United States v. Madrid , 713 F.3d 1251 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
April 17, 2013
Elisabeth A. Shumaker
Clerk of Court
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 12-2095
ERIC M. MADRID,
Defendant-Appellant.
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:08-CR-00683-LH-1)
Benjamin A. Gonzales, Assistant Federal Public Defender, Albuquerque, New
Mexico, for Defendant-Appellant.
Laura Fashing, Assistant United States Attorney (Kenneth J. Gonzales, United
States Attorney, with her on the brief), Albuquerque, New Mexico, for Plaintiff-
Appellee.
Before LUCERO, SEYMOUR, and MURPHY, Circuit Judges.
SEYMOUR, Circuit Judge.
Eric Michael Madrid appeals his conviction on one count of being a felon
in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Mr. Madrid pled
guilty to the charge but preserved his right to appeal the district court’s denial of
his motion to suppress evidence. For the following reasons, we AFFIRM.
I.
At 7:53 p.m. on November 4, 2007, an operator with the Sandoval County
Communications Section received a 911 call from an unidentified male tipster.
The caller reported that he was in the parking lot of the Rinaldi Apartments in
Bernalillo, New Mexico, and that there was suspicious activity occurring. He
said there were two cars and two men and a woman in the parking lot. He
reported that the two men were arguing and “getting into each other’s faces,” and
that it looked like the men were about to fight. The caller told the operator that
his fiancée was supposed to arrive shortly and he was afraid to leave her in the
parking lot alone. He described one of the two vehicles as a white, four-door
Pontiac and described the clothing of the men who were arguing. He said he did
not see any weapons. As he was talking to the 911 operator, the caller saw police
cars drive past the entrance to the parking lot. He told the operator that when the
police cars passed by the suspects began “scattering” and the white Pontiac was
leaving the parking lot.
Lt. Stoyell was dispatched to the Rinaldi apartments at 7:55 p.m. Officers
Sanchez and Marshall were dispatched one minute later. A dispatch operator
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conveyed to the officers by radio that a 911 call had originally reported a
suspicious subject but subsequently changed the report to a fight. The dispatcher
advised the officers that there were two males and a female arguing in the parking
lot and relayed the description of the vehicles and clothing given by the caller.
Lt. Stoyell and Officer Marshall arrived at the apartments at 7:57 p.m. Lt. Stoyell
stopped the white Pontiac and Officer Marshall stopped the other vehicle.
Lt. Stoyell shined his spotlight on the Pontiac and waited for backup to arrive.
Officer Sanchez arrived about a minute later, parked his vehicle alongside Lt.
Stoyell’s, and shined his spotlight through the front windshield of the Pontiac.
Lt. Stoyell approached the driver’s side of the Pontiac while Officer
Sanchez approached the passenger’s side to provide cover and to determine
whether anyone else was in the car. Lt. Stoyell recognized the driver as Mr.
Madrid, whom he knew from prior encounters. Lt. Stoyell had executed a search
warrant on Mr. Madrid’s home about a month earlier, and he knew that Mr.
Madrid had recently been released from the penitentiary and was a convicted
felon. Officer Sanchez also recognized Mr. Madrid from prior investigations and
was aware he was a convicted felon.
Lt. Stoyell advised Mr. Madrid that he was investigating a possible fight
and asked what had been going on in the parking lot. Mr. Madrid replied that he
and his companions had not been fighting, but had just been talking. Lt. Stoyell
then requested Mr. Madrid’s license, registration and proof of insurance, which he
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provided. At about this time, Officer Sanchez looked through the passenger side
windows of the car and saw a rifle case on the back seat. He believed it was
likely the case contained a rifle and he told Lt. Stoyell there was a rifle in the car.
Lt. Stoyell requested that Mr. Madrid exit the car for officer safety reasons, patted
down Mr. Madrid, and handcuffed him.
