1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-16-1996

United States v. Roberson

Precedential or Non-Precedential:

Docket 95-1827

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"United States v. Roberson" (1996). 1996 Decisions. Paper 101.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/101
 UNITED 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 Court 

 For the Eastern District of Pennsylvania 

 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 challenges the 

district court's denial of the defendant's motion to suppress 

physical evidence seized by the police. The question we must 

decide is whether an anonymous tip that contains only information 

readily observable at the time the tip is made may supply 

reasonable suspicion for a Terry stop in the absence of police 

observations of any suspicious conduct. We conclude that it may 

not. We will therefore reverse the judgment of the district 

court. 

 

 I. 

 On the evening of September 29, 1994, a Philadelphia 

Police Department 911 operator received an anonymous call stating 

that a heavy-set, black male wearing dark green pants, a white 

hooded sweatshirt, and a brown leather jacket was selling drugs 

on the 2100 block of Chelten Avenue. The 911 operator 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 Nathan and Steven 

Hellmuth, who were patrolling in a marked police Ford Bronco, 

responded. About thirty to forty seconds after receiving the 

call, they arrived at the 2100 block of Chelten and saw a man 

meeting the tipster's description standing on the corner. 

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 defendant, Lester 

Roberson, made eye contact. According to Nathan, the 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 Bronco, 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, and seized from 

his person a 9mm semi-automatic pistol with 13 rounds of 

ammunition, two plastic bags containing numerous packets 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 indicted for 

possession of a firearm by a convicted felon in violation of 18 

U.S.C.  922(g)(1). 

 Defendant moved to suppress the evidence seized by the 

police. He argued that the officers did not have reasonable 

suspicion that he was involved in criminal activity and that 

their stop was, therefore, in violation of the Fourth Amendment 

under Terry v. Ohio, 392 U.S. 1 (1968). The government countered 
that Officers Nathan and Hellmuth saw Roberson's gun before 

exiting their vehicle. Because possession of a firearm is a 

crime, the officers had, in the government's submission, probable 

cause for an arrest, and, a fortiori, reasonable suspicion 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 time after they 

exited their vehicle with their weapons in hand," and therefore 

that they did not have probable cause for the seizure. United 

States v. Roberson, No. 95-69, slip op. at 4 (E.D. Pa. May 17, 

1995). However, according to the court, lack of probable cause 

was not fatal to the government's case because the officers' 

conduct in leaving their vehicle with their guns drawn was not an 

arrest for which probable cause was necessary. Id. at 4-6. 

These aspects of the district court's ruling are not challenged 

on appeal. 

 The district court turned next to the Terry issue and 

reasoned that the officers' arrival on the scene "less than one 

minute after receiving the radio dispatch" and their 

identification of the "defendant as a clear match to the radio 

call's detailed description of the suspect" constituted 

reasonable suspicion for their stop. Id. at 6-7. The court also 

noted that "the eye contact that occurred between the defendant 

and the officers and the defendant's interaction with the people 

in the car" bolstered the officers' suspicion. Id. at 7. It 

thus denied defendant's motion to suppress the evidence. The 

case proceeded to a jury trial and, after conviction, the 

defendant was sentenced to 240 months in jail. The principal 

question presented on appeal is the propriety of the district 

court's suppression ruling. Although its factual findings must 

be reviewed for clear error, we review the district court's 

finding of reasonable suspicion de novo. See Ornelas 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 Amendment 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 police officer may 

detain and investigate citizens when he or she has a reasonable 

suspicion that "criminal activity may be afoot." Id. at 30. In 

this case, we must determine whether officers Nathan and Hellmuth 

had such reasonable suspicion. 

 There is a well developed Supreme Court jurisprudence 

as to whether an informant's tip can provide either probable 

cause for an arrest or reasonable suspicion for a Terry 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 basis 
for the informant's knowledge as well as facts sufficient to 

establish his veracity or reliability. 

 In Illinois v. Gates, 462 U.S. 213 (1983), the Court, 

again dealing with probable cause, abandoned this two-pronged 

test in favor of a totality of the circumstances approach 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 independent 

 status. Instead, they are better understood 

 as relevant considerations in the totality- 

 of-the-circumstances analysis that 

 traditionally has guided probable-cause 

 determinations: a deficiency in one may be 

 compensated for, in determining the overall 

 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. White, 496 U.S. 

