2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-20-2006

USA v. Goodrich

Precedential or Non-Precedential: Precedential

Docket No. 05-3071

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*

 The Honorable John C. Lifland, Senior District Judge

for the District of New Jersey, sitting by designation.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 05-3071

__________

UNITED STATES OF AMERICA,

vs.

JERVIS LAVERN GOODRICH

Appellant

____________________

On Appeal from the United States District Court

For the Middle District of Pennsylvania

(D.C. Criminal No. 03-cr-00036)

District Judge: Honorable John E. Jones, III

_______________

Argued May 16, 2006

Before: MCKEE and GARTH, Circuit Judges, and

LIFLAND, District Judge*

(Filed: June 20, 2006)
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MICHAEL G. LEONARD, ESQUIRE (ARGUED)

Law Office of Michael G. Leonard

91 North Main Street

Hughesville, Pennsylvania 17737

Counsel for Appellant

WILLIAM A. BEHE (ARGUED)

Office of United States Attorney

228 Walnut Street, P.O. Box 11754

220 Federal Building and Courthouse

Harrisburg, PA 17108

GEORGE J. ROCKTASHEL, ESQUIRE

Office of United States Attorney

240 West Third Street, Suite 316

Williamsport, Pennsylvania 17701

Counsel for Appellee

__________

OPINION OF THE COURT

 __________

GARTH, Circuit Judge.

State police officers, acting upon a non-specific tip,

stopped a vehicle in the immediate vicinity of a reported theft in

progress. We address the constitutionality of this investigatory

stop under the “reasonable suspicion” standard of Terry v. Ohio,
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392 U.S. 1 (1968), and its progeny. We hold that,

notwithstanding the vague and imprecise description provided

by the informant in this case, other relevant circumstances

furnished the police with “reasonable suspicion” to justify the

Terry stop. We will therefore affirm the District Court’s

judgment which denied appellant’s motion to suppress evidence,

but as our opinion explains, we do so for an entirely different

reason.

I. 

 As the “reasonable suspicion” inquiry is highly factdependent in nature, we proceed to describe the facts relating to

the vehicle stop in some detail, placing sole emphasis on those

events preceding the stop. We preface this factual discussion,

however, by noting that both the District Court and the parties

refer to many facts having little or no relation to the vehicle

stop. Such facts were deemed relevant in the proceedings below

because the District Court erroneously held that Terry did not

authorize the stop and therefore proceeded to consider the

application of the exclusionary rule to the contested evidence.

It ultimately denied the suppression motion, concluding that the

contested evidence should nonetheless be admitted under certain

exceptions to the exclusionary rule. Our analysis does not

proceed beyond the constitutional principles governing the

investigatory stop. Because we uphold the validity of the stop,

we have no occasion to reach or address the alternate theories

relied upon by the District Court in denying the suppression

motion. 
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A. 

 Mill Hall is a small town in Clinton County,

Pennsylvania. Situated along the railroad tracks in a mixed

residential and commercial part of town, directly adjacent to

Mill Hall Clay Products and diagonally across the railroad tracks

from R&M Gas & Oil (“R&M Gas”), is Webb’s Super-Gro

(“Webb’s”), a farm supply company which sells anhydrous

ammonia, among other agricultural products. Anhydrous

ammonia is a chemical used in agricultural industries, but also

frequently employed in the production of methamphetamine. As

a result of repeated thefts of anhydrous ammonia from Webb’s

tanks, the police viewed the surrounding vicinity as a “hot spot”

for criminal activity. App. 246.

On the night of September 10, 2002, at approximately

11:20 p.m., the Pennsylvania State Police Barracks in Lamar,

Pennsylvania received a call from an employee at Mill Hall Clay

Products, reporting a possible theft in progress from Webb’s

anhydrous ammonia tanks. The caller identified himself as

Todd Gentzyel (“Gentzyel”), a third-shift kiln operator at the

brickyard adjacent to Webb’s. Gentzyel previously had

informed the Lamar Barracks of similar thefts and had been

advised to call the state police immediately upon witnessing any

suspicious activity in the future. He told the police

communications officer (“PCO”) that, “. . . there was two people

just carrying some kind of buckets or something across from the

Webb’s . . . and they’re just, they’re over behind R&M Gas right

now loading into some kind of a vehicle. I’m gonna go try to
1

 The District Court found that the stop occurred at

approximately 11:28 p.m. The government, however, states that

a trooper had pulled over the vehicle in question at 11:26:59

-5-

get a description.” App. 392. The PCO directed Gentzyel to call

back when he obtained a description, and then immediately

dispatched Troopers Stephen Wilcox and Christopher Soo from

the Lamar Barracks to R&M Gas. The PCO also dispatched

Trooper David Kirkendall, already out on patrol, to the scene.

At 11:21 p.m., the PCO repeated to one of the responding

troopers that the suspects were behind R&M Gas. App. 392.

