IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50719

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

LUIS GOMEZ,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

Before JONES, Chief Judge, and REAVLEY and HAYNES, Circuit Judges.

HAYNES, Circuit Judge:

Appellant Luis Gomez (“Gomez”) appeals the district court’s denial of his

motion to suppress evidence. Gomez asserts that police lacked reasonable

suspicion to justify their decision to stop and search his vehicle, thereby tainting

the evidence used to convict him. Under the particular facts of this case, we

conclude that the district court did not err in finding that the responding officers

were justified in stopping and searching Gomez’s vehicle in keeping with the

requirements of the Fourth Amendment. Thus, we AFFIRM the district court’s

denial of Gomez’s motion to suppress and Gomez’s subsequent conviction.

United States Court of Appeals

Fifth Circuit

F I L E D

October 7, 2010

Lyle W. Cayce

Clerk

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No. 09-50719

I. FACTUAL BACKGROUND

On October 20, 2008, the Austin Police Department received a 911 call

from a concerned citizen who, when asked his name, identified himself as

“Mike.” Mike informed the operator that he had seen an unidentified Hispanic

man around twenty years of age and weighing 175 to 180 pounds brandishing

a “black and gray” pistol and threatening individuals at a “little yellow gas

station” on “the corner of Ceaser [sic] Chavez and Comal.” Mike also told the

operator that the man had entered a black Honda SUV, license plate T80PDW,

with a white female driver and black male front-seat passenger. While Mike

readily provided his name to the operator, he declined to wait for police to arrive

at his location after telling the operator he was late for work. The 911 system

revealed that Mike’s telephone number was 512-542-9561 and that the call had

originated from 1621 East Cesar Chavez Street, Austin, Texas. Sometime later,

police discovered that the number and address captured by the 911 system led

to a payphone.

The 911 dispatcher promptly forwarded the following information to patrol

units in the area via text message:

10/20/2008 07:45:23 blk honda suv lp t80pdw w/blk pistol

10/20/2008 07:46:03 driver wf, bm passenger side... hm 20 yoa

10/20/2008 07:47:14 180 drk wearing....hm pulled out blk/gry

pistol....will be major brand gas station

10/20/2008 07:47:48 call no longer at loc....just saw male

w/pistol.

Officers testified that they were told the name of the caller who reported the

incident, his address, and his phone number. With respect to the phone number,

the officers testified that most of the calls they respond to come from home or

cellular phones, and they assumed they could follow up later as usual.

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Moreover, the officers testified that they did not know the tip had been called in

from a payphone at the time of the stop.

Only a few minutes later, while en route to the scene, one of the

responding officers spotted the vehicle described in the 911 call heading in the

opposite direction, turned around to follow it, and radioed in the license plate

information to confirm he had the correct vehicle before conducting a felony stop

with assistance from two other patrol cars. The officers removed the driver, a

black male later identified as Timothy Mitchell, and the front passenger, a white

female later identified as Heather Hall (“Hall”), from the car. Hall informed

officers that there was a handgun in the back of the car that belonged to the

male passenger in the backseat. At that point, Gomez was removed from the

vehicle. As Gomez was removed, officers spotted a handgun protruding from

underneath the back of the driver’s seat in plain view. The officers seized the

gun. While still detained at the scene, Gomez was identified as a convicted felon

and arrested for illegally possessing a weapon. Gomez was subsequently

charged with being a felon in possession of a firearm in violation of 18 U.S.C. §

922(g)(1).

Gomez moved to suppress all evidence obtained during the felony traffic

stop. The district court conducted an evidentiary hearing in which the

Government presented testimony from three police officers who responded to the

911 call. The Government also submitted: (1) an audio recording of the call; (2)

a transcript of the call; (3) a video of the ensuing traffic stop recorded from one

of the officers’ cars; and (4) the Austin Police Department Incident Detail Report.

Following the hearing, the district court denied Gomez’s motion on the grounds

that the factual information available to the officers at the time of the stop was

sufficient to create reasonable suspicion justifying their actions. Gomez

subsequently entered a conditional plea of guilty, expressly reserving the right

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to appeal the district court’s denial of his suppression motion. Gomez timely

appealed.

II. STANDARD OF REVIEW

In evaluating a district court’s denial of a defendant’s motion to suppress,

we review factual findings, including credibility determinations, for clear error,

and we review legal conclusions de novo. United States v. Solis, 299 F.3d 420,

435 (5th Cir. 2002). “A factual finding is not clearly erroneous as long as it is

plausible in light of the record as a whole.” United States v. Jacquinot, 258 F.3d

423, 427 (5th Cir. 2001). “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.” United States v. Santiago, 410 F.3d 193, 197 (5th Cir. 2005).

Finally, we review the evidence in the light most favorable to the Government

as the prevailing party. Id.

III. DISCUSSION

The only issue presented in this appeal is whether the district court erred

when it concluded that the officers who searched Gomez’s vehicle, thereby

uncovering the firearm in his possession, had reasonable suspicion to conduct a

felony stop. On the specific facts of this case, we conclude that the district court

did not err in so holding.

Under Terry v. Ohio, 392 U.S. 1 (1968), “police officers may stop and

briefly detain an individual for investigative purposes if they have reasonable

suspicion that criminal activity is afoot.” Goodson v. City of Corpus Christi, 202

F.3d 730, 736 (5th Cir. 2000). When, as here, the officers conducting the stop act

without a warrant, the Government bears the burden of proving reasonable

suspicion. See United States v. Martinez, 486 F.3d 855, 859-860 (5th Cir. 2007).

