05-1734

USA v. Elmore

The Honorabl e Leonar d B. Sand, Unit ed Sta tes Dist ric t Ju dge f

or th e Southern Dist

ric t of New York, sit

ti ng by designation. 1 1 UNIT ED S TAT ES COU RT OF A PP EALS 2 FOR THE SE CON D CIR CUIT 3 4 5 August Term, 2006 6 7 (Argued: February 1, 2007 Decided: March 29, 2007 8 Errata Filed: April 27, 2007) 9 Docket N os. 05-17 34-cr(L), 0 5-6477-c r(XAP) 10 11 12 13

- - - - - - - - - - - - - - - - - - - - - - - - - - - -

- - - - -X 14 15 UNITED STATES OF AMERICA, 16 17 Appellant-Cross-Appellee , 18 19 -v.- 20 21 VAMOND ELMORE, 22 23 Defendant-Appellee-Cross-Appellant

. 24 25

- - - - - - - - - - - - - - - - - - - - - - - - - - - -

- - - - -X 26 27 28 29 30 Before: POOLER, RAGGI , Circuit Judges , and SAND, District Judge

. 31 32 Appeal from the judgment of the United States District Court for the District of 33 Connecticut (Hall, J. ) suppre ssing ev idence s eized from a car on a tip from an infor mant as fr uit 34 of an unreasonable seizure in violation of the Fourth Amendment. The government argues that 35 there was reasonable susp icion to sto p the def endant. We

revers e and re

mand. De fendant

cross36 appeals from the district court’s denial of his motion to suppress evidence seized from an 37 apartment because the police relied in g ood faith on a search warrant issued by a neutral 38 magistrate. The government a rgues that the district court erred by even reaching that question 3905-1734

USA v. Elmore

2 because the defendant lacked F ourth Amendment “standing” to challenge the validity of the 1 warrant. Because we find that, with the evidence seized from the car, the sear ch warrant was 2 supported by probable cause, we affirm without reaching the questions of good faith and 3 stand ing. 4 5 ROBERT M. SPECTOR, Assistant United States 6 At to rn ey for Kevin J. O’Connor, United States 7 Attorney (William J. Nardini, Assistant United 8 States Attorney, of counsel) District of Conne cticut, 9 for Appellant-Cross-Appellee

. 10 11 THOMAS P. BELSKY, Assistant Federa l 12 Defender, for Thomas G. Dennis, Federal Defende r, 13 New Haven Connecticut, for Defendant-Appellee14 Cross-Appellant

. 15 16 17 SAND, District Judge : 18 19 The government appeals from the district cour t’s (Hall, J. ) ruling that a tip from an 20 informant was insufficiently corroborated to provide reasonable suspicion to stop defe ndant 21 Vamond Elmore’s car. The gover nment argues that the district court incorrectly categorized the 22 informant as anonymous a nd therefore required too high a le vel of corroboration. Defendant 23 cross-appeals from the district court’s ruling that evide nce found pursuant to a search warr ant 24 issued ba sed on the fruits of the stop should not be

excluded u

nder the good fa ith excepti on to 25 the warrant requirement. The g overnment also contends that the district court erred in ruling that 26 the defe

ndant had Fourth A mendment

“standin g” to challeng e the sea

rch war rant. 27

28 Background 29 I. Facts 3005-1734

USA v. Elmore

1 The record d oes not reflect whether Roncinske quizzed Maz za on the information he was able t o obtain from the DM V reco rds. 3 On June 22, 2003, Detective Thomas Roncinske of the Norwalk Police Department 1 received a telephone call from a woman claiming to be a close friend of the def endant Vamond 2 Elmore. The caller identified herself as “D orothy” and pr ovided Roncinske with her home and 3 cell phone numbers. She told Roncinske that Elmore was in possession of some weapons and 4 expressed concern that he might “do harm to somebody .” Roncinske had not previously use d the 5 caller as a confidential informant and had neve r spoken to her before. Roncinske spoke with the 6 caller approximately four times throughout the course of the day, gradually obtaining more 7 information from her about herself and the defe ndant. He was able to communicate with her 8

severa

l times by calling the cell p hone numb er that she had g iven him. 9 During

the course of the se calls, the calle r eventu ally told Roncin ske that her full na me 10 was Dorothy