Having responded to numerous incidents at Webb’s on

prior occasions and having conducted routine surveillance of the

anhydrous ammonia tanks on the property, Troopers Wilcox and

Soo were both familiar with the location of R&M Gas and the

surrounding area. App. 110, 157. They arrived in Mill Hall

within seven minutes of Gentzyel’s call and proceeded down

Pennsylvania Avenue – the main roadway running through Mill

Hall – in the direction of R&M Gas. As they drove down

Pennsylvania Avenue, the troopers observed no vehicles coming

from the direction of R&M Gas. App. 117. However, as they

turned right onto Agnew Street – one of the side streets

intersecting Pennsylvania Avenue – in order to approach R&M

Gas, they immediately spotted a small, dark-colored vehicle in

front of R&M Gas about a block and a half ahead. No other

occupied vehicles were in the area. App. 199. 

At approximately 11:28 p.m.,1

 Troopers Wilcox and Soo
p.m. – the time that Trooper Kirkendall radioed in the license

plate number of the vehicle. App. 395. The government

appears to be correct as to the precise time of the stop.

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pulled in front of the vehicle and activated their lights, causing

the vehicle to stop. At about the same time, Trooper Kirkendall

arrived from another direction and stopped behind the vehicle.

The government does not dispute that this initial stop constitutes

a seizure for Terry purposes.

Meanwhile, just prior to the stop, at precisely 11:26:44

p.m., Gentzyel called back and reported to the PCO that the

vehicle had just pulled out “over by R&M Gas.” App. 395. He

believed, though he was not certain, that the occupants looked

like two women, and he described the driver as a “blond-haired

lady.” App. 396. He then advised the PCO that the troopers

had, in fact, pulled over the vehicle he was describing. App.

396. As the stop occurred, Gentzyel remained on the telephone

line, providing further descriptions to assist the officers in their

investigation. In particular, Gentzyel told the PCO the

following additional information:

I fire the kilns on third shift and when I walked out they

come across our parking lot. There was two people, two

individuals carrying, it looked like buckets of something.

They walked across the railroad tracks and went over to

R&M Gas. Over behind the R&M gas plant, and then

they were loadin’ stuff for about five minutes. I hurried

up and run in and made a call, went back out to see if I
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could get a description of the vehicle.

App. 397. Gentzyel also described the vehicle in question as a

smaller, dark-colored vehicle, like a Cavalier, and reported that

he saw the two persons “really struggling” with the container as

they carried and loaded it into the rear of the car. App. 400-02.

Immediately after the stop, Trooper Soo exited his

vehicle and ran down the street to R&M Gas to check for other

vehicles or individuals in the area. He observed no other

activity in the area. However, between the stopped vehicle and

R&M Gas, he encountered a strong smell of ammonia and

noticed a substance scattered on the street with a cup and spoon

located nearby. To the troopers, it appeared as if the cup and

spoon had been thrown from the vehicle prior to the stop. App.

369. 

The troopers then spoke with the occupants – later

identified as Jervis Goodrich (“Goodrich”), defendant below,

appellant here, who occupied the passenger seat, and his

girlfriend Melissa Kinne (“Kinne”), the driver and owner of the

vehicle – to determine if they had seen anything suspicious in

the area. Goodrich and Kinne responded in the negative, and

further told the troopers that they had been “parking” at R&M

Gas. The troopers, however, observed within the vehicle in

plain view tools and rags, a pliers, and a flashlight. From their

prior experience, the troopers knew that these things were

commonly used during anhydrous ammonia thefts. App. 130-

31, 366-67. Moreover, at least one of the occupants matched
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Gentzyel’s description of “a blonde-haired lady” and the car

generally matched his description of a small, dark-colored

vehicle, which information the troopers had received on police

radio during the investigatory stop. 

At some point, the troopers asked about the trunk of the

car. Goodrich stated that he had gone into the trunk to retrieve

a blanket. App. 129-30. The troopers thereupon requested

permission to search the trunk, at which point Goodrich claimed

that the key had broken off in the trunk lock and that he had

used pliers in retrieving the blanket from the trunk. Upon

examination, however, the troopers saw no key broken off in the

lock. App. 132. Kinne, in turn, had told one of the troopers that

she had lost the key to the trunk. App. 135. And when a trooper

suggested that she turn off the car to prevent it from

overheating, Kinne turned off the ignition and placed the keys

in her waistband, thereby further arousing the troopers’

suspicion. App. 135-36. 

After conducting a National Crime Information Center

check of the vehicle’s license plate number and after running

Goodrich’s and Kinne’s names and dates of birth through law

enforcement databases, the troopers learned that there was an

outstanding parole warrant in New York for Goodrich. He was

thereupon taken into custody. 

