Case: 21-40849 Document: 00516833261 Page: 1 Date Filed: 07/25/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
July 25, 2023
No. 21-40849 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Jacob Boone Wright,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:20-CR-1444-1
______________________________
Before Smith, Barksdale, and Haynes, Circuit Judges.
Jerry E. Smith, Circuit Judge:
This case returns to us after a limited remand. In the first submission,
we clarified the point at which defendant Jacob Wright experienced a Fourth
Amendment “seizure.” United States v. Wright (Wright I), 57 F.4th 524, 533
(5th Cir. 2023). But we remanded for further factfinding about the circumstances precipitating the seizure. Now, based on the district court’s new
findings, we conclude that the police had reasonable suspicion to seize
Wright and thus lawfully obtained the incriminating evidence from his car.
We affirm the judgment of conviction.
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I.
For the most part, the facts are as described in Wright I, id. at 527–29.
We repeat only those details that are relevant to the reasonable-suspicion
inquiry or were clarified on remand.
A.
On July 15, 2020, the Corpus Christi Police Department received a
“suspicious vehicle call.” The caller—who asked to remain anonymous—
told dispatch that a gold Toyota Corolla was parked on Tanglewood Drive
near Glen Arbor Park and that the occupants were dealing drugs.
A core factual dispute is whether the tipster made the bare accusation
that the individuals in the car were “dealers” or whether he claimed to see
them dealing drugs. The dispatcher’s “call summary log” indicated that the
tipster said that the occupants of the gold Corolla were “drug dealers,” that
they were in “his park,” that the police needed to clear them out, and that he
would shoot the suspects if necessary to defend himself. 1 Later, however, the
police convinced the tipster to identify himself and testify at the suppression
hearing. There, he gave slightly more detail—he claimed that he told police
_____________________
1
Specifically, the log included the following information:
• SUSPICIOUS PEOPLE AT LOC/RP ADV DRUG
DEALERS/NO DRIVING CARS AT LOC
• RP ADV NO DESC
• RP ADV PD NEEDS TO GET THESE DRUG DEALERS
OUT OF HIS PARK
• DID THREATEN TO SHOOT SUBJS IF THEY DID
SOMETHING THAT REQUIRED HIM TO DEFEND HIMSELF
• REF TO GIVE INFO ON HIMSELF
• ALSO ADV OF A GOLD COROLLA AT LOC/ IS ONE OF
THE SUBJS CARS
2
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dispatch “that there was a gold Toyota Corolla . . . at the pavilion doing a re-up, giving drugs to the transients that deal in that park.”
Regardless of what precisely the tipster said on the phone, the truncated “call summary log” was sent to Officer Jakobsohn, who was already in
the area. As soon as she received the bulletin, she headed toward Glen Arbor
Park and arrived within a few minutes. There, she spotted a gold Corolla
parked on Tanglewood Drive, just as the tipster had said. She executed a
three-point turn and pulled up behind the vehicle with her red and blue flashers activated. Almost immediately, the driver (Wright) opened the driver’s
door and moved to exit the vehicle. Jakobsohn shouted “stay in your car!”
She repeated the command two more times, but Wright ignored her and
stepped out of his car.
Jakobsohn then got out of her police cruiser and confronted Wright.
After a verbal altercation, she handcuffed Wright and arrested him for
“resisting detention.” She proceeded to search the car, which revealed a
pistol and synthetic marihuana.
Wright was indicted on one count of being a felon in possession of a
firearm. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). He moved to suppress the
evidence of the weapon, claiming that the gun was the fruit of an unlawful
seizure because Jakobsohn lacked reasonable suspicion to initiate a “Terry
stop.” 2 The district court orally denied the motion to suppress after a live
hearing, based on testimony from Jakobsohn and the tipster. Wright entered
a conditional guilty plea, reserving the right to appeal the denial. After the
court entered a judgment of conviction, Wright timely appealed.
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2
A Terry stop is a brief investigatory detention. See Terry v. Ohio, 392 U.S. 1, 21
(1968).
3
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B.
Before the remand, we had to decide when Wright was “seized”
within the meaning of the Fourth Amendment. The district court was not
precise in the suppression hearing about when exactly it thought Wright was
seized, but it found that the Fourth Amendment was not implicated until
after Wright and Jakobsohn got out of their cars and after their verbal altercation. We disagreed. We held that Wright was seized as soon as Jakobsohn
pulled behind Wright with her lights flashing and “almost simultaneously”
ordered him to remain in his car. Wright I, 57 F.4th at 533. That was the start
of the Terry stop.
Still, a Terry stop must be justified by reasonable suspicion, and it was
unclear whether Jakobsohn had reasonable suspicion at that point. Because
the district court thought the Terry stop occurred later in the encounter, it
did not specifically evaluate the circumstances supporting reasonable suspicion at the time Jakobsohn initially approached Wright. It also failed to make
factual findings about the reliability of the anonymous tip. See id. at 535.
Given those shortcomings in the record, we remanded for the district court
to determine, in the first instance, whether Jakobsohn had reasonable suspicion to seize Wright at the moment she pulled up behind him and ordered
him to stay put.
Id. at 536.
C.
On remand, the district court helpfully clarified three critical facts.
First, it specified that the anonymous tip came as a “suspicious vehicle
report,” not through the 911 system. United States v. Wright, No. 2:20-CR-
01444, 2023 WL 1928221, at *2 (S.D. Tex. Feb. 9, 2023). Because it was not
a 911 call, it appears there was no way to record the call or trace the caller.
See
id. at *6. Second, the court explicitly found the tipster’s testimony at the
suppression hearing credible.
Id. at *8. And third, the court found that the
4
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tip included both the information in the dispatcher’s call summary log and
the additional details furnished by the tipster at the suppression hearing. See
id. at *1–2. Therefore, the court found that the tipster gave a contemporaneous and eyewitness account to dispatch that he had seen drugs dealt out of
the gold Corolla.
Id. at *5–6.
The district court also offered several new legal explanations to support its ruling. For one thing, it found that the anonymous tip could be reliable under the totality of the circumstances even if the call was not made
through 911 and was not traceable. Id. at *6. It also noted that Jakobsohn
knew that Glen Arbor Park was rife with drug crime, and that experience
supported her reasonable suspicion.
Id. at *7. Finally, the court relied on the
so-called “collective knowledge doctrine” to conclude that the combination
of the dispatcher’s and Jakobsohn’s knowledge could justify the Terry stop.
Id. at *7–9. Based on that reasoning, the district court reaffirmed its original
finding that Jakobsohn had reasonable suspicion.
Id. at *9.
II.
Now the case comes back to us. With the benefit of the district court’s
new factfinding and the parties’ supplemental briefs, we can answer whether
Jakobsohn had reasonable suspicion to initiate a Terry stop of Wright.
The answer is yes. Jakobsohn’s Terry stop was lawful if, based on the
totality of the circumstances, she had “a particularized and objective basis
for suspecting” that Wright was engaged in criminal activity. See United
States v. Cortez, 449 U.S. 411, 417–18 (1981). And Jakobsohn seized Wright
based on a reasonable suspicion that he was involved in drug dealing. Her
belief was based on the combination of (A) the tip, (B) the high-crime area,
5
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and (C) Wright’s exiting the vehicle. 3
A.
Start with the tip. Reasonable suspicion can be based on anonymous
tips. Navarette v. California, 572 U.S. 393, 397 (2014). The tip just needs to
evince “sufficient indicia of reliability” that the officer can justifiably rely on
it to make a stop. Alabama v. White,
496 U.S. 325, 327 (1990). Our circuit
has used four factors to determine whether a tip is sufficiently reliable:
(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).
