*

Honorable Ann Aldrich, Senior U.S. District Judge for the

Northern District of Ohio, sitting by designation. 

United States Court of Appeals, Eleventh Circuit.

No. 95-6356.

John Thomas RILEY, Jr., Plaintiff-Appellant,

v.

The CITY OF MONTGOMERY, ALABAMA, a municipal corporation, Frank

F. Bertarelli, B.H. Davis, Jerome M. Wooten, Michael G. Jones, et

al., Defendants-Appellees.

Jan. 30, 1997.

Appeal from the United States District Court for the Middle

District of Alabama. (No. CV-92-A-1340-N), W. Harold Albritton,

III, Judge.

Before EDMONDSON, Circuit Judge, FAY, Senior Circuit Judge, and

ALDRICH*

, Senior District Judge.

EDMONDSON, Circuit Judge:

Plaintiff appeals the district court's grant of summary

judgment for Defendants on his Section 1983 and state law malicious

prosecution claims based on alleged Fourth Amendment violations and

on the resulting criminal convictions. We affirm the district

court's ruling on the constitutional validity of the two stop and

searches at issue but vacate its ruling on allegations that one of

the Defendants—contrary to the Constitution—planted evidence.

I.

This action arises from two stop and searches that resulted in

police finding cocaine and, later, in convictions of Plaintiff for

drug charges. After an investigation into corruption within the

pertinent narcotics unit, the government dismissed charges against

Plaintiff; and he filed this action alleging a violation of his

constitutional rights and malicious prosecution.
 1

The informant was identified as "N-766" in MPD records and

as "Mr. B" by the district court for purposes of the present

action. 

A. 19 May 1989

On 19 May 1989, Montgomery Police Department ("MPD") Officers

Davis and Bertarelli stopped Plaintiff John Riley, Jr. while

Plaintiff was driving an automobile they had under surveillance.

After conducting a pat-down, Davis asked Plaintiff if he had a gun.

Plaintiff indicated that he had one in the car. Another officer

then retrieved a .357 Magnum pistol from inside Plaintiff's car and

found a cloth bag containing cocaine. As a consequence, Plaintiff

was later convicted on federal charges of possession of cocaine

with intent to distribute and of possession of a firearm during a

drug transaction.

According to Defendants, Bertarelli received an anonymous

phone call indicating that a young, black male named Riley was

dealing cocaine out of a beige, four-door Hyundai at the corner of

French and Decatur Streets and that he was armed with a .357

Magnum. Bertarelli relayed the information to the other officers

present. Davis said that he had received similar information from

a confidential informant. The Davis informant (hereinafter "Mr.

B")1

 had said that, while conducting a controlled buy for Davis, he

observed a man leaving the drug house with cocaine, commenting on

its quality. Mr. B saw the man get into a Hyundai; Mr. B took

down the license number and gave it to Davis. Several officers

then went to the specified intersection and found a beige four-door

Hyundai with the license number Mr. B had given Davis. According

to Plaintiff, the police officers fabricated both of the tips.
 2

Jones's search of the side of the road resulted in the

seizure of cocaine that had been thrown out of the car window. 

This evidence, however, was not used in Plaintiff's criminal

conviction. 

B. 20 July 1989

On 20 July 1989, Officers Jones and Wooten passed Plaintiff

and another man in a car going the other way. Jones and Wooten

turned their car around and began following Plaintiff. According

to Defendants, Wooten had received a tip that Plaintiff was in a

blue and white Buick Electra 225 (the car Jones and Wooten found

him driving) and was transporting cocaine. Plaintiff says Wooten

falsified the tip.

Though the officers were driving an unmarked car, Plaintiff

recognized them. According to Plaintiff, his passenger then told

him that the passenger had drugs in the car. Plaintiff sped up,

going approximately 60 miles an hour in a residential area.

Plaintiff kept speeding around the block until, according to him,

all of the drugs had been thrown out of the car.