At this juncture, Gentzyel was brought to the scene and

identified the vehicle and the occupants as the same vehicle and

persons that he observed earlier in the evening. Based on

Gentzyel’s identification and the other information gathered
2 On September 11, 2002, the day following the

investigatory stop, the troopers applied for and obtained a search

warrant to search Kinne’s vehicle. Upon searching the vehicle,

they found a plastic spoon with white powdery residue on it, a

plastic container containing an off-white chunky powder, an

empty plastic container with a metal sprout, two cans of starter

fluid, and a 20 gallon propane tank filled with anhydrous

ammonia. Laboratory analysis revealed that the residues and

contents of the objects included methamphetamine and two

chemicals used to make methamphetamine, pseudoephedrine

and ether. 

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during the investigatory stop, the troopers believed probable

cause existed to arrest Goodrich and Kinne for theft of

anhydrous ammonia. Accordingly, they placed Kinne in

custody, and informed both Goodrich and Kinne of their intent

to file theft and drug charges. And yet despite their belief that

probable cause existed for the arrests, the troopers waited for the

issuance of a warrant to search the inside of the vehicle.2

B.

The United States subsequently charged Goodrich with

(1) conspiracy to manufacture and distribute controlled

substances, contrary to 21 U.S.C. § 846, (2) theft of

anhydrous ammonia, contrary to 21 U.S.C. § 864(a)(1), 

(3) possession of listed chemicals, contrary to 21 U.S.C. §

841(c)(1), and (4) distribution of a controlled substance,

contrary to 21 U.S.C. § 841(a)(1). On February 13, 2003, a

grand jury sitting in the Middle District of Pennsylvania
3

 On October 15, 2002, Kinne agreed to an interview with

the district attorney and the state police. With her counsel

present, she admitted driving Goodrich to Webb’s and assisting

him in stealing anhydrous ammonia. Kinne later testified

against Goodrich at a state court preliminary hearing. She also

testified at Goodrich’s trial in this case. 

In addition, Kinne turned over to the police prison letters

from Goodrich. In these letters, Goodrich told Kinne what to

say to investigators concerning the location of the tanks, and he

repeatedly urged her to “stick to the story.” In one letter,

Goodrich complained about how the anhydrous ammonia

burned his hands. In another notable letter, Goodrich admitted

that the propane tank recovered from Kinne’s vehicle belonged

to him. 

4

 Goodrich moved to suppress the physical evidence

seized from Kinne’s vehicle, Kinne’s inculpatory testimony, and

the letters addressed to Kinne from Goodrich and turned over to

the government. 

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returned a four-count indictment against Goodrich on these

charges. The United States brought no charges against Kinne,

who entered a guilty plea to state theft charges and agreed to

cooperate with the authorities.3

Before trial, Goodrich moved to suppress any and all

evidence obtained as a result of the stop,4

 arguing that the

police lacked reasonable suspicion to perform the Terry stop. 

He also argued that the police lacked probable cause to either

arrest him or search the vehicle, as the facts used to support
-11-

probable cause had been obtained from an illegal stop. On

January 21, 2004 and February 3, 2004, the District Court

conducted hearings on the suppression motion.

At the hearings, the government presented the testimony

of Trooper Soo. Among others, Goodrich presented the

testimony of Trooper Wilcox. Soo testified that the police

decided to conduct an investigatory stop of the vehicle based

primarily on its geographical proximity to the reported theft in

progress. He admitted that the troopers had no specific

description of either the suspects or the vehicle prior to the stop.

Soo further testified that the troopers would have stopped any

vehicle in the near vicinity of R&M Gas. Indeed, he testified on

cross-examination that had he seen three vehicles in the area, he

would have tried to stop all three. App. 167-68. Trooper

Wilcox concurred, stating that the troopers had stopped Kinne’s

vehicle because it was the only vehicle in the area. 

Based on the foregoing testimony, the District Court

concluded that the stop was unlawful. The District Court

explained:

The informant in this case . . . did not provide any

specific description of the individuals or vehicle in

question until the police had already stopped the vehicle.

Notably, the candid testimony of both Troopers Soo and

Wilcox indicates that they would have stopped any

vehicle or person they encountered within a two or three

block area of R&M Gas. Trooper Soo also testified that

he had no other evidence that the vehicle was involved in
5 We have appellate jurisdiction pursuant to 28 U.S.C. §

1291. We review the denial of a suppression motion for clear

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criminal activity other than its location proximate to

whether [sic] the activity had been observed. . . . Quite

clearly, the lone fact that a vehicle is proximate to an

area of reported criminal activity is not sufficient to

support a finding of reasonable suspicion and the stop is,

therefore, impermissible.

District Court Opinion at 8-9. 

Having found that Terry did not authorize the

investigatory stop, the District Court proceeded to consider

whether any exceptions to the exclusionary rule were applicable.

It found that there were, concluding that the independent source

and the attenuated connection principles, both exceptions to the

general exclusionary rule, supported the admissibility of the

challenged evidence. Accordingly, the District Court denied

Goodrich’s motion to suppress. 

