunction with the anonymous tipster’s call, the

area’s reputation for drug-related activity was a “relevant contextual consideration” that

helped create a reasonable suspicion to stop a particular individual—Mr. Gaines. Id.

IV

Based on “the totality of the circumstances and information available to the

officers,” Johnson, 364 F.3d at 1189 (quoting United States v. Lang, 81 F.3d 955, 965

(10th Cir. 1996)), we conclude there was reasonable suspicion justifying an investigatory

stop of Mr. Gaines. We therefore AFFIRM the judgment of the district court.

ENTERED FOR THE COURT

Jerome A. Holmes

Circuit Judge

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PUBLISH

FILED

United States Court of Appeals

Tenth Circuit

UNITED STATES COURT OF APPEALS

March 12, 2019

FOR THE TENTH CIRCUIT

_________________________________

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

No. 17-3270

DESMOND S. GAINES,

Defendant - Appellant.

_________________________________

Appeal from the United States District Court

for the District of Kansas

(D.C. No. 2:15-CR-20078-JAR-1)

_________________________________

Paige A. Nichols, Assistant Federal Public Defender (Melody Brannon,

Federal Public Defender, with her on the briefs), Kansas Federal Public

Defender, Topeka, Kansas, for the Defendant-Appellant.

Stephen A. McAllister, United States Attorney (Carrie N. Capwell,

Assistant United States Attorney, with him on the brief), Office of the

United States Attorney, Kansas City, Kansas, for the Plaintiff-Appellee.

_________________________________

Before TYMKOVICH, Chief Judge, BACHARACH, and McHUGH,

Circuit Judges.

_________________________________

BACHARACH, Circuit Judge.

_________________________________

This appeal stems from a search, which took place after the police

spoke with the defendant, Mr. Desmond Gaines. After a brief exchange,

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Mr. Gaines fled but was soon captured. The police then found cocaine,

marijuana, PCP, drug paraphernalia, over $640, and a handgun. Mr. Gaines

unsuccessfully moved to suppress this evidence. He now appeals, 1 and we

focus on two issues:

1.

The existence of a seizure. Two uniformed police officers

approached Mr. Gaines with flashing roof lights and confronted

him about a report that he was selling PCP. Did this

confrontation entail a seizure? The answer turns on whether a

reasonable person would have felt free to leave or terminate the

encounter. We answer “no” and characterize the encounter as a

seizure.

2.

The attenuation of a possible Fourth Amendment violation.

After effecting a seizure, the police allegedly acquired probable

cause and learned of an outstanding arrest warrant. Did the

development of probable cause or the subsequent discovery of

the arrest warrant attenuate the connection between the seizure

and the evidence? We answer “no,” so introduction of the

evidence can’t be supported by attenuation of a Fourth

Amendment violation.

Given our conclusions on these two issues, we vacate the denial of Mr.

Gaines’s motion to suppress.

I.

The Kansas City police approach Mr. Gaines in marked police

cars and question him about a report that he is selling PCP.

One morning, the police in Kansas City, Kansas, received a 911 call

reporting that a man dressed in red had just sold drugs in a parking lot.

After a trial, Mr. Gaines was convicted of (1) possessing cocaine

base, PCP, and marijuana with intent to distribute, (2) possessing a firearm

in furtherance of a drug-trafficking crime, and (3) possessing a firearm

after a felony conviction. But the appeal involves only the ruling on Mr.

Gaines’s motion to suppress.

1

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Based on this information, police officers Carl Rowland and Shenee Davis

responded.

The police officers pulled into the parking lot in two separate police

cars and turned on their roof lights. 2 They parked behind a car in which a

man in red clothing (Mr. Gaines) was seated. Officer Rowland gestured for

Mr. Gaines to get out of the car. He did, and Officer Rowland confronted

Mr. Gaines with the report that he was selling drugs. The police officers

soon observed an open container of alcohol and smelled PCP. When they

said they were going to detain Mr. Gaines, he grabbed a pouch from his car

and fled. The police caught Mr. Gaines and discovered the evidence that

underlies this appeal.

II.

Was there a seizure?

The threshold issue is applicability of the Fourth Amendment. This

amendment applies if the police had seized Mr. Gaines; it doesn’t if the

encounter had been consensual. United States v. Reeves, 524 F.3d 1161,

1166 (10th Cir. 2008). The district court characterized the entire encounter

as consensual. To determine whether the encounter was consensual or

constituted a seizure, we apply a dual standard of review, using the clearerror standard for the district court’s findings of historical fact and de

In videos of the stop, it is hard to tell whether Officer Davis’s roof

lights were on. But Officer Davis testified in the suppression hearing that

she had activated her roof lights.

2

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novo review for the court’s legal conclusions. United States v. Roberson,

864 F.3d 1118, 1121 (10th Cir. 2017). 3

The existence of a seizure involves a matter of law. See United States

v. Salazar, 609 F.3d 1059, 1064 (10th Cir. 2010) (stating that determining

“when the seizure occurred . . . is a legal [question]”). On this matter of

law, we consider whether Mr. Gaines yielded to a police officer’s show of

authority. California v. Hodari D., 499 U.S. 621, 626–27 (1991). To

answer this question of law, we apply an objective test, considering

whether a reasonable person would have felt free to leave or terminate the

encounter. Florida v. Bostick, 501 U.S. 429, 436 (1991). We apply this

objective test to the historical facts, which are largely undisputed. Even if

a reasonable person would not have felt free to leave, a seizure would

When considering whether the district court clearly erred, we have

often said that we view the evidence in the light most favorable to the

district court’s ruling or to the prevailing party. See United States v.