Meanwhile, Officer Sanchez removed the rifle case from the car, noticed it
was heavy enough to contain a rifle, and saw the rifle when he opened the case.
Officer Sanchez then went to assist Officer Marshall for about five to seven
minutes when he was told one of the passengers in the other car had an
outstanding warrant for her arrest. When Officer Sanchez returned to the Pontiac,
he spoke with Lt. Stoyell, secured the rifle, and checked to see if it was stolen.
Lt. Stoyell notified Mr. Madrid that he could be charged with being a felon
in possession of a firearm and asked if he would be interested in working off the
charge by cooperating with the police in other investigations. Mr. Madrid agreed
to cooperate, so Lt. Stoyell released him but kept the rifle for evidence. The
officers did not file a report on the incident because Mr. Madrid had indicated he
was interested in cooperating. When Mr. Madrid’s cooperation did not
materialize, the officers eventually proceeded with the felon-in-possession case
against him.
Mr. Madrid was indicted by a federal grand jury on one count of being a
felon in possession of a firearm, and one count of possessing a firearm after
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having been convicted of a misdemeanor domestic violence offense, in violation
of 18 U.S.C. §§ 922(g)(1), 922(g)(9) and 924(a)(2). Mr. Madrid filed a motion
to suppress the rifle. The district court held an evidentiary hearing and denied his
motion. Mr. Madrid subsequently pled guilty to the felon-in-possession count
pursuant to a plea agreement in which he reserved his right to appeal the district
court’s denial of his motion to suppress.
Mr. Madrid filed a notice of appeal on October 19, 2009, three weeks after
the ten-day period to appeal had expired. He subsequently filed a motion under
Federal Rule of Appellate Procedure 4(b)(4) to extend the time in which to file
his notice of appeal, claiming excusable neglect. The government moved to
dismiss the appeal based on the late filing, but the district court granted Mr.
Madrid’s motion. The government then moved this court to dismiss Mr. Madrid’s
appeal, which we did, holding that his notice of appeal was untimely and that his
error did not constitute excusable neglect. United States v. Madrid, 633 F.3d
1222, 1227-28 (10th Cir. 2011). On December 27, 2011, Mr. Madrid filed a
motion to vacate, set aside or correct his sentence under 28 U.S.C. §2255. The
district court granted the motion in part, finding that Mr. Madrid’s trial counsel
was ineffective for failing to file a timely notice of appeal. The court vacated its
original judgment and reentered it so that Mr. Madrid could file a timely notice of
appeal, which he did on June 6, 2012.
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II.
Mr. Madrid contends the district court erred in denying his motion to
suppress, asserting the evidence against him resulted from an investigatory stop
that lacked reasonable suspicion in violation of the Fourth Amendment. In
reviewing the denial of a motion to suppress, “[w]e view the evidence in the light
most favorable to the government and review the district court’s factual findings
for clear error. We review the district court’s ultimate determinations of
reasonableness under the Fourth Amendment de novo.” United States v. Tucker,
305 F.3d 1193, 1199 (10th Cir. 2002) (internal citations and quotation marks
omitted).
The Fourth Amendment protects “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures . . . .” U.S. Const. amend. IV. It is well established that “[t]emporary
detention of individuals during the stop of an automobile by the police, even if
only for a brief period and for a limited purpose, constitutes a ‘seizure’ of
‘persons’ within the meaning of [the Fourth Amendment].” Whren v. United
States, 517 U.S. 806, 809-10 (1996). In Terry v. Ohio, 392 U.S. 1 (1968), the
Supreme Court established a two-pronged test to determine the reasonableness of
investigatory detentions. For an investigatory detention to be reasonable it must
be “justified at its inception” and the officer’s actions must be “reasonably related
in scope to the circumstances which justified the interference in the first place.”
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Id. at 20. The only issue in this appeal is whether the seizure of Mr. Madrid was
justified at its inception.