But before we can say the tip was reliable, we must be clear about its
contents. The district court found that the tipster told the dispatcher exactly
what he said at the suppression hearing, that he was an eyewitness to drug
dealing out of the gold Corolla. Wright disputes that. He says that the substance of the tip was limited to the information in the dispatcher’s memo, as
anything said in the suppression hearing was too far removed from the event
to be reliable. Wright also suggests that the tipster’s testimony did not clearly
communicate that he was an eyewitness to the criminal activity.
But the district judge was the one who heard the tipster’s testimony.
It concluded that the tipster accurately testified to the content of the tip.
More importantly, the court found that the tipster told dispatch that he had
_____________________
3
As always, we consider whether there was reasonable suspicion de novo, and we
review the district court’s factfinding for clear error. See United States v. Ganzer, 922 F.3d
579, 583 (5th Cir. 2019).
6
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witnessed the drug dealing with his own eyes. Wright, 2023 WL 1928221,
at *1, 5. That is a fair inference from the testimony. We will not disturb the
district court’s factfinding on appeal. 4
In sum, the anonymous tip purported to be (a) eyewitness testimony
(b) of recent or ongoing illegality (c) at a specific place (d) in a car of a specific
make, model, and color. That proves reliable under each of the Gomez
factors.
1.
In determining whether an anonymous tip can support reasonable
suspicion, the first consideration is the reliability of the tipster. Gomez,
623 F.3d at 269. While that inquiry depends on the specific circumstances of
each case, Navarette helpfully clarified that an anonymous tipster is sufficiently reliable where (1) the caller “necessarily claim[s] eyewitness knowledge” of illegal behavior, (2) the call is made “contemporaneous[ly] with the
observation of criminal activity,” and (3) the caller uses the 911 emergency
system, making their claim traceable and risking criminal liability for a false
tip. Navarette, 572 U.S. at 398–401. 5
Two of the three Navarette factors are present. By stating that he saw
drugs being dealt out of the gold Corolla, the tipster “necessarily claimed
eyewitness knowledge” of illegal behavior. See id. at 399. Furthermore, the
_____________________
4
See United States v. Gibbs, 421 F.3d 352, 357 (5th Cir. 2005) (“Where a district
court’s denial of a suppression motion is based on live oral testimony, the clearly erroneous
standard is particularly strong because the judge had the opportunity to observe the
demeanor of the witnesses.” (quoting United States v. Santiago,
410 F.3d 193, 197 (5th Cir.
2005))).
5
Navarette’s three indicia of reliability fit most comfortably under the first Gomez
factor—the credibility of the informant. See United States v. Rose, 48 F.4th 297, 303 (5th
Cir. 2022) (per curiam) (citing Navarette, 572 U.S. at 398–401). That said, there is some
overlap between the factors in Navarette and the other three Gomez factors.
7
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call was made at the same time as the drug dealing that the tipster claimed to
witness. Wright, 2023 WL 1928221, at *6.
Admittedly, the tipster did not use 911 to make his report, using a
“suspicious vehicle” reporting line instead. Wright insists that, without the
inherent traceability of a 911 call, a tip cannot be reliable under Navarette.
But Navarette did not establish an exhaustive set of necessary requirements for an anonymous tips. It only identified three factors that, considered
in context, made a tip reliable. See Navarette, 572 U.S. at 404. Although
Navarette did not clarify what would happen if one factor was not present,
“the use of the 911 line was only one indicator of veracity” in that case; “[a]
call . . . does not become unreliable solely because” it comes outside the 911
system. United States v. Aviles-Vega,
783 F.3d 69, 76–77 (1st Cir. 2015).
Indeed, “there is more than one way to demonstrate a particularized
and objective basis” for a Terry stop. Navarette, 572 U.S. at 404 (quotation
omitted). Although the tipster did not use 911, the call was not completely
anonymous. The tipster strongly suggested that he lived near the park.
Indeed, the police found the informant merely by knocking on doors near the
spot where Wright was arrested. More persuasively, Jakobsohn testified that
almost no “bogus” leads came through the suspicious vehicle reporting line,
so she was inclined to believe the tip. Those facts support the tip’s reliability,
even in the absence of a 911 call.
Wright counters that the tip had some features of unreliability. In
particular, he cites the tipster’s suggestion that he would shoot any drug
dealers with his AR-15 if he was forced to defend himself. But that statement
can be interpreted multiple ways. Wright reads the statement as evidence
the tipster was unhinged and untrustworthy. The government sees the statement as proof of his sincerity, as the tipster would not have made such an
excited utterance unless he actually witnessed an emergency. Because the
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tipster’s threat had an uncertain effect on the tip’s reliability—and given that
two of the other Navarette factors were satisfied—we agree with the district
court’s conclusion that the police officers had reason to think that the tipster’s testimony was credible.
2.
The credibility of the tipster, however, is not the only consideration.
As mentioned, there are four factors from Gomez. A tip is more likely to support reasonable suspicion if it is specific, verified, and recent. See Gomez,
623 F.3d at 269; see also United States v. Martinez,
486 F.3d 855, 861 (5th Cir.
2007). This tip was all three of those things.
The information in the tip was short but specific. It gave the make,
model, and color of the car. It gave the road where the car was parked and
the cross streets. And it described the illegal activity that was seen—the car’s
occupants were giving drugs to “transients.” The police were also able to
verify most of the tip’s contents within minutes; the only allegation Jakobsohn did not confirm with her own eyes was the supposed drug dealing. Yet
that is why she initiated the investigatory stop in the first place—the whole
point of a Terry stop is to allow officers to freeze the status quo and see
whether there is any reason to be concerned. See Adams v. Williams, 407 U.S.
143, 146 (1972). And finally, the tip was contemporaneous with the event
observed. We give much more weight to contemporaneous tips than to older
reports about criminal activity. See United States v. Alvarez,
40 F.4th 339,
347 (5th Cir. 2022).
Admittedly, the Supreme Court suggested in Florida v. J.L., 529 U.S.
266 (2000), that an investigatory stop based on an anonymous tip was inappropriate where police were only able to confirm innocuous visual details at
the scene. There, the tipster told police that a young black male was at a
particular bus stop, wearing plaid, and carrying a gun.
Id. at 268. Police went
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to the bus station and saw a black man in plaid, but the Court ultimately held
that there was no reasonable suspicion to stop and frisk the defendant.
Notably, the tipster did not explain how he knew about the gun, and the tip
contained “no predictive information.” Id. at 271. Even though it correctly
identified the location and garb of the suspect, “[t]he reasonable suspicion
here at issue requires that a tip be reliable in its assertion of illegality, not just
in its tendency to identify a determinate person.”
Id. at 272.
In Martinez, a case similar to J.L., we confronted a tipster who told
police that “a man named ‘Angel’ might have been a witness to a quadruple
homicide, might be in possession of the weapons used in the homicide, and
might be planning to flee to Mexico with those weapons.” Martinez,
486 F.3d at 858. The tip also suggested that Angel might be at a specific
address in Pasadena. Police went to the house and, after an investigation,
discovered Angel there. But we held that the combination of tip and confirmation could not furnish reasonable suspicion for a seizure. Relying on J.L.,
we explained that even though “the police might corroborate a mountain of
innocent data, such as a person’s identification and whereabouts,” it “does
not provide any basis for executing a Terry stop on that person.”
Id. at 864.