Salazar, 609 F.3d 1059, 1063 (10th Cir. 2010) (favorable to the prevailing

party); United States v. Valenzuela, 365 F.3d 892, 896 (10th Cir. 2004)

(favorable to the district court’s determination). Mr. Gaines challenges

these statements, urging us to jettison our existing approach. But one panel

of this court can’t overrule another panel. United States v. Doe, 865 F.3d

1295, 1298 (10th Cir. 2017). So we continue to view the evidence in the

light most favorable to the district court’s ruling or to the prevailing party.

E.g., United States v. Cone, 868 F.3d 1150, 1152 (10th Cir. 2017).

3

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occur only if the suspect yielded to a police officer’s show of authority.

Hodari D., 499 U.S. at 626–27.

So let’s consider how a reasonable person would have felt, facing

the same circumstances that Mr. Gaines confronted. The encounter began

with Mr. Gaines sitting in his car in a parking lot. Two uniformed police

officers arrived in marked police cars, both flashing their roof lights.

Would a reasonable person have felt free to leave? Perhaps. But the

flashing roof lights, 4 two marked police cars, and two uniformed officers 5

would undoubtedly have cast at least some doubt on a reasonable person’s

belief in his or her freedom to leave.

This doubt would likely have intensified in Kansas (where Mr.

Gaines was stopped) because of Kansas’s traffic laws. See Berkemer v.

McCarty, 468 U.S. 420, 436–37 (1984) (considering the laws of most

states, which criminalize the failure to heed a police officer’s signal to

See 4 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth

Amendment § 9.4(a), at 598–99 (5th ed. 2012) (stating that the “use of

flashing lights as a show of authority . . . will likely convert the event into

a Fourth Amendment seizure”).

4

See United States v. Williams, 615 F.3d 657, 660 (6th Cir. 2010)

(“Williams was seized: a reasonable person would not have felt free to

leave upon being approached by two uniformed officers in a marked car,

singled out of a group, and immediately accused of a crime.”); see also

United States v. Lopez, 443 F.3d 1280, 1284 (10th Cir. 2006) (stating that

the presence of uniformed officers bears on whether a police encounter

constitutes a seizure).

5

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stop, as informative on whether the defendant reasonably believed that he

wasn’t free to leave). Under Kansas law, motorists must stop whenever a

police officer flashes his or her emergency lights. Kan. Stat. Ann. § 81568(a)(1), (d).

The district court minimized the impact of the flashing roof lights,

crediting testimony by the police officers that they had activated their

lights only because their cars were blocking a lane of traffic. But the

officers’ subjective intent had little bearing on whether a reasonable

person would have thought that he or she could leave. See Brendlin v.

California, 551 U.S. 249, 260–61 (2007) (“The intent that counts under the

Fourth Amendment” is the intent conveyed to the suspect, and the court

does not consider the officers’ “subjective intent when determining who is

seized.”); see also United States v. Mendenhall, 446 U.S. 544, 554 n.6

(1980) (concluding that a law-enforcement agent’s “subjective intention

. . . to detain the respondent, had she attempted to leave, is irrelevant

except insofar as that may have been conveyed to the respondent”).

But let’s assume that a reasonable person would have felt free to

drive away at this point. 6 One of the police officers then exited his car and

If the police officers had followed and reactivated their roof lights,

Kansas law would have required the person to pull over. See Kan. Stat.

Ann. § 8-1568(a)(1), (d); State v. Morris, 72 P.3d 570, 577 (Kan. 2003).

6

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gestured for Mr. Gaines to get out of the car. Here is what our reasonable

person would have seen:

At a minimum, the police officer’s gesture would have cast further doubt

on a reasonable person’s belief that he or she was free to drive away. See

Santos v. Frederick Cty. Bd. of Comm’rs, 725 F.3d 451, 462 (4th Cir.

2013) (holding that two deputy sheriffs’ gestures to stay seated constituted

a seizure).

But let’s assume that a reasonable person would still have felt free to

leave. As Mr. Gaines exited the car, one police officer stood just a few feet

away and said that they had come because of a report that Mr. Gaines was

“up here selling some dope.” The police officer then asked Mr. Gaines

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whether he had been selling “wet” (street-language for PCP). Meanwhile,

another uniformed police officer circled the car, looking inside. 7

Would a reasonable person have felt free to leave? At a minimum, the

accusatory question would have added to the reasonable person’s doubt

about his or her freedom to return to the car and drive away. See United

States v. Glass, 128 F.3d 1398, 1407 (10th Cir. 1997) (stating that

“particularized focus” on an individual “is certainly a factor” to consider

when determining whether a seizure took place). 8

At a hearing, a prosecutor told the district court that the police

officers had “encircle[d] the location” because the situation was

“heightened.” R., vol. I at 372.

7

We have sometimes cautioned that the mere existence of

incriminating questions is not relevant to the existence of a seizure. See

United States v. Little, 18 F.3d 1499, 1506 (10th Cir. 1994) (en banc);

United States v. Ringold, 335 F.3d 1168, 1173 (10th Cir. 2003). We do not

question these cautionary statements. But here the police officer didn’t just

ask incriminating questions; he began by explaining that he had come (with

roof lights flashing) because of a report that this person was selling drugs

8

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These were the five circumstances that confronted Mr. Gaines:

1.

He was sitting in his car when two marked police cars

approached and stopped right behind him with their roof lights

flashing.

2.

Both police officers were uniformed.

3.

One police officer gestured for Mr. Gaines to get out of his car.

4.

Mr. Gaines exited his car, and one of the police officers said

that they had come based on a report that he was selling PCP in

the parking lot.

5.

While one police officer told Mr. Gaines that someone had

accused him of selling PCP, the other police officer circled Mr.