Under Terry and its progeny, “the police can stop and briefly detain a
person for investigative purposes if the officer has a reasonable suspicion
supported by articulable facts that criminal activity ‘may be afoot,’ even if the
officer lacks probable cause.” United States v. Sokolow, 490 U.S. 1, 7 (1989)
(citing Terry, 392 U.S. at 30). “An investigatory detention is justified at its
inception 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.” United States v. McHugh, 639 F.3d 1250, 1255 (10th Cir. 2011) cert.
denied, 132 S. Ct. 278 (2011) (internal quotation marks omitted). We evaluate
the totality of the circumstances to determine whether “the detaining officer had a
‘particularized and objective basis’ for suspecting legal wrongdoing.” Cortez v.
McCauley, 478 F.3d 1108, 1123 (10th Cir. 2007) (quoting United States v. Arvizu,
534 U.S. 266, 273 (2002)). “[T]he ultimate assessment of reasonable suspicion
depends on the totality of the circumstances [and] [i]n making that determination,
a court may not evaluate and reject each factor in isolation.” United States v.
Gandara-Salinas, 327 F.3d 1127, 1130 (10th Cir. 2003) (citing Arvizu, 534 U.S.
at 274-75).
Police officers must have more than a “hunch” to justify stopping an
individual, but “the likelihood of criminal activity need not rise to the level
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required for probable cause, and it falls considerably short of satisfying a
preponderance of the evidence standard.” Arvizu, 534 U.S. at 274. We have held
that “as long as [the detaining officer] has a particularized and objective basis for
suspecting an individual may be involved in criminal activity, he may initiate an
investigatory detention even if it is more likely than not that the individual is not
involved in any illegality.” United States v. Johnson, 364 F.3d 1185, 1194 (10th
Cir. 2004) (emphasis in original). We apply an objective standard to determine
whether the “facts available to the officer at the moment of the seizure or the
search [would] warrant a man of reasonable caution in the belief that the action
taken was appropriate.” Terry, 392 U.S. at 22 (internal quotation marks omitted).
Due to their “experience and specialized training,” we “accord deference to an
officer’s ability to distinguish between innocent and suspicious actions.”
Gandara-Salinas, 327 F.3d at 1130. “Moreover, reasonable suspicion may be
supported by an objectively reasonable good faith belief even if premised on
factual error.” United States v. Vercher, 358 F.3d 1257, 1261 (10th Cir. 2004)
(internal quotation marks omitted).
A.
Mr. Madrid first claims the district court clearly erred in finding Lt. Stoyell
was unaware that a physical fight had not actually transpired in the Rinaldi
Apartments parking lot when he detained Mr. Madrid. To be clearly erroneous,
“a finding must be more than possibly or even probably wrong; the error must be
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pellucid to any objective observer.” Watson v. United States, 485 F.3d 1100, 1108
(10th Cir. 2007). “[W]e will reverse the district court’s finding only if it is
without factual support in the record or if, after reviewing all the evidence, we are
left with a definite and firm conviction that a mistake has been made.” Keys
Youth Services, Inc. v. City of Olathe, 248 F.3d 1267, 1274 (10th Cir. 2001)
(internal quotation marks omitted).
Mr. Madrid cannot meet this high standard. The 911 dispatcher informed
Lt. Stoyell in the minutes before he stopped Mr. Madrid that two men “may be
starting a fight,” that “two males are yelling at each other and [are] in each
other’s face right now,” and that dispatch had changed the code from “suspicious
subject” to “fight.” See Supp. Rec. vol. I at 1. While it is true that only a couple
of minutes elapsed between the unknown caller reporting a fight was imminent
and Lt. Stoyell arriving on the scene, an argument can escalate to a physical fight
in a matter of seconds. Accordingly, there is sufficient evidence to support the
court’s finding that when Lt. Stoyell stopped Mr. Madrid, he was unaware a
physical fight had not actually occurred.
B.