Wright contends that this case is just like J.L. and Martinez—the tip
lacked predictive information, and Jakobsohn confirmed only “innocent
data” at the scene before making her Terry stop. But J.L. and Martinez
involved tips about concealed crimes (carrying illegal weapons, specifically),
that there would be no reason for a random tipster to know about. Navarette
and this case both involve tips about open and obvious activity (reckless
driving and public drug dealing) that a passerby could more likely witness and
reliably report. Additionally, the tipsters in J.L. and Martinez gave no basis
for their allegations of criminality. In other words, there was nothing in the
tips themselves to distinguish knowledge from rank speculation. By contrast,
Navarette dealt with a tipster who purported to be an eyewitness to an
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ongoing crime. That is what we have here. And Navarette made clear that
such a tipster does not need to provide predictive information to be reliable;
nor do police need to corroborate visually the alleged illegality if there are
other indicia that the tipster is reliable. See 572 U.S. at 398–404. 6
Since Navarette, we have clarified that “there is no per se rule prohibiting investigatory stops based on anonymous tips that fail to provide predictive information.” United States v. Rose, 48 F.4th 297, 304 (5th Cir. 2022)
(per curiam). A non-predictive tip that is “highly specific” can still create
reasonable suspicion where an eyewitness reports observed criminality and
key elements of that tip are corroborated at the scene.
Id. at 304. 7
This case is closer to Rose than to J.L. The anonymous informant in
Rose described events that were “unfolding . . . in real time,” “described the
make, model, and color of the car,” noted the car’s location, described the
suspect in detail along with his illegal activities, and described details of a gun
involved. Id. at 304. Indeed, in Rose, we expressly held that the tipster at
issue was more reliable than the one in J.L. because he “explained exactly
how he knew about the alleged criminal activity: he was an eyewitness to
conduct occurring in plain view at a public place.”
Id. at 305. The court
therefore held that “all the factors weigh in favor of the government” and
the officers had reasonable suspicion to initiate a Terry stop based on the
anonymous tip.
Id. at 306.
_____________________
6
In fact, in Navarette, the police observed behavior that contradicted the tipster’s
testimony, but the Court still held that the officers were entitled to rely on the tip. Compare
572 U.S. at 403–04, with id. at 412–13 (Scalia, J., dissenting).
7
Other courts shared that intuition even before Navarette. See United States v.
Wheat, 278 F.3d 722, 734 (8th Cir. 2001) (“[The Supreme Court’s] emphasis on the predictive aspects of an anonymous tip may be less applicable to tips purporting to describe
contemporaneous, readily observable criminal action.”).
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The tip in this case is slightly less specific than the one in Rose—
namely, there were no details given about the individual suspect or the gun
that was seized—and the tipster in Rose used 911; but just because “all of the
factors” do not favor the government does not mean the seizure was unlawful. Like the informant in Rose, the tipster here gave similar information to
dispatch in a comparable context. He told police “that there was a gold
Toyota Corolla . . . at the pavilion [in Glen Arbor Park] doing a re-up, giving
drugs to the transients that deal in that park.” 8 That clears the low bar for
reasonable suspicion.
Wright instead relies on out-of-circuit United States v. Watson,
900 F.3d 892 (7th Cir. 2018). There, an anonymous tipster reported that
some “boys” were playing with guns in a parking lot.
Id. at 893. As here,
there was no traceable 911 call in Watson because the witness used a
stranger’s phone to call the police. So the court found Navarette inapposite
and held that the tip was not reliable. But the absence of a traceable 911 call
was not the only distinction between Watson and Navarette. The Seventh
Circuit also noted that “the tip in Navarette reported conduct that the officers reasonably suspected to be criminal,” whereas “the caller’s report in
[Watson] about the presence of guns did not create a reasonable suspicion of
an ongoing crime, because carrying a firearm in public is permitted with a
license in Indiana.”
Id. at 895. But this case is more like Navarrette than like
_____________________
8
The tipster here also gave slightly more information than the tipster in Rose did
about his relation to the observed events (intimating that he lived nearby, for example, and
that drug dealing in the park was a recurrent problem). Wright protests that the tipster did
not make those things clear in his actual tip, but only in ancillary testimony at the suppression hearing. But even the dispatcher’s call summary log suggests that the tipster was
“on scene” and that he claimed it was “his park.” The tipster emphasized the same things
at the suppression hearing and intimated that drug dealing was ongoing. The district court
also interpreted the tip to say that the vehicle was parked next to the tipster’s home.
Wright, 2023 WL 1928221, at *5.
12
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Watson because the tipster reported obviously criminal activity, and the
criminal activity was potentially ongoing.
Based on Navarette and our ensuing circuit precedent, the tip established Jakobsohn’s reasonable suspicion.
3.
The foregoing analysis depends on the collective knowledge of all the
police officers involved. As Wright points out, Jakobsohn did not know all of
the facts supporting reasonable suspicion. Although the dispatcher knew that
the tipster claimed to witness drug dealing, Jakobsohn received only the
conclusory summary that a tipster had reported “drug dealers” in Glen
Arbor Park. But under our circuit’s “collective knowledge doctrine,” information known by one officer can be imputed to another when assessing
whether police had legal basis for a seizure. United States v. Zuniga, 860 F.3d
276, 282–83 (5th Cir. 2017).
Wright responds that the dispatcher’s knowledge of the tip cannot be
transferred to Jakobsohn because the dispatcher did not have enough information to establish reasonable suspicion on her own. Wright suggests that
the collective knowledge doctrine does not apply unless at least one officer
has all of the information necessary to establish reasonable suspicion.
The applicability of the collective-knowledge doctrine, however,
depends on which version of the doctrine we are referring to. “What has been
loosely labelled the collective knowledge doctrine” actually refers to “two
distinct types of cases.” United States v. Webster, 750 F.2d 307, 323 (5th Cir.
1984). First, cases “where the arresting officer has no personal knowledge of
any of the facts establishing probable cause, but simply carries out directions
to arrest given by another officer who does have probable cause.”
Id.
(emphasis removed). On that version of the collective-knowledge doctrine,
if the ordering officer does not have reasonable suspicion, then the orderee
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officer does not have reasonable suspicion either. See Alvarez, 40 F.4th
at 352. But there is a second type of collective-knowledge case, where “the
arresting officer has personal knowledge of facts which, standing alone, do
not establish probable cause but, when added to information known by other
officers involved in the investigation, tips the balance in favor of the arrest.”
Webster,
750 F.2d at 323.
Wright is correct that this is probably not the first type of case. For
one thing, it is not clear that the dispatcher ordered Jakobsohn to initiate a
stop; the tip was merely relayed to her from dispatch. A lieutenant may have
ordered the dispatch to go out to Jakobsohn, Wright, 2023 WL 1928221,
at *2, but it is not clear—based on the transcript—whether Jakobsohn was
receiving an order or whether she had discretion to act on the tip. Additionally, it is not obvious that either the dispatcher or any supervising lieutenant had reasonable suspicion to seize Wright on his own. Neither had
confirmed any details of the tip themselves; they had only received the
anonymous tip over the phone.
Instead, this is the second type of collective-knowledge case. Multiple
police officers received information, and neither A’s nor B’s information was
independently sufficient to constitute reasonable suspicion, but A and B are
in communication, and the combination of A’s + B’s information justified a
stop.
