United States v. Aviles-Vega , 783 F.3d 69 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 13-2362
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ LUIS AVILÉS-VEGA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Lynch, Chief Judge,
Howard and Thompson, Circuit Judges.
Jedrick H. Burgos-Amador for appellant.
Juan Carlos Reyes-Ramos, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, were on brief,
for appellee.
April 13, 2015
LYNCH, Chief Judge. This case presents an unusual twist
on the not uncommon question of whether to suppress the results of
a search based on information of a firearms sighting provided by an
individual unknown to the police who provides no self-identifying
information.
Acting on information provided by an anonymous caller,
police officers frisked José Avilés-Vega after ordering him to get
out of a parked car, and discovered a Ruger pistol, loaded with 13
rounds of 9mm caliber ammunition, in his possession. Avilés-Vega
was charged with possession of a firearm by a prohibited person, in
violation of 18 U.S.C. § 922(g)(1), since he was a convicted felon.
Avilés-Vega moved to suppress the evidence of the firearm from the
frisk, arguing that the information provided by the unidentified
caller was not sufficiently reliable to provide the officers with
the reasonable suspicion necessary under the Fourth Amendment. The
district court denied his motion. United States v. Avilés-Vega,
No. 12-555(FAB), 2013 WL 322525 (D.P.R. Jan. 28, 2013). Avilés-
Vega then pled guilty to possession of a firearm by a prohibited
person, and was sentenced to fifty-seven months imprisonment and a
three-year term of supervised release. Avilés-Vega preserved his
right to appeal the denial of his motion to suppress.
We affirm the district court's denial of Avilés-Vega's
motion to suppress. In so holding, we stress that the unidentified
caller in this case stated, as he was driving, that he had just
-2-
observed conduct (which was a crime) occur in the car in front of
him with sufficient detail for police officers to identify the
vehicle. This report was sufficiently reliable to create
reasonable suspicion of criminal activity under Puerto Rico law,
thereby justifying the police officers' decision to stop and frisk
the car's occupants.
I.
We take the basic facts from the magistrate judge's
findings after an evidentiary hearing, supplemented by the record
on appeal. These facts are not disputed.
On July 13, 2012, at 6:00 p.m., Officer Pedro López-
Molinari ("López") was working as a desk sergeant at the Aguadilla
police station when he received a phone call from an unidentified
man. The caller reported that "four individuals in a wine-colored
Chevrolet Lumina, with a license plate ending in 959 and a broken
right side tail light, were traveling from Isabela to Aguadilla
along Road 2." The caller said that he observed that, as the
Lumina drove in the direction of Aguadilla, "the front passenger1
passed a firearm to one of the individuals sitting in the back."
The caller said that he was following the Lumina until it turned
from Road 2 onto Road 459.
1
The magistrate judge noted that "[t]he certified
translation of Officer López's testimony does not specify gender."
López confirmed on cross-examination that the caller had not
provided information on the car occupants' genders or their
physical descriptions.
-3-
"Following protocol, López filled out a special complaint
form." Five to ten minutes later, he notified his supervisor,
Sergeant Luis Acevedo-Valentín ("Acevedo"), of the information.
Acevedo instructed López "to go to [the] Road 2 intersection [with]
Road 459 with two fellow officers in an unmarked PRPD vehicle to
corroborate the information." López testified that he arrived at
the intersection ten to fifteen minutes later, and observed a wine-
colored Chevrolet Lumina enter a shopping mall, which has a Burger
King and an Asian food restaurant. "López drove into the Burger
King parking lot in order to verify the vehicle's license plate and
whether it had a broken right side tail light, and saw the vehicle
being parked. From a distance of about 100 feet away, he confirmed
that this vehicle fit the description provided by the anonymous
caller."
