United States v. Hicks, Kevin L. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1630
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEVIN L HICKS,
Defendant-Appellant.
____________
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 05-CR-043—William C. Lee, Judge.
____________
ARGUED JUNE 10, 2008—DECIDED JULY 9, 2008
____________
Before POSNER, COFFEY, and FLAUM, Circuit Judges.
FLAUM, Circuit Judge. Kevin Hicks was arrested when
police responded to a 911 caller who reported that an
armed man was beating a woman. Hicks was charged
with being a felon in possession and moved to suppress
the gun on the grounds that the officers lacked reason-
able suspicion to stop him because of the striking incon-
sistencies in the 911 call. Specifically, the caller gave two
different names for himself, said that he was inside a
house before admitting that he was outside, and revised
his position on whether the man he was reporting had a
gun. The district court denied the motion, and Hicks
entered a plea of guilty that preserved the suppression
2 No. 07-1630
issue for appeal. Although the transcript of the 911 call
reveals a somewhat questionable accusation, the respond-
ing officer, who did not hear the call, reasonably relied
on the straightforward information that was transmitted
to him. Thus, we affirm.
I. Background
The strange story behind this case begins with a ro-
mantic triangle involving Hicks, Sylvia Lynn McClendon,
and David Woodbury. Today, Hicks and McClendon
are married. While Hicks was in pretrial custody, the
district court granted his Motion for Order to Allow
Defendant to Have a Marriage Ceremony Performed at
the Allen County Jail. But in the summer of the 2005, the
two had recently split up and McClendon sought amorous
attention from Woodbury. As McClendon put it, after
having a few drinks with Woodbury, she “decided to have
some needs met.” After their intimate encounter,
Woodbury telephoned Hicks. Although Woodbury did
not say anything except repeating “hello,” Hicks recog-
nized his voice and immediately went to his house.
Woodbury met Hicks outside the house and told him
that McClendon was there. After Hicks pushed his way
inside, he and McClendon argued loudly, though
McClendon testified that he did nothing physical to her
beyond grabbing her arm and forcing her to sit when
she attempted to leave.
While McClendon and Hicks argued inside the house,
Woodbury—who was still outside—made another
phone call, this time to 911. He gave the address of the
house where McClendon and Hicks were arguing and told
the operator, “There’s a guy beating a woman up in my
house.” He also told the operator that the man in ques-
No. 07-1630 3
tion had a pistol and that he was threatening to shoot
the woman. When asked, Woodbury gave a fake name,
“Albert C.” Woodbury had claimed to be inside the house,
but when the operator said that she didn’t hear any
fighting over the phone, Woodbury told her that he
was actually outside on a cell phone. When she asked
for his name a second time, he answered, honestly, that
it was David Woodbury. Then the operator asked
Woodbury the cell phone number from which he was
calling, but he told her that he was calling from his
home phone. Woodbury contradicted himself a third
time when the operator attempted to confirm that the
man Woodbury was reporting had a pistol. First he hesi-
tated, but later he told the operator that the man he was
reporting did not have a gun. The 911 operator asked
Woodbury, “What color shirt do you have on just so
we know that it’s you when we approach?” Woodbury
told the operator that he was dressed in black and she
confirmed that Woodbury was a black man dressed in
black.
While Woodbury was talking to the 911 operator, the
operator was relaying the information to the dispatcher,
but the record does not reveal how she relayed the in-
formation. The operator’s testimony suggests that the
dispatcher was listening to the call or that the operator
was entering the information into a computer system to
which the dispatcher had access, but the dispatcher
testified that sometimes such information is commu-
nicated by shouting it across the room. In any case, the
dispatcher sent police to the address given by the 911
caller and told them to respond to a “46/62,” codes for
domestic disturbance and suspect armed, respectively.
