USA v. Luis Gomez

Filing

PUBLISHED OPINION FILED. [09-50719 Affirmed] Judge: EHJ , Judge: TMR , Judge: CH. Mandate pull date is 10/28/2010 for Appellant Luis Gomez [09-50719]

USA v. Luis Gomez

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Case: 09-50719

Document: 00511256603

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Date Filed: 10/07/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
October 7, 2010 N o . 09-50719 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, Plaintiff - Appellee v. L U I S GOMEZ, D e fe n d a n t - Appellant

Appeal from the United States District Court for the Western District of Texas

Before JONES, Chief Judge, and REAVLEY and HAYNES, Circuit Judges. H A Y N E S , Circuit Judge: A p p e lla n t Luis Gomez ("Gomez") appeals the district court's denial of his m o t io n to suppress evidence. Gomez asserts that police lacked reasonable

s u s p ic io n to justify their decision to stop and search his vehicle, thereby tainting t h e evidence used to convict him. Under the particular facts of this case, we c o n c lu d e that the district court did not err in finding that the responding officers w e r e justified in stopping and searching Gomez's vehicle in keeping with the r e q u ir e m e n t s of the Fourth Amendment. Thus, we AFFIRM the district court's d e n ia l of Gomez's motion to suppress and Gomez's subsequent conviction.

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Case: 09-50719

Document: 00511256603

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Date Filed: 10/07/2010

No. 09-50719 I . FACTUAL BACKGROUND O n October 20, 2008, the Austin Police Department received a 911 call fr o m a concerned citizen who, when asked his name, identified himself as " M ik e ." Mike informed the operator that he had seen an unidentified Hispanic m a n around twenty years of age and weighing 175 to 180 pounds brandishing a "black and gray" pistol and threatening individuals at a "little yellow gas s t a t io n " on "the corner of Ceaser [sic] Chavez and Comal." Mike also told the o p e r a t o r that the man had entered a black Honda SUV, license plate T80PDW, w it h a white female driver and black male front-seat passenger. While Mike r e a d ily provided his name to the operator, he declined to wait for police to arrive a t his location after telling the operator he was late for work. The 911 system r e v e a le d that Mike's telephone number was 512-542-9561 and that the call had o r ig in a t e d from 1621 East Cesar Chavez Street, Austin, Texas. Sometime later, p o lic e discovered that the number and address captured by the 911 system led t o a payphone. T h e 911 dispatcher promptly forwarded the following information to patrol u n it s in the area via text message: 1 0 /2 0 /2 0 0 8 07:45:23 1 0 /2 0 /2 0 0 8 07:46:03 1 0 /2 0 /2 0 0 8 07:47:14 blk honda suv lp t80pdw w/blk pistol driver wf, bm passenger side... hm 20 yoa 180 drk wearing....hm pulled out blk/gry p is t o l....w ill be major brand gas station 1 0 /2 0 /2 0 0 8 07:47:48 call no longer at loc....just saw m a l e w /p is t o l. O ffi c e r s testified that they were told the name of the caller who reported the in c id e n t , his address, and his phone number. With respect to the phone number, t h e officers testified that most of the calls they respond to come from home or c e llu la r phones, and they assumed they could follow up later as usual.

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No. 09-50719 M o r e o v e r , the officers testified that they did not know the tip had been called in fr o m a payphone at the time of the stop. Only a few minutes later, while en route to the scene, one of the r e s p o n d in g officers spotted the vehicle described in the 911 call heading in the o p p o s it e direction, turned around to follow it, and radioed in the license plate in fo r m a t io n to confirm he had the correct vehicle before conducting a felony stop w it h assistance from two other patrol cars. The officers removed the driver, a b la c k male later identified as Timothy Mitchell, and the front passenger, a white fe m a le later identified as Heather Hall ("Hall"), from the car. Hall informed o ffic e r s that there was a handgun in the back of the car that belonged to the m a le passenger in the backseat. At that point, Gomez was removed from the v e h ic le . As Gomez was removed, officers spotted a handgun protruding from u n d e r n e a t h the back of the driver's seat in plain view. The officers seized the g u n . While still detained at the scene, Gomez was identified as a convicted felon a n d arrested for illegally possessing a weapon. Gomez was subsequently

c h a r g e d with being a felon in possession of a firearm in violation of 18 U.S.C. § 9 2 2 (g )(1 ). G o m e z moved to suppress all evidence obtained during the felony traffic stop . The district court conducted an evidentiary hearing in which the