Ten to fifteen minutes later, other officers arrived at
the parking lot. The officers ordered the four occupants of the
vehicle, including Avilés-Vega, to get out of the Lumina; all
occupants complied. ICE Task Force Officer Javier Méndez-Rodríguez
("Méndez") saw that one of the individuals (Avilés-Vega's
codefendant, Ricardo Rivera-Ruiz) was carrying a firearm on his
waist as he emerged from the car. "A PRPD officer next to Méndez
removed the firearm while Méndez 'spotted' him." The firearm in
codefendant Rivera-Ruiz's possession was a Smith & Wesson pistol,
with an obliterated serial number, loaded with 10 rounds of .40
-4-
caliber ammunition. "For security reasons, a pat down was
performed [on] the 4 individuals." During the pat-down of Avilés-
Vega, the officers found a Ruger pistol, loaded with 13 rounds of
9mm caliber ammunition.
II.
The Fourth Amendment permits police officers to conduct
a brief investigative stop if they have "'a particularized and
objective basis for suspecting the particular person stopped of
criminal activity.'" Navarette v. California, 134 S. Ct. 1683,
1687 (2014) (quoting United States v. Cortez, 449 U.S. 411, 417-18
(1981)). "The 'reasonable suspicion' necessary to justify such a
stop 'is dependent upon both the content of information possessed
by police and its degree of reliability.'" Id. (quoting Alabama v.
White, 496 U.S. 325, 330 (1990)). "[U]nder appropriate
circumstances, an anonymous tip can demonstrate 'sufficient indicia
of reliability to provide reasonable suspicion to make [an]
investigatory stop.'" Id. at 1688 (quoting White, 496 U.S. at
327).
Avilés-Vega argues that a call to police from an
unidentified person, who reported seeing a pistol being openly
passed between the passengers of the vehicle directly in front of
his car, was not sufficiently reliable to provide the police with
the necessary reasonable suspicion. And, he attempts to make an
argument in his reply brief, which the government says is waived,
-5-
that the police "had no reason to suspect that criminal activity
was underway" even if the tip was reliable. That argument is
without merit in any event.
Perhaps in another jurisdiction his second argument might
have some merit. See, e.g., United States v. Ubiles, 224 F.3d 213(3d Cir. 2000). But it does not in Puerto Rico. Puerto Rico is a
concealed-carry jurisdiction. See United States v. Padilla-Colón,
578 F.3d 23, 25 n.1 (1st Cir. 2009) ("The visual display of a
firearm is a crime under Puerto Rico law." (citing P.R. Laws Ann.
tit. 25, § 456a(d)(1))). That means that an individual must carry
a firearm in a concealed manner even if he or she possesses a
license to carry the firearm. See P.R. Laws Ann. tit. 25,
§ 456a(d)(1).2 So, even if everyone in Avilés-Vega's car had the
necessary license, there was still a violation of Puerto Rico law
by not keeping the gun concealed. If the information provided was
2
Section 2.02(d)(1) of the Puerto Rico Arms Act of 2000,
P.R. Laws Ann. tit. 25, §§ 455-460k, confers licensees the right to
possess, bear, and transport firearms, provided that they be
"borne, carried, and transported in a hidden or unobtrusive manner
. . . ." P.R. Laws Ann. tit. 25, § 456a(d)(1). To transport a
weapon without a permit to carry, "the weapon must be unloaded and
transported inside a closed case whose contents are not visible and
which may not be in plain sight." Id. § 456a(d)(2); cf. Pueblo v.
Del Rio, 13 P.R. Offic. Trans. 886, 892-93, 1982 WL 210517 (P.R.
1982) ("[C]ontrary to the custom in some Western States of the
United States, where persons can openly carry a firearm, the
general rule in Puerto Rico is to restrict and control the
possession and/or carrying of firearms . . . .").
-6-
correct, the police had reasonable suspicion that the car's
occupants had violated the concealed-carry law.3
In his reply brief, Avilés-Vega newly argues that the
possession of a gun is not a crime. This argument was not made in
his motion to suppress, his objections to the report and
recommendation, or his opening brief on appeal. Thus, he not only
misses the point (it was the failure to keep the weapon concealed
that violated Puerto Rico law), but he has thrice waived any
argument respecting this prong of the Fourth Amendment analysis.4
That leaves the question of whether the unidentified
reporter was sufficiently reliable in the first place. See Florida
v. J.L., 529 U.S. 266, 273 n.* (2000) ("The mere fact that a tip,
if true, would describe illegal activity does not mean that the
police may make a Terry stop without meeting the reliability
requirement . . . ."). The district court concluded that the tip
3
We also note that Puerto Rico law creates a presumption
that the possession or act of carrying a firearm without the
appropriate weapons license or permit to carry "shall be deemed as
prima facie evidence of the fact that said person possesse[d] [or
carried] the weapon with the intention of committing a crime." See
P.R. Laws Ann. tit. 25, § 458j.