Officer David Tinsley was the first officer to respond
to the dispatcher’s call. According to his report, after he
4 No. 07-1630
saw a man wearing all black who he believed was
walking away from the reported address, he radioed
dispatch. The dispatcher informed Tinsley, “He is a
male black wearing a black shirt,” but the dispatcher did
not clarify to whom the pronoun “he” referred. Officer
Tinsley believed that “he” referred to the suspect, ex-
plaining later that he was “advised that the perpetrator
of the domestic disturbance had just left and was a black
male wearing a black shirt and black pants.” Officer
Tinsley believed that he had located an armed sus-
pect—Hicks later agreed that he was dressed in black—and
approached Hicks, who had walked to the driveway of a
neighboring house where he was talking to Woodbury.
Tinsley reported that Hicks asked Woodbury, “Man, Dave,
why’d you do me like this?” and began to walk away.
When Hicks began to enter the door of a nearby home,
Tinsley and Sergeant Lapp, who had just arrived,
ordered him to stop. Hicks did not stop, though, so
Tinsley opened the door himself, grabbed Hicks’s arm,
and placed him in handcuffs. Tinsley reported that he
was about to start a pat-down search when Hicks informed
him that he had a gun in his right front pants pocket.
Tinsley removed a loaded revolver from Hicks’s pocket
and, after discovering that Hicks was a felon, placed
him under arrest.
Hicks testified at the suppression hearing and did not
substantially contradict Officer Tinsley’s version of
events. He agreed that he had ignored the officers’ com-
mands and tried to elude them by walking into the
nearby house. Hicks also testified that he had picked up the
gun when he was in the house arguing with McClendon in
order to protect himself from Woodbury and to protect
McClendon from herself.
No. 07-1630 5
The district court denied Hicks’s motion to suppress
twice, holding both times that Officer Tinsley had rea-
sonable suspicion to stop him. In its second denial, the
court explained that the information relayed to the 911
operator and to the dispatcher was irrelevant to determin-
ing what Officer Tinsley knew at the time he made the stop.
Looking only at what Tinsley actually knew, the
court concluded that he had reasonable suspicion to
stop Hicks. The court also noted the presumption of
reliability given to emergency reports made in 911 calls that
we recognized in United States v. Drake, 456 F.3d 771, 774-75
(7th Cir. 2006), and held that Tinsley could rely on the
dispatch report because he was not aware of
the inconsistent information the caller had given.
II. Discussion
Hicks argues that the district court erred when it held
that Officer Tinsley had reasonable suspicion to stop him.
In an appeal of a ruling on a motion to suppress, we re-
view the district court’s factual findings for clear error
and its legal conclusions de novo. See United States v.
Barnett, 505 F.3d 637, 639 (7th Cir. 2007).
Hicks and the government agree that Officer Tinsley’s
conduct must be reviewed under Terry v. Ohio, 392 U.S. 1
(1968), which holds that an officer may conduct “a brief,
investigatory stop when the officer has a reasonable,
articulable suspicion that criminal activity is afoot.” Illinois
v. Wardlow, 528 U.S. 119, 123 (2000) (citing Terry, 392 U.S. at
30). The determination of whether the officer had rea-
sonable suspicion is an objective inquiry based on the
totality of the circumstances known to the officer at the
time of the encounter. United States v. Lawshea, 461 F.3d
6 No. 07-1630
857, 859 (7th Cir. 2006). Under most circumstances,
when an officer observes someone who fits the descrip-
tion given by a dispatcher of a person involved in a
disturbance and the observation is near in time and place
to the disturbance, the officer may stop the suspect. See
United States v. Lenoir, 318 F.3d 725, 729 (7th Cir. 2003).
Hicks argues, however, that things are different when,
as he characterizes the facts of this case, the officer’s
knowledge stems from miscommunicated information
gleaned from a nearly anonymous and completely uncor-
roborated tip that contained several inconsistencies.
Hicks’s argument begins with the Supreme Court’s
holding in Florida v. J.L., 529 U.S. 266 (2000), that an
anonymous and uncorroborated tip did not justify a
Terry stop. Id. at 271. But J.L. did not hold that all anony-
mous or uncorroborated tips are unreliable; instead, it
emphasized that the tip in question came from an un-
known caller at an unknown location and provided no
information that would allow the police to test the infor-
mant’s credibility. Id. More importantly, though, the J.L.
Court did not treat the tip as one reporting an emergency.
Id. at 268.