Mazza and t

hat she ha

d been El more’s g irlfrie nd, but she

had rec ently

kicked hi m 11 out of her house. Roncinske used a Department of Motor Vehic les (DMV) database to obtain an 12 address and birthdate for a Dorothy Mazza, but he did not go to the address that he found. 1 In an 13 attempt to verify her identity, Roncinske asked Mazza about an incident in 2002 in which 14 Elmore had been shot. Mazza knew about the incident and described the spec ific injuries that 15 Elmore ha

d sustaine d. She said

she was the one who

nursed hi m back to health. She

also said 16 that Elmore had been shot in retaliation for having pistol-whipped a man na med Demark Bond. 17 This information matched police reports on Elmore’s injuries and the police’s theor y on a 18 possible motive for the shooting. Details about the shooting and Elmore’s injuries had bee n 1905-1734

USA v. Elmore

4 reported in several local newspaper articles, but the police’s theory about the motive was not 1 public information. 2 Roncinske did not meet face-to-face with Mazza because she said she was afraid of what 3 would hap

pen to her if she wa s seen working with the poli ce. Mazza also insist

ed that he r name 4 be left o

ut of any police r eports be cause she knew that the de fendant had wea pons and was afra

id 5 that he would retaliate against her. Roncinske did not g o to the address he had obtained from the 6 DMV, nor did he attempt to call Mazza on the home telephone number she had given him. 7 There is no evidence that Roncinske checked w hether the phone numbers she gave him we re 8 registered to Dorothy Mazza. 9 Mazza told Roncinske that she had seen Elmore in possession of several firearms at her 10 residence as recently as June 19, 2003 (three day s earlier) and that was why she kicked him out. 11 These weapons included a .38 caliber Smith & Wesson revolver loaded with hollow point 12 bullets, a

.22 calib er pistol, a .38 ca liber re volver, a “riot pump ” shotgu

n, and an AK-47 as sault 13 rifle. She said that Elmore kept the Smith & Wesson in his car, which she described as a bla ck 14 two-door Acura with tinted windows and new Connecticut license plates that r ecently ha

d been 15 switched over from temporary plates. She said that she had seen the gun hidden under a n altered 16 piece of carpet on the passeng er’s side of Elmore’s car. 17 Mazza said that Elmore told her that he now kept the rest of the weapons with a woman 18 named Ta

nea and in the ca r of one Dway

ne Sherma

n. She told R

oncinske that Tane a lived in 19 Building 14 at 133 Monterey Place, in the apartment directly upstairs from Dway

ne Sherman 20 and his wife, in an area of Norwalk, Connecticut known as Carlton Court. She said that Elmore 2105-1734

USA v. Elmore

2 Myra H umphrey turned out to be Tanea H umphrey’s mother. Tanea also lived in t he apartment, but Roncinske was not aware of thi s prior to the stop in question. 5 freque nted the Ca

rlton Cour

t and Round

Tree Mot

el area s of Norwalk. Mazza also told 1 Roncinske that Dwayne Sherman’s BMW was parked outside Building 14. 2 Roncinske took several steps to attempt to corroborate the information that he got from 3 Mazza. He went to 133 Monterey Plac e and found a BMW registered to Dwa yne Sherman 4 parked in front of Building 13, which shares a parking lot with Building 14. He learned that 5 Dwayne

Sherman’s wife, Denita Sherman, leased an a partment in Building 14 and that a My ra 6 Humphre

y le ased the

apartme nt above t he Sherma

ns. 2 Finally, Roncinske che cked Elmore and 7 Sherman’s criminal histories and discovered that they had been arrested together for armed 8

ro bb er y. 9 Based on the information he obtained from Mazza and his independent investiga tion, 10 Roncinske drafted a memo to all Norwalk police officer s indicating that he had received 11 information that Elmore was in possession of a handgun. The memo stated that Elmore dr ove a 12 black, two-door 1992 Acura whose last known reg istration was temporary , but now had regular 13 Connecticut plates and that he frequents the Carlton Court and Round Tree Motel ar eas. The 14 memo also warned that the weapon may be hidden under the carpet on the passeng er side. A 15 photograph of Elmore was attached to the memo. 16 Sergeant Kenneth King re ceived Roncinske’s memo at the start of his late night shift on 17 June 24, 2003. Sometime shortly after 11:30 p.m. on June 24, Sergeant King and Officer Mark 18 Suda, driving in separate cars, saw a black two-door Acura with tinted windows driving in the 19 vicinity