G o v e r n m e n t presented testimony from three police officers who responded to the 9 1 1 call. The Government also submitted: (1) an audio recording of the call; (2) a transcript of the call; (3) a video of the ensuing traffic stop recorded from one o f the officers' cars; and (4) the Austin Police Department Incident Detail Report. Following the hearing, the district court denied Gomez's motion on the grounds t h a t the factual information available to the officers at the time of the stop was s u ffic ie n t to create reasonable suspicion justifying their actions. Gomez

s u b s e q u e n t ly entered a conditional plea of guilty, expressly reserving the right

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No. 09-50719 t o appeal the district court's denial of his suppression motion. Gomez timely a p p e a le d . II. STANDARD OF REVIEW I n evaluating a district court's denial of a defendant's motion to suppress, w e review factual findings, including credibility determinations, for clear error, a n d we review legal conclusions de novo. United States v. Solis, 299 F.3d 420, 4 3 5 (5th Cir. 2002). "A factual finding is not clearly erroneous as long as it is p la u s ib le in light of the record as a whole." United States v. Jacquinot, 258 F.3d 4 2 3 , 427 (5th Cir. 2001). "Where a district court's denial of a suppression motion is based on live oral testimony, the clearly erroneous standard is particularly s t r o n g because the judge had the opportunity to observe the demeanor of the w it n e s s e s ." United States v. Santiago, 410 F.3d 193, 197 (5th Cir. 2005).

Finally, we review the evidence in the light most favorable to the Government a s the prevailing party. Id. I I I . DISCUSSION T h e only issue presented in this appeal is whether the district court erred w h e n it concluded that the officers who searched Gomez's vehicle, thereby u n c o v e r in g the firearm in his possession, had reasonable suspicion to conduct a fe lo n y stop. On the specific facts of this case, we conclude that the district court d id not err in so holding. U n d e r Terry v. Ohio, 392 U.S. 1 (1968), "police officers may stop and b r ie fly detain an individual for investigative purposes if they have reasonable s u s p ic io n that criminal activity is afoot." Goodson v. City of Corpus Christi, 202 F .3 d 730, 736 (5th Cir. 2000). When, as here, the officers conducting the stop act w it h o u t a warrant, the Government bears the burden of proving reasonable s u s p ic io n . See United States v. Martinez, 486 F.3d 855, 859-860 (5th Cir. 2007). Whether a 911 call provides reasonable suspicion to justify a stop is d e t e r m in e d on a case-by-case basis. United States v. Vickers, 540 F.3d 356, 361 4

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No. 09-50719 ( 5 t h Cir.), cert. denied, 129 S. Ct. 771 (2008). The factors that must be

c o n s id e r e d in deciding whether a tip provides a sufficient basis for a traffic stop in c lu d e : (1) the credibility and reliability of the informant; (2) the specificity of t h e information contained in the tip or report; (3) the extent to which the in fo r m a t io n in the tip or report can be verified by officers in the field; and (4) w h e t h e r the tip or report concerns active or recent activity or has instead gone s ta le . Martinez, 486 F.3d at 861. If a tip is provided by an anonymous

in fo r m a n t , such that the informant's credibility and reliability cannot be d e t e r m in e d , the Government must establish reasonable suspicion based on the r e m a in in g factors. Id. at 862. An anonymous informant's ability to describe a p e r s o n 's appearance and location is insufficient without more to create a r e a s o n a b le suspicion of criminal activity. Id. at 863. This court has observed, h o w e v e r , that "where instant caller identification allows the police to trace the id e n tity of an anonymous telephone informant, the ready ability to identify the c a lle r increases the reliability of such tips." United States v. Casper, 536 F.3d 4 0 9 , 415 (5th Cir. 2008), vacated on other grounds, 129 S. Ct. 2156 (2009). Whether an officer has reasonable suspicion must be based upon the facts known t o the officer at the time. Vickers, 540 F.3d at 361. A s the district court found below, Mike's emergency 911 call to police r e a d ily satisfies three of the four factors set forth in Martinez. Mike provided an e x t r a o r d in a r y amount of detail in his call--a description of open criminal activity in c lu d in g the coloring of the weapon involved; the location of that activity, d e t a ils about the suspect's race, age, and weight; the make, model, and license p la t e number of the suspect's vehicle; and the race and gender of other p a s s e n g e r s in the vehicle. Officers were subsequently able to verify a number o f these claims including all of the vehicle information, the race and gender of t h e other passengers, and, to an extent, the location, as the car was stopped h e a d e d away from the gas station only a few short minutes after Mike's 911 call. 5

