United States v. Rose

48 F.4th 297

UNITED STATES of America, Plaintiff—Appellant,

v.Terrel Jamal ROSE, Defendant—Appellee.

No. 20-10463

United States Court of Appeals, Fifth Circuit.

Date Filed: September 9, 2022

Amy Jeannine Mitchell, Leigha Amy Simonton, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff—Appellant.

Terrel Jamal Rose, Seagoville, TX, Pro Se.

Before Higginbotham, Southwick, and Engelhardt, Circuit Judges.

Per Curiam:

In this interlocutory appeal, the government challenges the district court's partial grant of defendant Terrel Rose's motion to suppress. Contrary to the district court, we conclude that the evidence at issue was obtained following a constitutionally valid investigatory stop and thus did not warrant suppression on that account. Accordingly, we REVERSE and REMAND for further proceedings consistent with this opinion.

I.

At 1:28 p.m. on November 12, 2018, a 911 caller reported a suspicious confrontation, possibly an armed robbery, transpiring in the parking lot of a Dallas liquor store. The caller, whose number was logged although he declined to identify himself, described seeing two people sitting in a white Ford Crown Victoria parked beside the store near a trash can. He said that a black male—wearing a black hoodie, red pants, and white and gold "Jordans"—was seated in the driver's seat and threatening the passenger, who he did not describe, with a black handgun that had an extended clip. No shots were fired, but it appeared, the caller said, that the suspect took pills from the passenger.

The 911 operator relayed the details of the anonymous call to the police. Approximately five minutes after the call, Officer Matthew Kalash arrived on the scene, followed a few seconds later by Officers Gary Green and Gabriele Pina. Almost immediately upon reaching the scene, Officer Kalash sighted a person standing behind a dumpster, later identified as Terrel Rose, who seemed to mostly fit the informant's description—a black man wearing red pants with white and gold tennis shoes but a light-gray hoodie rather than a black hoodie. He also wore a black skullcap, and his loose-fitting hoodie was mostly unzipped, revealing a white t-shirt beneath. Parked nearby, as described by the caller, was a white Ford Crown Victoria beside the liquor store and a blue trash can. No one was in the vehicle.

Exiting his patrol car and approaching the dumpster, Officer Kalash initially made eye contact with Rose, but Rose "ducked out of viewpoint where [he] couldn't see him for a second, and then popped back up." With Officer Green also approaching, Officer Kalash called for Rose to come out from behind the dumpster. Rose complied, saying that he had gone behind the dumpster to relieve himself, and Officer Kalash briefly patted him down to check for weapons. Motioning to the Crown Victoria, Officer Green asked Rose if it belonged to him. Rose said that it did. Officer Green then asked Rose to sit down as Officer Kalash proceeded to search behind the dumpster, where he quickly found a black handgun with an extended clip on the ground in the area where he had first observed Rose.¹ Bringing the weapon back to his car, Officer Kalash ran the serial number and found that it had been reported stolen.

While Officer Kalash checked the firearm, Officer Green obtained Rose's identification and ran a subject check, which, according to Officer Kalash's testimony at the suppression hearing, revealed an outstanding arrest warrant and documented gang membership. Approaching Rose again, Officer Kalash asked if he had any tattoos, to which Rose responded that he did. Officer Kalash then asked if the Crown Victoria belonged to him, and when Rose said that it did, he asked if he could look inside. Rose replied, "go ahead." Inside the car, which was still running, Officer Kalash found multiple small baggies containing marijuana.

Returning to Rose, Officer Kalash asked, "for gang information purposes," if he could photograph Rose's tattoos, which Rose allowed. Officer Kalash then informed Rose of the arrest warrant and discovery of marijuana in his car and placed him in handcuffs. Proceeding to search him, Officer Kalash found prescription bottles containing pills, for which Rose had no prescription, in his pockets. The officers then transported Rose to the jail. During the drive there, Officer Pina asked Rose standard booking questions.