Gaines’s car and looked inside.

in the parking lot. See United States v. Smith, 794 F.3d 681, 686 (7th Cir.

2015) (“The line between a consensual conversation and a seizure is

crossed when police convey to an individual that he or she is suspected of

a crime.”).

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Viewing these circumstances as a whole, we conclude that (1) the police

officers showed their authority and (2) no reasonable person would have

felt free to leave.

Still, the encounter would constitute a seizure only if Mr. Gaines had

yielded to the show of authority. He ultimately fled, so the government

denies that Mr. Gaines yielded. We disagree. One officer gestured for Mr.

Gaines to get out of his car, and he did. When Mr. Gaines was asked

questions, he responded. See United States v. Camacho, 661 F.3d 718, 726

(1st Cir. 2011) (stating that a suspect “submitted” to a police officer’s

“show of authority by responding to his questions”). And when Mr. Gaines

was asked for his identification, he opened his car trunk to look for his

identification.

Mr. Gaines then fled. But by that point, he had already yielded to the

show of authority. We addressed a similar issue in United States v.

Morgan, 936 F.2d 1561 (10th Cir. 1991). There the defendant exited his

car and fled after asking the officer: “What do you want?” Morgan, 936

F.2d at 1566. We considered this single question enough to conclude that

the defendant had yielded to authority. Id. at 1567. By comparison, Mr.

Gaines had done more to yield: getting out of his car, answering the

officer’s questions, and looking for his identification.

We thus conclude that Mr. Gaines was seized.

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Even if the seizure itself had been improper, would the

attenuation doctrine permit introduction of the subsequently

discovered evidence?

The government argues that even if the seizure had been improper, it

would have had only an attenuated connection to the later discovery of

evidence. This argument is based on the attenuation doctrine. Under this

doctrine, a constitutional violation leading to the discovery of evidence

does not require exclusion when only an attenuated connection exists

between the constitutional violation and discovery of the evidence. Utah v.

Strieff, 136 S. Ct. 2056, 2061 (2016).

To invoke the attenuation doctrine, the government bears a “heavy

burden.” United States v. Fox, 600 F.3d 1253, 1259 (10th Cir. 2010).

Trying to satisfy this burden, the government alleges two attenuating

circumstances:

1.

An outstanding arrest warrant existed for Mr. Gaines prior to

the encounter.

2.

The police officers obtained probable cause to search the car

based on the smell of PCP and observation of an open container

of alcohol.

The district court found attenuation based on the outstanding arrest

warrant. The court didn’t address probable cause, but the government

points to probable cause as an alternative basis to affirm the finding of

attenuation. In our view, attenuation cannot be based on either the arrest

warrant or the eventual development of probable cause.

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Arrest Warrant

When the police officers searched the car, they did not know of any

outstanding arrest warrants. But shortly after conducting the search and

arresting Mr. Gaines, the police learned that he had an outstanding arrest

warrant. Based on the discovery of the warrant, the district court found

that the attenuation doctrine would allow introduction of the evidence even

if the initial encounter had constituted an unlawful seizure. We disagree

because (1) the execution of the arrest warrant might not have allowed a

search of the car and (2) two of the attenuation doctrine’s three factors

support exclusion.

We again apply a dual standard of review, using the clear-error

standard for findings of historical fact and de novo review for legal

conclusions. Ornelas v. United States, 517 U.S. 690, 699 (1996).

The arrest warrant might have led to an arrest, and arresting Mr.

Gaines would have allowed the police to conduct a search incident to an

arrest. Chimel v. California, 395 U.S. 752, 762–63 (1969). For a search

incident to an arrest, the police could search Mr. Gaines’s person and

places within his immediate control at the time of the search. See United

States v. Edward, 632 F.3d 633, 643 (10th Cir. 2001); see also United

States v. Knapp, No. 18-8031, slip op. at 12, ___ F.3d ___ (10th Cir. Mar. 5,

2019) (to be published) (“We therefore join the Third Circuit in

interpreting Gant as focusing attention on the arrestee’s ability to access

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weapons or destroy evidence at the time of the search, rather than the time

of the arrest, regardless of whether the search involved a vehicle.”).

Here, the evidence at issue was in Mr. Gaines’s car. If the police had

arrested Mr. Gaines based on the arrest warrant, he might or might not

have been within reach of the car at the time of the search. If Mr. Gaines

was not within reach, the police could not have searched the car incident to

the arrest. See Arizona v. Gant, 556 U.S. 332, 343 (2009) (stating that the

police can “search a vehicle incident to a recent occupant’s arrest only

when the arrestee is unsecured and within reaching distance of the

passenger compartment at the time of the search”).

At oral argument, the government theorized for the first time that the

police could have impounded the car and conducted an inventory search.

Though the district court didn’t consider these theories, we can ordinarily

consider alternative arguments to affirm if the record is adequately

developed. United States v. Bagley, 877 F.3d 1151, 1154 (10th Cir. 2017).

Here, however, the government did not present this contention until oral

argument. We typically decline to consider an appellee’s contentions raised

for the first time in oral argument. See Adamscheck v. Am. Family Mut. Ins.

Co., 818 F.3d 576, 588 (10th Cir. 2016) (rejecting an appellee’s contention

to affirm on an alternative ground because the contention was raised for

the first time at oral argument).

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Even if we were to consider the government’s new contention,

however, we would reject it. To conduct an inventory search, the

government had to prove that the police could lawfully impound Mr.

Gaines’s car. See United States v. Sanders, 796 F.3d 1241, 1244 (10th Cir.

2015) (“The government bears the burden of proving that its impoundment

of a vehicle satisfies the fourth Amendment.”). To satisfy this burden, the

government had to show that the police had standardized criteria justifying

impoundment and a legitimate community-caretaking reason to impound

the car. Id. at 1248.