Mr. Madrid also asserts the court should not have considered Mr. Madrid’s
attempted exit from the parking lot in its reasonable suspicion analysis because
neither police officer specifically testified he believed Mr. Madrid was fleeing the
parking lot in order to evade the police. The subjective beliefs of the detaining
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officers, however, are irrelevant. “An action is reasonable under the Fourth
Amendment, regardless of the individual officer’s state of mind, as long as the
circumstances, viewed objectively, justify the action.” Brigham City v. Stuart,
547 U.S. 398, 404 (2006) (internal quotation marks and brackets omitted)
(emphasis in original). Both this court and the Supreme Court have held that a
suspect’s unprovoked flight and other evasive behavior upon noticing police
officers is a pertinent factor in determining reasonable suspicion. See Illinois v.
Wardlow, 528 U.S. 119, 124 (2000); accord United States v. McHugh, 639 F.3d
1250, 1258 (10th Cir. 2011). Accordingly, the district court did not err in
considering Mr. Madrid’s attempted exit from the parking lot just after a police
car drove by in its reasonable suspicion analysis.
C.
Mr. Madrid further contends the district court erred by failing to take into
account the relatively minor nature of the crimes being investigated in assessing
whether Lt. Stoyell had reasonable suspicion to stop him. “Following the
Supreme Court’s approach in Henley, we determine the constitutionality of an
investigatory stop by balancing ‘the nature and quality of the intrusion on
personal security against the importance of the governmental interests alleged to
justify the intrusion.’” United States v. Moran, 503 F.3d 1135, 1141 (10th Cir.
2007) (quoting United States v. Hensley, 469 U.S. 221, 228 (1985)).
Regarding the “nature and quality of the intrusion” on Mr. Madrid’s
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personal security, “[a]n investigatory stop is by definition ‘brief’ and ‘non-
intrusive.’” Id. at 1143 (quoting United States v. Johnson, 364 F.3d 1185, 1188
(10th Cir. 2004)); see also United States v. Griffin, 7 F.3d 1412, 1516 (10th Cir.
1993) (explaining that a Terry stop is “usually characterized as a brief,
nonintrusive detention”). Here, the officers stopped Mr. Madrid’s car, shined
their lights through the windows for officer safety reasons, and requested his
license, registration, and proof of insurance. This was no more intrusive than an
ordinary traffic stop. The detention was prolonged only because probable cause
subsequently developed for the officers to believe that Mr. Madrid was a felon in
possession of a firearm.
In addition, the government’s interest in “solving crimes and bringing
offenders to justice . . . [was] particularly strong [because] the criminal activity
involve[d] a threat to public safety.” Moran, 503 F.3d at 1142. The impetus for
the 911 call that led to the investigatory stop was the caller’s worry for the safety
of his fiancée, whom he believed would be threatened because it appeared that
Mr. Madrid was about to engage in a physical fight in the parking lot. When the
stop was initiated, Lt. Stoyell did not know whether a fight had in fact occurred or
whether anyone had been injured. As we explained in Moran, “the governmental
interest in solving crime may be weaker when police have alternative methods of
investigating the crime,” id., but here no such alternative methods were
reasonably available. Given an objectively reasonable belief that a fight had just
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occurred and the participants were “scattering,” a brief investigative stop of a
suspected participant in the fight who was attempting to leave the scene would be
the most logical and one of the only plausible investigative methods to pursue.
And as we further stated, there is a stronger governmental interest in stopping “an
individual in the process of violating the law or a suspect fleeing from the scene
of a crime than a suspect in a past crime who now appears to be going about his
lawful business.” Id. at 1143 (internal quotation marks omitted); see also id. at
1142 (“[B]ecause [the defendant] had allegedly committed the [crime] just
minutes before the officers stopped him, the governmental interest in solving the
crime was strong.”).
In sum, the intrusion on Mr. Madrid’s personal security was brief and
minimal, and the government had a strong interest in solving crime and ensuring
public safety in the circumstances the officers faced here.
D.