After stopping Plaintiff and his passenger, the officers

placed them against the car's trunk and conducted a pat-down.

Jones then conducted what he characterizes as a "quick gun sweep"

of the front seat area. After finding nothing, Jones went to look

for some of the objects thrown out of the car. At this point,

Wooten searched the car and claims to have found a bag of cocaine

between the door and the driver's seat. Plaintiff says that Wooten

planted the cocaine. Based on the cocaine found in the car,

Plaintiff was charged, in federal court, with possession of cocaine

and convicted of aiding and abetting after the fact.2
 3

The magistrate judge recommended a new trial for Plaintiff

for the conviction arising out of the 19 May incident because

Wooten had testified at that trial on Plaintiff's pattern of

involvement with drugs. 

C. Dismissal of Charges Against Plaintiff

In December 1989, the MPD chief asked that the state begin an

investigation into the MPD Narcotics and Intelligence Unit. That

investigation uncovered evidence of extensive abuse involving the

fund used to pay confidential informants for tips, including

falsifying the identity of informants. The investigation

discovered that police officers had recorded informant money as

being transferred to non-existent informants, presumably pocketing

the money themselves.

In August 1992, a magistrate judge recommended granting

Plaintiff a new trial on both of his earlier federal convictions.

The magistrate judge concluded for the 20 July search that, "[h]ad

the information which this Court now possesses about Wooten, i.e.,

that he routinely falsified records and may well have lied about

the existence of a confidential informant, been presented to the

trial judge and jury, it is highly unlikely that the defendant

would have been convicted." (Recommendation, pp. 14-15.)3

 Later,

the district court granted the United States Attorney's motion to

dismiss the indictments.

D. Procedural History of this Case

Plaintiff filed the present complaint against the four

officers involved in the two incidents (collectively "Police

Defendants") alleging, among other things, violations of 42 U.S.C.

§ 1983 and malicious prosecution under Alabama law. Plaintiff also
named the City of Montgomery and the commander of the Narcotics and

Intelligence Unit, the police chief, and—in an amended

complaint—the mayor, in both their official and individual

capacities (collectively "City Defendants") under Section 1983.

The district court dismissed Plaintiff's claims against City

Defendants in their individual capacities early in the litigation.

Later, the district court granted summary judgment to all

Defendants on all counts, except the malicious prosecution claim

against Wooten based on Plaintiff's claim that Wooten planted the

cocaine. The district court also entered judgment pursuant to

Fed.R.Civ.P. 54(b), and Plaintiff appealed.

II.

A warrantless weapons search of a suspect and his car,

pursuant to a limited detention, does not violate the Fourth

Amendment if the police have reasonable articulable suspicion to

justify such a limited detention. Michigan v. Long, 463 U.S. 1032,

1049-52, 103 S.Ct. 3469, 3481-82, 77 L.Ed.2d 1201 (1983); Terry v.

Ohio, 392 U.S. 1, 26-28, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889

(1968). A Terry stop can also be used to investigate those

suspected of being in the commission of a crime. Adams v.

Williams, 407 U.S. 143, 145-49, 92 S.Ct. 1921, 1923-24, 32 L.Ed.2d

612 (1972) (drugs and concealed weapon). Pursuant to a Terry stop,

the police are entitled to search the passenger compartment of the

detainee's vehicle for weapons. Michigan v. Long, 463 U.S. 1032,

1051-52, 103 S.Ct. 3469, 3482, 77 L.Ed.2d 1201 (1983).

 As both of the encounters here were, at the pertinent time,

limited detentions, the relevant question is whether the police had
 4

Defendants have moved to strike those portions of

Plaintiff's brief which refer to evidence, including Mr. B's

deposition, that was submitted to the district court after it had

granted Defendants's motions for summary judgment and,

accordingly, was stricken by the district court as untimely. We

grant Defendants' motion for those portions of Plaintiff's brief

which refer to "evidence" that is not in the record. See

Diversified Numismatics v. City of Orlando, Fl., 949 F.2d 382,

384 (11th Cir.1991) ("[A]ppellants should not have referenced

material not in the record, and we will not consider any

non-record evidence or arguments based upon non-record

evidence."); F.R.A.P. 28(a)(4) (statements of fact must refer to

record). 