Here the government presented no evidence of standardized criteria

for impoundment. Even with such evidence, however, the police could

impound the car only upon proof of a community-caretaking rationale. For

example, impoundment might have been permissible if the car had

obstructed traffic or imperiled public safety. South Dakota v. Opperman,

428 U.S. 364, 368–69 (1976). But we lack any evidence that the car was

illegally parked or imperiling public safety. 9

But let’s generously assume that the police could have searched the

car based on (1) discovery of the arrest warrant or (2) impoundment of the

After arresting Mr. Gaines, the police didn’t impound the car.

Instead, the police gave the keys to Mr. Gaines’s acquaintance, who

delivered the car to Mr. Gaines’s mother.

9

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car. Even with this assumption, we could apply the attenuation doctrine

only after considering three factors:

1.

the “temporal proximity” between the Fourth Amendment

violation and discovery of the evidence

2.

the presence of “intervening circumstances”

3.

the “purpose and flagrancy” of the officer’s wrongdoing

Brown v. Illinois, 422 U.S. 590, 603–04 (1975). The first two factors favor

suppression of the evidence; only the third arguably favors the

government.

The first factor (temporal proximity) supports Mr. Gaines because

the evidence was discovered only minutes after the seizure. See Utah v.

Strieff, 136 S. Ct. 2056, 2062 (2016).

The third factor (the purpose and flagrancy of the police wrongdoing)

supports the government. The police officers arguably should have known

that the encounter constituted a seizure. But the district court found that

the police had been negligent (at worst). This finding was reasonable

because the issue of reasonable suspicion is close. (We discuss this issue

below.) So if the search had been unlawful, the police would have been (at

worst) negligent.

We also consider the second factor (the presence of intervening

circumstances between the allegedly unlawful stop and discovery of the

evidence). This factor supports Mr. Gaines because the arrest warrant

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wasn’t discovered until after the search. See United States v. Gaines, 668

F.3d 170, 175 (4th Cir. 2012) (concluding that when evidence is discovered

prior to the defendant’s independent criminal act, this criminal act cannot

serve as “an intervening event” to purge the taint of an unlawful police

action); United States v. Beauchamp, 659 F.3d 560, 574 (6th Cir. 2011)

(concluding that no intervening circumstances existed because the new

ground for the search had arisen after discovery of the evidence); United

States v. Camacho, 661 F.3d 718, 730–31 (1st Cir. 2011) (same).

The government contends that if Mr. Gaines had not fled, the police



would have learned of the arrest warrant before searching the

car and



might have impounded the car.

For the sake of argument, we can assume that the government is right. But

the attenuation doctrine addresses events as they actually occurred, not as

they might have transpired. Thus, the arrest warrant and potential

impoundment do not attenuate the connection between a possible Fourth

Amendment violation and discovery of the evidence.

B.

Probable Cause

The government also insists that the development of probable cause

would have triggered the attenuation doctrine. We reject this argument.

According to the government, the police officers obtained probable

cause when they smelled PCP and observed an open container of alcohol in

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Mr. Gaines’s car. But even if probable cause existed, it would have flowed

directly from the seizure. See Wong Sun v. United States, 371 U.S. 471,

487–88 (1963). So the discovery of evidence would still be traced directly

to the possible Fourth Amendment violation. See id. Given this direct

causal connection, the eventual development of probable cause would not

trigger the attenuation doctrine. 10

IV.

Was the police’s suspicion reasonable?

Even though Mr. Gaines was seized, the seizure would have been

permissible if the police had a reasonable ground to suspect Mr. Gaines of

a crime. See United States v. Cortez, 449 U.S. 411, 417–18 (1981). The

district court didn’t address the reasonableness of the police’s suspicion.

So our threshold decision is whether to decide this issue or remand for the

district court to address this issue in the first instance.

Mr. Gaines asks us to remand for the district court to decide the issue

in the first instance. We grant this request. The inquiry on reasonable

suspicion ordinarily entails a fact-intensive inquiry better suited to the

This argument might succeed in other cases when a suspect commits

a new crime during an unlawful seizure. For example, if a suspect resists

arrest during the seizure, the new crime of resisting arrest might arguably

attenuate the link between the seizure and a subsequent search. See United

States v. Bailey, 691 F.2d 1009, 1018 (11th Cir. 1982) (attenuation when

the defendant resisted arrest during an unlawful stop because resisting

arrest constituted a “new, distinct crime”). We need not address this issue

because the government doesn’t allege the commission of a new, distinct

crime after the search.

10

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district court than to our court. See United States v. Esquivel-Rios, 725

F.3d 1231, 1238 (10th Cir. 2013) (Gorsuch, J.) (discussing the benefit of

remanding so that the district court could decide reasonable suspicion in

the first instance); United States v. Hauk, 412 F.3d 1179, 1186 (10th Cir.

2005) (referring to reasonable suspicion as a “fact-intensive” issue). And

here, the parties disagree on some potentially material aspects of the

inquiry, such as



whether the 911 caller implied that he or she had observed a

drug sale and



whether either police officer had known of past drug sales in

the area where Mr. Gaines was located.

The issue is also close. The police learned of Mr. Gaines through an

anonymous tip, and the Supreme Court concluded in Florida v. J.L., 529

U.S. 266 (2000) that an anonymous tip hadn’t supplied reasonable

suspicion. J.L., 529 U.S. at 271. But the Supreme Court also reached the

opposite conclusion in Navarette v. California, 572 U.S. 393 (2000). There

the Court relied partly on the use of the 911 system, the contemporaneous

nature of the call with the reported crime, and the specificity of the

information. Navarette, 572 U.S. at 398–403. These factors arguably apply

here. But in J.L., the Court also suggested the importance of predictive

information and corroboration, and both are arguably missing here. J.L.,

529 U.S. at 270–71.

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Given the closeness of the issue and the district court’s superior

resources for fact-finding, we grant Mr. Gaines’s request to remand for the

district court to decide whether the police had reasonable suspicion.