of Carlton Court. The offic ers, who knew Elmore from p

rior enc ounters, identifie d him 2005-1734

USA v. Elmore

6 as the driver by

looking through the untinted front windshield of the car as it passed. T he 1 officers turned their cars around, f ollowed Elmore’s car and then pulled it over. They 2 approached the car and aske d the occupants, Elmore and a woman Suda identified as Tane a 3 Humphrey, to step out of the c ar. King examined the passenger c ompartment and found a .38 4 caliber Smith & Wesson underneath the driver’s seat. The police placed Elmore under arrest and 5 then took Tanea Humphrey to her residence at 133 Monterey Place. 6 Following the arrest, Roncinske applied for a se arch warrant for Tanea Humphrey’s 7 apartme

nt and Dwa

yne Sherman’ s car ba sed on the informat ion he had

receiv ed from M azza, his 8 own investigation, and the results of the stop that led to Elmore’s arrest. A sea rch warrant issued 9 and the Norwalk police went to Humphrey ’s apartment on June 27, 2003. Upon entering, they 10

re ad Hu mp hr ey Miranda warning s and aske d her whe re the we apons we

re loca ted. She to ld 11 them the weapons were in two bags in her be droom closet, which Elmore had asked her to keep 12 for him. T

he police retrieved and op ened the bags wh ich conta ined an A K-47 ass ault rifl e with 13 an accompany

ing loaded magazine, a .22 caliber pistol, a shotg un, and a box of 500 rounds of 14 .22 caliber ammunition. The police also found a .38 caliber revolve r, loose ammunition, and 15

some cra

ck coca ine in Dwa

yne Sherman’ s car, bu

t none of t

hat contr aband wa s charg ed in this 16

case. 17 Elmore had a limited connection with Humphrey ’s apartment. He and Humphrey had 18 been friends for one to two y ears. He did not reside at her apartment, nor ha d he ever been an 19 overnight guest or even stay ed for dinner. He did not have unfettered a ccess to the apartment 20 and had only bee

n there approximately seve n to ten times, each time only for a bout five minutes. 21 His main lin

k to the ap artment was that Hu mphrey allowed h

im to store

his bags in her cl oset. 2205-1734

USA v. Elmore

7 II

. The District Court’s Decision 1 Defendant was charge d with two counts of being a felon in possession of firearms: Count 2 One for the weapons found in Tanea Humphre y’s apar tment and Count Two for the weapon 3 found in his car. Elmore moved to suppress the evidence in both counts, arg uing that the police 4 lacked sufficient, reliable information to form a reasonable suspicion to justify an investiga tory 5 stop under Terry v. O hio , 392 U.S. 1 (1968), and without the evidence they obtained during the 6 stop, the police lacked probable cause to support the sear ch warrant for Tanea Humphre y’s 7 apartment. 8 The district court held that, because the police did not do enough to c onfirm Mazza’s 9 identity

and ther efore “ Roncinske

did not re ally

know with w

hom he wa s speakin

g,” she should 10 be treated as an anony mous informant. United Sta tes v. Elm ore , 359 F. Supp. 2d 105, 114 (D. 11 Conn. 2005). Analyzing Mazza’s tip under the Supreme Court’s decisions on anonymous 12 informants in Alabama v . Whit e , 496 U.S. 325 (1990) and Florida v. J.L. , 529 U.S. 266 (2000), 13 the distri ct court

found tha

t the tip la

cked the necessa ry indicia o f reliab ility

to establi sh 14 reasonable suspicion because Roncinske was not able to c orroborate sufficiently the information 15 she gave. Specifically, the district court noted Roncinske’s failure to corroborate, with any 16 specific ity, predict ive infor mation ab out the fu

ture actions of thi

rd partie s. Roncinske was on ly 17 able to corroborate easily obtained information. 18 The district court found, and the government does not contest, that without the evide nce 19 they obtained whe n they stopped Elmore’s c ar, the police lacked probable cause to support the 20 search warrant for Tane a Humphrey’ s apartment and therefore the war rant was invalid. The 21 district c ourt fur

ther hel d that although Elmore lacked a re asonable expectat ion of pri vacy in 2205-1734