"reasonable suspicion" in detaining Plaintiff. Plaintiff argues

that Terry stops, to be proper, must follow chance encounters

between the police and the suspect. Plaintiff has pointed us to no

authority, however, to support his unique view that there is such

a "chance encounter" requirement; and we are aware of nothing to

support the idea. We thus look to the two stop and searches and

determine whether the officers involved had "reasonable suspicion"

and whether the scope of the weapons searches attendant to the

stops exceeded the permissible scope.

A. The 19 May Stop and Search

 Plaintiff contends (1) that Mr. B's deposition establishes a

triable issue of material fact on whether Davis lied about getting

a tip and (2) that the tips, if given, were unreliable. As the

district court noted, however, Plaintiff presented no evidence to

contradict Bertarelli's testimony about his anonymous tip. About

the Davis tip, even assuming we were to consider Mr. B's deposition

(which is not properly before us),4

 any "conflicts in the evidence"

concern only minor discrepancies in the details provided by Davis

and Mr. B—such as whether Mr. B knew the person to whom Plaintiff

was delivering cocaine—and do not support a reasonable inference
that Davis and Mr. B fabricated the entire story.

In addition, Plaintiff's theory of the incident is inherently

incredible and could not support reasonable inferences sufficient

to create an issue of fact. No evidence shows that the MPD had

contact with Plaintiff before the incident or had reason to go to

the pertinent location or to stop Plaintiff's car absent a tip.

From this record, no reason exists to believe that, before 19 May,

any member of the MPD Narcotics and Intelligence Unit even knew who

Plaintiff was.

 As for the reliability of the tips, under Alabama v. White,

496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 307 (1990), an anonymous

tip, corroborated by independent police work, can be sufficient to

constitute reasonable articulable suspicion. In White, a police

officer received an anonymous tip that Vanessa White would be

leaving a particular apartment in a brown Plymouth station wagon

with a broken tail light and transporting cocaine, in a brown

attache case, to a particular motel. The officer and his partner

watched the location and observed a brown Plymouth station wagon

with a broken tail light in the parking lot. White entered the

car, empty-handed, and started to drive the most direct route to

the motel before she was stopped by a patrol car. The White Court

noted that "not every detail mentioned by the tipster was verified,

such as the name of the woman or the precise apartment from which

she left." Id. at 331, 110 S.Ct. at 2416. The police did,

however, confirm that the woman left the particular building, got

into the described vehicle and drove in the most direct route to

the motel. So, the Court held that, under the "totality of the
circumstances," this anonymous tip, partially corroborated by

independent police work, was sufficient to constitute "reasonable

suspicion." Id.

 In the present case, Bertarelli's anonymous tip, corroborated

both by a tip from one of his partner's confidential informants

(Mr. B) and by independent police work, shows even greater indicia

of reliability and gave Bertarelli and Davis an even greater basis

for "reasonable suspicion." The anonymous tipster indicated that

Plaintiff was transporting cocaine. After a 45-minute stakeout of

the exact location provided by this informant, Plaintiff, a young,

black male named Riley, entered a vehicle matching the informant's

description. Davis' confirming tip also gave the exact license

plate number of the vehicle Plaintiff was driving. In the light of

the totality of the circumstances, independent police work

corroborated both the anonymous tip Bertarelli received and the

confirming tip from Davis' informant and provided ample basis for

"reasonable suspicion."

B. The 20 July Stop and Search

Disregarding evidence of Wooten's tip, the district court

found and concluded that the undisputed facts about the 20 July

encounter established reasonable suspicion in that (1) Plaintiff

accelerated well past the speed limit when he spotted the officers

and (2) the officers observed the passenger throwing items out of

the window and were aware of the recent arrest in which Plaintiff

had been found with cocaine and a handgun.