V.

Did Mr. Gaines abandon the black pouch?

When Mr. Gaines fled, he threw a black pouch onto the roof of a

building. The police later found the pouch, and it contained illegal drugs,

cash, and drug paraphernalia. All of this evidence was introduced at the

trial. Mr. Gaines alleges that the evidence should have been excluded, and

the government contends that Mr. Gaines abandoned the pouch.

The district court didn’t address the issue, and the record on

abandonment is inadequately developed. We therefore can’t consider

abandonment as an alternative ground for affirmance. See p. 13, above. 11

VI.

Conclusion

The police effected a seizure when two uniformed police officers

pulled behind Mr. Gaines in marked police cars, using their roof lights and

Mr. Gaines argues that the government waived its abandonment

argument by failing to raise it in district court. For this argument, Mr.

Gaines relies on United States v. Hernandez, 847 F.3d 1257, 1262 (10th

Cir. 2017), and United States v. Verner, 659 F. App’x 461, 466–68 (10th

Cir. 2016) (unpublished). In these cases, however, the government was the

appellant. Hernandez, 847 F.3d at 1260; Verner, 659 F. App’x at 462. And

we ordinarily allow the government to present new arguments for

affirmance when the district court record is adequately developed. See

p. 13, above (citing United States v. Bagley, 877 F.3d 1151, 1154 (10th

Cir. 2017)).

11

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pointedly telling Mr. Gaines that they had come because of a report that he

was selling drugs in the parking lot. After conducting the search, the police

learned of an outstanding warrant and arguably obtained probable cause

during their discussion with Mr. Gaines. But neither the arrest warrant nor

the later existence of probable cause attenuate the causal connection

between the seizure and discovery of the evidence. We thus vacate the

denial of Mr. Gaines’s motion to suppress.

An issue remains on the existence of reasonable suspicion. This issue

is better suited for the district court to decide in the first instance. We thus

remand for consideration of the issue involving reasonable suspicion. 12

On remand, the district court is also free to consider the

government’s argument involving abandonment of the black pouch. The

issue of abandonment is fact-intensive and better suited for the district

court to decide on a fuller record. See, e.g., United States v. Driskill, No.

98-6331, 1999 WL 730954, at *2 (10th Cir. Sept. 20, 1999) (unpublished)

(“Whether a defendant ‘abandoned’ property in the Fourth Amendment

sense is a fact-intensive determination which would ordinarily require an

adequately developed record.”).

12

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17-3270, United States v. Gaines

TYMKOVICH, CJ., dissenting.

I would affirm the district court because Officers Rowland and Davis had

reasonable suspicion to perform a brief investigative stop. And Officer Rowland quickly

gained probable cause to arrest Gaines based on the open container plainly visible inside

Gaines’s vehicle. Although the majority thoroughly and persuasively analyzes the

existence of a seizure and the applicability of the attenuation doctrine, I would not reach

these two issues. I therefore dissent.

I see no need to remand for the district court to determine reasonable suspicion,

despite the district court not reaching the issue below. The government squarely

presented the issue to the district court and developed a detailed record regarding the

officers’ knowledge and observations. And based on this record, the officers had

reasonable suspicion to detain Gaines briefly while they investigated possible criminal

activity.

We may affirm on an alternative ground when the facts in the record are

sufficiently developed and clear. See United States v. Springer, 875 F.3d 968, 981 (10th

Cir. 2017) (“[W]e are free to affirm a district court decision on any grounds for which

there is a record sufficient to permit conclusions of law, even grounds not relied upon by

the district court.” (internal quotation marks omitted)). And we should do so when, as

here, an issue will almost certainly return on appeal. I would therefore exercise our

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discretion to affirm on this alternative ground, which is more than “adequately supported

by the record.” Davis v. Roberts, 425 F.3d 830, 834 (10th Cir. 2005).

The Fourth Amendment permits brief investigative stops when law enforcement

officers 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).

Whether officers have reasonable suspicion depends “upon both the content of

information possessed by police and its degree of reliability.” Alabama v. White, 496

U.S. 325, 330 (1990). The standard takes into account “the totality of the circumstances,”

Cortez, 449 U.S. at 417—all the information officers possessed. Although a mere hunch

does not create reasonable suspicion, the level of suspicion required is “considerably less

than proof of wrongdoing by a preponderance of the evidence.” United States v.

Sokolow, 490 U.S. 1, 7 (1989).

In this case, the officers responded to a 911 call that exhibited adequate indicia of

reliability. Combined with their knowledge of PCP-related drug activity at the address

and in the immediate area, a brief investigative stop was fully justified.

The Supreme Court has noted that “[a]n anonymous tip alone seldom demonstrates

the informant’s basis of knowledge or veracity,” Navarette v. California, 572 U.S. 393,

397 (2014), so an anonymous tip is consequently seldom enough for reasonable suspicion.

But the Court has held, “under appropriate circumstances, an anonymous tip can

demonstrate sufficient indicia of reliability to provide reasonable suspicion to make [an]

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investigative stop.” Id. (internal quotation marks omitted). Thus, the Court has held that

an anonymous tip can suffice for reasonable suspicion, given some indicia of reliability,

though generally some additional information is needed. In this case we have both.