USA v. Elmore

8 Tanea Humphrey ’s apartment, he had Fourth Amendment “standing ” to challenge the validity of 1 the sear

ch warr ant beca use he ha d a reas onable expectation of priva cy in his close d bags w

ithin 2 the apartment. But the court went on to find that the “g ood faith exception” to the exclusionary 3 rule, set forth in United States v. Leon , 468 U.S. 897, 913-15 (1984), applied. Because the 4 officers reasonably relied on the search warrant issued by a neutral magistrate, whom they had 5 not knowingly misled, the evidenc e they found by searching Humprey ’s apartment should not be 6 excluded. 7 The government took an int

erlocut ory appeal f rom the de cision on Co

unt Two to 8 suppress the evidence found in Elmore’s car. The defendant pleaded guilty to Count One 9 charging the weapons f ound in Humphrey’s apa

rtment, subject to this appeal from the district 10 court’s application of the good faith exception, and was sentenc ed to 92 months imprisonment. 11 The government

also cha llenge s the distr

ict cour t’s findin g that El more had “standin g” to 12 challen

ge the warrant

. 13

14 Discussion 15 I. The Terry

Stop 16 A. Standard of Review and Law Governing Terry Stops 17 On appea

l from a r uling on a motion to sup

press, w e revie

w the distr

ict cour t’s ultimat

e 18 determ inati ons of reason able s uspi cion o r prob able ca use de novo, but o f cours e revie w find ings 19 of fact for clear error

. Ornelas v. United States , 517 U.S. 690, 699 (1996). 20 Under Terry v. O hio , 392 U.S. 1 (1968), police may br iefly detain an individual for 21 questioni

ng if the y ha ve a reasonable s

uspicion t hat crimi nal activ ity i s afoot, a

nd may frisk him 2205-1734

USA v. Elmore

9 if they reasonably believe he is armed and dangerous. United States v. Colon , 250 F.3d 130, 134 1 (2d Cir. 2001). When a suspect is stopped in a car, the police may perform a limited search of 2 the passe

nger c ompartme

nt if they reasona bly believe that he is d

anger ous and ma

y g ain 3 immediate control of a weapon. Michigan v. Long , 463 U.S. 1032, 1049-50 (1983). A Terry 4 stop represents an intermediate response allowing police to pursue a limited investigation when 5 they lack the pr

ecise level of information necessary for probable cause to arrest. Adams v. 6 Williams , 407 U.S.1 43, 145-4 6 (1972). Reasona ble suspic ion requi

res more than an “ inchoate 7 and unparticularized suspicion or hunch.” White , 496 U.S. at 329-30 (internal quotation marks 8 omitted). Police “must be able to point to specific and articulable facts which, take n together 9 with rational inferences from those facts, re asonably war rant [the] intrusion [on a citizen’s 10 liberty interest].” Terry , 392 U.S. a t 21. L ike proba

ble caus e, reas onable su spicion is 11 determined based on the tota

lity of the ci rcumstan ces but “ the likeli hood of criminal a

ctivity 12 need not rise to the level required for probable c ause, and it falls considerably short of satisfying 13 a preponderance of the evidenc e standard.” United Sta tes v. Arvizu , 534 U.S. 266, 273-74 14 (2002). 15

16 B. Forming Reasonable Suspicion from Informants’ Tips 17 Reasona

ble suspic ion may

be based upon infor

mation fr om a conf idential i nforman t so 18 long as the tip bears sufficient “indicia of re liability.” Williams , 407 U.S. at 147. As in the 19 probable

cause c ontext, cou

rts must as sess whether an i nforman t’s tip est ablishes reasona ble 20 suspicion under the totality of the circ umstances approach set forth in Illinois v. Gates , 462 U.S. 21 213 (1983), though obviously a lesser showing is required. See White , 496 U.S. at 328-29. 2205-1734

USA v. Elmore

10 Although in Gates the Supreme Court abandoned the rigid two-prong ed test of Aguilar v. Texas , 1 378 U.S. 108 (1964), and Spinelli v. United States , 393 U.S. 4 10 (1969) , the informant’s “ basis 2 of knowledge” and “vera city” ( i.e. , how he kn

ows and w

hy we should be lieve him) remain 3 highly re levant to a determination of either probable cause or reasonable suspicion. See White , 4 496 U.S. at 328-29. 5 When the informant’ s tip, stand ing alone, lacks

sufficie nt indicia of relia bility because it 6 does not do

enough to establi sh the inf

ormant’s basis of k

nowledg e and ve

racity , it may still 7 support a finding of reasonable suspicion if sufficiently corroborated through independent police 8 investigation. Draper v. United States , 35 8 U. S. 307 (19 59) , pr ovi des th e cl ass ic e xa mp le. In 9 Draper , a known a nd previo usly accura te informant told the