Finally, Mr. Madrid claims the district court erred both in determining that
the anonymous 911 call was reliable and in finding that the tip gave rise to
reasonable suspicion to stop his vehicle. “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.” United States v.
Leos-Quijada, 107 F.3d 786, 792 (10th Cir. 1997); accord United States v.
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Samuels, 493 F.3d 1187, 1191 (10th Cir. 2007); see also Florida v. J.L., 529 U.S.
266, 270 (2000) (“[T]here are situations in which an anonymous tip, suitably
corroborated, exhibits sufficient indicia of reliability to provide reasonable
suspicion to make [an] investigatory stop.”) (internal quotation marks omitted).
The determination of “[w]hether a tip provides reasonable suspicion to
make a traffic stop is case-specific,” and no single factor is dispositive. United
States v. Chavez, 660 F.3d 1215, 1222 (10th Cir. 2011).
[R]elevant 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.
Id.; accord United States v. Copening, 506 F.3d 1241, 1247 (10th Cir. 2007)
(considering these factors and concluding information from unidentified 911
caller was sufficiently reliable to establish reasonable suspicion); United States v.
Brown, 496 F.3d 1070, 1078-79 (10th Cir. 2007) (same); see also J.L., 529 U.S. at
274 (Kennedy, J., concurring) (“[T]here are many indicia of reliability respecting
anonymous tips . . . .”).
Turning to the first of these factors, “[u]nlike a tip from a known informant
whose reputation can be assessed and who can be held responsible if her
allegations turn out to be fabricated, an anonymous tip alone seldom demonstrates
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the informant’s basis of knowledge or veracity.” J.L., 529 U.S. at 270 (internal
quotation marks and citation omitted). In United States v. Johnson, 364 F.3d
1185 (10th Cir. 2004), we further explained that “[a] tipster who refuses to
identify himself may simply be making up the story, perhaps trying to use the
police to harass another citizen.” Id. at 1190. On the other hand, jeopardizing
one’s anonymity creates “disincentive for making false allegations.” United
States v. Jenkins, 313 F.3d 549, 554 (10th Cir. 2002). See also Copening, 506
F.3d at 1247 (“The fact the caller provided authorities some basis for discovering
his identity makes it less likely his tip was phony.”).
The government argues that the unidentified caller here was not truly
anonymous because he was likely in the parking lot or nearby when officers
arrived on the scene and officers could have questioned bystanders to determine
who had placed the 911 call. The government also asserts it is likely that either
the caller or his fiancée lived in the apartment complex, which may also have
enabled police officers to identify him. Although the caller did not give his
name, the 911 operator never requested it. It is unclear from the record whether
or not the number he called from was blocked, but we will assume, arguendo, that
it was.
The characteristics of the call highlighted by the government do make the
caller marginally less “truly anonymous” than the unrecorded tip made from an
unknown location in J.L., where the informant failed to provide any information
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about himself or the basis for his knowledge. See J.L., 529 U.S. at 268 (holding
an anonymous, undocumented and unrecorded telephone call indicating a young
black male in a plaid shirt standing at a particular bus stop was carrying a gun,
without more, was unreliable and therefore insufficient to justify a Terry stop of
the defendant). It is quite possible, however, that the caller left the parking lot
once he saw Mr. Madrid and his companions leaving the scene and the police
arriving, because he no longer needed to worry for his fiancée’s safety. That
would leave only the assumption that the caller or his fiancée might live in the
apartment complex to support the possibility the police could identify the caller.
Neither the size of the Rinaldi apartment complex nor the number of residents is
established in the record.