Here, the dispatcher (A) knew of the reliability-enhancing details of
the tip under Navarette, including that it was an eyewitness account of
ongoing or recently completed drug dealing, along with the specific locational
details. Jakobsohn (B) knew some of those details along with the aspects of
the tip she visually confirmed at the scene. And both the dispatcher and
Jakobsohn were in communication. The “laminated total of the information
known by officers who are in communication with one another” (A + B)
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therefore amounted to reasonable suspicion. Webster, 750 F.2d at 323
(quotation omitted). 9
Indeed, the second version of the doctrine is especially applicable in
the anonymous-tip context. When police receive an anonymous tip and relay
that information to officers in the field, the dispatcher will be unable to corroborate the tip in the field. That means the dispatcher will often lack independent reasonable suspicion to authorize a stop. But once another officer
corroborates the tip or learns additional information supporting its reliability,
he or she might obtain the final puzzle pieces supporting reasonable
suspicion. 10
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9
Accord United States v. Kye Soo Lee, 962 F.2d 430, 436 (5th Cir. 1992) (“[W]here
the arresting officer has personal knowledge of facts which standing alone do not establish
probable cause for an arrest but, when added to information known by other officers
involved in the investigation, [it] tips the balance in favor of the arrest.”).
We have applied that version of the collective knowledge doctrine in the Terry stop
context. In United States v. Gonzalez, 637 F. App’x 136, 137 (5th Cir. 2016) (per curiam),
for example, an officer made a Terry stop based on a tip that was relayed to him. We
explicitly rejected the proposition that “a single officer must be fully aware of all of the facts
needed to justify an investigatory stop.”
Id. Instead, “probable cause could be formed
from the information in the possession of the arresting officers added to the information
possessed by the other officers with whom they were in communication.” Id.; see also
United States v. Sierra,
294 F. App’x 884, 889 (5th Cir. 2008) (per curiam) (explaining why
officers had reasonable suspicion to extend a Terry stop based on their collective
knowledge).
10
Cf. United States v. Nieto, 510 F.2d 1118, 1120 (5th Cir. 1975) (finding probable
cause where a “tip passed from the informant . . . [through two officers] to [another officer], who searched the car. The tip was corroborated when the location, appearance, and
occupants of the car were found to correspond exactly to it. The collective knowledge of
this closely coordinated team of drug agents can be attributed to the seizing officer on the
scene.”).
Other circuits have agreed. See, e.g., United States v. Fernandez-Castillo, 324 F.3d
1114, 1118 (9th Cir. 2003) (holding that a police “dispatcher’s knowledge is properly considered as part of our analysis of reasonable suspicion” even where the information was
“distilled and paraphrased” when transferred to the arresting officer); see also United States
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Based on Webster and its progeny, we can comfortably apply the
second version of the collective-knowledge doctrine here. We can consider
both what the dispatcher knew and what Jakobsohn confirmed at the scene.
Taking that information together, the tip passes muster under Navarette and
Gomez.
B.
If there were any doubt about the tip’s reliability, however, it is
important to remember that the tip was not the only basis for the Terry stop.
There was a second factor supporting reasonable suspicion: The area was
known for the precise type of criminal activity alleged in the tip.
Jakobsohn testified at the suppression hearing that she often patrolled
the corridor near Glen Arbor Park. In a ten-hour shift, she would receive
three to four calls coming from the area. Those calls mostly regarded “drug
users in that area . . . show[ing] signs of public intoxication,” “drug dealers
in the area,” and “a lot of homeless.” The anonymous tip was consonant
with her concerns about the area, as it reported drug dealing at Glen Arbor
Park to “transients.”
Although Wright suggests that we should give little weight to the fact
that this was a high-crime area, that gives short shrift to Supreme Court and
Fifth Circuit precedents. “[T]he fact that [a] stop occurred in a ‘high crime
area’” is “among the relevant contextual considerations in a Terry analysis.”
Illinois v. Wardlow, 528 U.S. 119, 124 (2000). That is especially true when a
high-crime area is combined with other suspicious behavior. United States v.
Michelletti,
13 F.3d 838, 844 (5th Cir. 1994) (en banc).
_____________________
v. Cutchin, 956 F.2d 1216, 1217–18 (D.C. Cir. 1992) (noting that officers may rely on a
dispatcher’s report “even though they cannot vouch for it”).
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No. 21-40849
Certainly, “one’s physical proximity to suspicious persons” should
not subject him to search. Id. at 849 (Smith, J., dissenting). “[A] person’s
presence in an area of expected criminal activity, standing alone, is not
enough to support a reasonable, particularized suspicion that the person is
committing a crime.” United States v. McKinney, 980 F.3d 485, 492 (5th Cir.
2020) (quotation omitted). But here, the high-crime area did not stand alone.
Wright’s presence in a park known for drug crimes was bolstered by an anonymous tip linking him to the exact type of crime familiar to the officer and
frequent in the area.
C.
Third and finally, Jakobsohn became justifiably concerned when she
pulled behind Wright and he opened his car door. In United States v. Goodin,
835 F. App’x 771, 780 (5th Cir. 2021), we reasoned that there was reasonable
suspicion when a defendant “immediately exited his vehicle upon being
pulled over.” It made the police officer’s “‘hair stand up’ because it presented safety concerns and suggested [the defendant] was trying to keep [the
officer] away from the car.”
Id. Although that case dealt with a prolonged
traffic stop instead of the justification for an initial seizure, the suspiciousness
of the behavior is equally relevant. As in Goodin, Wright’s confusing and
alarming attempt to exit the vehicle supports reasonable suspicion.
Wright asks that we ignore his evasive behavior after Jakobsohn
arrived because we previously held that the seizure occurred as soon as
Jakobsohn pulled behind Wright.
Not so. We specifically held that the seizure occurred “when Officer
Jakobsohn pulled behind his parked vehicle with the emergency lights
engaged on her patrol vehicle and almost simultaneously ordered him to
remain in his vehicle, which he instead stood beside.” Wright I, 57 F.4th
at 533 (emphasis added). Of course, none of Wright’s post-seizure conduct
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No. 21-40849
can contribute to reasonable suspicion—a seizure must be “justified at its
inception.” United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004)
(en banc). But before Jakobsohn ordered Wright to remain in his vehicle,
Wright started to exit the car, even though there was a police car behind him
with flashing lights. Wright’s furtive movement was what prompted Jakobsohn to make the command in the first place. That adds a final quantum of
suspicion to an already suspicious situation, fully justifying Jakobsohn’s
investigatory stop.
III.
The Fourth Amendment is not an insuperable barrier to legitimate
police work. When conducting a brief investigatory detention, an officer just
needs “reasonable suspicion” that crime is afoot. That is a low threshold,
requiring only “some minimal level of objective justification.” United States
v. Sokolow, 490 U.S. 1, 7 (1989) (quoting INS v. Delgado,
466 U.S. 210, 217
(1984)).
Officer Jakobsohn had that here. The contemporaneous tip, the visual
details that Jakobsohn confirmed, the high-crime area, and Wright’s evasive
response to police presence were enough to give an officer articulable suspicion that crime was occurring (or was about to occur). To conclude otherwise would raise the bar of reasonable suspicion and hamper law enforcement
from engaging in essential investigatory actions.
The district court properly denied Wright’s motion to suppress. The
judgment of conviction is AFFIRMED.
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No. 21-40849
Rhesa Hawkins Barksdale, Circuit Judge, dissenting:
My esteemed colleagues hold the Officer possessed the requisite
reasonable suspicion to seize Wright by their combining four factors: the
anonymous tip; the collective-knowledge doctrine; the stop’s occurring in a
high-crime area; and Wright’s opening his vehicle door as the stop was
occurring. Maj. Op. at 18. In short, without each of these four factors’ being
applicable, the requisite “articulable suspicion that crime was occurring (or
was about to occur)”, id., is lacking. This house of cards collapses based on
each factor’s erroneous application. I respectfully dissent.