The argument under J.L. fails, first, because the tip here
reported an ongoing emergency. Every circuit to consider
the question, including this one, has distinguished J.L.
when the tip is not one of general criminality, but of an
ongoing emergency, United States v. Brown, 496 F.3d 1070,
1077 (10th Cir. 2007); United States v. Elston, 479 F.3d 314,
319 (4th Cir. 2007); Drake, 456 F.3d at 775; United States v.
Terry-Crespo, 356 F.3d 1170, 1176 (9th Cir. 2004); Anthony v.
City of New York, 339 F.3d 129, 136-37 (2d Cir. 2003); United
States v. Holloway, 290 F.3d 1331, 1338-39 (11th Cir. 2002), or
very recent criminal activity, Terry-Crespo, 356 F.3d at 1176-
No. 07-1630 7
77; United States v. Valentine, 232 F.3d 350, 354 (3d Cir.
2000). The J.L. Court itself acknowledged that it was not
deciding whether an anonymous tip alleging a greater
danger than mere possession of a firearm might justify a
search based on a lesser showing of reliability. Id. at 273-74;
see also United States v. Goodwin, 449 F.3d 766, 769-70 (7th
Cir. 2006).
This case is also distinguishable from J.L. because
Woodbury gave his name, his location, and described
his clothing; that is, he was not anonymous. Courts,
including our own, have distinguished J.L. when the tipster
gives her name or other identifying information to the
911 operator. Brown, 496 F.3d at 1075-76; United States v.
Elmore, 482 F.3d 172, 181-83 (2d Cir. 2007); Drake, 456 F.3d
at 774; United States v. Romain, 393 F.3d 63, 73 (1st Cir.
2004); Terry-Crespo, 356 F.3d at 1174-75; United States v.
Quarles, 330 F.3d 650, 655 (4th Cir. 2003); United States v.
Harris, 313 F.3d 1228, 1235-36 (10th Cir. 2002); United States
v. Browning, 252 F.3d 1153, 1157-58 (10th Cir. 2001). The
Second Circuit summarized these holdings to mean that
reasonable suspicion may be based on a telephone tip when
the caller provided enough information to allow police to
“identify her and track her down later to hold
her accountable if her tip proved false.” Elmore, 482 F.3d
at 182. This rule finds support in J.L. where the Supreme
Court noted the reliability of a known tipster “whose
reputation can be assessed and who can be held responsi-
ble if her allegations turn out to be fabricated.” J.L., 529
U.S. at 270.
Hicks’s final attempt to use J.L. is to argue that the tip
was not reliable because it lacked predictive information
that would allow Officer Tinsley to test it. But the type
of testing that Hicks believes Tinsley needed to do before
8 No. 07-1630
the stop, see, e.g., Alabama v. White, 496 U.S. 325, 332 (1990)
(Terry stop reasonable after “significant aspects of the
caller’s predictions were verified”), would almost never
be possible in an emergency situation. As the Ninth Cir-
cuit has explained, “Police delay while attempting to
verify an identity or seek corroboration of a reported
emergency may prove costly to public safety and under-
mine the 911 system’s usefulness.” Terry-Crespo, 356 F.3d
at 1176.1
A rule requiring a lower level of corroboration before
conducting a stop on the basis of an emergency report is
not simply an emergency exception to the rule of J.L. Cf.
New York v. Quarles, 467 U.S. 649 (1984) (emergency
exception to rule of Miranda). It is better understood as
rooted in the special reliability inherent in reports of
ongoing emergencies. Based on that special reliability,
the Supreme Court has held that reports of ongoing
emergencies made in 911 calls are subject to less testing
in court than other out-of-court statements. Davis v.
Washington, 547 U.S. 813, 827-28 (2006) (contents of 911
call reporting an ongoing emergency not “testimonial,”
so not subject to Sixth Amendment’s right of confronta-
tion). Similarly, when an officer relies on an emergency
report in making a stop, a lower level of corroboration
is required.