Our cases addressing this issue have presented significantly more
information about the identity of the unnamed caller. For example, in United
States v. Brown, 496 F.3d 1070 (10th Cir. 2007), a 911 caller did not provide his
name but did relate that he was a friend of the alleged victim and was present
when an armed man entered the alleged victim’s apartment. We distinguished
this tip from the truly anonymous caller in J.L. because “[a]lthough the police did
not know the caller’s name . . . they knew enough about him to reasonably believe
they could locate him had his call been simply intended to harass [the
defendant].” Id. at 1076. Similarly, in Chavez, “although the caller did not
provide dispatchers with his name, he told them he was a Wal-Mart employee at a
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specific Wal-Mart store and thereby provided the police with information to
discover his identity.” 660 F.3d at 1222; see also United States v. Torres, 534
F.3d 207, 212 (3d Cir. 2008) (although 911 caller did not give his name, the fact
that he told dispatcher he was driving a green cab for a specific taxi company
“further supported the reliability of his tip”). As we explained in Brown, “[a]n
unnamed individual who divulges enough distinguishing characteristics to limit
his possible identity to only a handful of people may be nameless, but he is
capable of being identified and thus is not anonymous.” 496 F.3d at 1075.
The scant information officers had regarding the unnamed caller in the
instant matter is a far cry from the identifying information police had in Brown
and Chavez. Nor is the information about the caller comparable to cases where an
unnamed informant called 911 from an unblocked phone number. See Copening,
506 F.3d at 1247 (holding 911 call from unblocked cell phone number supported
reasonable suspicion for investigative stop where caller refused to give his name,
in part because “[t]he caller should have expected that 911 dispatch tracks
incoming calls and that the originating phone number could be used to investigate
the caller’s identity.”). The tenuous possibility that the police could have
identified the 911 caller in the instant matter falls closer to the truly anonymous
tip in J.L. than to the unnamed but not truly anonymous calls in cases like
Chavez, Brown and Copening.
To assess the reliability of a tip, however, we must examine “the totality of
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the circumstances—the whole picture,” Sokolow, 490 U.S. at 8 (internal quotation
marks omitted), and “no single factor is dispositive.” Chavez, 660 F.3d at 1222.
A 911 caller who offers only “minimal” identifying information—that he was at
or in front of an address across the street from where shots were fired—is not
“completely unidentifiable;” giving the address was at least an “indicium of
reliability.” Robinson v. Howes, 663 F.3d 819, 829 (6th Cir. 2011). Here, the
911 operator never asked the caller for his name or other identifying information
and there is no reason to believe he would not have provided this information if
requested. See Torres, 534 F.3d at 212 (investigative stop supported by
reasonable suspicion based, in part, on anonymous 911 call in which “the tipster
neither attempted to, nor had any reason to, conceal his identity; the dispatcher
simply neglected to ask him his name”). And there is no indication the caller was
“making up the story, perhaps trying to use the police to harass another citizen.”
Johnson, 346 F.3d at 1190; see also Easton v. City of Boulder, 766 F.2d 1441,
1449 (10th Cir. 1985) (“[T]he skepticism and careful scrutiny usually found in
cases involving informants . . . from the criminal milieu, is appropriately relaxed
if the informant is an identified victim or ordinary citizen witness.”).
Significantly, all of the other factors that we consider to determine whether
a tip provides reasonable suspicion support the caller’s reliability. First, it is
clear the caller was reporting contemporaneous, firsthand knowledge of the
possible fight in the parking lot. As we stated in Brown, “[w]e consider it another
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important indicium of reliability that the caller claimed firsthand knowledge of
the alleged conduct.” Brown, 496 F.3d at 1076. Here, as in Brown, because “the
officers knew that the caller’s information was based on firsthand knowledge and
that it was contemporaneous[,] [t]hey were reasonable . . . in taking the caller’s
information more seriously than information obtained, for instance, through the
report of a third party or reported sometime later than the described events.” Id.
at 1077.
Second, the caller provided detailed information about the events he was
observing, including describing the clothing and automobiles of the individuals
involved in the incident. This is another indicium of reliability that we have
recognized in our reasonable suspicion analysis of anonymous tips. See, e.g.,
Copening, 506 F.3d at 1247 (unnamed caller’s “detailed description” of the
alleged criminal activity “bolstered the tip’s reliability.”).