325 (1990), the Court adopted the totality of the circumstances 

test to determine whether an anonymous tip could provide 

reasonable suspicion for a Terry stop. In concluding that the 

Gates tip provided probable cause and the White tip provided 

reasonable suspicion, the Court stressed two factors: (1) an 

officer's ability to corroborate significant aspects 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 Mrs. Gates 

would drive the family car to Florida on May 3, leave the car to 

be loaded with drugs, and fly home. Several days later, 

according to the letter, Mr. Gates would fly to Florida and drive 

the car -- now packed with over $100,000 worth of drugs -- 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 made 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 room registered 

to his wife, leave that room the next morning with an 

unidentified woman, enter a car with Illinois license 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 there was 

probable cause and issued a search warrant for the Gateses' 

residence and automobile. Id. The Illinois Supreme Court found 

that no probable cause existed, but the U.S. Supreme Court 

reversed. 

 First, according to the Court, the facts obtained from 

the investigation, standing alone, suggested that the Gateses 
were involved in drug trafficking. Florida is a well-known drug 

source, and Gates' quick overnight stay was suggestive of a drug 

run. Id. at 243. Second, investigators were able to verify 

numerous details including that the Gateses' car would be in 

Florida, that Lance Gates would fly to Florida in the next day or 

so, and that he would drive the car back towards Illinois. 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 "contained a range 

of details relating not just to easily obtained facts 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 information, the 

Court concluded that if the informant "had access to accurate 

information of this type, a magistrate could properly concluded 

that it was not unlikely that he also had access to reliable 

information of the Gateses' alleged illegal activities." Id. 

 Building on Gates in Alabama v. White, 496 U.S. 325 

(1990), the Court considered whether an anonymous informant'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 call at 3:00 

p.m. that: 

 Vanessa White would be leaving 235-C Lynwood 

 Terrace Apartments at a particular time in a 

 brown Plymouth station wagon with the right 

 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 station wagon with 

a broken taillight and observed a woman leave the 235 building 

empty-handed and enter the station wagon. The officers followed 

the vehicle as it drove the most direct route to Dobey'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 the 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 Terry, and 

reversed her conviction. The U.S. Supreme Court reversed. Id. 

at 328. The Court applied the totality of the circumstances 

approach of Gates, and concluded that it must review both the 

quantity and quality of information provided by the tip. Id. at 

330. In doing so, the Court emphasized that, in the 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 Terry stop is 
obviously 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]he tip was not 

as detailed, and the corroboration was not as complete, as in 

Gates," the tip provided appropriate grounds for the stop because 

the "required degree of suspicion was likewise not as high." Id. 

at 329, 332. Importantly, the officers were able to corroborate 

numerous details supplied by the tipster; namely that a woman 

left the 235 building, got into the car described by the caller, 

traveled the most direct route to the motel, and that this all 

happened in the time frame predicted by the informant. Id. at 

331. Referencing Gates, the Court concluded that because the 

tipster had been right about these things, "he is probably right 

about other facts that he has alleged, including the claim that 

the object of the tip is engaged in criminal activity." Id. at 

331-32. 

 As in Gates, the Court placed great emphasis on the 

tip's predictive value. It wrote: 

 We think it also important that, as in Gates, 

 "the anonymous [tip] contained a range of 

 details relating not just to easily obtained 

 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 description 

 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 call. 

 What was important was the caller's ability 

 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 individual'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," this predictive 

anonymous tip, as corroborated, "exhibited sufficient indicia of 

reliability to justify the investigatory stop of [White's] car." 

Id. (emphasis added). 

 B. 

 Against this legal landscape, we must determine whether 

the anonymous tip indicating that a heavy-set, black man wearing 

green pants, a brown leather jacket, and a white hooded 

sweatshirt was selling drugs on the 2100 block of Chelten Avenue 

-- together with the subsequent observations by officers 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. White stressed 

corroboration and predictiveness. In the instant situation, it 

is no doubt true that the officers were able to corroborate 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. Gates indicated 

that on a certain date Mrs. Gates would drive the family car to 

Florida, that Mr. Gates would fly to Florida several days 

thereafter, meet the car, and drive it back to Illinois. 462 

U.S. at 225. This type of information is not readily known or 

observable to members of the public. Likewise, in Alabama v. 

