Detailed Anonymous Descriptions Can Justify Terry Stops, Which Then Justify Vehicle Searches

UNITED STATES v. ELSTON, USCA-4 No. 05-5223, http://pacer.ca4.uscourts.gov/dailyopinions/opinion.pdf/055223.P.pdf , on appeal from USDC-VAWD, before USCJs Williams and King and SrUSCJ Hamilton, opinion by King, filed 13 Mar 2007.

LONG STORY SHORT: Detailed descriptions from personal observations of an anonymous tipster, especially when the subject has threatened to shoot people with a gun and ammunition the tipster knew he possessed, can amount to reasonable suspicion for a Terry stop, and police making the stop can briefly hold the subject at gunpoint until they can confirm or dispel their suspicions. Binding in MD, NC, SC, VA, WV.

FACTS: A caller to the Roanoke, VA 911 center described an intoxicated driver who had just left her home in a dark blue 2003 pickup as a black male wearing a light blue sweater, jeans, and white sneakers; gave his correct first name and correct tag number; noted that the truck had dark tinted windows and a silver toolbox; and warned that the driver kept a loaded 9mm with three loaded magazines in the truck and had expressed an intent to "let them off in somebody." The caller gave her name to the 911 operator but asked the operator not to pass her name along to the police, because she feared retaliation.

Roanoke PD officers received the description and threat to shoot someone over the radio and on their MDTs, but not the tipster's name. Minutes later, Officer Hicks found a truck matching the description parked near the tipster's housing project, and ordered Defendant out at gunpoint and cuffed him. Defendant matched the description and smelled strongly of alcohol. Officer Reed arrived and either opened the truck door or looked through the door that Defendant had left open (he could not remember which later) and could see a handgun grip in plain view. Officer Hicks learned from a dispatcher that Defendant was a convicted felon, and arrested Defendant.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the Western District of Virginia for possessing a firearm while a convicted felon. Defendant moved to suppress the weapon from his truck, arguing that the 911 call was an anonymous tip because the officers never learned the caller's identity, and there was no reasonable suspcion to detain him or search his vehicle. The trial court agreed that the tip was anonymous, but since the description had indicia of reliability alerting the police to substantial public danger, the officers' initial detention of Defendant was a reasonable Terry stop and the search did not violate the Fourth Amendment. MOTION TO SUPPRESS DENIED. Defendant pleaded guilty on condition that he could appeal the suppression to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: Because the tip contained so much detail from a contemporaneous personal observation, it was enough to generate reasonable suspicion and justify a Terry stop even if it was anonymous. Also, the subject had expressed an imminent intention to shoot someone, a factor not present in the usual anonymous tip situation. The Fourth Circuit left open the question of whether a tip is anonymous if only the 911 system, not the officers making the stop, knows the tipster's name.

The initial stop was not an arrest, even though Defendant, ordered out of the truck at gunpoint, did not feel free to leave. A brief detention, even at gunpoint (especially when the subject was reported armed and dangerous), is not enough in the Fourth Circuit to change a Terry stop into an arrest, so long as officers detain the subject long enough to find out whether their reasonable suspicion of criminal activity was correct. Here, the officers almost immediately found the gun, which gave probable cause for arrest. The search of Defendant's truck, whether by opening the door or by looking through the open door, was justified as a protective sweep incident to a Terry stop, because subjects might be released after a brief detention or escape arrest, and checking the subject's vehicle for weapons is only prudent. DENIAL OF SUPPRESSION AFFIRMED.

EDITORIAL: Very good illustration that pointing guns does not always equal arrest. Also a good illustration of appellate courts' tendency to duck questions when they can. I forecast that the next time somebody calls 911 and says "don't tell him I told you," the Fourth Circuit will be glad to rule that this is not anonymous, since the 911 dispatchers are part of the same machine as the police. For that matter, in our little county, a deputy is not unlikely to hear the actual call and the caller's name, because the 911 center is a popular hangout and lunchroom for deputies between calls--but you didn't hear that from me.