police that Drape

r would a rrive in 10 Denver on a train from Chicago on one of two days car

rying he roin. Id. at 309. He would be 11 wearing a light colored ra incoat, brown slacks, and black shoes, and he habitually “walked real 12 fast.” Id. at 309 & n.2. The informant gave no indication of the basis for his information. On 13 one of the appointed day s, the police in Denver observed a man matching Draper’s description 14 and wearing the predicted c lothes get off a train from Chicago a nd begin walking quickly ; they 15 arrested him. Id. at 309-10 . The Supr eme Court

held that the polic e had pro

bable ca use to ar rest 16 Draper because they had corroborated “every

other bit” of the informant’s tip and therefore had 17 reasonable grounds to believe that the re maining unverified bit—that Draper was ca rrying 18 heroin—was true. Id. at 313. 19 Even a tip from a c ompletely

anony mous infor

mant—thou

gh it will seldom de

monstrate 20 basis of knowledge and the verac ity of an anony mous informant is largely unknowable, see 21 White , 496 U.S. a t 329—can

form the b asis of re asonable suspicion

or proba ble caus e if it is 2205-1734

USA v. Elmore

11 sufficiently cor

roborated. In Spinelli , the Supreme Court cited Draper for the proposition

that if 1 an informant provided sufficient details, including predictions about the future actions of third 2 parties, and those details are independently corroborated, the police could infer that the 3 informant had some sort of inside information as his basis of knowledge. 393 U.S. at 416-17. 4 Justice White , in his con curren ce, stre ssed that Draper

should not stand for the proposition that 5 because some of the informant’s tip proved to be true that the police could infer that the final 6 critical fact was also true. I n Justice White’s view, corroboration did little to bolster veracity. 7 Id. at 426-27 (White, J., concurring). In Gates , however, the Court reinterpreted Draper , 8 implicitly disavowing Justice White’s limitation. Stressing the importance of predictive 9 information, the Court held that corroboration of some of the information in the tip allows the 10 police to reasonably infer that the remaining, unverified information is also true. Gates , 462 11 U. S. at 24 3- 45 . U nd er th e t ot al it y of th e c ir cu ms ta nc es ap pr oa ch ma nd at ed by Gates , even a 12 completely anony mous tip could support a finding of probable cause with a sufficie nt degree of 13 corroboration. T

he deg ree of c orrobor

ation re quired f

or a find ing of r easonab le suspic ion is 14 obviously less. White , 496 U.S. at 330-31. 15 The Supreme Court discussed reasonable suspicion based on tips by anonymous 16 informan

ts in two ca ses: Alabama v . Whit e , 496 U.S. 325 (1990) and Florida v. J.L. , 529 U.S. 17 266 (2000). Theses cases represent two poles on the spe ctrum of the degree of cor roboration 18 needed and formed the framewor k for the district court’s analysis. The district court in the 19 instant case followed J.L. , in which the police received a completely anonymous tip that a y

oung 20 black ma

n in a plai d shirt at a

particu lar bus sto

p had a g un. 529 U. S. at 268. T

here the Supreme 21 Court held

that the a nony mous tip, plu s corrob oration o f the fa ct that a b lack man

with a pla

id 2205-1734

USA v. Elmore

12 shirt was at the bus stop, did not constitute reasonable suspicion to stop and frisk the man. Id. at 1 271-72. In White , on the other hand, a completely anonymous informant told the police that the 2 suspect would leave a particular apartment a t a particular time and drive to a particular 3 destination in a particular car carry ing drugs. 496 U.S. at 327. The police observed that the 4 suspect leave the apartment building, ge t in the car and drive in the direction of the destination 5 before stopping her. Id. The Court called it a close case, but held that because the tip predicted 6 with specificity the future movements of a third party , there was reasonable suspicion. Id. at 7 332. In this case the district court distinguished White because here the police did not 8 corroborate an

y pr edictive informat ion that mig

ht make a n anony mous tip suf

ficientl y r eliable t o 9 support reasonable suspicion. 10 Where informants are known, however, a lesse r degree of corrobor

ation is required. 11 Compare Williams , 407 U.S. at 146-47 (upholding a Terry stop base d on an unc orrobor ated tip 12 from a known and previously reliable informant), with White , 496 U.S. at 331-32 (holding that 13 an anonymous tip justified a Terry stop because both innocent details and predictive information 14

