United States v. Rose, 2022 WL 4115945 (5th Cir. 2022)
An anonymous tipster called 911 to report a possible armed robbery in the parking lot of a liquor store. The caller declined to give his name, but his phone number was captured by the 911 system and his call recorded. He reported seeing two people seated in a white Ford Crown Victoria parked beside the liquor store near a trash can. The caller described a Black male wearing a black hoodie, red pants, and white and gold “Jordans” seated in the driver’s seat. The man was said to be threatening the passenger with a black handgun that had an extended magazine. The caller said it looked as if the suspect took pills from the passenger, who the caller did not describe.
Approximately five minutes later, Officer Kalash arrived on the scene, followed a few seconds later by Officers Green and Pina. Officer Kalash spotted Terrel Jamal Rose standing behind a dumpster. Rose was a Black man wearing red pants, white and gold tennis shoes, and a light gray—rather than black—hoodie. He also wore a black skullcap, his loose-fitting hoodie was mostly unzipped and he wore a white t-shirt beneath. A white Ford Crown Victoria was parked, but still running, beside the liquor store and a blue trash can. No one was in the car.
Officer Kalash got out and walked toward the dumpster. He made eye contact with Rose, who “ducked out of viewpoint where Officer Kalash couldn’t see him for a second, and then popped back up.” Officers Kalash and Green called for Rose to come out from behind the dumpster. Rose did so and said he had gone to urinate behind the dumpster. Officer Kalash frisked Rose and Officer Green asked him if the Ford sedan belonged to him; Rose said it did. The officers told Rose to sit down as Officer Kalash searched behind the dumpster, where he quickly found a black handgun with an extended magazine near where he had first seen Rose. A check of the serial number revealed the gun had been reported stolen.
Officer Green learned of an outstanding arrest warrant and documented gang membership for Rose. Officer Kalash asked if he had any tattoos, to which Rose responded affirmatively. Officer Kalash then asked Rose if the Crown Victoria belonged to him. Rose reiterated that it did and consented to Officer Kalash’s request to look inside. Officer Kalash found multiple small baggies containing marijuana.
Rose allowed Officer Kalash to photograph his tattoos. Officer Kalash then informed Rose of the arrest warrant and the discovery of marijuana in his car and handcuffed him. During the search incident to arrest, Officer Kalash found prescription bottles containing pills in Rose’s pockets; Rose had no prescription for them.
Rose challenged the investigatory detention on the grounds that the tip was unreliable because it was anonymous. The trial court ruled the investigatory stop was unconstitutional and suppressed “all evidence collected during the search of the vehicle and the search of Rose, the arrest, and the statements made during the stop.” The trial court relied on the Supreme Court decision in Florida v. J.L. (529 U.S. 266 (2000)), in which the Court held that a “bare-bones” tip from an anonymous source providing no details regarding how the source knew about the gun, no predictions of future behavior of the suspect and no visual confirmation of the gun was not reliable to justify investigative detention. The government appealed the trial court ruling.
The appellate court also noted the “highly specific” information provided by the anonymous informant.
The United States Supreme Court has rejected the argument “that reasonable cause for an investigative stop can only be based on the officer’s personal observation, rather than on information supplied by another person” (Navarette v. California, 572 U.S. 393, 397 (2014)). While an anonymous tipster’s veracity is “by hypothesis largely unknown, and unknowable,” under appropriate circumstances an anonymous tip can demonstrate “sufficient indicia of reliability to provide reasonable suspicion to make an investigatory stop.” The Navarette Court held that, although tips in 911 calls are not per se reliable, “the caller’s use of the 911 emergency system” is “another indicator of veracity” because modern 911 systems capture the caller’s phone number and record the caller’s voice, allowing for investigation of the caller’s identity.
The Navarette opinion cited four factors that bolster the reliability of an anonymous tip:
- The anonymous caller personally saw the incident.
- The call immediately followed the incident.
- The call came through the 911 system, which presumably has the technology to track caller identification, thereby deterring false reports.
- The caller described an ongoing and dangerous crime.
In the Rose case, the court of appeals held the Navarette factors weighed in favor of the prosecution. The anonymous tipster identified himself as an eyewitness to the events in the liquor store parking lot; he professed to describe those events as they unfolded and the officers found circumstances supporting the tipster’s reported timeline; and he used the 911 emergency system, which, as reflected by the record, both traced his number and recorded his call. The appellate court also noted the “highly specific” information provided by the anonymous informant. Although there were some minor discrepancies between the tipster’s report and the officers’ observations, the information conveyed by the informant was mostly consistent with what the officers discovered when they arrived on the scene:
- The officers found the white Ford Crown Victoria, still running and parked on the side of the liquor store beside a trashcan.
- They identified a man who closely fit the description they received and who was in distinctive attire.
- Against the background of what the officers had already corroborated, Rose’s ducking behind the dumpster upon seeing the officers heightened their suspicion.
- Within seconds of confronting Rose, the officers found a firearm in his proximity that precisely matched the extended-magazine handgun described by the tipster.
The court also held that the trial court was wrong in calling the information “stale” upon the officers’ arrival: “The setting of the alleged crime remained mostly intact: the car remained parked exactly where the informant had said and a suspect mostly fitting the description provided was close by and acting abnormal. Moreover, the car itself was still running, suggesting that the suspect had only just left it and intended very soon to return to it.”
The court of appeals reversed the suppression order, holding “that, even when viewing the evidence in the light most favorable to Rose, no reasonable view of it supports the district court’s ruling.”