I.
Our opinion earlier this year ordered a limited remand to district court
for supplemental findings of fact and conclusions of law, as a result of our
holding Wright was seized when “the Officer pulled behind Wright’s parked
vehicle with the emergency lights engaged on her patrol vehicle and almost
simultaneously ordered him to remain in his vehicle”. United States v.
Wright, 57 F.4th 524, 535 (5th Cir. 2023) (Wright I). Because the district
court had concluded the Terry stop was initiated later than that point in time,
we instructed the court to prepare, based only on the record developed at the
24 June 2021 suppression hearing, “written findings of fact and conclusions
of law on whether reasonable suspicion existed when the Officer pulled
behind Wright and ordered him to remain in his vehicle”.
Id. at 536. (For
the limited remand, the parties did not submit briefs to the district court.)
A.
Therefore, the following recitation of relevant facts is based on the
record developed at the 2021 suppression hearing, including testimony at the
hearing, as described in Wright I, 57 F.4th at 527–31.
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The Corpus Christi, Texas, Police Department (CCPD) on 15 July
2020 (at “about 4:30 in the afternoon”) received an anonymous “suspicious
vehicle call” regarding a vehicle in the Glen Arbor Park area near
Tanglewood Drive and Bonner Drive in Corpus Christi. Glen Arbor Park
and the surrounding neighborhood are part of a corridor of problem areas
where drugs are sold; in response to this activity, officers had been
responding to a few calls in this area every shift.
As a result of the call to CCPD, Officer Jakobsohn at 4:34 p.m.—about
four minutes after the anonymous call was made—received an incident “call-out”. The Officer testified the dispatcher (dispatch) told her “there was a
suspicious vehicle in the area of the Glen Arbor Park near Tanglewood
[Drive] and Bonner [Drive]”, and directed her to respond. Dispatch also
transmitted information regarding the anonymous call to the Officer’s in-vehicle computer (call summary or call-log report generated by dispatch).
Within minutes after receiving the call-out, the Officer located a gold
Toyota Corolla parked on Bonner Drive, across the street from the park;
executed a three-point-turn; and pulled behind the vehicle, engaging her
patrol vehicle’s red and blue emergency lights. As the Officer parked her
vehicle, she saw the driver’s door open on the Corolla; and, as she exited her
vehicle, she commanded the driver—later identified as Wright—three times
to “stay in [his] car”. Approximately 30 seconds elapsed from the time the
Officer spotted a vehicle appearing to match the information to when she
initially engaged with Wright.
At the 24 June 2021 suppression hearing, held approximately 11
months after the 15 July 2020 incident, the Government presented a map of
the area, the dashboard and body-cam videos, and only two witnesses: the
Officer; and Michael David Smith, whom officers had not identified as the
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No. 21-40849
anonymous caller until the prior week through knocking on doors in the area.
Wright presented only the call summary.
B.
In Wright I, we held Wright was seized when the Officer, with
emergency lights engaged, pulled behind Wright’s parked vehicle, and he did
not attempt to flee or terminate the encounter, but failed to comply fully with
the officer’s commands. Wright I, 57 F.4th at 532–33. Because the district
court—ruling from the bench at the suppression hearing—had concluded the
Terry stop had been initiated at a later point in the encounter, its findings and
conclusions were inadequate for our deciding whether reasonable suspicion
existed at the earlier point in time when the seizure occurred. Accordingly,
on 18 January 2023 we remanded on a limited basis for the district court to
prepare supplemental findings of fact and conclusions of law, based on the
record developed at the 2021 suppression hearing, for whether reasonable
suspicion existed when “Officer Jakobsohn pulled behind [Wright’s] parked
vehicle with the emergency lights engaged on her patrol vehicle and almost
simultaneously ordered him to remain in his vehicle”. Id. at 533.
C.
On 9 February 2023, the district court issued its supplemental
findings and conclusions. United States v. Wright, No. 2:20-CR-01444, 2023
WL 1928221, at *1 (S.D. Tex. 9 Feb. 2023). The court explained the
following gave rise to reasonable suspicion: the reliability and verification of
the anonymous vehicle report; Wright’s exiting his vehicle; his presence in a
high-crime area; and the collective-knowledge doctrine. Additionally, it
clarified that, despite its having stated at the 2021 suppression hearing “I’m
not really sure that [the] anonymous caller helped [the Government] out very
much”, it found credible the caller’s testimony at the hearing.
Id. at *8–9.
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II.
After receiving the supplemental findings and conclusions, we
required supplemental briefing to assist our review. When reviewing the
denial of a suppression motion, factual findings are reviewed for clear error;
conclusions of law, de novo. United States v. Smith, 952 F.3d 642, 646 (5th
Cir. 2020). “The conclusions of law derived from a district court’s finding
of fact, such as whether a reasonable suspicion existed to stop a vehicle, are
reviewed de novo.” United States v. Inocencio,
40 F.3d 716, 721 (5th Cir. 1994).
Viewing the evidence in the requisite light most favorable to the prevailing
party (here, the Government), a district court’s ruling will be upheld “if
there is any reasonable view of the evidence to support it”. United States v.
Massi,
761 F.3d 512, 520 (5th Cir. 2014) (citation omitted).
“One of the most important principles in our judicial system is the
deference given to the finder of fact who hears the live testimony of witnesses
because of his opportunity to judge the credibility of those witnesses.”
United States v. Gibbs, 421 F.3d 352, 357 (5th Cir. 2005) (citation omitted).
Accordingly, when, as in this instance, live testimony forms part of the basis
for denial of a suppression motion, our clearly-erroneous standard is
“particularly strong” because the “judge had the opportunity to observe the
demeanor of the witnesses”.
Id. (citation omitted). Conversely, video
recordings, as in this instance, are given a presumption of reliability and
significant evidentiary weight because “[a]n electronic recording will many
times produce a more reliable rendition . . . than will the unaided memory of
a police agent”. United States v. White,
401 U.S. 745, 753 (1971).
Accordingly, where testimony conflicts with video evidence, our court must
view the “facts in the light depicted by the videotape”. Scott v. Harris,
550
U.S. 372, 380–81 (2007).
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“Reasonable suspicion is a low threshold, requiring only a minimal
level of objective justification. But it must be founded on specific and
articulable facts rather than on a mere suspicion or hunch.” United States v.
Alvarez, 40 F.4th 339, 345 (5th Cir. 2022) (citations omitted).
A.
In its supplemental findings and conclusions, the district court
outlined the events leading up to the stop (as identified in Wright I) and
concluded reasonable suspicion existed for it. Such suspicion “is dependent
upon both the content of the information possessed by police and its degree
of reliability”. Alabama v. White, 496 U.S. 325, 330 (1990).
Although a tip need not necessarily contain predictive information to
establish reasonable suspicion, certain factors may be considered in deciding
whether the tip provided a sufficient basis. United States v. Gomez, 623 F.3d
265, 269 (5th Cir. 2010). Those factors are:
(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.
Id. (citing United States v. Martinez,
486 F.3d 855, 861 (5th Cir. 2007)).
Therefore, the initial question in determining whether the Officer
possessed reasonable suspicion is to assess whether the anonymous call was
“sufficiently reliable to credit the allegation” that Wright was involved in
drug activity at the time of that call. Navarette v. California, 572 U.S. 393,
398 (2014).