were c orrobor

ated). A known inf

ormant’s reputat ion may be asses sed and he may

be held 15 accountable if his allegations turn out to be fabrica ted. J.L. , 529 U.S. at 270. While a proven 16 track r

ecord of providing

reliable tips may serve to bolster a n informa nt’s ver acity, past 17 performance is not the only way to show ver

acity. See United Sta tes v. Can field , 212 F.3d 713, 18 719-20 (2 d Cir. 2000 ). The ve racity of identif ied priva te citizen informan ts (as opp osed to pa

id 19 or professional criminal informants) is genera lly presumed in the absenc e of special 20 circumstances suggesting that they should not be trusted. See Caldarola v . Calabres e , 298 F.3d 21 156, 165-66 (2d Cir. 2002); United States v. Rollins , 522 F.2d 160, 164 (2d Cir. 1975) (noting 2205-1734

USA v. Elmore

13 the “pec uliar like lihood of a

ccurac y” of a citize

n informa nt’s rep ort). Likewise, we have held 1 that an informant i s more re liable if he meets with the po lice fac e-to-fa ce beca use he ru ns a 2 greater risk that he will be held acc ountable if his information proves false. United States v. 3 Salazar , 945 F.2d 47, 50-51 (2d Cir. 1991). 4 Under the totality of the c ircumstances approach to assessing proba ble cause and 5

re as on ab le su sp ic io n m an da te d b y Gates and White , informants do not all fall into neat 6 categories of known or anonymous . Instead, it is useful to think of known reliability and 7 corroboration as a sliding scale. Where the infor mant is known from past practice to be reliable, 8 as in Williams , no corroboration will be required to support reasonable suspicion. Where the 9 informant is completely anony mous, as in White , a significant amount of corroboration will be 10 require d. Howev er, whe n the informant is on

ly p artially

known (i. e., her i dentity

and reli ability 11 are not verified, but neither is she completely anonymous), a lesse

r degree of corrobor

ation may 12 be sufficient to establish reasonable suspicion. This approach is consistent with the totality of 13 th e c ir cu ms ta nc e i nq ui ry m an da te d b y Gates and White , as well as the Supreme Court’s 14 characterization of Terry as providing an “intermediate response” for investigating criminal 15 activity. Williams , 407 U.S. at 145. 16

17 C. Was D orothy Ma zza an Anon

ymous In formant? 18 The question almost answers itself. 19 The district court considered the question of Mazza’s anony mity as a threshold inquiry 20 and, finding that “the facts place the c aller most appropriately in the category

of anonymous 21 informant,” Elmore , 359 F. Supp. 2d at 114, went on to analy ze reasonable suspicion under the 2205-1734

USA v. Elmore

14 White /J.L. framework. While Mazza was unwilling to meet face-to-fa ce and the police did not 1 definitively

confirm her ident

ity, neither

was she c ompletely

anony mous like the informa

nts in 2 White

and J.L. 3 The government points to se

veral c ases whe

re other circuits have fou nd reasonable 4 suspicion based on tips from informants who gave their names or other identifying infor

mation, 5 but where the police did not meet them face-to-fa ce or otherwise confirm their identities. 6 Despite t

he fact that their identitie s were not definit ively confirme d, the Fo

urth, Nint h, and Te nth 7 Circuits did not treat the informants as anony mous and did not require the extensive degree of 8 corroboration needed to find reasonable suspicion unde r the White

/J.L. framework. 9 For example, in United States v. Terry-Crespo , 356 F.3d 1170, 1172 (9th Cir. 2004), an 10 informant called 911 say ing he had just been threatened with a handg un by a suspect whom he 11 describ ed. The c aller g ave his na me, but not

his locati on or con

tact information be cause he said 12 he was calling from someone else’s ce ll phone. Id. at 1172. The Ninth Circuit found that there 13 was reasonable suspicion to stop and frisk the suspect because the caller was no longer 14 anonymous once he had given his name, even though it was unconf irmed. Id. at 1174-75. The 15 court also held that emergency calls should be treated as inherently more reliable than 16 anonymous tips concerning general criminality

