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Fifth Circuit: Anonymous Tip Didn’t Provide Reasonable Suspicion to Conduct Investigatory Stop

Investigator Felix McClinton from the Hinds County Sheriff’s Office received an anonymous tip by telephone. The caller said she was in management at Millsaps Apartments (“Millsaps”) in Jackson, Mississippi. She alleged drugs were being sold in Millsaps’ parking lot by a “black male, dark skinned, slender build with gold teeth known as ‘N.O.’ [who drove a black Infiniti with a license plate of] HVK225.” McClinton would later testify at the suppression hearing that he could not verify that the caller was someone from Millsaps’ management. It was unclear if the caller witnessed the alleged drug activity or was only told about it by residents.

McClinton testified that when he and other officers arrived at Millsaps, he saw up to four individuals in the parking lot. He also saw an individual and a car matching the caller’s descriptions. While conducting a pat down, officers found a misdemeanor amount of marijuana on one of the men but found no drugs on Norbert. Upon questioning by McClinton, Norbert confirmed ownership of the black Infiniti parked 15 to 20 feet away. McClinton walked over to the vehicle, looked in the window, and saw a handgun on the floorboard. After confirming with dispatch that Norbert had a criminal record, officers arrested him.

Norbert filed a motion to suppress which the district court granted, reasoning (1) Norbert’s detention was properly classified as an investigatory stop, (2) officers lacked reasonable suspicion to conduct an investigatory stop of Norbert based on an anonymous tip and insufficient on-scene corroboration or verification of the tip, and (3) Norbert’s gun and statements to police should be suppressed because they derived solely from the illegal stop. The Government took an interlocutory appeal, arguing the district court erred in concluding the tip was not reliable and that officers did not properly verify the tip.

The Court observed that a temporary, warrantless detention of an individual constitutes a seizure for Fourth Amendment purposes and must be justified by an officer’s reasonable suspicion that criminal activity has taken, or currently is taking place. United States v. Garza, 727 F.3d 436 (5th Cir. 2013). Otherwise, evidence obtained through the detention may be excluded under the “fruits of the poisonous tree” doctrine. Id. Since this is an exception to the warrant requirement, the Government has the burden of proving reasonable suspicion. United States v. Martinez, 486 F.3d 855 (5th Cir. 2007).

To provide officer’s with reasonable suspicion, a tip must (1) be from a credible and reliable informant, (2) be specific in its assertion of illegality and not just in its tendency to identify a determinate person, and (3) be verifiable by officers in the field. Martinez. Unlike a tip from a known informant who has provided reliable information in the past and “whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated ... an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity” to prevent such tips from being phoned in providing descriptions of persons simply for harassment purposes. Florida v. J.L., 529 U.S. 266 (2000). In the instant case, officers neither knew the caller’s identity nor made any attempt upon arrival at Millsaps to identify her.

As to specificity in factor (2), the tipster did provide specific information to identify a determinate person and asserted an illegality. But the tip failed at factor (3) in that officers were unable to verify any drug dealing. Only a small amount of marijuana was found on one of the men, and no drugs were found on Norbert.

When, as here, there is no evidence in the record to suggest a basis for finding an informant credible, then “absent any corroboration of the illegal activity itself,” officers do not have reasonable suspicion to conduct a stop. Martinez. Police corroborating a “mountain of innocent data” provided by the tipster, e.g., skin color, vehicle color, nickname, and license plate number, does not provide reasonable suspicion to conduct an investigative stop or detention, the Court explained. Id.

The Court concluded the officers lacked reasonable suspicion to conduct an investigatory stop of Norbert; consequently, the evidence must be suppressed.

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Related legal case

United States v. Norbert



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