17-3433 United States v. Jason Twiss UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER Rulings by summary order do no t have precedential effect. Cita tion to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must ci te either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel. At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on the 19 th day of December, tw o thousand eighteen. Present: ROBERT A. KATZMANN, Chief Judge , GUIDO CALABRESI, RAYMOND J. LOHIER, JR. Circuit Judges

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________________________________________________ UNITED STATES OF AMERICA, Appellee , v. No. 17-3433 JASON TWISS, Defendant-Appellant ,

____________________________________________ For Appellee: Paul D. Silver , Assistant United States Attorney, for Grant C. Jaquith, United States Attorn ey for the Northern District of New York, Albany, NY. For Defendant-Appellant: Lisa A. Peebles, Federal Public Defender, James P. Egan, Assistant Federal Public Defender, Federal Public Defender’s Office, Syracuse, New York.2 Appeal from a judgment of conviction of th e United States District Court for the Northern District of New York (McAvoy, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Defendant Jason Twiss appeals from a j udgment of conviction entered on October 20, 2017 by the United States District Court for th e Northern District of New York (McAvoy, J. ), sentencing him principally to 80 months’ impr isonment to be followed by three years’ supervised release. We assume the parties’ fam iliarity with the underlying facts, the procedural history of the case, a nd the issues on appeal. Twiss was stopped and arrest ed after police officers, re sponding to an anonymous 911 call around two in the morning, discovered a loaded rifle in the truck Twiss was driving. Two callers informed the 911 operator that three individuals in a black pickup truck had just “confronted” them in the parking lot of a hosp ital and displayed a gun. One caller said he knew that one of the individuals was a felon based on hi s facial tattoo and wanted him to be “put away for an illegal pistol.” App. 266. Fourteen to sixteen officers arrived at the scene and conducted a “felony hot stop.” App. 154. With guns drawn, the o fficers directed Twiss to exit the car, confirmed he didn’t have a weapon, handcuffed him, and placed him in the back seat of a patrol vehicle. The officers repeated this process w ith the two other passenge rs. Then, two officers approached the vehicle, opened the pa ssenger’s side door, and saw the rifle. On May 27, 2015, a grand jury in the Southern District of New York indicted Twiss on one count of unlawful possession of a firearm, one count of attempted possession with intent to distribute heroin, and one count of using and carrying a firearm in furtherance of a drug trafficking crime. Twiss filed a motion to s uppress the evidence underlying the indictment,3 asserting that it was obtained in violation of th e Fourth Amendment. The district court (Sharpe,
J. ) denied the motion, and Twiss pled guilty to all thr ee counts of the indictment. On appeal, Twiss challenges the denial of his motion to suppress, arguing that (1) the anonymous 911 call did not provide r easonable suspicion for an inves tigatory stop; (2) even if it did, the stop ripened into a de facto arrest that was not suppor ted by probable cause; and (3) the illegally obtained evidence was not admissible under the inevit able discovery doctrine. “On appeal from a challenged suppression order, we review a district c ourt’s findings of fact for clear error, and its resolution of questions of law and mixed questions of law and fact de novo .” United States v. Bohannon , 824 F.3d 242, 247-48 (2d Cir. 2016) (citing United States v. Bershchansky , 788 F.3d 102, 109 (2d Cir. 2015)). The anonymous 911 call was sufficiently reliab le to provide reasonable suspicion to make the investigatory stop. In Navarette v. California , the Supreme Court held that police are justified in relying on an anonymous 911 call where the call is (i) made by an eyewitness, (ii) nearly contemporaneous with the event, and (iii) recorded and traced by the 911 system. 572 U.S. 393, 398-401 (2014). The 911 call in this case had all these features. The particularities of the call that Twiss identifies ar e not suspicious enough to underm ine the call’s reliability. For example, although the tipsters request ed that the call not be recorded, they continued their report after the 911 operator informed them that 911 calls are always record ed. Further, the tip gave rise to reasonable suspicion of ongoing criminal activity: menacing in the second degree. See
Navarette , 572 U.S. at 401-02 (internal citations omitted); N.Y. Penal Law § 120.14(1). While one caller clarified that n one of the individuals had directly threatened them, he also said that he and the other caller “took off” because the other caller was “afraid.” App. 264–66. The police thus had reason to believe that the suspects had “intentionally place[d] or attempt[ed] to place”4 the callers “in reasonable fear of physical injury . . . by displayi ng a deadly weapon.” N.Y. Penal Law § 120.14(1). Acts typically inconsistent with a mere stop, such as drawing weapons and using handcuffs, do not render a stop an arrest “when it is a reasonable response to legitimate safety concerns on the part of th e investigating officers.” United States v. Vargas , 369 F.3d 98, 102 (2d Cir. 2004). However, “to satisfy the reasonablen ess standard, officers conducting stops on less than probable cause must employ the least intrusive means reasonably available to effect their legitimate investigative purposes.” United States v. Newton , 369 F.3d 659, 674 (2d Cir. 2004). The following factors weighing in favor of finding a de facto arre st here: there were between fourteen and sixteen police offi cers for just three suspects, o fficers’ guns were drawn throughout the stop, and the police handcuffed all three individua ls and put them in the back of police patrol cars. On the other hand, the police had reasonable suspicion to believe Twiss and his companions were armed and Twiss was restrained for a ve ry short time before the loaded rifle was discovered. See Vargas , 369 F.3d at 101 (“In determining wh ether an investigatory stop is sufficiently intrusive to ripen into a de facto arrest,” we consider, among other things, “the number of agents involved, wh ether the target of the stop wa s suspected of being armed, the duration of the stop, and the physi cal treatment of the suspect.”) . We do not reach this difficult question since, even assuming arguendo that the stop ripened into an arrest, the district court properly denied Twiss’s motion to suppress because the discovery of the firearm was inevitable. “Under the inevitable discovery doctrine, ‘evide nce that was illegally obtained will not be suppressed if the government can prove that th e evidence would have been obtained inevitably even if there had been no statut ory or constituti onal violation.’” United States v. Mendez , 315 F.3d 132, 137 (2d Cir. 2002) (quoting United States v. Roberts , 852 F.2d 671, 675-76 (2d Cir.5 1988)). Evidence is admissible under this exception to the exclusionary rule “only where a court can find, with a high level of confidence, that eac h of the contingencies necessary to the legal discovery of the contested evidence would be resolved in the government’s favor.” United States v. Heath , 455 F.3d 52, 60 (2d Cir. 2006). “The gove rnment bears the burden of proving inevitable discovery by a preponderance of the evidence.” United States v. Stokes , 733 F.3d 438, 444 (2d Cir. 2013) (citing Nix v. Williams , 467 U.S. 431, 444 (1984)). As the district court found, the officers woul d have approached the truck and seen the rifle even if they had not conducted the felony hot stop. Alert to a “poten tially life-threatening situation,” which put the public at risk, the o fficers would have approached the car. App. 148. Given how quickly more than a dozen officers arri ved at the scene, the evidence supports a “high level of confidence” that Twiss w ould not have driven away or hi dden the rifle in time. And we defer to the district court’s credit ing of testimony that the rifle was in “plain view,” such that an officer would have seen it as he neared the vehi cle even if the door had been closed with the window up. App. 192. We have considered all of Twiss’s remain ing contentions and have found in them no basis for reversal. For the reasons stated he rein, the judgment of the district court is AFFIRMED

. FOR THE COURT: CATHERINE O’HAGAN WOLFE, CLERK