The Supreme Court has plainly held that not all anonymous tips give police

reasonable suspicion to make an investigative stop. In Florida v. J.L., 529 U.S. 266

(2000), police received an anonymous phone call alleging that “a young black male

standing at a particular bus stop and wearing a plaid shirt was carrying a gun,” id. at 268.

The call itself did not exhibit any signs of being reliable—there was “no audio recording

of the tip, and nothing [was] known about the informant”—so “[a]part from the tip, the

officers had no reason to suspect” the young man of any illegal conduct. Id. Under these

circumstances, the Court unanimously held that the officers lacked reasonable suspicion

to frisk the defendant for weapons.

More recently, however, the Supreme Court has under different circumstances

found an anonymous tip sufficient under the Fourth Amendment. See Navarette, 572

U.S. at 393. The police in Navarette received a 911 emergency call stating that a vehicle

had just run the caller off the road. The caller provided the dispatcher with the license

plate number, which police used to locate and stop the vehicle. The Court found three

factors especially relevant: the tipster (1) “claimed eyewitness knowledge of the alleged

dangerous driving,” (2) “reported the incident soon after she was run off the road,” and

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(3) “use[d] the 911 emergency system.” Id. at 399–400; see also United States v. Chavez,

660 F.3d 1215, 1222 (10th Cir. 2011) (laying out similar considerations).

Here, the informant appears to have personally observed Gaines conducting a drug

transaction, but we cannot assume that fact when the record is inconclusive. The majority

is correct that this is a disputed fact because the caller never explicitly says how he knows

of the illegal conduct. The caller was certainly personally observing Gaines while on the

phone with the 911 operator and noted that Gaines “just made about 20 dollars.” Gov’t

Ex. 1 at 0:46–48. And he knew how Gaines was dressed and where he had parked his

car. But we ultimately cannot be sure the tipster was in a similar position to the caller in

Navarette.

We have no need to rely on this disputed fact, however, because the claim of

eyewitness knowledge is only one indicium of reliability. It cannot be dispositive in

either direction because officers have even less ability to confirm a tipster’s claim of

personal knowledge than other aspects of an anonymous call. And the other two relevant

considerations are present. The caller made a “contemporaneous report” of his

observations of Gaines’s activities, criminal or not, and the caller used the 911 system.

Navarette, 572 U.S. at 399–400. The anonymous call also contained several other indicia

of reliability.

The anonymous tipster described his observations to the emergency operator as he

saw them, stating clearly, “I’m watching him right now.” Gov’t Ex. 1 at 1:39–41. This

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information is the “sort of contemporaneous report [that] has long been treated as

especially reliable.” Navarette, 572 U.S. at 399. This is because “substantially

contemporaneity of event and statement negate the likelihood of deliberate or conscious

misrepresentation.” Id. at 400 (citing Advisory Committee’s Notes on rule of evidence

803(1), which describes “the rationale for the hearsay exception for ‘present sense

impression[s]’”). Granted, the caller here does not describe any criminal activity

contemporaneously with his observations. This weakens the reliability of the criminal

allegations. But the contemporaneousness of the caller’s noncriminal information

increases the overall reliability of the tip because the tipster reported mostly present sense

impressions, which “weigh[s] in favor of the caller’s veracity.” See id. (emphasis added).

And an anonymous caller’s veracity is at least part of the overall reliability inquiry.

Also significant is the caller’s use of the 911 emergency system. As the Supreme

Court reasoned in Navarette, “A 911 call has some features that allow for identifying and

tracing callers, and thus provide some safeguards against making false reports with

immunity.” Id. For instance, a recorded call “provides victims with an opportunity to

identify the false tipster’s voice and subject him to prosecution,” and FCC regulations

prohibit carriers from allowing callers to “block call recipients from obtaining their

identifying information.” Id. at 400–01. This does not “suggest that tips in 911 calls are

per se reliable,” but it does mean that a tipster’s use of the 911 system is “one of the

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relevant circumstances that, taken together, justified the officer’s reliance on the

information reported in the 911 call.”1 Id. at 401.

In this case, moreover, we have several other indicia of reliability. First, the caller

told the 911 operator where he was. His first words were, “Uh yes, I’m down here at uh

Frank Gill Center . . . Frank Williams Center.” Gov’t Ex. 1 at 0:02–07. He later

confirmed this location by exiting the building briefly to verify and report the exact

address where he was located. See United States v. Madrid, 713 F.3d 1251, 1260 (10th

Cir. 2013) (“giving the address” where the crime took place and the caller’s own location

“was at least an indicium of reliability”) (internal quotation marks omitted). This,

combined with the use of the 911 emergency system, jeopardized his anonymity, which

created a “disincentive for making false allegations.” United States v. Jenkins, 313 F.3d

549, 554 (10th Cir. 2002); see also United States v. Copening, 506 F.3d 1241, 1247 (10th

Cir. 2007) (“The fact the caller provided authorities some basis for discovering his

identity makes it less likely his tip was phony.”).

Second, the caller spent over two minutes on the phone with the 911 operator and

answered every question put to him. When the operator asked what type of car Gaines

was driving, the caller answered honestly that he did not know but continued, “I can tell

Gaines’s counsel at oral argument contended that a 911 call does not make a tip

more reliable because tipsters may use burner phones or other methods to hide detection.

But this was no more true in 2015 when this incident occurred than in 2014 when the

Supreme Court decided Navarette.

1

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ya if you wait.” Gov’t Ex. 1 at 1:36–37. He also took the time to verify the address of the

building where the police needed to go.