4
The government also asserts that "the fact that the caller
saw the Chevy Lumina in the same area approximately [thirty]
minutes earlier made the circumstances even more troubling
. . . because it suggested that the defendants were prowling that
area, lurking around in search of a victim." Unlike the
government, we do not think that the fact that a car with four men
in it sat for approximately thirty minutes in a parking lot of a
Burger King in a shopping mall is itself an inherently suspicious
activity.
-7-
in this case was reliable. Avilés-Vega, 2013 WL 322525, at *1,
n.1. We review the district court's "reasonable suspicion"
determination de novo. United States v. Ramos, 629 F.3d 60, 64
(1st Cir. 2010). The underlying factual determinations are taken
"as found unless they are clearly erroneous." Id.The Supreme Court has recognized that "there are
situations in which an anonymous tip, suitably corroborated,
exhibits 'sufficient indicia of reliability to provide reasonable
suspicion to make the investigatory stop.'" J.L., 529 U.S. at 270(quoting White, 496 U.S. at 327). We note that "there is more than
one way to demonstrate" reasonable suspicion based on an anonymous
tip, Navarette, 134 S. Ct. at 1692, and that we must "take[] into
account 'the totality of the circumstances -- the whole picture,'"
id. at 1687 (citation omitted). At base, the reasonable suspicion
inquiry requires a "commonsense approach." Id. at 1690.
Avilés-Vega relies on J.L., in which the Supreme Court
held that an anonymous tip that "a young black male standing at a
particular bus stop and wearing a plaid shirt was carrying a gun"
was insufficient, "without more,"5 to justify a police officer's
stop and frisk of the defendant. 529 U.S. at 268. The Court
5
In J.L., the Supreme Court made clear that there is no so-
called "firearm exception," whereby "a tip alleging an illegal gun
would justify a stop and frisk even if the accusation would fail
standard pre-search reliability testing." 529 U.S. at 272. Here,
we are resorting to no such exception. The tip alleging the
violation of the concealed-carry law was, on its own merits, a
reliable basis for reasonable suspicion.
-8-
stated that "[a]ll the police had to go on in this case 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 [the defendant]." Id. at
271. Although the tip helped the police to identify the defendant
based on the defendant's location and appearance, it provided no
information as to how the tipster knew of the alleged "concealed
criminal activity." Id. at 272.
More recently, in Navarette, the Supreme Court held that
an anonymous 911 call that the defendants' truck "'ran the [caller]
off the roadway' . . . bore adequate indicia of reliability for the
officer to credit the caller's account." 134 S. Ct. at 1688 (first
alteration in original). The Court highlighted that the caller
"necessarily claimed eyewitness knowledge of the alleged dangerous
driving," reported the incident "soon after" it occurred, and used
the 911 system. Id. at 1689-90. Based on "the totality of the
circumstances," the Court "f[ound] the indicia of reliability . . .
sufficient to provide the officer with reasonable suspicion that
the driver of the reported vehicle had run another vehicle off the
road." Id. at 1692. This, in turn, made it reasonable for the
officers to execute the stop "on suspicion of drunk driving." Id.
at 1690-91.
In this case, the district court properly distinguished
J.L. and held that the anonymous call had sufficient indicia of
-9-
reliability to give rise to reasonable suspicion based on its
report. Avilés-Vega, 2013 WL 322525, at *1, n.1. The officers'
reliance on the anonymous call is justified by both its content and
context.