White, the informant predicted that White would shortly leave a 

particular building, enter a described car, and drive a certain 

route. 496 U.S. at 327. Because the tipster had accurate 

information about Ms. White's upcoming itinerary, details not 

known to the general public, it was reasonable for the officers 

to conclude that the tipster had accurate information about Ms. 

White's illegal activities. Id. at 332. 

 The tip in the case at bar contained no "details of 

future actions of third parties ordinarily not easily 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 or the grounds 

on which the informant believed that a crime was being committed 

-- the two Aguilar/Spinelli prongs, which were not abandoned in 

Illinois v. Gates but were made important ingredients in the 

"totality." See Illinois v. Gates, 462 U.S. at 232-233. 

 These omissions probably would not have invalidated the 

stop, if, after corroborating readily observable facts, the 

police officers had noticed unusual or suspicious conduct on 

Roberson's part. But they did not. Cf. United States v. 

Clipper, 973 F.2d 944, 949 (D.C. Cir. 1992) ("While it is true 

that the Court said, in [Alabama v. White], that the police's 

ability to corroborate the informant's predictions was important, 

Alabama v. White does not establish a categorical rule 

conditioning a Terry stop (when police are acting on 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 parked across 

the street and lean in as if to talk to the vehicle's 

occupant(s). None of this was unusual. Officer Nathan testified 

that it was normal for residents of that neighborhood to stand on 

the corner. App. at 51a ("[T]he information that we received was 

he was on the corner, which was no great big deal, because guess 
what that's where everybody hangs up there is on the corner."). 

 Furthermore, defendant's walk to the car did not 

indicate that he was about to engage in drug transactions. 

First, according to Nathan's own testimony, the defendant walked 

"casually" to the car -- behavior that does not indicate criminal 

activity. Second, as the government admits in its brief, because 

the defendant had already seen the marked police car, it would be 

"highly unlikely that he would engage in drug transactions at 

that moment." Brief at 9. Indeed, common sense indicates that 

the vehicle's occupants were not likely to purchase drugs from 

the defendant at that time. According to the Government, drugs 

are purchased on Chelten Avenue by passing motorists, who drive 

to "hot corners," make their purchases, and drive quickly 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 transactions 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 Government's position 

that any resident of (or visitor to) that neighborhood who, 

without otherwise engendering suspicion, is unlucky enough to be 

the subject of a non-predictive anonymous tip, is subject to a 

Terry stop simply because the neighborhood is known for narcotics 

sales. Even Alabama v. White was referred to by the Supreme 

Court as a "close call," 496 U.S. at 332. The circumstances of 

this case are far less compelling. 

 Refusing to stretch Alabama v. White any further, we 

hold that the police do not have reasonable suspicion for an 

investigative stop when, as here, they receive a fleshless 

anonymous tip of drug-dealing that provides only readily 

observable information, and they themselves observe no suspicious 

behavior. To hold otherwise would work too great an intrusion on 

the Fourth Amendment liberties, for any citizen could be subject 

to police detention pursuant to an anonymous phone call 

describing his or her present location and appearance and 

representing that he or she was selling drugs. Indeed anyone of 

us could face significant intrusion on the say-so of an anonymous 

prankster, rival, or misinformed individual. This, we believe, 

would be unreasonable. 

 We note that the government was not powerless to act on 

the non-predictive, anonymous tip they received. The officers 

could have set up surveillance of the defendant. See United 

States v. Clipper, 973 F.2d at 951 ("If there is any 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 suspicious behavior 

or if they had observed suspicious behavior as they approached 

the defendant in this case, they would have had appropriate cause 

to stop -- and perhaps even arrest -- him. This, however, they 

did not do. In the absence of any observations of suspicious 

conduct or the corroboration of information from which the police 
could reasonably conclude that the anonymous tipster'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.