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. e du/thir dc ir c uit_1996/101UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________________

NO. 95-1827

____________________

UNITED STATES OF AMERICA

v.

LESTER ROBERSON, Appellant

_________________________

Appeal from the United States District C ourt For the Eastern District of Pennsylvan ia
D.C. Crim. No. 94-00069-01

_________________________

Argued: May 15, 1996 BEFORE: BECKER, NYGAARD, AND LEWIS, Circuit Judges

(Filed: July 16, 1996)

Michael R. Stiles, Esquire Walter S. Batty, Jr., Esquire Nancy B. Winter, Esquire Office of United States Attorney

615 Chestnut Street Philadelphia, PA 19106

Nina A. Pala, Esquire (ARGUED) Office of United States Attorney Chemical Bank Plaza, Suite 1100

1201 Market Street
P.O. Box 2046 Wilmington, DE 19899-2046

Counsel for Appellee

Elizabeth Hey, Esquire (ARGUED) Robert Epstein, Esquire Elaine DeMasse, Esquire Maureen Kearney Rowley, Esquire Defender Association of Philadelphia
Federal Court Division

437 Chestnut Street Lafayette Building, Suite 800 Philadelphia, PA 19106-2414

Counsel for Appellant_______________________

OPINION OF THE COURT

_______________________

BECKER, Circuit Judge.

This appeal from a criminal conviction cha llenges the
district court's denial of the defendant's motion t o suppress physical evidence seized by the police. The questi on we must decide is whether an anonymous tip that contains on ly information readily observable at the time the tip is made may supply reasonable suspicion for a Terry stop in the absenc e of police observations of any suspicious conduct. We conclud e that it may not. We will therefore reverse the judgment of the district

court.

I. On the evening of September 29, 1994, a Ph iladelphia Police Department 911 operator received an anonymou s call stating that a heavy-set, black male wearing dark green pan ts, a white hooded sweatshirt, and a brown leather jacket was s elling drugs on the 2100 block of Chelten Avenue. The 911 opera tor had no information as to the reliability of the caller or the source of
this information. At approximately 7:18 p.m., the informer's tip was relayed over the police radio. Officers Steven Nat han and Steven Hellmuth, who were patrolling in a marked police Fo rd Bronco, responded. About thirty to forty seconds after rec eiving the call, they arrived at the 2100 block of Chelten and saw a man meeting the tipster's description standing on the c orner. According to the police officers, that corner was a known "hot spot" where drugs were sold to passing motorists. Officer Nathan and the man, later to be identified as the defendan t, Lester Roberson, made eye contact. According to Nathan, t he defendant then walked "casually" over to a car parked facing the wrong way on Chelten Avenue and leaned in as if to speak with the vehicle's occupants. The police observed no indicia of drug activity. At this point, the officers exited their B ronco, with guns drawn, and ordered the defendant away from the parked car. As they approached him, they observed the butt of a gun protruding from his pants. They patted him down, a nd seized from his person a 9mm semi-automatic pistol with 13 roun ds of ammunition, two plastic bags containing numerous pa ckets of cocaine, a pill bottle containing 47 valium pills, a half-full bottle of cough syrup, and $319 in U.S. currency. The defendant was placed under arrest, and was subsequently indic ted for possession of a firearm by a convicted felon in vio lation of 18

U.S.C.  922(g)(1). Defendant moved to suppress the evidence s eized by the police. He argued that the officers did not have r easonable suspicion that he was involved in criminal activity and that their stop was, therefore, in violation of the Four th Amendment under Terry v. Ohio, 392 U.S. 1 (1968). The govern ment counteredthat Officers Nathan and Hellmuth saw Roberson's gu n before

exiting their vehicle. Because possession of a fir earm is a crime, the officers had, in the government's submis sion, probable cause for an arrest, and, a fortiori, reasonable su spicion for a Terry stop. After an evidentiary hearing, the district court rejected the government's contention, finding that the officers did not observe the "defendant's gun [until] some t ime after they exited their vehicle with their weapons in hand," a nd therefore that they did not have probable cause for the seizu re. United States v. Roberson, No. 95-69, slip op. at 4 (E.D. Pa. May 17, 1995). However, according to the court, lack of pr obable cause was not fatal to the government's case because the officers' conduct in leaving their vehicle with their guns dr awn was not an arrest for which probable cause was necessary. Id. at 4-6. These aspects of the district court's ruling are no t challenged on appeal.
The district court turned next to the Terr y issue and
reasoned that the officers' arrival on the scene "l ess than one minute after receiving the radio dispatch" and thei r identification of the "defendant as a clear match t o the radio call's detailed description of the suspect" constit uted reasonable suspicion for their stop. Id. at 6-7. The court also noted that "the eye contact that occurred between t he defendant
and the officers and the defendant's interaction wi th the people in the car" bolstered the officers' suspicion. Id. at 7. It thus denied defendant's motion to suppress the evid ence. The case proceeded to a jury trial and, after convictio n, the defendant was sentenced to 240 months in jail. The principal question presented on appeal is the propriety of th e district court's suppression ruling. Although its factual f indings must be reviewed for clear error, we review the district court's finding of reasonable suspicion de novo. See Ornel as v. United States, 116 S.Ct. 1657, 1662-63 (1996).