Goodrich’s case thereupon proceeded to trial. On August

10, 2004, a jury convicted Goodrich on the first two counts of

the indictment – conspiracy to manufacture and distribute

controlled substances and theft of anhydrous ammonia – and

found him not guilty on the remaining counts. On June 10,

2005, the District Court sentenced Goodrich to 71 months

imprisonment and 6 years of supervised release and imposed a

special assessment of $200 and restitution of $4,500. This

timely appeal followed.5
error as to the underlying facts, but exercise plenary review as

to its legality in light of the district court’s properly found facts.

United States v. Givan, 320 F.3d 452, 458 (3d Cir. 2003). We

can affirm a district court’s denial of a suppression motion on

any ground supported by the record. United States v. Agnew,

407 F.3d 193, 196 (3d Cir. 2005). 

-13-

II.

Goodrich challenges the denial of his suppression

motion, essentially arguing that the contested evidence should

have been suppressed as the fruits of an illegal stop. He

contends that the District Court erred in its application of the

exclusionary rule and the exceptions relevant thereto, though he

applauds the District Court for finding an initial constitutional

violation. The government argues that the District Court erred

in finding the stop unlawful, but performed the correct analysis

in admitting the challenged evidence under the applicable

exceptions to the exclusionary rule. 

Both parties agree that the pivotal issue in this appeal is

whether the automobile stop ran afoul of the Fourth

Amendment. If the stop is found to be lawful, that is, if the

officers had “reasonable suspicion” to stop the Kinne vehicle,

we need go no further respecting the exclusion of evidence: the

evidence should have been allowed as no Fourth Amendment

violation occurred. 

We therefore turn to address the primary question

presented in Goodrich’s appeal: whether the vehicle stop
6

 In determining whether an investigatory stop is legal,

the court also examines its relative intrusiveness. United States

v. Rickus, 737 F.2d 360, 366 (3d Cir. 1984) (citing Terry, 392

U.S. at 18 n.15)). Terry itself recognized that “in determining

whether the seizure and search were ‘unreasonable’ our inquiry

is a dual one – whether the officer’s action was justified at its

inception, and whether it was reasonably related in scope to the

circumstances which justified the interference in the first place.”

392 U.S. at 19-20. Goodrich, however, does not challenge the

scope or intrusiveness of the investigation following the stop.

Thus only the initial stop, and not the subsequent investigation

(or search), is at issue here. 

In any event, the record plainly indicates that the troopers

conducted a reasonable and minimally intrusive investigation

following the stop. The informant provided real-time

information that the troopers had pulled over the right vehicle,

and the troopers took every opportunity to acquire a more

specific description from the informant; the troopers found a

spilled substance smelling of ammonia near the scene; they

noticed suspicious equipment in plain view in the car; the

occupants of the vehicle behaved in a suspicious manner,

especially concerning the trunk to the car; the troopers

conducted routine checks on law enforcement databases and

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satisfied the constitutional requirements set forth in Terry v.

Ohio, supra, and subsequent case law. In doing so, we examine

only the validity of the initial stop, for Goodrich does not

separately challenge the reasonableness or intrusiveness of the

investigation following the stop.6

 As the initial stop, and
relied upon an outstanding warrant in taking Goodrich into

custody; and the informant was eventually brought to the scene

to identify the vehicle and occupants as the ones which he

spotted earlier in the night. Only after all this investigation did

the troopers take Kinne into custody and advise both Kinne and

Goodrich of their intent to file theft and drug charges. And

finally, it bears mention that the police waited until obtaining a

search warrant to search Kinne’s vehicle. 

Moreover, nothing in the record suggests that the troopers

attempted to harass or intimidate the occupants. Nor does the

record suggest that the stop involved public embarrassment or

physical contact. In short, the investigation did not exceed the

extent of inquiry reasonably justified by the circumstances.

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nothing else, constitutes the alleged constitutional violation, the

facts and circumstances known to the troopers preceding the

vehicle stop acquire particular salience. We conclude, after

considering all relevant circumstances, that the stop was lawful.

A.

The Supreme Court, in Adams v. Williams, stated that

“the Fourth Amendment does not require a policeman who lacks

the precise level of information necessary for probable cause to

arrest to simply shrug his shoulders and allow a crime to occur

or a criminal to escape.” 407 U.S. 143, 145 (1972). On the

contrary, the Court explained, “it may be the essence of good

police work to adopt an intermediate response,” i.e., to maintain

the status quo with a brief stop that allows the police officer to
-16-

investigate further the possibility of criminal involvement. Id.

at 145-46. In Terry, the Supreme Court had earlier held that

such an investigatory stop – now commonly referred to as a

Terry stop – is consistent with the Fourth Amendment whenever

the police officer has a reasonable, articulable suspicion that

criminal activity is afoot. Terry, 392 U.S. at 30; Illinois v.

