United States Court of Appeals

For the First Circuit

No. 13-2362

UNITED STATES OF AMERICA,

Appellee,

v.

JOSÉ LUIS AVILÉS-VEGA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Lynch, Chief Judge,

Howard and Thompson, Circuit Judges.

Jedrick H. Burgos-Amador for appellant.

Juan Carlos Reyes-Ramos, Assistant United States Attorney,

with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and

Nelson Pérez-Sosa, Assistant United States Attorney, were on brief,

for appellee.

April 13, 2015
LYNCH, Chief Judge. This case presents an unusual twist

on the not uncommon question of whether to suppress the results of

a search based on information of a firearms sighting provided by an

individual unknown to the police who provides no self-identifying

information. 

Acting on information provided by an anonymous caller,

police officers frisked José Avilés-Vega after ordering him to get

out of a parked car, and discovered a Ruger pistol, loaded with 13

rounds of 9mm caliber ammunition, in his possession. Avilés-Vega

was charged with possession of a firearm by a prohibited person, in

violation of 18 U.S.C. § 922(g)(1), since he was a convicted felon. 

Avilés-Vega moved to suppress the evidence of the firearm from the

frisk, arguing that the information provided by the unidentified

caller was not sufficiently reliable to provide the officers with

the reasonable suspicion necessary under the Fourth Amendment. The

district court denied his motion. United States v. Avilés-Vega,

No. 12-555(FAB), 2013 WL 322525 (D.P.R. Jan. 28, 2013). AvilésVega then pled guilty to possession of a firearm by a prohibited

person, and was sentenced to fifty-seven months imprisonment and a

three-year term of supervised release. Avilés-Vega preserved his

right to appeal the denial of his motion to suppress.

We affirm the district court's denial of Avilés-Vega's

motion to suppress. In so holding, we stress that the unidentified

caller in this case stated, as he was driving, that he had just

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observed conduct (which was a crime) occur in the car in front of

him with sufficient detail for police officers to identify the

vehicle. This report was sufficiently reliable to create

reasonable suspicion of criminal activity under Puerto Rico law,

thereby justifying the police officers' decision to stop and frisk

the car's occupants.

I.

We take the basic facts from the magistrate judge's

findings after an evidentiary hearing, supplemented by the record

on appeal. These facts are not disputed.

On July 13, 2012, at 6:00 p.m., Officer Pedro LópezMolinari ("López") was working as a desk sergeant at the Aguadilla

police station when he received a phone call from an unidentified

man. 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." The caller said that he observed that, as the

Lumina drove in the direction of Aguadilla, "the front passenger1

passed a firearm to one of the individuals sitting in the back." 

The caller said that he was following the Lumina until it turned

from Road 2 onto Road 459.

1 The magistrate judge noted that "[t]he certified

translation of Officer López's testimony does not specify gender." 

López confirmed on cross-examination that the caller had not

provided information on the car occupants' genders or their

physical descriptions.

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"Following protocol, López filled out a special complaint

form." Five to ten minutes later, he notified his supervisor,

Sergeant Luis Acevedo-Valentín ("Acevedo"), of the information. 

Acevedo instructed López "to go to [the] Road 2 intersection [with]

Road 459 with two fellow officers in an unmarked PRPD vehicle to

corroborate the information." López testified that he arrived at

the intersection ten to fifteen minutes later, and observed a winecolored Chevrolet Lumina enter a shopping mall, which has a Burger

King and an Asian food restaurant. "López drove into the Burger

King parking lot in order to verify the vehicle's license plate and

whether it had a broken right side tail light, and saw the vehicle

being parked. From a distance of about 100 feet away, he confirmed

that this vehicle fit the description provided by the anonymous

caller."

Ten to fifteen minutes later, other officers arrived at

the parking lot. The officers ordered the four occupants of the

vehicle, including Avilés-Vega, to get out of the Lumina; all

occupants complied. ICE Task Force Officer Javier Méndez-Rodríguez

("Méndez") saw that one of the individuals (Avilés-Vega's

codefendant, Ricardo Rivera-Ruiz) was carrying a firearm on his

waist as he emerged from the car. "A PRPD officer next to Méndez

removed the firearm while Méndez 'spotted' him." The firearm in

codefendant Rivera-Ruiz's possession was a Smith & Wesson pistol,

with an obliterated serial number, loaded with 10 rounds of .40

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caliber ammunition. "For security reasons, a pat down was

performed [on] the 4 individuals." During the pat-down of AvilésVega, the officers found a Ruger pistol, loaded with 13 rounds of

9mm caliber ammunition.