II.

A. In Terry, the Supreme Court held that law enforcement officers have the authority under the Fourth Amendm ent to stop and temporarily detain citizens short of an arrest, and that such a stop is justified by less than the probable cause necessary for an arrest. 392 U.S. at 25-27. Under Terry, a poli ce officer may detain and investigate citizens when he or she has a reasonable suspicion that "criminal activity may be afoot." I d. at 30. In this case, we must determine whether officers Natha n and Hellmuth had such reasonable suspicion. There is a well developed Supreme Court ju risprudence as to whether an informant's tip can provide either probable cause for an arrest or reasonable suspicion for a T erry stop. The Supreme Court initially set forth a two-pronged approach for determining whether an informant's tip established probable cause. See Spinelli v. United States, 393 U.S. 411 , 416 (1969); Aguilar v. Texas, 378 U.S. 108, 114 (1964). Under those cases, to be credible, an informant's tip had to indicate both the basisfor the informant's knowledge as well as facts suff icient to

establish his veracity or reliability. In Illinois v. Gates, 462 U.S. 213 (1983), the Court, again dealing with probable cause, abandoned this t wo-pronged test in favor of a totality of the circumstances ap proach for evaluating an anonymous tip. It wrote: Moreover, the "two-pronged test" directs analysis into two largely independent channels -- the informant's "veracity" or "reliability" and his "basis of knowledge. " There are persuasive arguments against according these two elements such independ ent status. Instead, they are better understo od as relevant considerations in the totality - of-the-circumstances analysis that traditionally has guided probable-cause determinations: a deficiency in one may b e compensated for, in determining the overal l reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability. Id. at 233. (citations omitted). In Alabama v. Wh ite, 496 U.S. 325 (1990), the Court adopted the totality of the c ircumstances test to determine whether an anonymous tip could pr ovide reasonable suspicion for a Terry stop. In concludi ng that the Gates tip provided probable cause and the White tip provided reasonable suspicion, the Court stressed two factor s: (1) an officer's ability to corroborate significant aspect s of the tip, and (2) the tip's ability to predict future events. Returning to Gates, there the Bloomingdale Police Department had received an anonymous letter stating that Lance and Sue Gates were Illinois drug dealers and that M rs. Gates would drive the family car to Florida on May 3, lea ve the car to be loaded with drugs, and fly home. Several days l ater, according to the letter, Mr. Gates would fly to Flo rida and drive the car -- now packed with over $100,000 worth of d rugs -- home to Bloomingdale. The letter also represented that the Gateses had over $100,000 worth of drugs in their basement. Id. at 225.
An Illinois detective learned that Mr. Gates had ma de a reservation to fly to Florida on May 5. Id. at 225 -26. The Drug Enforcement Administration set up surveillance and observed Mr. Gates deplane in West Palm Beach, go to a hotel roo m registered to his wife, leave that room the next morning with an unidentified woman, enter a car with Illinois licen se plates registered to him, and drive back to Illinois. Id. at 226. The detective signed an affidavit setting forth these facts and submitted it, together with the anonymous letter, to the local court. The magistrate determined that th ere was probable cause and issued a search warrant for the Gateses' residence and automobile. Id. The Illinois Suprem e Court found that no probable cause existed, but the U.S. Suprem e Court
reversed. First, according to the Court, the facts o btained from the investigation, standing alone, suggested that t he Gateseswere involved in drug trafficking. Florida is a we ll-known drug

source, and Gates' quick overnight stay was suggest ive of a drug run. Id. at 243. Second, investigators were able to verify numerous details including that the Gateses' car wo uld be in Florida, that Lance Gates would fly to Florida in t he next day or so, and that he would drive the car back towards Il linois. Id. at 244. Stressing the value of corroboration, the court concluded that because the informant had been right about these facts, his other assertions about illegal activity were also probably true. Id. Furthermore, the letter "conta ined a range of details relating not just to easily obtained fac ts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted." Id. at 245. Emphasizing the insider quality of predictive infor mation, the
Court concluded that if the informant "had access t o accurate information of this type, a magistrate could proper ly concluded that it was not unlikely that he also had access to reliable information of the Gateses' alleged illegal activit ies." Id. Building on Gates in Alabama v. White, 496 U.S. 325 (1990), the Court considered whether an anonymous i nformant's tip would provide reasonable suspicion for a Terry stop -- the situation present in this case. In that case, the Montgomery police department received an anonymous telephone c all at 3:00 p.m. that: Vanessa White would be leaving 235-C Lynwo od Terrace Apartments at a particular time in a brown Plymouth station wagon with the righ t taillight lens broken, that she would be going to Dobey's Motel, and that she would be in possession of about an ounce of cocaine
inside a brown attache case.