Wardlow, 528 U.S. 119, 123 (2000). 

We recently summarized the familiar precepts which

govern the “reasonable suspicion” inquiry:

Reasonable suspicion is an ‘elusive concept,’ but it

unequivocally demands that ‘the detaining officers must

have a particularized and objective basis for suspecting

the particular person stopped of criminal activity.’

United States v. Cortez, 449 U.S. 411, 417-18 (1981).

An officer’s objective basis for suspicion must be

particularized because the ‘demand for specificity in the

information upon which police action is predicated is the

central teaching of this Court’s Fourth Amendment

jurisprudence.’ Terry, 392 U.S. at 22 n. 18. At the same

time, we must allow ‘officers to draw on their own

experience and specialized training to make inferences

from and deductions about the cumulative information

available to them that might well elude an untrained

person.’ United States v. Arvizu, 534 U.S. 266, 273

(2002) (internal quotation marks omitted); see also

United States v. Nelson, 284 F.3d 472, 476 (3d Cir. 2002)

. . . In evaluating whether there was an objective basis

for reasonable suspicion, we consider ‘the totality of the

circumstances-the whole picture.’ Cortez, 449 U.S. at

417.
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United States v. Brown, --- F.3d ----, 2006 WL 1377043, *6 (3d

Cir. May 22, 2006). 

Here we only emphasize that the “reasonable suspicion”

analysis is objective; subjective motive or intent is not relevant

for Terry purposes. See Terry, 392 U.S. at 21-22 (1968) (when

evaluating the “reasonableness of a particular search or seizure

. . . it is imperative that the facts be judged against an objective

standard: would the facts available to the officer at the moment

of the seizure or the search warrant a man of reasonable caution

in the belief that the action taken was appropriate?”) (citation

and internal quotations omitted) (emphasis added). We also

note that “reasonable suspicion” is measured before the search;

information acquired subsequent to the initial seizure cannot

retroactively justify a Terry stop. 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.”); Johnson v. Campbell, 332 F.3d 199, 205 (3d Cir.

2003) (“[U]nder Terry, in evaluating whether [the officer’s]

interaction with [the defendant] prior to his arrest amounted to

an unreasonable seizure, we must first determine at what

moment [the defendant] was seized, and then whether that

seizure was justified by reasonable, articulable facts known to

[the officer] as of that time . . .”); United States v. Valentine, 232

F.3d 350, 358 (3d Cir. 2000) (“[I]t is true that the

‘reasonableness of official suspicion must be measured by what

the officers knew before they conducted their search’”) (quoting

J.L., 529 U.S. at 271).

Where, as here, the Terry stop is made primarily upon the

basis of information supplied to the police by an informant, a

central issue is whether the informant’s information is

sufficiently reliable and complete to provide the police with
7 Gentzyel was a known informant providing real-time

information based upon his personal observation of suspicious

behavior, which matched a pattern of criminal activity known to

the police. See Adams, 407 U.S. at 146-47 (noting the reliability

problems of anonymous telephone tips and distinguishing

anonymous tips from a known informant whose reputation can

be assessed and whose information is immediately verifiable at

the scene) and compare United States v. Roberson, 90 F.3d 75,

79 (3d Cir. 1996) (holding that an anonymous tip containing

only information readily observable at the time the tip is made,

and thus lacking any indicia of reliability or predictive value,

does not provide reasonable suspicion for a Terry stop). 

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“reasonable suspicion” in stopping the designated persons or

vehicles for investigation. In evaluating “reasonable suspicion”

in this context, the court considers both the reliability of the tip

or informant and the content of the tip. See Valentine, 232 F.3d

at 355 (“The reliability of a tip, of course, is not all that we must

consider in evaluating reasonable suspicion; the content of the

tip must also be taken into account, as well as other surrounding

circumstances.”). The content of the tip, concomitantly, must

provide a particularized and objective basis for suspecting (1)

the particular persons stopped (2) of criminal activity. See J.L.,

529 U.S. at 272 (“The reasonable suspicion here at issue

requires that a tip be reliable in its assertion of illegality, not just

in its tendency to identify a determinate person.”). 

In this appeal, Goodrich does not challenge the reliability

of the tip itself or the informant.7

 Rather, Goodrich challenges

the quality, or the information contained in, the tip. He argues

that it lacked the requisite degree of specificity to justify the

vehicle stop. In so arguing, he challenges the information

contained in the tip as to both essential components, viz., its
8 In that report, Gentzyel told the PCO that, “. . . there

was two people just carrying some kind of buckets or something

across from the Webb’s . . . and they’re just, they’re over behind

R&M Gas right now loading into some kind of a vehicle. I’m

gonna go try to get a description.” Although Gentzyel provided

additional information in the second call to the troopers, it is

unclear from the record whether any of the information he gave

to the officers was given simultaneous to the stop or

immediately after the stop. Accordingly, we will examine the

constitutionality of the stop based solely on the information

provided in Gentzyel’s first report and the other relevant factors

which we describe herein. We express no opinion on whether

information afforded simultaneous to the stop may be

considered for Terry purposes.