1
The danger posed by not quickly responding to a 911 emer-
gency call is reflected in the case of one overly-skeptical 911
operator who was prosecuted for doubting and refusing to order
a response to a genuine emergency report. See Darren A. Nichols
& Doug Guthrie, Family Relieved After 911 Operator Convicted,
DETROIT NEWS, Jan. 19, 2008, available at http://www.
detnews.com/apps/pbcs.dll/article?AID=2008801190357 (last
visited June 27, 2008).
No. 07-1630 9
So J.L. does not govern because Woodbury gave the 911
operator enough information to identify him and his
location, and because he reported an ongoing emergency.
Hicks also relies on an argument based on the collective
knowledge doctrine, under which, when officers are in
communication, the knowledge of one officer is imputed
to the other. See United States v. Parra, 402 F.3d 752, 764
(7th Cir. 2005); Lenoir, 318 F.3d at 728. Thus, if the court
imputes the operator’s knowledge to Officer Tinsley, as
Hicks urges, then Officer Tinsley “knew” that it was
Woodbury, the caller, who was dressed in black and that
Woodbury’s call was riddled with inconsistencies. But
imputed knowledge does not trump actual knowledge,
even when that actual knowledge is later shown to be
false, so long as reliance on it was reasonable. See United
States v. Mounts, 248 F.3d 712, 715 (7th Cir. 2001). As we
have explained, “The reasonableness of the seizure turns
on what the officer knew, not whether he knew the truth
or whether he should have known more.” Reynolds v.
Jamison, 488 F.3d 756, 765 (7th Cir. 2007). Thus, despite the
inconsistencies known to the 911 operator and the
miscommunication about who was dressed in black, the
information that Tinsley reasonably believed the dispatcher
gave him before he made the stop—that an armed black-
clothed black man was involved in an ongoing domestic
disturbance—created reasonable suspicion for the stop.
Mounts, 248 F.3d at 715; see also Williams v. City of Cham-
paign, 524 F.3d 826, 828 (7th Cir. 2008) (possible careless-
ness of security guard who made faulty report of rob-
bery “cannot be pasted on to the police officers” who
responded to report).
The last argument to consider is particularly weak. Hicks
places great weight on the final words recorded in the
10 No. 07-1630
911 call. Woodbury said, probably to Officer Tinsley, “Sir,
he’s alright, he’s alright, he’s alright sir.” Hicks believes
that once Tinsley heard that Hicks was “alright,” he no
longer had reasonable suspicion to stop him and should
have left him alone. But Tinsley had no reason to know
that Woodbury was the 911 caller. And even if Tinsley
had known that he was hearing from the original
accuser, things would be no different because in deter-
mining who to arrest or stop, officers may rely on the
testimony of an eyewitness even when the eyewitness
later changes his story. See Askew v. City of Chicago, 440
F.3d 894, 895 (7th Cir. 2006).
Finally, a word about J.L.’s concern that sanctioning
stops prompted by anonymous tips might “enable any
person seeking to harass another to set in motion an
intrusive, embarrassing police search.” J.L., 529 U.S. at
1379-80. The facts of this case—as well as the J.L. Court’s
speculation that it might have ruled differently had the
report been of a person carrying a bomb (that is, an emer-
gency), id. at 1380—show the limits of that concern. Surely,
anonymous tips about emergencies cannot always be
trusted—although frequency data does not exist, fraudu-
lent 911 calls are agreed to be a dangerous problem. See
Rana Simpson, Misuse and Abuse of 911 at 5-7 (U.S. Dept. of
Justice, Problem-Oriented Guides for Police Series, No. 19,
2002), available at http://www.popcenter.org/problems/
pdfs/Misuse_and_Abuse_of_911.pdf (last visited June 27,
2008). But any body of law requiring 911 operators to
carefully make credibility determinations would unac-
ceptably delay the necessary responses to all emergency
calls, including genuine ones. In any event, J.L.’s concern
about harassment by an unaccountable tipster is not
present in this case because the call was recorded, the
No. 07-1630 11
caller gave his name, general description, and location,
and he explained how he knew about the ongoing crime.
Conclusion
For the foregoing reasons, we AFFIRM the district court’s
denial of Defendant’s motion to suppress.
USCA-02-C-0072—7-9-08