Third, the caller’s stated motivation for calling 911 and reporting the
possible fight was a concern for his fiancée’s physical safety. This stated motive
further buttresses the reliability of the information related by the caller because it
reduces the possibility that he harbored animosity towards defendant or his
companions and tends to show that he was not using “the device of a phoney tip
to wreak injury (indignity, invasion of privacy, suspicion, and sheer annoyance)
on [his] enemies, rivals or acquaintances without fear of being held responsible.”
United States v. Hauk, 412 F.3d 1179, 1188 (10th Cir. 2005); see also Copening,
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506 F.3d at 1247 (stating “an ordinary citizen acting in good faith” in calling 911
indicates reliability); Brown, 496 F.3d at 1077 (“[W]e consider it important that
the caller’s primary motive in contacting 911 . . . was not to implicate the armed
man but to obtain aid and protection for his friend.”).
Finally, police officers dispatched in response to this call were able to
verify much of the information the caller had provided. Although the caller’s
description of the possible criminal activity of the suspects was not verified by
the officers, as they arrived at the scene they did find the two cars matched the
descriptions given by the caller, and also that the suspects were in their vehicles
and attempting to leave, just as the caller had described. As we recognized in
Copening, “[t]he officer’s corroboration of the latter information, lent credibility
to the former. This is particularly true where . . . the caller’s asserted basis of
knowledge—as to both types of information—was first-hand and real-time
observation.” Copening, 506 F.3d at 1247; see also Chavez, 660 F.3d at 1222
(tip’s reliability was bolstered by fact that police officers verified some of
information caller provided about suspect’s non-illegal conduct before making
Terry stop).
There was no need here for the caller to exhibit “inside knowledge” of the
alleged crime because he was not an informant providing a tip about a concealed
weapon or contraband based on insider information. He was instead a concerned
citizen witnessing a situation in public view that he thought was about to become
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a crime and a threat to public safety, who then reported the disturbance to the
authorities. See United States v. Perkins, 363 F.3d 317, 325 (4th Cir. 2004)
(distinguishing between tips regarding alleged possession of concealed firearms
that “may require corroboration of the extent of the tipster’s inside information,
in order to ensure that the tipster was in a position to know about the alleged
illegal conduct” and tips “where the suspicious activity is openly and readily
observable, [where] other manners of corroborating a tip are entirely legitimate”);
accord United States v. Wheat, 278 F.3d 722, 734 (8th Cir. 2001) (“Unlike with
clandestine crimes such as possessory offenses, . . . where corroboration of the
predictive elements of the tip may be the only means of ascertaining the
informant’s basis of knowledge, in erratic driving cases the basis of the tipster’s
knowledge . . . comes from his eyewitness observations, and there is no need to
verify that he possesses inside information.”); see also United States v. Wooden,
551 F.3d 647, 650 (7th Cir. 2008) (“A 911 system designed to provide an
emergency response to telephonic tips could not operate if the police had to verify
the identity of all callers and test their claim to have seen crimes in progress.”);
Cf. J.L., 529 U.S. at 270-71 (explaining that an anonymous informant would need
“inside knowledge” of a suspect for their tip to be reliable regarding “hidden
contraband”).
Mindful of the “skepticism and careful scrutiny” required in the
anonymous-informant context, Copening, 506 F.3d at 1247, we conclude,
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considering the totality of the circumstances, that the caller’s tip bore “sufficient
indicia of reliability to provide reasonable suspicion to make the investigative
stop” of Mr. Madrid. J.L., 529 U.S. at 270 (internal quotation marks omitted).
The 911 call and corroborated facts provided Lt. Stoyell with a particularized and
objective basis for suspecting Mr. Madrid had just been involved in criminal
activity. Accordingly, the investigative stop was justified at its inception and was
not in violation of the Fourth Amendment.
We AFFIRM.
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