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tendency to (1) identify determinate persons (2) engaging in

criminal activity. We examine each of these components below,

turning first to Goodrich’s principal contention that the police

had no specific descriptions of either the suspects or the vehicle

in question. 

B.

It is well established that “an officer cannot conduct a

Terry stop simply because criminal activity is afoot.” United

States v. Brown, 159 F.3d 147, 149 (3d Cir. 1998). “Instead, the

officer must have a particularized and objective basis for

believing that the particular person is suspected of criminal

activity.” Id. (citing Cortez, 449 U.S. at 417-18) (emphasis

added). Goodrich argues that the police acted solely upon the

information contained in Gentzyel’s first report8

 and thus

without a specific description of either the suspects or the

getaway vehicle. This information, Goodrich contends, was too

imprecise to satisfy constitutional standards. We cannot agree.
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Other relevant circumstances can provide sufficient

particularity or specificity to an otherwise general or indefinite

description. A description, in other words, must be considered

with reference to the totality of the circumstances. As one

commentator explained:

Whether the available description is sufficiently

particular cannot be determined in the abstract. To

suffice, the description must permit the police to be

reasonably selective in determining who to stop for

investigation, and whether this may be said to be the case

will depend upon how many persons are in the universe

of potential suspects. 

6 Wayne R. LaFave, Search and Seizure: A Treatise on the

Fourth Amendment, § 9.5(g) (4th ed. 2004) (footnotes omitted).

Accordingly, the imprecise description provided by the

informant in this case must be considered alongside any other

relevant factors which tend to more narrowly define the universe

of potential suspects and thereby constrain police discretion. At

least four such factors warrant consideration in this case: (1) the

reputation of the area in which the stop occurred for criminal

activity; (2) the time of day; (3) the geographical and temporal

proximity of the stop to the scene of the alleged crime; and (4)

the number of persons in the area. We discuss these factors

seriatim.

1. High Crime Area

“An individual’s presence in an area of expected criminal

activity, standing alone, is not enough to support a reasonable,

particularized suspicion that the person is committing a crime.”

Wardlow, 528 U.S. at 124 (citing Brown v. Texas, 443 U.S. 47

(1979)). However, the Supreme Court has noted “the fact that
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the stop occurred in a ‘high crime area’ [is] among the relevant

contextual considerations in a Terry analysis.” Id. (citing

Adams, 407 U.S. at 144) ; see also Brown, 159 F.3d at 149-50

(noting that reputation of area for criminal activity is a relevant

Terry factor). 

Here, Goodrich was found in the near vicinity of Webb’s

and R&M Gas, an area with a reputation for theft of anhydrous

ammonia. Trooper Soo testified that the Pennsylvania State

Police had responded to ten to fifteen reported thefts of

anhydrous ammonia from Webb’s tanks preceding Goodrich’s

arrest. Contrary to Goodrich’s contention, then, the record

indicates that the area around R&M Gas constitutes a “high

crime area” for Terry purposes. See, e.g. United States v.

Rickus, 737 F.2d 360, 362, 365 (3d Cir. 1984) (noting that area

recently victimized by twelve unsolved burglaries was area of

criminal activity for Terry purposes). We thus conclude that the

reputation of the area for prior thefts of anhydrous ammonia was

one articulable fact upon which the troopers may legitimately

have relied in conducting the stop. This fact, moreover, is given

greater importance when considered with the next relevant

consideration – the time of day.

2. Time of Day 

The investigatory stop occurred at approximately 11:30

p.m. The lateness of the hour of the stop further supports the

inference of criminal activity, especially when considered

alongside the area’s reputation for criminal activity. See, e.g.,

Michigan v. Long, 463 U.S. 1032, 1050 (1983) (noting that “the

hour was late” as one relevant Terry circumstance); United

States v. Ramires, 307 F.3d 713, 716 (8th Cir. 2002) (listing the

fact that “it was late at night” as one circumstance justifying a

Terry stop); United States v. Lender, 985 F.2d 151, 154 (4th Cir.
9

 Compare United States v. Kerr, 817 F.2d 1384, 1387

(9th Cir. 1987) (“loading boxes into a vehicle on residential

property at mid-afternoon, a time of day not raising an inference

of criminal activity”).

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1993) (“The lateness of the hour is another fact that may raise

the level of suspicion.”). 

This case, therefore, does not present the situation,

raising constitutional concern, where the police perform a Terry

stop in an otherwise tranquil neighborhood during the daylight

hours based only on a general description.9

 The lateness of the

hour and the reputation of the area for criminal activity move

this case closer to the elusive line separating constitutional from

unconstitutional governmental action, but it is the next two

factors which, in our view, place this case squarely on the

constitutional side of the divide.