. Id. at 1176. 17 In United States v. Quarles , 330 F.3d 650, 652 (

4th Cir. 200 3), a 911 caller s aid that a 18 man walking down a particular street ha d a gun in his bag. The caller gave his name and 19 location and said that the suspect had killed his brother and there was a warrant out for his arrest. 20 Id. He stayed on the phone until the police made the stop. Id. The Fourth Circuit held that even 21 though the police did not confirm the caller’s identity or corroborate his assertion about the 2205-1734

USA v. Elmore

3 An alte rnati ve basis for t his h olding wa s that

upon approaching the def endants before a s top took pla ce, t he off icer smelle d bu rnt ma rijuana

. Ha rris , 313 F. 3d at 1236. 15 warran t unt il aft er the s top, there w as reas onabl e susp icion becaus e the ca ller ga ve eno ugh 1 information to be identified later. Id. at 655. 2 In United Sta tes v. Ha rris , 313 F.3d 1228, 1231 (10th Cir. 2002), a Dairy Queen 3 employee c alled the sheriff’s office, ga ve her name, and said that two men were smoking 4 marijuana in the parking lot. She called back a f ew minutes later to say tha t they were

leaving 5 and heading towards a car wash. Id. The police made no attempt to confirm her identity . The 6 Tenth Circ

uit stated that the c all was not anony mous and therefor

e could pr ovide re asonable 7 suspicion for a Terry stop, even absent any significant corroboration. 3 Id. at 1235-36. 8 Finally, in United States v. Browning , 252 F.3d 1153, 1155-56 (10th Cir. 2001), a woman 9 called 911 and said that she had just been assaulted in a car . She described the car and her 10 assailant and gave his name. Id. at 1156. She also gave her name and the loc ation and phone 11 number of the pay phone from which she was calling. Id. The dispatcher called the pay phone 12 several times to get more information including the ca ller’s date of birth, but the police made no 13 attempt to verify her identity or corrobor

ate any of the information she gave. Id. The Tent h 14 Circuit found that there was reasonable suspicion for the police to pull over a car matching the 15 description the caller gave. Id. at 1157. 16 Like the informants in these case s, Mazza gave the police enough information about 17 herself

to allow them to iden

tify her and t rack he r down la ter to hold

her acc ountable

if her tip 18 proved false. She gave them her na me, her relationship with the defendant, and two phone 19 numbers a

t which she

could be c ontacte d. Defe ndant ar gues tha t Terry-Crespo , Quarles , Harris , 2005-1734

USA v. Elmore

4 The distr ict court not ed that Roncinske only conta cted Mazza on the cel l phone number s he gave hi m and that “such c alls could be ans wered by any one, anywhere i n the Unit ed States that had cellphone servi ce.” Elm ore , 359 F. Supp. 2d at

114 n.7 Presumably , by cal lin g her home phone number, Roncins ke could hav e at l east a ssocia ted her with a specif

ic location. 16 and Browning

are distinguishable because other fa ctors, such as whether the call was made 1 contemporaneous ly w ith the cr iminal activity

or whether the c all was a n emerg ency

911 call, 2 established reliability that is not present her e. Yet Detective Roncinske went far bey ond what 3 the police did in those cases in his attempt to confirm Mazza’s identity. He c onfirmed from 4 DMV rec ords that the name she ga ve belonged to a re al person and lea rned her address and date 5 of birth. He confirmed that he could reach he r at one of the phone numbers she gave him and 6 that she was willing to speak with him several times. He confirmed that she kne w where Elmore 7 was wounded and the motive for the shooting. Although the injuries we re reported, the motive 8 matched the police’s theory , which was not publicly known. While she was unwilling to meet 9 with Roncinske face-to-face, she had a good reason for her reluctance—she was afraid the 10 defendant would retaliate aga inst her. 11 It is unquestionable that Roncinske could have done more to confirm Mazza’s identity. 12 He could have quizzed her on her address or date of bir th. He could have checked telephone 13 records to see if the numbers she ga ve him were registered to Dorothy Mazza. He could have 14 called the home te lephone n umber tha

t she ga ve him. 4 These thi

ngs he d id not do. I

t is possible 15 that someone could have pretended to be Dorothy Mazza and made the call, but that person 16 would have had to do a fair amount of resear ch and would expose herself to a real chance of 17 being caught and punished. Reasonable suspicion is a question of probabilities, not possibilities. 18 We have no