At the suppression hearing, the very-recently-identified caller
testified that, in the call, he reported “there was a gold Toyota Corolla that
was at the pavilion doing a re-up, giving drugs to the transients that deal in
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No. 21-40849
that park and that they needed to come there and get them out of [the] park”.
Based on the call, the dispatcher told the Officer “there was a suspicious
vehicle in the area of the Glen Arbor Park near Tanglewood [Drive] and
Bonner [Drive]”, and directed her to respond. Dispatch also transmitted
information regarding the call to the Officer’s in-vehicle computer (call
summary or call-log report generated by dispatch).
It goes without saying that we do not assess the credibility of the
caller’s suppression-hearing testimony. E.g., United States v. Santiago, 410
F.3d 193, 197 (5th Cir. 2005). Nevertheless, the tip was not sufficiently
reliable. E.g., United States v. Rose,
48 F.4th 297, 303 (5th Cir. 2022)
(explaining Navarette factors can, when taken together, “support a decision
by law enforcement to credit the reliability of anonymous tips”).
An anonymous tip may be found reliable when “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”. Id. (citing Navarette, 572
U.S. at 398–401). The following findings and conclusions are from those by
the district court on limited remand.
First, the court concluded the caller provided eyewitness knowledge
of the event because he reported “criminal and drug dealing activity he was
witnessing right outside his home”. Wright, 2023 WL 1928221, at *5. In
Navarette, the Court ruled the caller reported eyewitness knowledge of
alleged criminal conduct when she reported “she had been run off the road
by a specific vehicle—a silver Ford F–150 pickup, license plate 8D94925”.
Navarette,
572 U.S. at 399 (citing Illinois v. Gates,
462 U.S. 213, 234 (1983)
(“[An informant’s] explicit and detailed description of alleged wrongdoing,
along with a statement that the event was observed firsthand, entitles his tip
to greater weight than might otherwise be the case”. (emphasis added))).
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The Navarette Court noted the tip at issue was in contrast with Florida v. J.L.,
“where the tip provided no basis for concluding that the tipster had actually
seen the gun”. Id. (citing
529 U.S. 266, 271 (2000)).
Here, and relative to Navarette and its comparison to J.L., the thenanonymous caller’s general testimony, 11 months after his call, about drug
dealers in the park doing a “re-up” does not constitute detail amounting to
eyewitness knowledge of criminal conduct. Absent from the facts at issue is
any detail regarding: vehicle occupants, license plate number, number of
people at the car, amount of time the car was in the park, etc. The caller did,
however, provide detail regarding his ability to take matters into his own
hands, testifying he “told [dispatch] that [he] had [his] AR-15 locked and
loaded with 31 rounds of armor-piercing weaponry and that if [he] needed to,
[he] could do [the police officers’] job for them”. Cf. United States v. Aviles-Vega, 783 F.3d 69, 76–77 (1st Cir. 2015) (noting the court looks to the
“totality of the circumstances” in assessing whether “a personal grudge or
other ill-intended purpose motivated” the anonymous tip); United States v.
Copening,
506 F.3d 1241, 1247 (10th Cir. 2007) (finding anonymous caller’s
actions of “reporting . . . events to 911 dispatch, detailing what he observed,
following the vehicle, and updating dispatch regarding the truck’s location,
bespeak an ordinary citizen acting in good faith”).
The district court explained that these above-quoted details reflect the
caller’s frustration, Wright, 2023 WL 1928221, at *2; and the majority notes
the “tipster’s threat had an uncertain effect on the tip’s reliability”, but that
the Government suggested the caller “would not have made such an excited
utterance unless he actually witnessed an emergency”, Maj. Op. at 8. The
caller, however, never testified this statement was made from frustration, nor
that it was in response to an emergency or imminent personal threat; rather,
when questioned about what he “might do if [officers] don’t take care of the
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No. 21-40849
problem”, he answered with the above-quoted threat. Contra Navarette, 572
U.S. at 404 (assessing emergency tip involving drunk driver where “a second
chance for dangerous conduct could have disastrous consequences”).
Second, the court found “the caller made the suspicious vehicle
report at the time the conduct was actually occurring, and not sometime
later”. Wright, 2023 WL 1928221, at *6. Pursuant to our reviewing findings
for clear error, I must accept this finding because it is “plausible based on the
record as a whole”. United States v. Lord,
915 F.3d 1009, 1017 (5th Cir. 2019).
Third, the court did not clearly err in finding: that the caller did not
use the 911 system; and that this factor cuts against the Government. Wright,
2023 WL 1928221, at *6.
Balancing these factors, the district court concluded the first and
second factors established that the tip “bore adequate indicia of reliability”;
and, because “Officer Jakobsohn generally knew the information provided by
the caller because of a radio-call out from dispatch describing the call as well
as the information included in the call summary log”, the tip “weigh[ed] in
favor of finding reasonable suspicion” existed. Id. Our court has not held
whether any one Navarette factor is dispositive. The majority relies on out-of-circuit Aviles-Vega, 783 F.3d at 76–77, to reach a conclusion that the
caller’s failing to use the 911 system is not detrimental. Maj. Op. at 8.
It should be noted that, contrary to the tipster’s call in the instant case,
the anonymous caller in Aviles-Vega provided a far more detailed tip to an
officer working as a desk sergeant. Id. at 72. As testified to by the officer who
received the call, 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”; and the
caller stated he “observed that, as the Lumina drove in the direction of
Aguadilla, the front passenger passed a firearm to one of the individuals
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No. 21-40849
sitting in the back”. Id. at 72 & n.1. Additionally, prior to seizing the
individuals, officers in an unmarked police vehicle observed the reported
vehicle and corroborated the detailed information.
Id. at 72.
Although the majority seeks to differentiate countervailing authority,
it discredits the circuit split recognizing the critical importance of the 911
system’s tracing abilities. Maj. Op. at 12–13; see United States v. Watson, 900
F.3d 892, 895–96 (7th Cir. 2018) (“First and most significantly, Navarette’s
rationale for deeming 911 calls reliable has much less force here . . . [because]
the caller borrowed a stranger’s phone, limiting the usefulness of the
system’s tracing ability”. (emphasis added)); Beal v. Beller,
847 F.3d 897, 905
(7th Cir. 2017) (explaining, in civil context, evidence did not show the call
was made to a 911 system; therefore, the call lacked tracing capabilities and
was insufficient to “trigger Navarette’s rule”).
And, the majority attempts to distinguish the case before our panel
from Watson by emphasizing the Seventh Circuit’s distinction between calls
pertaining to conduct suspected to be criminal and conduct not per se
criminal. Watson, 900 F.3d at 895–96. The Seventh Circuit’s focus in
Watson, however, was, “most significantly”, the caller’s failing to use the 911
system. Id.
Despite our court’s not previously addressing whether a single
Navarette feature is dispositive, that issue does not need to be reached here.
The caller’s failure to utilize the 911 system and his vague tip undermine the
district court’s finding of reliability.
The caller’s failure, under these facts, to use the 911 system has a
trickle-down effect which has resulted in an incomplete record concerning
what was reported to dispatch. Again, accepting the caller’s suppression-hearing testimony as credible, it lacks contemporaneous eyewitness
knowledge and details which may have been stated to the dispatcher but were
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No. 21-40849
lost in memory over the 11-month period between the call and the caller’s not
being identified until the week before the suppression hearing.
“If a tip is provided by an anonymous informant, such that the
informant’s credibility and reliability cannot be determined, the Government
must establish reasonable suspicion based on the remaining [three] factors.”