To start, this was a report from a driver who said that
he had personally observed conduct, which was a crime, committed in
the car in front of him. Avilés-Vega concedes that "[t]he caller
here claimed an eyewitness basis of knowledge by stating [that he
had] observed the firearm as he[] drove behind the Lumina." The
caller also described a wine-colored Chevrolet Lumina with a broken
right side tail light, a license plate ending in 959, and four
occupants. As in Navarette, the eyewitness knowledge reported by
the tip "lends significant support to the tip's reliability." 134
S. Ct. at 1689.
Moreover, the tip in this case was made soon after the
observation of the alleged crime. In Navarette, the "timeline of
events suggest[ed] that the caller reported the incident soon after
she was run off the road." Id. The Court stated that "[t]here was
no indication that the tip in J.L. . . . was contemporaneous with
the observation of criminal activity or made under the stress of
excitement caused by a startling event, but those considerations
weigh in favor of the caller's veracity here." Id. Here, too, the
timeline suggests that the caller reported the incident soon after
witnessing it. The magistrate judge found, and the district court
-10-
adopted, that "the caller informed [the police] that he was
following the suspect vehicle in his car and contemporaneously
notified the police about what he personally observed."6 Indeed,
the police found a vehicle matching the detailed description in the
same area "within the half hour of receiving the call." As in
Navarette, this "sort of contemporaneous report has long been
treated as especially reliable." Id.Avilés-Vega argues that the eyewitness basis of knowledge
and the contemporaneous nature of the tip -- indicia of reliability
that this case shares with Navarette -- are insufficient. Firstly,
he argues that the call lacked predictive information regarding the
future actions of the vehicle or its occupants.7 Secondly, he says
that the call was not made through the 911 emergency system. We
find neither argument persuasive.
6
Avilés-Vega makes a perfunctory argument that the district
court clearly erred by finding that the caller contemporaneously
notified the police about what he had personally observed. Avilés-
Vega appears to suggest that the call could not have been made
contemporaneously with the caller's observations since the caller
reported the vehicle turning from Road 2 onto Road 459, and thirty
minutes later the police found the vehicle at the same intersection
at a shopping center. We do not find these facts incongruous, let
alone rising to the level of clear error. It is entirely possible
that the caller contemporaneously notified the police of his
observations as the vehicle turned into the shopping center at the
intersection, where the police discovered the vehicle thirty
minutes later.
7
In fact, the Lumina was in the area one would reasonably
predict to find it in from the information provided.
-11-
First, the predictive information argument is misplaced.
The crime alleged to have been seen here was open and obvious to
the caller, and was plausibly seen from the reported circumstances
(driving the next car behind). As the Eighth Circuit stated in
United States v. Wheat, 278 F.3d 722 (8th Cir. 2001), the "emphasis
on the predictive aspects of an anonymous tip may be less
applicable to tips purporting to describe contemporaneous, readily
observable criminal actions . . . ." Id. at 734; see also State v.
Boyea, 765 A.2d 862, 875 (Vt. 2000) (Skoglund, J., concurring)
(noting that when the call describes "a crime in progress, carried
out in public, . . . [n]o intimate or confidential relationship
[is] required to support the accuracy of the observation").
The Supreme Court has accordingly focused on the presence
or absence of predictive information in cases where an anonymous
tip alleged a concealed crime. In White, for example, the Court
found an anonymous tip of concealed drug possession reliable in
large part due to the predictive information that the caller
provided. See 496 U.S. at 332. There, the anonymous tip reported
that a woman would leave a specified apartment at a particular time
in a particular car for a particular destination, and "that she
would be in possession of about an ounce of cocaine inside a brown
attaché case." Id. at 327. Such information could only be known
to individuals with "a special familiarity with [the woman's]
affairs," which the caller proved by accurately predicting her
-12-
future behavior. See id. at 332; see also Navarette, 134 S. Ct.
at 1693 (Scalia, J., dissenting) ("Very few persons would have such
intimate knowledge, and hence knowledge of the unobservable fact
that the woman was carrying unlawful drugs was plausible."
(emphasis added)).
In addition, the Court in J.L. found an anonymous tip
reporting concealed gun possession unreliable in the absence of
predictive information. See 529 U.S. at 271. The anonymous tip
there claimed that the defendant had a concealed weapon, but
provided the police with "no predictive information . . . to test
the informant's knowledge or credibility." Id. "Such a tip," the
Court explained, "does not show that the tipster has knowledge of
concealed criminal activity." Id. at 272 (emphasis added).