Plaintiff argues that (1) the stop was "pretextual" and (2)

the second search of the car, by Wooten, was impermissible.
Plaintiff refers to the deposition of Wooten (in which he states

that he and Jones would not have stopped Plaintiff but for the tip

Wooten received) and claims the officers decided to stop Plaintiff

well before they saw him speeding, that is, the stop was

pretextual.

 Mere surveillance or pursuit is no "seizure"; and the

relevant inquiry is whether, at the time the police pulled

Plaintiff over, the stop and search violated the Fourth Amendment.

See Brower v. County of Inyo, 489 U.S. 593, 595-97, 109 S.Ct. 1378,

1381, 103 L.Ed.2d 628 (1989) ("Violation of the Fourth Amendment

requires an intentional acquisition of physical control.").

 In this circuit, we have historically held that the standard

for determining if a traffic stop was "pretextual" is whether "a

reasonable officer would have made the seizure in absence of

"illegitimate motivation.' " See United States v. Smith, 799 F.2d

704, 708 (1986) (emphasis in original). But, in Whren v. United

States, --- U.S. ----, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), the

Supreme Court rejected our former approach and held that the

constitutional "reasonableness" of a traffic stop is determined

irrespective of "intent," either of the individual officer

involved, id. at ---- - ----, 116 S.Ct. at 1773-1774, or any

theoretical "reasonable officer" (or, as the Court termed it,

"virtual subjectivity"). Id. at ---- - ----, 116 S.Ct. at 1774-

1776. The only question is whether the suspect's behavior gave

rise to probable cause sufficient to justify the seizure. Id. at

----, 116 S.Ct. at 1775 ("[T]he Fourth Amendment's concern with

"reasonableness' allows certain actions to be taken in certain
circumstances, whatever the subjective intent.") (emphasis in

original).

 In Whren, the Court held that the police had probable cause

to pull over the suspect where he violated the traffic laws in this

way:

When the police car executed a U-turn in order to head

back toward the truck, the Pathfinder turned suddenly to its

right, without signalling, and sped off at an "unreasonable"

speed. The police followed, and in a short while overtook the

Pathfinder when it stopped behind other traffic at a red

light.

Id. at ----, 116 S.Ct. at 1772. The present circumstance is more

compelling in that (1) Plaintiff was already known to the police as

a drug dealer who had a history of carrying a gun and (2) his

passenger was throwing things (then thought to be, later shown to

be, drugs) out of the window of the car as they sped through a

residential neighborhood at approximately 60 miles an hour. See

also United States v. Strickland, 902 F.2d 937, 940 (11th Cir.1990)

("[A] police officer may stop a vehicle "[w]hen there is ...

probable cause to believe that a driver is violating any one of a

multitude of applicable traffic and equipment regulations' relating

to the operation of motor vehicles.") (quoting Delaware v. Prouse,

440 U.S. 648, 655-57, 99 S.Ct. 1391, 1397, 59 L.Ed.2d 660 (1979)).

 About Wooten's search, there can be no doubt that a weapon

could have been hidden where Wooten looked and seemingly found not

a gun, but cocaine: between the door and the driver's seat. See

Michigan v. Long, 463 U.S. 1032, 1051-52, 103 S.Ct. 3469, 3482, 77

L.Ed.2d 1201 (1983). That both Plaintiff and his passenger had

been removed from the car and were in the officer's custody is

inconsequential. Id. ("[I]f the suspect is not placed under
 5

The officers had taken custody of both Plaintiff and his

passenger and were conducting a search pursuant to a valid Terry

stop. No one argues that Plaintiff and his passenger were under

arrest at the time Wooten conducted his search. 

arrest, he will be permitted to reenter his automobile, and he will

then have access to any weapons inside.")5 In addition, a vehicle

search pursuant to Michigan v. Long is not constitutionally infirm

just because it involves a second officer conducting a second

search. See United States v. Gleason, 25 F.3d 605, 608 (8th Cir.)