Gomez, 623 F.3d at 269. The district court did not consider these remaining
factors, listed supra: “the specificity of the information contained in the tip
or report”; “the extent to which the information in the tip or report can be
verified by officers in the field”; and, “whether the tip or report concerns
active or recent activity or has instead gone stale”. Id. (citing Martinez,
486
F.3d at 861). For the following reasons, they cut against the Government.
First, where an anonymous caller provided “highly specific” detail,
this court has held this factor leaned in favor of the Government. Rose, 48
F.4th at 304 (noting anonymous tipster provided: “make, model, and color
of the car; its location in the parking lot of a particular liquor store, beside the
building next to a trash can; the suspect’s race, sex, and clothing, even down
to the style and color of his shoes; the threatening interaction with the person
in the passenger seat, including the apparent passage of pills between them;
and unique details about the gun involved”).
The majority is mistaken in stating the tipster in the case before our
panel provided only “slightly less” information than the one in Rose. E.g., id;
see Maj. Op. at 12. Here, and as stated supra, the caller testified he told
dispatch: “there was a gold Toyota Corolla that was at the pavilion doing a
re-up, giving drugs to the transients that deal in that park and that they
needed to come there and get them out of [his] park”. Wright, 2023 WL
1928221, at *6. The caller did not provide any details regarding the suspects
or specifics regarding the alleged “re-up”, such as any description of the
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No. 21-40849
“transients” he observed engaging with the suspected vehicle or the
passengers of the vehicle.
Next, when the Officer received the call-out regarding a suspicious
vehicle, she did not hesitate to initiate a Terry stop upon locating what could
potentially be the vehicle in question. The Officer testified that her normal
procedure “on this type of call” is to “make contact with the occupants of
the vehicle since it matched the description just to kind of talk to them, get a
feel for what they’re doing there”. This does not appear to be the procedure
followed here.
The Officer did not stop to observe any criminal activity or conduct
any surveillance to observe whether any individuals approached the vehicle.
Whereas in Rose, the “information conveyed by the informant was mostly
consistent with what the officers discovered when they arrived on the
scene”, the caller’s tip here—conveyed through the call summary, as
reflected in his suppression-hearing testimony—directed the Officer to the
presence of a vehicle parked legally during daylight, with no one by it. Rose,
48 F.4th at 304.
This court in Rose clarified what type of corroboration is necessary,
explaining that Florida v. J.L. “sets forth a rule that officers must corroborate
anonymously reported criminal activity when the tip itself lack certain indicia
of reliability”, but that this corroboration is not mandated in every instance.
Rose, 48 F.4th at 305 (citing
529 U.S. 266). When an “anonymous tip—from
an unknown location by an unknown caller” gives no indication how or why
he knows of criminal activity, the putative criminal activity must be
corroborated. Id. This is particularly true where the alleged criminal activity
is concealed. Id. But when an anonymous caller provides details regarding
the criminal activity and how he knew of it, the standard for corroboration is
more relaxed. Id.
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According to both the caller’s suppression-hearing testimony and the
call summary, the caller did not provide his address nor specific details
regarding the alleged activity at the time of the call. Whereas the caller
testified he told the dispatcher he observed the vehicle “doing a re-up” and
“giving drugs to the transients”, the Officer testified the call summary
instructed her that there were, “suspicious people at the location, via drug
dealers, driving cars at location”. The caller did not provide his address
during the call; instead, he testified at the suppression hearing that officers
“needed to come there and get them out of [his] park”. Similarly, the call
summary stated that officers needed to “get these drug dealers out of his
park”. These facts called for corroboration by the Officer. Id.
Finally, and slightly in favor of the Government, is the tip’s detailing
alleged recent activity. Because the Officer arrived at the area approximately
ten minutes after the caller made the suspicious-vehicle call, the described
suspicious activity was recent. Id.
B.
After ruling the tip established reasonable suspicion, the district court
and majority turn to the collective-knowledge doctrine to piece together the
tip and the call summary, as two of the four combined factors permitting the
Officer to seize Wright. Maj. Op. at 13–16.
In a footnote in its brief to our court in Wright I, the Government—
for the first time on appeal—maintained the collective-knowledge doctrine
permitted our considering the information communicated to the dispatcher
for purposes of evaluating the Officer’s reasonable suspicion. In other words,
that position had not been raised at the suppression hearing. Wright I did not
address that doctrine.
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On remand, as discussed supra, we instructed the district court to
consider only the record developed at the 2021 suppression hearing in order
to provide written findings and conclusions clarifying whether reasonable
suspicion existed for the earlier stop. Wright I, 57 F.4th at 536. Instead, the
court found facts the Government never sought to prove and reached a new
conclusion on those facts. See United States v. Raney,
633 F.3d 385, 392 (5th
Cir. 2011) (“[T]he suppression hearing provided the [G]overnment the
opportunity and obligation to present evidence establishing the validity of the
traffic stop. . . . We will not afford the [G]overnment a second opportunity to
present evidence to the district court in an attempt to meet their burden of
proof”.). Additionally, the court had not considered the collective-knowledge doctrine at the suppression hearing, in part “believ[ing] . . . it was
limited to considering only the contents of the call summary log, not the
actual statement made by the caller to dispatch”. Wright,
2023 WL 1928221,
at *8.
The court, however, incorrectly interpreted the limited remand as an
opportunity to add to what the Government sought to prove at the
suppression hearing. This, especially without additional input from the
parties, greatly altered the playing field and violated principles of
fundamental fairness. “Though we may affirm on an alternative basis, the
decision to do so is discretionary”, and we should decline to affirm on a basis
for which defendant lacked an opportunity to develop a position in district
court. United States v. Hankton, 875 F.3d 786, 793 (5th Cir. 2017). Courts
ordinarily “rely on the parties to frame the issues for decision and assign to
courts the role of neutral arbiter of matters the parties present”. United
States v. Sineneng-Smith,
140 S. Ct. 1575, 1579 (2020) (quoting Greenlaw v.
United States,
554 U.S. 237, 243 (2008)).
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In any event, both the district court and the majority incorrectly apply
the collective-knowledge doctrine in this context. Fatal factual flaws prevent
its application.
As noted by the majority, one version of the collective-knowledge
doctrine applies where “the arresting officer has personal knowledge of facts
which, standing alone, do not establish probable cause but, when added to
information known by other officers involved in the investigation, tips the
balance in favor of the arrest”. United States v. Webster, 750 F.2d 307, 323
(5th Cir. 1984) (emphasis added); Maj. Op. at 14. Instead of accepting the
plain language of our case law, the district court and majority stretch the
facts, ignoring two major flaws.
First, and for the reasons discussed supra, the information the caller
testified he provided the dispatcher, combined with the information
conveyed to the Officer, is insufficient to establish articulable facts
supporting reasonable suspicion. E.g., United States v. Hensley, 469 U.S. 221,
232 (1985). Further, even combined with the dispatch call summary, the
anonymous tipster’s testimony—provided almost a year after his call—is
insufficiently reliable absent a recording of the call or testimony from the
dispatcher, which, again, was not presented at the suppression hearing, in
establishing what was known to the unidentified dispatcher at the time of the
suspicious-vehicle report. Even if the testimony and call summary gave rise
to reasonable suspicion, the basis for any suspicion is unreliable.
Second, the district court and majority make a blind leap from the
testified facts to their reliance on the dispatcher as an “officer”. Wright,
2023 WL 1928221, at *7–8; Maj. Op. at 13–16. Again, for the suppression
hearing, the Government failed to present the dispatcher who received the
call. Rather, the extent of testimony regarding procedure for receiving a
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suspicious-vehicle call and executing a call-out was the following by the
Officer:
THE COURT: Okay. So, when a 9-1-1 call comes in, who
makes the decision to actually send someone like you out to
investigate? Is that the 9-1-1 call center or do you make that?