Whether a 911 call provides reasonable suspicion to justify a stop is

determined on a case-by-case basis. United States v. Vickers, 540 F.3d 356, 361

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(5th Cir.), cert. denied, 129 S. Ct. 771 (2008). The factors that must be

considered in deciding whether a tip provides a sufficient basis for a traffic stop

include: (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. Martinez, 486 F.3d at 861. 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 factors. Id. at 862. An anonymous informant’s ability to describe a

person’s appearance and location is insufficient without more to create a

reasonable suspicion of criminal activity. Id. at 863. This court has observed,

however, that “where instant caller identification allows the police to trace the

identity of an anonymous telephone informant, the ready ability to identify the

caller increases the reliability of such tips.” United States v. Casper, 536 F.3d

409, 415 (5th Cir. 2008), vacated on other grounds, 129 S. Ct. 2156 (2009).

Whether an officer has reasonable suspicion must be based upon the facts known

to the officer at the time. Vickers, 540 F.3d at 361.

As the district court found below, Mike’s emergency 911 call to police

readily satisfies three of the four factors set forth in Martinez. Mike provided an

extraordinary amount of detail in his call—a description of open criminal activity

including the coloring of the weapon involved; the location of that activity,

details about the suspect’s race, age, and weight; the make, model, and license

plate number of the suspect’s vehicle; and the race and gender of other

passengers in the vehicle. Officers were subsequently able to verify a number

of these claims including all of the vehicle information, the race and gender of

the other passengers, and, to an extent, the location, as the car was stopped

headed away from the gas station only a few short minutes after Mike’s 911 call.

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Finally, the record reflects that police spotted the car and conducted the stop

very shortly after receiving Mike’s tip, thus satisfying Martinez’s fourth factor.

Hence, the only major dispute in this case revolves around whether the

“anonymous” nature of Mike’s call to 911 precluded the district court from

holding that the officers had a reasonable suspicion sufficient to justify the stop.

First, Gomez’s contention that Mike’s call was “anonymous” is doubtful under

the circumstances of this case. When asked his name, Mike readily offered it to

the 911 operator. Moreover, the officers conducting the stop had no reason to

believe they were acting on an anonymous tip. See Florida v. J.L., 529 U.S. 266,

271 (2000) (“The reasonableness of official suspicion must be measured by what

the officers knew before they conducted their search.”). Rather, they had been

given a name, phone number, and address of the concerned citizen who had

called in the complaint. One officer testified that most of the 911 calls received

by the department came from home or cellular phones, and he stated further

that he fully expected to be able to verify the allegations of criminal conduct

after he had completed the stop. Thus, the officers appear to have quite

reasonably believed they were acting on a credible and reliable tip from a

verifiable source—a fact further buttressed by the presumption of reliability this

court attaches to citizen reports to police. See United States v. Burbridge, 252

F.3d 775, 778-79 (5th Cir. 2001).

1

Even assuming Mike was an “anonymous tipster,” however, the officers

still had reasonable suspicion in light of the remaining factors set forth in

Gomez contends Burbridge is distinguishable because the reporting citizen in that 1

case directly confirmed that officers had apprehended the right individual as officers

conducted a stop based on the citizen’s tip. 252 F.3d at 777. In the instant case, however,

Mike’s tip was just as reasonably credible to the officers at the time they acted as the citizen’s

tip was in Burbridge. They believed they had Mike’s phone number and his address in

addition to his first name—thus they were confident in their ability to contact Mike for

confirmation of his tip. Consequently, the heightened credibility of citizen reports still

attached to Mike’s tip at the time officers stopped Gomez’s vehicle. 

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Martinez. Gomez argues that the Supreme Court decision in Florida v. J.L., 529

U.S. 266 (2000), controls the instant case and provides a per se rule prohibiting

Terry stops based on anonymous tips that fail to provide predictive information.

J.L. announced no such rule and was decided on very different facts. In J.L., an

anonymous informant contacted police to report that a young black male

wearing a plaid shirt at a bus stop possessed a concealed weapon. 529 U.S. at

268. Importantly, the informant “neither explained how he knew about the gun

nor supplied any basis for believing he had inside information about [the

suspect].” Id. at 271. The Court specifically noted that, as a result, the tipster

in that case was not reliable because correctly identifying a suspect “does not

show that the tipster has knowledge of concealed criminal activity.” Id. at 272.

2

Based on these facts, the Court concluded that police lacked reasonable suspicion

because the informant’s failure to state why he knew about the concealed gun

meant the tip was not “reliable in its assertion of illegality.” Id.

Here, Mike was not reporting a concealed weapon. Even the limited

information transmitted to police by the 911 dispatcher conveyed that Mike had

seen someone pull out a pistol in public at a nearby gas station. In fact, one of

the officers testified that he viewed the situation as potentially exigent given

that the facts provided by Mike could be construed as describing anything from

showing off a new gun to a carjacking. To adopt Gomez’s view of J.L. would be

to require officers to investigate citizens availing themselves of the important

service provided by 911 dispatchers before intervening to apprehend individuals

suspected of committing open criminal acts in the community. J.L. does not

mandate such a perverse outcome. Consequently, even if Mike was an

The same factual disparity distinguishes this court’s decisions in United States v. 2

Martinez, 486 F.3d 855, 858-59 (5th Cir. 2007) (anonymous report that suspect was concealing

weapons used in recent crime) and United States v. Roch, 5 F.3d 894, 899 (5th Cir. 1993)

(“[T]he government sought to raise a reasonable suspicion . . . that Roch was a felon and

possessed a gun.”). 

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“anonymous tipster,” the remaining Martinez factors could and did validate the

officers’ reasonable suspicion justifying the stop of Gomez’s vehicle.

IV. CONCLUSION

For the reasons set forth above, we AFFIRM the district court’s denial of

Gomez’s motion to suppress and Gomez’s subsequent conviction.

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