A grand jury indicted Rose for unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Rose filed a motion to suppress the evidence and statements obtained during and after the stop, contending that the officers, without Mirandizing him, "detained or arrested [him] without lawful warrant, probable cause or other lawful authority." The district court conducted a hearing on the motion and requested additional briefing as to the constitutionality of seizing the firearm if the investigatory stop was improper. Ultimately, the district court partially granted Rose's motion, finding the investigatory stop unconstitutional and suppressing "all evidence collected during the search of the vehicle and the search of Rose, the arrest, and the statements made during the stop."² The government appealed the district court's grant of Rose's motion to suppress under 18 U.S.C. § 3731.³ In response to the government's unopposed motion, we dismissed this appeal without prejudice so that Rose could enter a guilty plea. After the district court rejected the plea agreement, the government moved to withdraw the mandate in this case and reinstate the appeal. We granted that motion, and now consider the appeal on the merits.

II.

"When examining a district court's ruling on a motion to suppress, we review questions of law de novo and factual findings for clear error." United States v. Wise , 877 F.3d 209, 215 (5th Cir. 2017) (quoting United States v. Hearn , 563 F.3d 95, 101 (5th Cir. 2009) ). Nonetheless, we view the evidence "in the light most favorable" to the party that prevailed in the district court. United States v. Toussaint , 838 F.3d 503, 507 (5th Cir. 2016). And we uphold a district court's ruling on a suppression motion "if there is any reasonable view of the evidence to support it." United States v. Michelletti , 13 F.3d 838, 841 (5th Cir. 1994) (en banc) (citation omitted).

III.

We must decide whether the district court erred in its determination that the investigatory stop of Rose was not justified by reasonable suspicion. We conclude that it did.⁴

The Fourth Amendment prohibits unreasonable searches and seizures, and "applies to seizures of the person, including brief investigatory stops." United States v. Cortez , 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). An investigatory stop, however, does not violate the Fourth Amendment if it is supported by "reasonable suspicion."⁵ United States v. Arvizu , 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). The reasonable suspicion inquiry is qualitative and quantitative; it depends "upon both the content of information possessed by police and its degree of reliability." Alabama v. White , 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). Thus, a law enforcement officer acts with reasonable suspicion if, based on the totality of the circumstances, he has "a particularized and objective basis for suspecting the particular person stopped of criminal activity." Cortez , at 417–18, 101 S.Ct. 690.

A 911 call can sometimes supply reasonable suspicion, and we evaluate the individual circumstances of each case when making that determination. United States v. Vickers , 540 F.3d 356, 361 (5th Cir.), cert. denied , 555 U.S. 1088, 129 S.Ct. 771, 172 L.Ed.2d 760 (2008). In doing so, we consider four factors: "(1) the credibility and reliability of the informant; (2) the specificity of the information contained in the tip or report; (3) the extent to which the information in the tip or report can be verified by officers in the field; and (4) whether the tip or report concerns active or recent activity or has instead gone stale." United States v. Gomez , 623 F.3d 265, 269 (5th Cir. 2010) (citing United States v. Martinez , 486 F.3d 855, 861 (5th Cir. 2007) ).

First, we begin by considering the credibility and reliability of the informant. Of course, that assessment encounters obvious difficulty when, as here, the informant is anonymous. In such circumstances, "the Government must establish reasonable suspicion based on the remaining factors." Id.

But some attributes can increase reliability even when the informant chooses to remain anonymous. In its most recent anonymous-tip case, the Supreme Court identified three factors that, taken together, support a decision by law enforcement to credit the reliability of anonymous tips: the informant (1) asserts eyewitness knowledge of the reported event; (2) reports contemporaneously with the event; and (3) uses the 911 emergency system, which permits call tracing and voice recording. Navarette v. California , 572 U.S. 393, 398–401, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014).

The first two of these factors are straightforward, but the third warrants some further explanation. In his concurrence in Florida v. J.L. , Justice Kennedy noted that "the ability of the police to trace the identity of anonymous telephone informants may be a factor which lends reliability to what, years earlier, might have been considered unreliable anonymous tips." 529 U.S. 266, 276, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (Kennedy, J., concurring). Nearly fifteen years later, the Supreme Court held in Navarette that, although tips in 911 calls are not per se reliable, "the caller's use of the 911 emergency system" is "[a]nother indicator of veracity." Navarette , 572 U.S. at 400–01, 134 S.Ct. 1683. Borrowing from and expanding on the reasoning in Justice Kennedy's J.L. concurrence, the Court cited "technological and regulatory developments" since the J.L. decision, including requirements "to identify the caller's...