trouble c oncluding

that the d istrict c ourt err

ed by placing Mazza in the

same 19 category

as the completely a

nonymous informants in J.L. and White

. 2005-1734

USA v. Elmore

17 1

2

3 D. Analysis Under the Totality of the Circumstances 4 Having determined that the district court erre d by categorically trea ting Mazza as an 5 anonymous informant bec ause the police did not definitively c onfirm her identity, we now 6 analyze whethe

r the police had reasonable suspicion to stop the defendant under the totality of 7 the circ

umstance s. 8 We note first that Mazza’s basis of knowledge is well established. She told Roncinske 9 that she knew that Elmore kept the Smith & Wesson revolver in his car because she had 10 personally see

n it there. She knew that he possessed the rest of the weapons be cause she had 11 seen them at her residence and he told her where he subsequently

kept them. Her status as an 12 insider who would have access to that ty pe of information is not in question. She told Roncinske 13 that she had been Elmore’s girlfriend a nd that he had lived with her. This is not a case like 14 Draper

or Spinelli

where the police needed to infer that the infor mant was an insider from the 15 detail and predictive information in the tip. Mazza told Roncinske exactly how she kne w about 16 Elmore’ s crimina l activitie s. 17 The only thing a t issue is Mazza’s veracity—that is, whether she was telling the truth. 18 Becau se the inf

ormant was not compl etely anony mous (thou

gh her identity was not c onfirmed

to 19 a certa

inty ), we fin d it inappr

opriate to requir e the same level o f corro

boration that the Su

preme 20 Court required in White and J.L. Mazza was a

citizen inf

ormant whose vera

city is gene rally 21 presumed. Her veracity is further bolstered because she g ave the police enough information 2205-1734

USA v. Elmore

18 about her identity (which was corr

oborate d to some de gree) that she should hav e reasonably 1 believed that the police could track her down and hold her accountable if her tip turned out to be 2 a malicious falsehood. 3 Although they were not able to corroborate the sort of pre dictive information that the 4 Supreme Court found compelling in White , the police did corroborate a significant por tion of the 5 information in Mazza’s tip. Roncinske confirmed that the Dway ne Sherman lived in Building 14 6 at 133 Monterey Plac e and that his car was parked outside. He also c onfirmed that Elmore and 7 Sherman had been accomplices in a previous cr iminal endeavor. Sergeant King a nd Officer 8 Suda conf

irmed tha t Elmore d

rove the black Ac ura that Mazza desc

ribed in the area

of Norwa

lk 9 that she s aid he fr

equents. 10 A tip from a citizen informant whose identity is disclosed (thoug h not confirmed to a 11 certain

ty)that is cor

roborat ed to a sig

nifican t degre e can sup

port a fin ding of r easonab le 12 suspicion. We hold that, under the totality of the circumstanc es, Mazza’s tip plus the 13 corroboration from the police investigation were enough to give the police reasona ble suspicion 14 to stop Elmore. The evidence in Count Two should not have been suppressed. 15

16 II. The Search Warrant 17 Defendant challenges the district cour t’s decision on Count One not to suppress evidence 18 found in Tanea Humphrey ’s apartment because the police relied in good faith on a warrant 19 issued by a neutra l magistrate. The government ar gues that the district court erred in even 20 reaching this question because Elmore lac ked Fourth Amendment “standing” to challenge the 2105-1734

USA v. Elmore

19 search warrant because

he had no reasonable expectation of privacy in Humphrey’s apa

rtment or 1 the bags he stored there. 2 Because we find that the Terry stop was supported by re asonable suspicion, the evidence 3 seized from Elmore’s car would not be excluded in considering whe ther the search warrant was 4 supporte d by

probable cause. We

find that M azza’s tip, corroborated by the wea pon found

in 5 Elmore’s car and other police investigation, gives rise to probable cause to support the search 6 warrant. See, e.g. , Gates , 462 U.S. at 243-44. Therefore we need not re ach the questions of 7 whether the defendant had a reasonable expectation of privacy in the premises or containers 8 searched and whether the searc h fell und er the g ood faith

exception

to the war

rant re quireme

nt. 9

10 Conclusion 11 The porti on of the d istrict c ourt’s or

der suppr essing e vidence found in E lmore’s c ar is 12 reversed. Count Two is remanded for further proceedings consistent with this opinion. The 13 portion of the district court’s order on Count One deny ing the motion to suppress evidence found 14 in Tanea Humphrey ’s apartment is affirmed because we find that the search warrant was 15 supported by probable cause. 16

17