Third, the caller did not decline to give his name; the 911 operator simply never

asked. This is certainly an indicium of reliability. See Madrid, 713 F.3d at 1260 (finding

significant that “the 911 operator never asked the caller for his name or other identifying

information and there [was] no reason to believe he would not have provided this

information if requested”); United States v. Torres, 534 F.3d 207, 212 (3d Cir. 2008)

(same). Again, these considerations do not make tips reliable per se. But a reasonable

officer could find an anonymous tip fairly credible when the caller reveals where he is

located, jeopardizing his anonymity; does not decline to give any information, especially

identifying information; and does not seem in any hurry to make an allegation and hang

up.

The officers also had information beyond the anonymous (yet sufficiently reliable)

tip on which to rely. They had first-hand officer observation and knowledge. The

officers knew which person in the parking lot had been accused of drug dealing: another

officer, Officer Wilcox, who at the time was off-duty at the Center, radioed in that the

man getting into the Cadillac was the person who had been standing on the street corner

dressed in all red when the tipster called. Thus, the officers could be confident that

Gaines was the person the caller had accused of criminal activity. See Cortez, 449 U.S. at

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417–18 (officers must have “a particularized and objective basis for suspecting the

particular person stopped of criminal activity” (emphasis added)).

In addition, the officers had personal knowledge of drug, and specifically PCPrelated, activity in the immediate area of the Wilhelmina Gill Center. See United States v.

DeJear, 552 F.3d 1196, 1201 (10th Cir. 2009) (“[T]he fact that conduct occurs in an area

known for criminal activity [is an] appropriate factor[] to consider in determining whether

reasonable suspicion exists.”). Officer Rowland testified at length at the suppression

hearing regarding his knowledge of drug activity near the Center. Officer Davis also

testified that she was aware of “a lot of medical-type calls of individuals on PCP, along

with complaints of narcotics sales in the area.” R., Vol. I at 192.

Gaines now claims that the two officers’ knowledge of drug activity at the Center

and the immediate area is a disputed issue of fact that must be resolved by the district

court. But the officers’ testimony that each was aware of this drug activity is

unequivocal—and unrefuted.

Officer Rowland laid foundation for a government exhibit that revealed eight

police reports to the exact address for drug-related medical treatment that calendar year.

The police reports confirm officers had been called to the address for drug overdoses

three times in the two months prior to Gaines’s arrest. Two of those reports specifically

mention that the person receiving treatment had taken or had likely taken PCP, the

specific drug the anonymous tipster identified.

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Officer Rowland also testified extensively about his personal knowledge of these

events. He told the court he had personally “responded to calls for service” in the

immediate area of the Wilhelmina Gill Center for various things but certainly for “a lot of

narcotics complaints.” R., Vol. I at 151–52, 154. The officer testified that leading up to

the day of the arrest “[w]e had an increased contact with individuals under the influence

of PCP.” Id. at 152. He continued, police received “[n]umerous medical calls,

sometimes multiple within a few minutes in that general area of individuals exhibiting

behavior that they were under the influence of PCP . . . . So we would usually respond,

whether it be a police call or a medical call.” Id.

We may rely on this record evidence based on the district court’s findings of fact

and the record evidence. The district court specifically found that Officer Rowland “was

familiar with the Wilhelmina Gill Center and the surrounding area” and “had responded

to several drug-related calls” at the Center. R., Vol. I at 136. The court also found that

“officers had been dispatched to the Wilhelmina Gill Center eight times . . . for medical

calls involving reactions to PCP or other substances.” Id. It is true that the district court

did not specifically find that the officers were aware of the PCP-related medical calls

established in the police records. But Gaines did not challenge the officers’ assertion of

this personal knowledge at the suppression hearing; he produced no evidence to

contradict the officers’ testimony and barely questioned them on the issue during crossexamination. Id. at 178–80, 195. The cross-examinations on this point were only to

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clarify that not all the drug-activity of which the officers knew was specifically PCP

related.

The suppression hearing record therefore shows that (1) Officers Rowland and

Davis personally responded to service calls in the area of the Center, especially for

narcotics complaints; and (2) at least Officer Rowland was aware of the eight police

reports he sponsored into evidence of drug related activity at the same address as the

arrest happened, including the two service calls for PCP-related drug activity at the

Center within two months of Gaines’s arrest. This is sufficient evidence to conclude that

the officers had additional knowledge, beyond the anonymous phone call, to raise

reasonable suspicion that Gaines was selling PCP in the parking lot of the Wilhelmina

Gill Center.

Thus, the officers reasonably relied on the anonymous tip in conjunction with their

own knowledge because together “the informant’s story and the surrounding facts

possessed an internal coherence that gave weight to the whole.” United States v. Brown,

496 F.3d 1070, 1078–79 (10th Cir. 2007). So even “[e]xercising the significant

skepticism and careful scrutiny required in the anonymous-informant context,” Copening,

506 F.3d at 1247 (internal quotation marks omitted), I would affirm on grounds of

reasonable suspicion.

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

UNITED STATES OF AMERICA,

Plaintiff,

v.

Case No. 15-CR-20078-JAR

DESMOND S. GAINES,

Defendant.

MEMORANDUM AND ORDER

This matter is before the Court on Defendant Desmond Gaines’ Motion to Suppress

Evidence (Doc. 46). Defendant contends that evidence seized by law enforcement from an

encounter on August 24, 2015 was seized in violation of his Fourth Amendment rights. This

Court previously denied Defendant’s motion on the grounds that Defendant’s encounter with law

enforcement was consensual.1 The Tenth Circuit reversed, finding that Defendant was seized,

and remanded to this Court to decide whether this seizure was based on reasonable suspicion.2

The Government has filed a Memorandum of Law,3 and Defendant has responded.4 For the

reasons discussed below, the Court finds that the officers had reasonable suspicion to seize

Defendant, and Defendant’s Motion to Suppress (Doc. 46) is denied.