3. Temporal & Geographical Proximity 

The informant in this case, Todd Gentzyel, reported at

approximately 11:20 p.m. that two persons were carrying

“buckets or something across from Webb’s,” and “they’re over

behind R&M Gas right now loading into some kind of vehicle.”

The troopers responded immediately and stopped Kinne’s

vehicle within seven minutes of the report. In addition, the stop

occurred in the immediate vicinity of the reported theft in

progress. The record indicates that Troopers Wilcox and Soo

stopped Kinne’s vehicle within one or two blocks of R&M Gas.

Hence, Goodrich was found near in time and geographic

proximity to the reported theft. 

United States v. Juvenile TK, 134 F.3d 899 (8th Cir.

1998), is instructive here. There, the police received two
-23-

dispatches, forty minutes apart, that a man had broken into a

gray vehicle and brandished a gun. The police had no license

plate number for the vehicle in question, but the second dispatch

located the suspect at a particular gas station. About seven

minutes after the second dispatch, the police noticed a gray

vehicle making a U-turn in a commercial parking lot about oneand-a-half blocks to two blocks from the gas station identified

in the second dispatch. The police proceeded to stop the

vehicle, which had three occupants. Two of the occupants were

arrested for violating the curfew law and for public intoxication.

No weapon was ever discovered.

After the United States charged one of the occupants with

various crimes, including robbery and assault with a dangerous

weapon, the occupant moved to suppress any evidence seized or

gathered as a result of the stop, arguing that the police lacked

reasonable suspicion in making the stop. On appeal, the Eighth

Circuit affirmed the validity of the stop, relying in significant

part on the “temporal and geographical proximity of the car to

the scene of the crime.” 134 F.3d at 903-04. 

 Other cases have reached similar conclusions, sustaining

the detention of an individual found in the proximity of a

recently perpetrated offense. See, e.g., United States v. Brown,

334 F.3d 1161, 1165 (D.C Cir. 2003) (suspects’ car found

parked in lot where late night shots had been fired; location

relevant Terry factor); United States v. Wimbush, 337 F.3d 947,

950 (7th Cir. 2003) (noting as a relevant factor the fact that

suspect was found eight blocks away from reported crime);

Brown, 159 F.3d at 150 (suspect’s presence in “close proximity

to the crime scene a few minutes after the [report]” a factor

supporting finding of reasonable suspicion); United States v.

Raino, 980 F.2d 1148, 1150 (8th Cir. 1992) (holding that a Terry
10 Both Goodrich and the District Court place particular

emphasis on the testimony of Troopers Soo and Wilcox that

they would have stopped any vehicle within a several block

radius of R&M Gas. However, as we have stated, the

“reasonable suspicion” analysis is objective. See Terry, 392

U.S. at 21-22 (1968). The Supreme Court, moreover, recently

reiterated the basic principle that the subjective motivations of

officers are not relevant to determining whether governmental

conduct violates the Fourth Amendment. See Brigham City,

Utah v. Stuart, --- S.Ct. ----, 2006 WL 1374566, *4 (May 22,

2006). It is therefore irrelevant that Trooper Soo may have

testified that had he seen three vehicles in the area, he would

have tried to stop all three. 

-24-

stop was supported by the fact that “the officers were

responding to a late-night call that shots had been fired in

precisely the area appellant’s car was parked”). Accordingly, it

is clear to us that the geographical and temporal proximity of

Kinne’s vehicle (and therefore Goodrich himself) to the scene

of the reported theft in progress is another important factor

militating strongly in favor of the validity of the stop.

4. Number of Persons in Area

Troopers Wilcox and Soo both testified that they

observed no other occupied vehicles in the vicinity of R&M Gas

prior to the stop. The absence of any other vehicles in the area

was another fact known to the troopers at the moment of the

stop, supporting the reasonable belief that the occupants of the

vehicle were probably the perpetrators. Perhaps this case would

have been different had there been two, or three, or four other

vehicles in the area prior to the stop.10 As it was, however, no

other vehicles were in the area.
11 We inquired at oral argument as to what other course

of action the troopers should have taken. It was suggested that

the officers could have followed the vehicle until they obtained

a more precise description from the informant. Yet the course

of action taken by the troopers here, given the particular

circumstances, passes the Terry test, which as stated requires

only “reasonable suspicion.” 

-25-

 United States v. Moore, 817 F.2d 1105 (4th Cir. 1987),

is similar to this case in several respects. There, the court upheld

the validity of a stop and frisk where there was no description of

the perpetrator. Within two or three minutes of a purported

burglary, the police noticed the defendant within 30 or 40 yards

of the site of the apparent burglary. The police stopped and

frisked the defendant, uncovering a concealed weapon. The

defendant was then arrested. In upholding the validity of the

stop, the Fourth Circuit emphasized that the “appellant was the

only person in the vicinity.” 817 F.2d at 1107. The court also

noted the following relevant considerations: (1) only two or

three minutes had elapsed from the dispatcher’s report, (2) the

call came late at night, and (3) the area was a “high crime

neighborhood.” Id. “These circumstances,” the court

concluded, “in combination support a reasonable suspicion that

appellant was involved in the break-in.” Id. 