II.

The Fourth Amendment permits police officers to conduct

a brief investigative stop if they have "'a particularized and

objective basis for suspecting the particular person stopped of

criminal activity.'" Navarette v. California, 134 S. Ct. 1683,

1687 (2014) (quoting United States v. Cortez, 449 U.S. 411, 417-18

(1981)). "The 'reasonable suspicion' necessary to justify such a

stop 'is dependent upon both the content of information possessed

by police and its degree of reliability.'" Id. (quoting Alabama v.

White, 496 U.S. 325, 330 (1990)). "[U]nder appropriate

circumstances, an anonymous tip can demonstrate 'sufficient indicia

of reliability to provide reasonable suspicion to make [an]

investigatory stop.'" Id. at 1688 (quoting White, 496 U.S. at

327).

 Avilés-Vega argues that a call to police from an

unidentified person, who reported seeing a pistol being openly

passed between the passengers of the vehicle directly in front of

his car, was not sufficiently reliable to provide the police with

the necessary reasonable suspicion. And, he attempts to make an

argument in his reply brief, which the government says is waived,

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that the police "had no reason to suspect that criminal activity

was underway" even if the tip was reliable. That argument is

without merit in any event.

Perhaps in another jurisdiction his second argument might

have some merit. See, e.g., United States v. Ubiles, 224 F.3d 213

(3d Cir. 2000). But it does not in Puerto Rico. Puerto Rico is a

concealed-carry jurisdiction. See United States v. Padilla-Colón,

578 F.3d 23, 25 n.1 (1st Cir. 2009) ("The visual display of a

firearm is a crime under Puerto Rico law." (citing P.R. Laws Ann.

tit. 25, § 456a(d)(1))). That means that an individual must carry

a firearm in a concealed manner even if he or she possesses a

license to carry the firearm. See P.R. Laws Ann. tit. 25,

§ 456a(d)(1).2 So, even if everyone in Avilés-Vega's car had the

necessary license, there was still a violation of Puerto Rico law

by not keeping the gun concealed. If the information provided was

2 Section 2.02(d)(1) of the Puerto Rico Arms Act of 2000,

P.R. Laws Ann. tit. 25, §§ 455-460k, confers licensees the right to

possess, bear, and transport firearms, provided that they be

"borne, carried, and transported in a hidden or unobtrusive manner

. . . ." P.R. Laws Ann. tit. 25, § 456a(d)(1). To transport a

weapon without a permit to carry, "the weapon must be unloaded and

transported inside a closed case whose contents are not visible and

which may not be in plain sight." Id. § 456a(d)(2); cf. Pueblo v.

Del Rio, 13 P.R. Offic. Trans. 886, 892-93, 1982 WL 210517 (P.R.

1982) ("[C]ontrary to the custom in some Western States of the

United States, where persons can openly carry a firearm, the

general rule in Puerto Rico is to restrict and control the

possession and/or carrying of firearms . . . .").

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correct, the police had reasonable suspicion that the car's

occupants had violated the concealed-carry law.3

In his reply brief, Avilés-Vega newly argues that the

possession of a gun is not a crime. This argument was not made in

his motion to suppress, his objections to the report and

recommendation, or his opening brief on appeal. Thus, he not only

misses the point (it was the failure to keep the weapon concealed

that violated Puerto Rico law), but he has thrice waived any

argument respecting this prong of the Fourth Amendment analysis.4

That leaves the question of whether the unidentified

reporter was sufficiently reliable in the first place. See Florida

v. J.L., 529 U.S. 266, 273 n.* (2000) ("The mere fact that a tip,

if true, would describe illegal activity does not mean that the

police may make a Terry stop without meeting the reliability

requirement . . . ."). The district court concluded that the tip

3

 We also note that Puerto Rico law creates a presumption

that the possession or act of carrying a firearm without the

appropriate weapons license or permit to carry "shall be deemed as

prima facie evidence of the fact that said person possesse[d] [or

carried] the weapon with the intention of committing a crime." See

P.R. Laws Ann. tit. 25, § 458j.