Id. at 327. The police set up surveillance outside the Lynwood Terrace Apartments. They saw a brown Plymouth stat ion wagon with a broken taillight and observed a woman leave the 2 35 building empty-handed and enter the station wagon. The offi cers followed
the vehicle as it drove the most direct route to Do bey's Motel. When the car reached the Highway on which the motel was located, the police stopped the vehicle (at approximately 4: 18 p.m.), and White granted them permission to search the car for cocaine. Discovering marijuana in a brown attache case in th e car, they placed White under arrest. At the police station, the officers found cocaine in White's purse. Id. The Alabama Court of Criminal Appeals held that the officers did not have reasonable suspicion under Te rry, and reversed her conviction. The U.S. Supreme Court re versed. Id. at 328. The Court applied the totality of the circ umstances approach of Gates, and concluded that it must revie w both the quantity and quality of information provided by the tip. Id. at 330. In doing so, the Court emphasized that, in th e Terrycontext, this information need only give rise to a lower level of suspicion. Id. ("'We have held that probable cause means "a fair probability that contraband or evidence of a crime will be found," and the level of suspicion required for a T erry stop isobviously less demanding than for probable cause.'" ) (citingUnited States

v. Sokolow, 490 U.S. 1 (1989)) (citations omitted). The Court went on to hold that while "[t]h e tip was not as detailed, and the corroboration was not as compl ete, as in Gates," the tip provided appropriate grounds for th e stop because the "required degree of suspicion was likewise not as high." Id. at 329, 332. Importantly, the officers were able t o corroborate numerous details supplied by the tipster; namely th at a woman left the 235 building, got into the car described b y the caller, traveled the most direct route to the motel, and th at this all happened in the time frame predicted by the informa nt. Id. at 331. Referencing Gates, the Court concluded that b ecause the tipster had been right about these things, "he is p robably right about other facts that he has alleged, including th e claim that the object of the tip is engaged in criminal activi ty." Id. at
331-32. As in Gates, the Court placed great emphas is on the tip's predictive value. It wrote: We think it also important that, as in Gat es, "the anonymous [tip] contained a range of details relating not just to easily obtain ed facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted."
The fact that the officers found a car precisely matching the caller's descriptio n in front of the 235 building is an example of the former. Anyone could have "predicted"
that fact because it was a condition presumably existing at the time of the cal l. What was important was the caller's abilit y to predict respondent's future behavior,
because it demonstrated inside information -- a special familiarity with the respondent' s affairs. . . . Because only a small number of people are generally privy to an individua l's itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to
reliable information about that individual 's illegal activities. Id. at 332. (citations omitted) (emphasis added). Thus, the court concluded that while it was a "close call," t his predictive anonymous tip, as corroborated, "exhibited sufficie nt indicia of reliability to justify the investigatory stop of [W hite's] car." Id. (emphasis added).

B. Against this legal landscape, we must dete rmine whether the anonymous tip indicating that a heavy-set, blac k man wearing green pants, a brown leather jacket, and a white ho oded sweatshirt was selling drugs on the 2100 block of C helten Avenue -- together with the subsequent observations by off icers Nathan and Hellmuth -- provided reasonable suspicion under Alabama v. White for an investigative stop. We conclude that it does not.As we have noted, in assessing reasonable suspicion for