We, too, conclude that even without a detailed

description of either the suspects or their vehicle, there were

enough objective facts present here to provide “reasonable

suspicion” to warrant the Terry stop. Indeed, upon considering

each of the foregoing factors, we are persuaded that the troopers

would have been remiss had they declined to investigate the

occupants of Kinne’s vehicle.11 
-26-

C.

Finally, this court has reiterated that the activity of which

the detainee is suspected must actually be criminal. See United

States v. Ubiles, 224 F.3d 213, 218 (3d Cir. 2000). Goodrich

argues that the police had no reason to believe that criminal

activity of any sort was afoot. He contends that it is “not illegal

to walk through the grounds of Mill Hall Clay Products.” App.

Br. at 23. In other words, whatever the degree of specificity as

to the particular suspects, Goodrich argues that the only

information known to the troopers at the relevant time was that

two persons were carrying buckets of some kind across from

Webb’s, a perfectly legal activity. In so arguing, he relies

heavily on United States v. Ubiles, supra. We find such reliance

to be misplaced.

In Ubiles, the police received information from an

anonymous informant that a man was carrying a gun during the

J’ouvert Carnival, a periodic celebration in the U.S. Virgin

Islands. Based on this information, the police approached the

man and proceeded to frisk him, uncovering a loaded gun on his

person. The gun was unregistered and its serial number had

been obliterated. The United States subsequently charged the

defendant with violations of federal gun laws. 

In reversing the district court’s denial of defendant’s

motion to suppress, this court emphasized that the authorities

had no reason to believe that the defendant was “involved in

criminal activity.” 224 F.3d at 217. As the court noted, “[i]t is

not necessarily a crime to possess a firearm in the Virgin

Islands.” Id. Accordingly, we found that the police lacked

reasonable suspicion of criminal activity to justify the stop. 

Ubiles recognized, however, that “[a] reasonable
-27-

suspicion of criminal activity may be formed by observing

exclusively legal activity.” Id. What matters is whether the

defendant’s behavior points to the presence of illegal activity.

Id. Ubiles had exhibited no unusual or suspicious behavior prior

to the stop. Also, there was no evidence to suggest that the

officers were “aware of any articulable facts suggesting that the

gun Ubiles possessed was defaced or unlicensed, that Ubiles

posed a safety risk to the authorities or the [carnival] celebrants,

or that Ubiles was acting in a manner indicating that he was

involved in a different crime.” Id. at 218. “For all the officers

knew,” we there concluded, “even assuming the reliability of the

tip that Ubiles possessed a gun, Ubiles was another celebrant

lawfully exercising his right under Virgin Islands law to possess

a gun in public.” Id. 

 This case is far different from Ubiles, and more closely

resembles United States v. Valentine, 232 F.3d 350 (3d Cir.

2000). In Valentine, the police received a tip from an

anonymous informant that a man was carrying a gun in the area.

About 50 to 100 feet north of where the officers met the

informant, they spotted a group of men standing in a parking lot,

one of whom matched the informant’s description of the armed

suspect. We affirmed the validity of the subsequent stop and

frisk. In so doing, we distinguished Ubiles, noting that the

suspect was found at 1:00 a.m. in a high crime area known for

shootings. 232 F.3d at 356. 

Here, Goodrich and Kinne were spotted in the vicinity of

a known high crime area near midnight. They were carrying

some sort of buckets or containers, walking in the near vicinity

of Webb’s anhydrous ammonia tanks. They were observed

trying to load the containers into a vehicle. Their actions, while

perhaps perfectly legal if considered in the abstract, must be
-28-

considered from the proper vantage. We have elsewhere noted

that, “the Supreme Court has upheld a number of stops based on

an officer’s observation of entirely legal acts, where the acts,

when viewed through the lens of a police officer’s experience

and combined with other circumstances, led to an articulable

belief that a crime was about to be committed.” Johnson v.

Campbell, 332 F.3d 199, 207 (3d Cir. 2003) (discussing Terry

and Wardlow). In view of the lateness of the hour and the

reputation of the area for theft of anhydrous ammonia, we have

no difficulty concluding that Goodrich’s behavior provided

reasonable suspicion of criminal activity – i.e., theft of

anhydrous ammonia. 

III.

For the foregoing reasons, we hold that the Terry stop

was the product of “reasonable suspicion” and therefore, this

being so, the evidence which Goodrich has challenged was

properly admitted. Accordingly, we will affirm the District

Court’s denial of Goodrich’s motion to suppress that evidence.