(second weapons search by officer within permissible scope of

search incident to an investigative stop), cert. denied, --- U.S.

----, 115 S.Ct. 283, 130 L.Ed.2d 199 (1994).

 As is noted above, the district court concluded that a

genuine issue of fact exists about whether Wooten actually found

the cocaine in the car; and, therefore, the district court denied

Wooten's motion for summary judgment on Plaintiff's state law

malicious prosecution claims. If the jury were to find that Wooten

planted the cocaine, this planting of false evidence could

constitute a violation of Plaintiff's rights under the Federal

Constitution and, accordingly, could give rise to liability under

Section 1983. See e.g. Napue v. Illinois, 360 U.S. 264, 268-70, 79

S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959) (due process right to fair

trial); Whiting v. Traylor, 85 F.3d 581, 585 (11th Cir.1996)

(right to be free of unreasonable seizures); Schneider v. Estelle,

552 F.2d 593, 595 (5th Cir.1977) (due process right to fair trial).

It was well established in 1989 that fabricating incriminating

evidence violated constitutional rights. See, e.g., Schneider, 552

F.2d at 595 (police officer's manufacturing of evidence violates
 6

For the 19 May incident, the district court held, at p. 57

of its Order, that "the May 19, 1989 investigative stop is

constitutional under White, and the subsequent search was

constitutional under Michigan v. Long, 463 U.S. at 1032 [103

S.Ct. at 3469]." For the 20 July incident, the district court

found and concluded that "Jones and Wooten had probable cause to

stop Riley [Plaintiff] on July 20, 1989," (Order, p. 58) and that

"Jones did not violate Riley's constitutional rights in

conducting the search," (Order, p. 59) and "Wooten had probable

cause to search Riley's car on July 20, 1989." (Order, p. 59.) 

We do not reach the question of probable cause for Wooten's

search, but affirm the conclusion that the search was lawful. 

due process right to fair trial regardless of prosecutor's

ignorance of the falsified evidence). Accordingly, Wooten is

entitled to no immunity for such claims. Thus, to the extent that

the district court granted Wooten summary judgment on Plaintiff's

Section 1983 claims based on the alleged planting of cocaine, the

district court was mistaken. We vacate the judgment on this point

for Wooten.

C. The Grant of Summary Judgment to City Defendants

 Though the district court's opinion largely speaks in terms

of qualified immunity, the district court did conclude, in its

summary judgment order, that no constitutional violation—except

possibly for Wooten's planting of evidence—occurred at all as a

result of the two stop and searches.6

 The district court was

right.

Plaintiff has advanced no theory under which City Defendants

could be held liable for Wooten's alleged planting of cocaine in

Plaintiff's car on 20 July. So, the district court correctly

granted summary judgment to City Defendants. See Menuel v. City of

Atlanta, 25 F.3d 990, 997 (11th Cir.1994) (dismissing action

against municipality for lack of underlying constitutional
violation).

D. Malicious Prosecution

 The elements of a malicious prosecution under Alabama law are

(1) institution or continuation of a judicial proceeding, (2) by or

at the instance of the defendant, (3) favorable termination of

those proceedings, (4) malice, (5) lack of probable cause, (6)

injury or damage. Delchamps, Inc. v. Larry, 613 So.2d 1235, 1238

(Ala.1992). A grand jury indictment is prima facie evidence of

probable cause which can be overcome by showing that it was induced

by misconduct. Lumpkin v. Cofield, 536 So.2d 62, 64 (Ala.1988).

Given that reasonable suspicion existed for the two searches, the

district court correctly concluded that Plaintiff failed to present

evidence sufficient to create a triable issue of fact on

"misconduct" for Bertarelli, Davis and Jones. So, the "lack of

probable cause" element of the tort of malicious prosecution is

missing.

AFFIRMED in part, VACATED in part, and REMANDED.