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No. 09-50719 F in a lly , the record reflects that police spotted the car and conducted the stop v e r y shortly after receiving Mike's tip, thus satisfying Martinez's fourth factor. H e n c e , the only major dispute in this case revolves around whether the " a n o n y m o u s " nature of Mike's call to 911 precluded the district court from h o ld in g that the officers had a reasonable suspicion sufficient to justify the stop. First, Gomez's contention that Mike's call was "anonymous" is doubtful under t h e circumstances of this case. When asked his name, Mike readily offered it to t h e 911 operator. Moreover, the officers conducting the stop had no reason to b e lie v e they were acting on an anonymous tip. See Florida v. J.L., 529 U.S. 266, 2 7 1 (2000) ("The reasonableness of official suspicion must be measured by what t h e officers knew before they conducted their search."). Rather, they had been g i v e n a name, phone number, and address of the concerned citizen who had c a lle d in the complaint. One officer testified that most of the 911 calls received b y the department came from home or cellular phones, and he stated further t h a t he fully expected to be able to verify the allegations of criminal conduct a ft e r he had completed the stop. Thus, the officers appear to have quite

r e a s o n a b ly believed they were acting on a credible and reliable tip from a v e r ifia b le source--a fact further buttressed by the presumption of reliability this c o u r t attaches to citizen reports to police. See United States v. Burbridge, 252 F .3 d 775, 778-79 (5th Cir. 2001).1 E v e n assuming Mike was an "anonymous tipster," however, the officers s t il l had reasonable suspicion in light of the remaining factors set forth in

Gomez contends Burbridge is distinguishable because the reporting citizen in that case directly confirmed that officers had apprehended the right individual as officers conducted a stop based on the citizen's tip. 252 F.3d at 777. In the instant case, however, Mike's tip was just as reasonably credible to the officers at the time they acted as the citizen's tip was in Burbridge. They believed they had Mike's phone number and his address in addition to his first name--thus they were confident in their ability to contact Mike for confirmation of his tip. Consequently, the heightened credibility of citizen reports still attached to Mike's tip at the time officers stopped Gomez's vehicle.

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No. 09-50719 M a r tin e z . Gomez argues that the Supreme Court decision in Florida v. J.L., 529 U .S . 266 (2000), controls the instant case and provides a per se rule prohibiting T e r r y stops based on anonymous tips that fail to provide predictive information. J.L. announced no such rule and was decided on very different facts. In J.L., an a n o n y m o u s informant contacted police to report that a young black male w e a r in g a plaid shirt at a bus stop possessed a concealed weapon. 529 U.S. at 2 6 8 . Importantly, the informant "neither explained how he knew about the gun n o r supplied any basis for believing he had inside information about [the s u s p e c t ]." Id. at 271. The Court specifically noted that, as a result, the tipster i n that case was not reliable because correctly identifying a suspect "does not s h o w that the tipster has knowledge of concealed criminal activity." Id. at 272.2 B a s e d on these facts, the Court concluded that police lacked reasonable suspicion b e c a u s e the informant's failure to state why he knew about the concealed gun m e a n t the tip was not "reliable in its assertion of illegality." Id. Here, Mike was not reporting a concealed weapon. Even the limited in fo r m a t io n transmitted to police by the 911 dispatcher conveyed that Mike had s e e n someone pull out a pistol in public at a nearby gas station. In fact, one of t h e officers testified that he viewed the situation as potentially exigent given t h a t the facts provided by Mike could be construed as describing anything from s h o w in g off a new gun to a carjacking. To adopt Gomez's view of J.L. would be t o require officers to investigate citizens availing themselves of the important s e r v ic e provided by 911 dispatchers before intervening to apprehend individuals s u s p e c t e d of committing open criminal acts in the community. J.L. does not m a n d a t e such a perverse outcome. Consequently, even if Mike was an

The same factual disparity distinguishes this court's decisions in United States v. Martinez, 486 F.3d 855, 858-59 (5th Cir. 2007) (anonymous report that suspect was concealing weapons used in recent crime) and United States v. Roch, 5 F.3d 894, 899 (5th Cir. 1993) ("[T]he government sought to raise a reasonable suspicion . . . that Roch was a felon and possessed a gun.").

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No. 09-50719 " a n o n y m o u s tipster," the remaining Martinez factors could and did validate the o ffic e r s ' reasonable suspicion justifying the stop of Gomez's vehicle. I V . CONCLUSION F o r the reasons set forth above, we AFFIRM the district court's denial of G o m e z 's motion to suppress and Gomez's subsequent conviction.

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