4

 The government also asserts that "the fact that the caller

saw the Chevy Lumina in the same area approximately [thirty]

minutes earlier made the circumstances even more troubling

. . . because it suggested that the defendants were prowling that

area, lurking around in search of a victim." Unlike the

government, we do not think that the fact that a car with four men

in it sat for approximately thirty minutes in a parking lot of a

Burger King in a shopping mall is itself an inherently suspicious

activity.

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in this case was reliable. Avilés-Vega, 2013 WL 322525, at *1,

n.1. We review the district court's "reasonable suspicion"

determination de novo. United States v. Ramos, 629 F.3d 60, 64

(1st Cir. 2010). The underlying factual determinations are taken

"as found unless they are clearly erroneous." Id.

The Supreme Court has recognized that "there are

situations in which an anonymous tip, suitably corroborated,

exhibits 'sufficient indicia of reliability to provide reasonable

suspicion to make the investigatory stop.'" J.L., 529 U.S. at 270

(quoting White, 496 U.S. at 327). We note that "there is more than

one way to demonstrate" reasonable suspicion based on an anonymous

tip, Navarette, 134 S. Ct. at 1692, and that we must "take[] into

account 'the totality of the circumstances -- the whole picture,'" 

id. at 1687 (citation omitted). At base, the reasonable suspicion

inquiry requires a "commonsense approach." Id. at 1690.

Avilés-Vega relies on J.L., in which the Supreme Court

held that an anonymous tip that "a young black male standing at a

particular bus stop and wearing a plaid shirt was carrying a gun"

was insufficient, "without more,"5 to justify a police officer's

stop and frisk of the defendant. 529 U.S. at 268. The Court

5

 In J.L., the Supreme Court made clear that there is no socalled "firearm exception," whereby "a tip alleging an illegal gun

would justify a stop and frisk even if the accusation would fail

standard pre-search reliability testing." 529 U.S. at 272. Here,

we are resorting to no such exception. The tip alleging the

violation of the concealed-carry law was, on its own merits, a

reliable basis for reasonable suspicion.

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stated that "[a]ll the police had to go on in this case was the

bare report of an unknown, unaccountable informant who neither

explained how he knew about the gun nor supplied any basis for

believing he had inside information about [the defendant]." Id. at

271. Although the tip helped the police to identify the defendant

based on the defendant's location and appearance, it provided no

information as to how the tipster knew of the alleged "concealed

criminal activity." Id. at 272.

More recently, in Navarette, the Supreme Court held that

an anonymous 911 call that the defendants' truck "'ran the [caller]

off the roadway' . . . bore adequate indicia of reliability for the

officer to credit the caller's account." 134 S. Ct. at 1688 (first

alteration in original). The Court highlighted that the caller

"necessarily claimed eyewitness knowledge of the alleged dangerous

driving," reported the incident "soon after" it occurred, and used

the 911 system. Id. at 1689-90. Based on "the totality of the

circumstances," the Court "f[ound] the indicia of reliability . . .

sufficient to provide the officer with reasonable suspicion that

the driver of the reported vehicle had run another vehicle off the

road." Id. at 1692. This, in turn, made it reasonable for the

officers to execute the stop "on suspicion of drunk driving." Id.

at 1690-91.

In this case, the district court properly distinguished

J.L. and held that the anonymous call had sufficient indicia of

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reliability to give rise to reasonable suspicion based on its

report. Avilés-Vega, 2013 WL 322525, at *1, n.1. The officers'

reliance on the anonymous call is justified by both its content and

context.