a stop pursuant to an anonymous tip, Alabama v. Whi te stressed corroboration and predictiveness. In the instant s ituation, it
is no doubt true that the officers were able to cor roborate most of the tipster's information. But to use the Court 's language, "Anyone could have 'predicted'" the facts contained in the tip because they were "condition[s] presumably existing at the time of the call." Alabama v. White, 496 U.S. at 332. Indeed, the caller could have been looking out his window at a heavy-set black man in green pants, brown leather jacket, and white hooded
sweat shirt at the time of his 911 call. By contrast, the tipster in Illinois v. Ga tes indicated
that on a certain date Mrs. Gates would drive the f amily car to Florida, that Mr. Gates would fly to Florida severa l days thereafter, meet the car, and drive it back to Illi nois. 462 U.S. at 225. This type of information is not readi ly known or observable to members of the public. Likewise, in Alabama v. White, the informant predicted that White would sho rtly leave a particular building, enter a described car, and dri ve a certain route. 496 U.S. at 327. Because the tipster had a ccurate information about Ms. White's upcoming itinerary, d etails not known to the general public, it was reasonable for the officers to conclude that the tipster had accurate informati on about Ms. White's illegal activities. Id. at 332. The tip in the case at bar contained no "d etails of future actions of third parties ordinarily not easi ly predicted." Alabama v. White, 496 U.S. 325, 332 (1990) (quoting Illinois v. Gates, 462 U.S. 213, 245 (1983)). Thus, no future actions could be corroborated, and an important basis for forming reasonable suspicion was absent. Moreover, because they were dealing with an anonymous and bare-bones tip, the police had no basis for assessing either the reliability of the informant o r the grounds
on which the informant believed that a crime was be ing committed -- the two Aguilar/Spinelli prongs, which were not abandoned in Illinois v. Gates but were made important ingredien ts in the "totality." See Illinois v. Gates, 462 U.S. at 232 -233. These omissions probably would not have in validated the stop, if, after corroborating readily observable fa cts, the police officers had noticed unusual or suspicious c onduct on Roberson's part. But they did not. Cf. United Sta tes v. Clipper, 973 F.2d 944, 949 (D.C. Cir. 1992) ("While it is true that the Court said, in [Alabama v. White], that th e police's ability to corroborate the informant's predictions was important, Alabama v. White does not establish a categorical r ule conditioning a Terry stop (when police are acting o n an anonymous tip) on the corroboration of predictive information ."), cert. denied, 506 U.S. 1070 (1993). After their arrival on Chelten Avenue, the police first saw the defendant standing on the corner, and they then observed him walk to a car pa rked across
the street and lean in as if to talk to the vehicle 's occupant(s). None of this was unusual. Officer Na than testified that it was normal for residents of that neighborho od to stand on the corner. App. at 51a ("[T]he information that w e received was he was on the corner, which was no great big deal, because guesswhat that's where everybody hangs up there is on th e corner.").

Furthermore, defendant's walk to the car d id not indicate that he was about to engage in drug transa ctions. First, according to Nathan's own testimony, the def endant walked "casually" to the car -- behavior that does not ind icate criminal activity. Second, as the government admits in its brief, because the defendant had already seen the marked police ca r, it would be "highly unlikely that he would engage in drug trans actions at that moment." Brief at 9. Indeed, common sense in dicates that the vehicle's occupants were not likely to purchase drugs from the defendant at that time. According to the Gover nment, drugs are purchased on Chelten Avenue by passing motorist s, who drive to "hot corners," make their purchases, and drive q uickly away. The car the defendant approached was parked across the street from the defendant, facing the wrong way, a posture inconsistent with a quick exit and the alleged style of drug tra nsactions in this neighborhood.
All that the Government is left with then is the fact that the defendant was apprehended on a "hot corner ." This is not enough. The 2100 block of Chelten Avenue is a residential neighborhood. We simply cannot accept the Governme nt's position that any resident of (or visitor to) that neighborh ood who, without otherwise engendering suspicion, is unlucky enough to be the subject of a non-predictive anonymous tip, is s ubject to a Terry stop simply because the neighborhood is known for narcotics sales. Even Alabama v. White was referred to by th e Supreme Court as a "close call," 496 U.S. at 332. The circ umstances of this case are far less compelling. Refusing to stretch Alabama v. White any f urther, we hold that the police do not have reasonable suspici on for an investigative stop when, as here, they receive a fl eshless anonymous tip of drug-dealing that provides only re adily observable information, and they themselves observe no suspicious behavior. To hold otherwise would work too great a n intrusion on the Fourth Amendment liberties, for any citizen cou ld be subject to police detention pursuant to an anonymous phone call describing his or her present location and appearan ce and representing that he or she was selling drugs. Ind eed anyone of us could face significant intrusion on the say-so o f an anonymous prankster, rival, or misinformed individual. This, we believe,

would be unreasonable.

We note that the government was not powerl ess to act on the non-predictive, anonymous tip they received. T he officers could have set up surveillance of the defendant. S ee United States v. Clipper, 973 F.2d at 951 ("If there is an y doubt about the reliability of an anonymous tip in [a drug case ], the police can limit their response to surveillance or engage in 'controlled buys.'"). If the officers then observed any suspic ious behavior or if they had observed suspicious behavior as they approached the defendant in this case, they would have had app ropriate cause to stop -- and perhaps even arrest -- him. This, h owever, they did not do. In the absence of any observations of suspicious
conduct or the corroboration of information from wh ich the policecould reasonably conclude that the anonymous tipste r's allegation

of criminal activity was reliable, we must conclude that there was no reasonable suspicion to stop the defendant.

III. For the reasons stated above, the judgment of the
district court will be reversed.