In contrast with White and J.L., the Court did not
mention the lack of predictive information in Navarette when the
anonymous tip reported the open and obvious circumstance of
reckless driving. There, the anonymous caller provided specific
information about the vehicle she witnessed, but never hazarded a
guess about where the other vehicle was going or what its driver
would do in the future. See Navarette, 134 S. Ct. at 1689-90.
Predictive information would have been irrelevant since "[a]
driver's claim that another vehicle ran her off the road . . .
necessarily implies that the informant knows the other car was
driven dangerously." Id. at 1689. "This is in contrast to J.L.,
-13-
where the tip provided no basis for concluding that the tipster had
actually seen the gun," or "White, where . . . there was scant
evidence that the tipster had actually observed cocaine . . . ."
Id.Like in Navarette, the anonymous caller in this case did
not need to prove knowledge of the defendant's affairs through
predictive information.8 The caller reported what any public
observer could have seen -- the make, model, color, and occupancy
of the car, as well as its apparent trajectory and part of its
license plate. He also explained that he was in a position to see
the alleged crime. These details, corroborated by the police when
they arrived, allowed the police to be sure that they were
approaching the correct vehicle.
Second, the "use of the 911 system" was not necessary to
make this tip reliable given the totality of the circumstances. In
Navarette, the Supreme Court noted that "[t]he caller's use of the
911 system is . . . one of the relevant circumstances that, taken
together, justified the officer's reliance on the information
reported in the 911 call." Id. at 1690. The Court explained that
a 911 call allows for the recording, identifying, and tracing of
callers, "thus provid[ing] some safeguards against making false
8
As explained above, the caller witnessed a crime when he
observed the occupants pass the firearm between them. Based on
Puerto Rico law, the caller did not need to know that the
passengers lacked a license, or had felony convictions.
-14-
reports with immunity." Id. at 1689-90. The call in the present
case, however, was made directly to the desk sergeant at the police
station. The government has not argued that this direct line used
similar technology to the 911 line. There is simply no evidence on
this point.
Avilés-Vega argues that "the [Navarette] decision would
[not] hold water absent the reliability gleaned through the use of
the 911 emergency line." We disagree. The Supreme Court made
clear that the use of the 911 line was only one indicator of
veracity. See Navarette, 134 S. Ct. at 1689-90. A call made
directly to the desk sergeant, rather than to a 911 operator, does
not become unreliable solely because of that choice.
The totality of the circumstances here reduces the
prospect that a personal grudge or other ill-intended purpose
motivated a false report. Rather, it suggests that the caller was
a concerned citizen, acting in good faith and reporting his direct
observation of a crime committed in front of him. See, e.g.,
United States v. Copening, 506 F.3d 1241, 1247 (10th Cir. 2007)
(finding that the anonymous caller's actions in reporting the
events witnessed in detail, following the vehicle, and updating
dispatch "bespeak an ordinary citizen acting in good faith"). We
would not wish to discourage such calls.9 As one commentator has
9
We are mindful that anonymity encourages citizens to report
the commission of crimes. Indeed, the government enjoys a
qualified privilege to withhold from disclosure the identity, when
-15-
noted in the related probable cause context, "[c]ourts are much
more concerned with veracity when the source of the information is
an informant from the criminal milieu rather than an average
citizen who has found himself in the position of a crime victim or
witness." 2 LaFave, Search & Seizure § 3.4 (5th ed.). The call
was reliable in its report of a firearms violation in Puerto Rico.10
We affirm.
known, of "persons who furnish information of violations of law to
officers." Roviaro v. United States, 353 U.S. 53, 59 (1957); see
also Puerto Rico v. United States, 490 F.3d 50, 62 (1st Cir. 2007).
The Court explained that "[t]he privilege recognizes the obligation
of citizens to communicate their knowledge of the commission of
crimes to law-enforcement officials and, by preserving their
anonymity, encourages them to perform that obligation." Roviaro,
353 U.S. at 59.
10
The prevalence of firearms violence in Puerto Rico is one
of the reasons given for the defendant's sentence. The district
court stated that "gun crimes in Puerto Rico are pervasive
throughout the island," and viewed the crime "more serious[ly] here
than if it had occurred in a less violent society."
-16-