To start, this was a report from a driver who said that

he had personally observed conduct, which was a crime, committed in

the car in front of him. Avilés-Vega concedes that "[t]he caller

here claimed an eyewitness basis of knowledge by stating [that he

had] observed the firearm as he[] drove behind the Lumina." The

caller also described a wine-colored Chevrolet Lumina with a broken

right side tail light, a license plate ending in 959, and four

occupants. As in Navarette, the eyewitness knowledge reported by

the tip "lends significant support to the tip's reliability." 134

S. Ct. at 1689. 

Moreover, the tip in this case was made soon after the

observation of the alleged crime. In Navarette, the "timeline of

events suggest[ed] that the caller reported the incident soon after

she was run off the road." Id. The Court stated that "[t]here was

no indication that the tip in J.L. . . . was contemporaneous with

the observation of criminal activity or made under the stress of

excitement caused by a startling event, but those considerations

weigh in favor of the caller's veracity here." Id. Here, too, the

timeline suggests that the caller reported the incident soon after

witnessing it. The magistrate judge found, and the district court

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adopted, that "the caller informed [the police] that he was

following the suspect vehicle in his car and contemporaneously

notified the police about what he personally observed."6 Indeed,

the police found a vehicle matching the detailed description in the

same area "within the half hour of receiving the call." As in

Navarette, this "sort of contemporaneous report has long been

treated as especially reliable." Id.

Avilés-Vega argues that the eyewitness basis of knowledge

and the contemporaneous nature of the tip -- indicia of reliability

that this case shares with Navarette -- are insufficient. Firstly,

he argues that the call lacked predictive information regarding the

future actions of the vehicle or its occupants.7 Secondly, he says

that the call was not made through the 911 emergency system. We

find neither argument persuasive.

6 Avilés-Vega makes a perfunctory argument that the district

court clearly erred by finding that the caller contemporaneously

notified the police about what he had personally observed. AvilésVega appears to suggest that the call could not have been made

contemporaneously with the caller's observations since the caller

reported the vehicle turning from Road 2 onto Road 459, and thirty

minutes later the police found the vehicle at the same intersection

at a shopping center. We do not find these facts incongruous, let

alone rising to the level of clear error. It is entirely possible

that the caller contemporaneously notified the police of his

observations as the vehicle turned into the shopping center at the

intersection, where the police discovered the vehicle thirty

minutes later.

7

 In fact, the Lumina was in the area one would reasonably

predict to find it in from the information provided.

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First, the predictive information argument is misplaced. 

The crime alleged to have been seen here was open and obvious to

the caller, and was plausibly seen from the reported circumstances

(driving the next car behind). As the Eighth Circuit stated in

United States v. Wheat, 278 F.3d 722 (8th Cir. 2001), the "emphasis

on the predictive aspects of an anonymous tip may be less

applicable to tips purporting to describe contemporaneous, readily

observable criminal actions . . . ." Id. at 734; see also State v.

Boyea, 765 A.2d 862, 875 (Vt. 2000) (Skoglund, J., concurring)

(noting that when the call describes "a crime in progress, carried

out in public, . . . [n]o intimate or confidential relationship

[is] required to support the accuracy of the observation").

The Supreme Court has accordingly focused on the presence

or absence of predictive information in cases where an anonymous

tip alleged a concealed crime. In White, for example, the Court

found an anonymous tip of concealed drug possession reliable in

large part due to the predictive information that the caller

provided. See 496 U.S. at 332. There, the anonymous tip reported

that a woman would leave a specified apartment at a particular time

in a particular car for a particular destination, and "that she

would be in possession of about an ounce of cocaine inside a brown

attaché case." Id. at 327. Such information could only be known

to individuals with "a special familiarity with [the woman's]

affairs," which the caller proved by accurately predicting her

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future behavior. See id. at 332; see also Navarette, 134 S. Ct.

at 1693 (Scalia, J., dissenting) ("Very few persons would have such

intimate knowledge, and hence knowledge of the unobservable fact

that the woman was carrying unlawful drugs was plausible."

(emphasis added)). 

In addition, the Court in J.L. found an anonymous tip

reporting concealed gun possession unreliable in the absence of

predictive information. See 529 U.S. at 271. The anonymous tip

there claimed that the defendant had a concealed weapon, but

provided the police with "no predictive information . . . to test

the informant's knowledge or credibility." Id. "Such a tip," the

Court explained, "does not show that the tipster has knowledge of

concealed criminal activity." Id. at 272 (emphasis added).