I.

Factual Background

These findings are based on the testimony and evidence admitted at the hearing before

this Court on March 8, 2017 and the subsequent findings of the Tenth Circuit Court of Appeals

1

Doc. 53.

2

Doc. 155.

3

Doc. 159.

4

Doc. 160.

Appendix C

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in United States v. Gaines.5

On August 24, 2015, Officer Carl Rowland and Officer Shenee Davis, who were both

patrol officers with the Kansas City, Kansas Police Department, were dispatched to the

Wilhelmina Gill Center, at 645 Nebraska Ave. Kansas City, Kansas, following an anonymous

911 call.6 The unidentified caller stated there was a “light-skinned” man in all red clothing

“selling wet,” which is otherwise known as phencyclidine (“PCP”), and that “[the man] just

made about twenty dollars.” The caller stated that the man was in the parking lot of the

Wilhelmina Gill Center sitting in a white car, but he did not know the type of car that the man

was driving. The caller stated that the caller was located at the Wilhelmina Gill Center when he

observed the man.

At the hearing, Officer Rowland testified that he was familiar with the Wilhelmina Gill

Center and the surrounding area. Officer Rowland testified that he had personally responded to

several drug-related calls at the Wilhelmina Gill Center, and leading up to the arrest on August

24, “we had an increased contact with individuals under the influence of PCP” around the

Wilhelmina Gill Center.7 In fact, police dispatch records showed that between March and

August 2015, officers had been dispatched to the Wilhelmina Gill Center eight times for

individuals exhibiting reactions to PCP or other substances.8 Officer Davis similarly testified

that, “we had a lot of medical-type calls of individuals on PCP, along with complaints of

narcotics sales in the area.”9

5

918 F.3d 793 (10th Cir. 2019).

6

Gov’t Ex. 1.

7

Doc. 57 at 6:23–25.

Gov’t Ex. 7. On July 24, 2015, police records show that officers were dispatched to the Wilhelmina Gill

Center for a female suspected of reacting to ingestion of PCP. See id.

8

9

Doc. 57 at 46:15–22.

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Officer Mark Wilcox, a patrol officer for the Kansas City, Kansas Police Department,

was working on August 24, 2015 as an off-duty security guard at the Frank Williams Outreach

Center, which is directly across the street from the Wilhelmina Gill Center. Officer Wilcox

testified that he wears his police uniform at the Frank Williams Outreach Center, including his

police radio. Prior to the call being dispatched, Officer Wilcox was patrolling the parking lot of

the Frank Williams Outreach Center. He noticed a man in all red clothing wiping down a white

Cadillac in the Wilhelmina Gill Center parking lot. Not long after this observation, Officer

Wilcox heard the dispatched call that a man wearing all red was selling drugs. As Officer

Rowland and Officer Davis arrived on scene, Officer Wilcox radioed about his observation of

the man wearing all red entering the white Cadillac. Officer Wilcox, however, never observed

this man conducting a drug transaction.

Officer Rowland, who was uniformed and driving a marked police cruiser, pulled into the

Wilhelmina Gill Center parking lot from the west. 10 Officer Davis, who was also uniformed,

followed directly behind him in the marked police cruiser that she was driving. Officer Rowland

also observed the man (subsequently identified as Desmond Gaines, the “Defendant”) entering

the white Cadillac and observed that Defendant matched the description of light skinned and

wearing all red (red hat, red shirt, red pants, and red shoes). Officer Rowland pulled up behind

the driver’s side of the white Cadillac, and Officer Davis pulled up alongside Officer Rowland’s

cruiser, also to the rear of the white Cadillac. Both officers activated the emergency lights on

their cruisers.

10

There is both audio and video of the encounter captured on Officer Rowland’s police cruiser camera

system. Gov’t Ex. 3. There is also video from the Wilhelmina Gill Center cameras in the parking lot. Gov’t Ex. 2.

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Date Filed: 10/03/2019

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Officer Rowland approached the driver’s side of the white Cadillac and gestured for

Defendant to exit the vehicle. A close review of the video reveals that Defendant, who was

sitting in the driver’s seat with the door closed, began to exit the white Cadillac prior to Officer

Rowland’s gesture. Regardless, Defendant exited the car and quickly closed the door behind

him. Meanwhile, Officer Davis exited her cruiser and approached the rear of the white Cadillac.

Officer Rowland began to speak to Defendant, who asked Officer Rowland what he was doing;

Officer Rowland replied that there was a 911 call about a man matching his description selling

drugs. Defendant denied that he was engaged in drug sales.

Officer Rowland asked Defendant for identification; Defendant responded that his

identification was in the car trunk. At this point, Defendant reopened the driver’s side door and

pulled the trunk release. As Defendant began to walk toward the trunk, he began to close the

driver’s side door behind him, but Defendant then caught the door with his hand and the door

remained open. Defendant positioned himself between the car and the open driver’s side door.

Meanwhile, Officer Davis began to walk toward the rear part of the car, and then to the

passenger side.

Officer Rowland testified that as soon as Defendant reopened the driver’s side door,

Rowland smelled a strong chemical odor that based on his training and experience he believed

was the odor of PCP. Officer Rowland further testified that once the trunk was ajar, the odor of

PCP became stronger. From his position next to the driver’s side door, Officer Rowland also

observed a bottle of alcohol on the center console underneath a walkie talkie radio. Officer

Rowland told Defendant that he was going to detain him for having an open container of alcohol

within his reach in the car.11 Photographs taken at the time of the stop depict a bottle of alcohol

11

Possession of alcohol in a vehicle is a violation of K.S.A. § 8-1599, which is an arrestable offense.

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