THE [OFFICER]: Well, dispatch decides. Then, once beyond
that point, our lieutenant will decide. If there’s any kind of
question, dispatch will ask for the lieutenant, you know, should
we send someone out, should we not.
In considering the above colloquy, it bears repeating that, on limited remand,
the court found the call was not a “911 call”.
Critically, there is no evidence regarding the dispatcher. The record
does not identify who the dispatcher was, nor did the Government attempt
to show his or her qualifications. To find or assume dispatch was a law
enforcement officer is clear error.
Although we have not previously addressed this specific issue, other
courts have grappled with the collective-knowledge doctrine when one of the
individual’s possessing information is a civilian 911 operator. The Second
Circuit in United States v. Colon held, that where “the record here
contain[ed] no evidence of whether . . . the operator taking the call was
capable of determining whether reasonable suspicion for the stop and frisk
existed”, the information conveyed was not imputed to law enforcement.
250 F.3d 130, 134–35, 137 (2d Cir. 2001). Similarly, the Seventh Circuit has
provided that the collective-knowledge doctrine “applies to information that
an officer receives from those with the training, responsibility or authority to
make a determination of reasonable suspicion”. United States v. Eymann,
962
F.3d 273, 284 (7th Cir. 2020) (citation omitted).
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Further, as the majority concedes, the record is equally lacking
regarding the possible involvement of a “lieutenant”, as referenced in the
Officer’s testimony. See Maj. Op. at 14. Again, only approximately four
minutes elapsed from the time the caller made the suspicious-vehicle call to
the time the call-out was made to the Officer. It is unlikely that, in addition
to taking the call, issuing the call-out, and contemporaneously recording the
call summary, a lieutenant was consulted. To follow the majority’s logic
wrongly expands the collective-knowledge doctrine.
Without application of collective knowledge, the extent of review for
whether the tip was reliable is limited to the insufficient information
contained in the call summary.
C.
Because the collective-knowledge doctrine is inapplicable, and
because the call summary based on the unreliable tip failed to provide the
Officer with reasonable suspicion, any findings regarding Wright’s exiting his
vehicle and his being in a high-crime area are insufficient to establish
reasonable suspicion. Although the unreliable anonymous tip is
determinative, these two factors—Wright’s presence in a high-crime area
and his exiting his vehicle—are addressed in order to respond to the majority
opinion. Again, the majority combines all four factors in order to hold the
requisite reasonable suspicion existed. Maj. Op. at 18.
1.
The district court found that Glen Arbor Park was known as “a high
crime area with heavy drug dealing and use”. Wright, 2023 WL 1928221, at
*6; see United States v. Michelletti,
13 F.3d 838, 844 (5th Cir. 1994) (en banc).
Even with the Officer’s knowledge of the surrounding area as a neighborhood
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with drug activity, this is insufficient to consider in deciding reasonable
suspicion existed.
As noted in Michelletti, “[t]he location in which suspicious behavior
occurs, like the time of day, is among the facts that generate reasonable
inferences as to the necessary police response to the behavior”. 13 F.3d at
844. This further supports that, although location is a factor in the analysis,
“a person’s presence in an area of expected criminal activity, standing alone,
is not enough to support a reasonable, particularized suspicion that the
person is committing a crime”. United States v. McKinney,
980 F.3d 485, 492
(5th Cir. 2020) (citation omitted) (emphasis added).
Minutes after receiving the report from dispatch, the Officer arrived
on the scene and neglected to conduct any surveillance of the vehicle prior to
seizing Wright. Our en banc court in Michelletti reemphasized our court’s
conclusion in United States v. Rideau that, in factoring in the location of a
seizure, our court “look[s] to the reality that the setting in which the police
officer acts may reasonably and significantly affect his decisional calculus”.
Michelletti, 13 F.3d at 844 (quoting Rideau,
969 F.2d 1574, 1576 (5th Cir.
1992) (en banc)).
Even taking into consideration the Officer’s awareness of the area as
one known for drug dealing and transient activity, these facts are
distinguishable. Unlike defendant in Michelletti, whom the officer believed
was committing an alcoholic-beverage offense as he exited a bar at 2:00 a.m.,
id. at 841; see also Rideau, 969 F.2d at 1574 (“Since public intoxication is a
criminal offense under Texas law, the officers had adequate grounds for a
stop.”), Wright’s vehicle was legally parked on the street at approximately
4:30 p.m. on a bright day. In answer to a question by the court at the
suppression hearing, the Officer testified that, absent the tip providing the
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description of Wright’s vehicle, she “wouldn’t have been approaching that
vehicle in the first place”.
The majority maintains Wright’s presence in Glen Arbor was coupled
with suspicious behavior, citing the anonymous tip linking him to the type of
crime that arises in that area. See Maj. Op. at 16–17. As discussed supra, the
anonymous tip is not reliable, and the Officer did not observe any activity
consistent with drug activity.
2.
As shown in the Officer’s dashboard-camera video, within an
approximately ten-second window, the Officer engaged her emergency
lights, Wright opened his vehicle door, and the Officer calmly instructed
Wright for the first time to stay in his vehicle. But, the Officer testified: she
found it unusual to see the driver’s door opening; and Wright’s exiting the
vehicle was “kind of an aggressive approach”.
As stated supra, we view the “facts in the light depicted by the
videotape”. Scott, 550 U.S. at 380–81. The Officer’s dashboard-camera
video shows Wright slowly exiting his vehicle almost simultaneously with
when the Officer pulls her vehicle behind his. He turns to face the Officer
with his arms extended at mid-chest level, with the palms of both of his hands
facing her, and calmly states “Ma’am, I haven’t done anything”. He did not
lunge towards the Officer, nor did he make any threatening or evasive
movements.
To that point, though, Wright’s exiting his vehicle occurred almost
simultaneously with when he was seized. Because reasonable suspicion must
exist at the time the stop occurs and because, in Wright I, we held Wright was
seized when the Officer pulled behind him and almost simultaneously
ordered him to stay in his vehicle, consideration of Wright’s exiting his
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vehicle is improper. Approximately 30 seconds existed between when the
Officer spotted a gold Toyota Corolla, engaged her emergency lights, and
almost simultaneously ordered Wright to remain in his vehicle. If there is a
distinction to be made regarding the Officer’s orders being simultaneous
versus almost simultaneous with when she pulled up behind him with her
emergency lights engaged, it is a distinction without a difference in this
context. Accordingly, it is incorrect to consider Wright’s exiting his vehicle
in the reasonable-suspicion analysis. E.g., United States v. Flowers, 6 F.4th
651, 655 (5th Cir. 2021) (explaining seizure “must be justified at its
inception” (citation omitted)).
Moreover, unlike the facts of the unpublished opinion the majority
cites, the Officer merely thought Wright’s exiting the vehicle was unusual
behavior, and the dashboard-camera video does not depict Wright as
aggressive in the moment he exited his vehicle. Cf. United States v. Goodin,
835 F. App’x 771, 780 (5th Cir. 2021) (“[Defendant] immediately exited his
vehicle upon being pulled over, an action that made [the Officer’s] ‘hair
stand up’”.); see also 5th Cir. R. 47.5.4. (“Unpublished opinions issued
on or after January 1, 1996, are not precedent”); see Maj. Op. at 17–18.
III.
For the foregoing reasons, I respectfully dissent.
37