In contrast with White and J.L., the Court did not

mention the lack of predictive information in Navarette when the

anonymous tip reported the open and obvious circumstance of

reckless driving. There, the anonymous caller provided specific

information about the vehicle she witnessed, but never hazarded a

guess about where the other vehicle was going or what its driver

would do in the future. See Navarette, 134 S. Ct. at 1689-90. 

Predictive information would have been irrelevant since "[a]

driver's claim that another vehicle ran her off the road . . .

necessarily implies that the informant knows the other car was

driven dangerously." Id. at 1689. "This is in contrast to J.L.,

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where the tip provided no basis for concluding that the tipster had

actually seen the gun," or "White, where . . . there was scant

evidence that the tipster had actually observed cocaine . . . ." 

Id.

Like in Navarette, the anonymous caller in this case did

not need to prove knowledge of the defendant's affairs through

predictive information.8

 The caller reported what any public

observer could have seen -- the make, model, color, and occupancy

of the car, as well as its apparent trajectory and part of its

license plate. He also explained that he was in a position to see

the alleged crime. These details, corroborated by the police when

they arrived, allowed the police to be sure that they were

approaching the correct vehicle.

Second, the "use of the 911 system" was not necessary to

make this tip reliable given the totality of the circumstances. In

Navarette, the Supreme Court noted that "[t]he caller's use of the

911 system is . . . one of the relevant circumstances that, taken

together, justified the officer's reliance on the information

reported in the 911 call." Id. at 1690. The Court explained that

a 911 call allows for the recording, identifying, and tracing of

callers, "thus provid[ing] some safeguards against making false

8

 As explained above, the caller witnessed a crime when he

observed the occupants pass the firearm between them. Based on

Puerto Rico law, the caller did not need to know that the

passengers lacked a license, or had felony convictions. 

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reports with immunity." Id. at 1689-90. The call in the present

case, however, was made directly to the desk sergeant at the police

station. The government has not argued that this direct line used

similar technology to the 911 line. There is simply no evidence on

this point.

Avilés-Vega argues that "the [Navarette] decision would

[not] hold water absent the reliability gleaned through the use of

the 911 emergency line." We disagree. The Supreme Court made

clear that the use of the 911 line was only one indicator of

veracity. See Navarette, 134 S. Ct. at 1689-90. A call made

directly to the desk sergeant, rather than to a 911 operator, does

not become unreliable solely because of that choice. 

The totality of the circumstances here reduces the

prospect that a personal grudge or other ill-intended purpose

motivated a false report. Rather, it suggests that the caller was

a concerned citizen, acting in good faith and reporting his direct

observation of a crime committed in front of him. See, e.g.,

United States v. Copening, 506 F.3d 1241, 1247 (10th Cir. 2007)

(finding that the anonymous caller's actions in reporting the

events witnessed in detail, following the vehicle, and updating

dispatch "bespeak an ordinary citizen acting in good faith"). We

would not wish to discourage such calls.9 As one commentator has

9

 We are mindful that anonymity encourages citizens to report

the commission of crimes. Indeed, the government enjoys a

qualified privilege to withhold from disclosure the identity, when

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noted in the related probable cause context, "[c]ourts are much

more concerned with veracity when the source of the information is

an informant from the criminal milieu rather than an average

citizen who has found himself in the position of a crime victim or

witness." 2 LaFave, Search & Seizure § 3.4 (5th ed.). The call

was reliable in its report of a firearms violation in Puerto Rico.10

We affirm.

known, of "persons who furnish information of violations of law to

officers." Roviaro v. United States, 353 U.S. 53, 59 (1957); see

also Puerto Rico v. United States, 490 F.3d 50, 62 (1st Cir. 2007). 

The Court explained that "[t]he privilege recognizes the obligation

of citizens to communicate their knowledge of the commission of

crimes to law-enforcement officials and, by preserving their

anonymity, encourages them to perform that obligation." Roviaro,

353 U.S. at 59.

10 The prevalence of firearms violence in Puerto Rico is one

of the reasons given for the defendant's sentence. The district

court stated that "gun crimes in Puerto Rico are pervasive

throughout the island," and viewed the crime "more serious[ly] here

than if it had occurred in a less violent society."

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