Leaving A Cul-De-Sac After 911 Hangup, Even Early In The Morning, Isn't Reasonably Suspicious

UNITED STATES v. COHEN, USCA-6 No. 06-5594, 2007 U.S.App. LEXIS 8519, on appeal from USDC-KYWD, before USCJs Moore, Gibbons, USDJ-OHSD Sargus by designation, opinion by Moore, filed 13 Apr 2007.

LONG STORY SHORT: 911 hangup call from a house in a small cul-de-sac did not give reasonable suspicion to stop a car leaving the cul-de-sac, resulting in suppression of all evidence from search incident to arrest. Binding in KY, MI, OH, TN.

FACTS: 911 received a hangup call at 4:52am from a house that was one of five or six addresses on a small cul-de-sac, which was in turn at the end of a dead-end road. Two police cars responded on what they considered to be a "trouble run," and the lead officer saw a car leaving the cul-de-sac four minutes after the 911 call. He Terry-stopped the car and the other officer stopped in front of it. Defendant got out of the car, then got back in, and in response to the lead officer's request for license, registration, and proof of insurance, said "just shoot me, just shoot me." Officers had Defendant stay in the back of a patrol car while another officer inquired at the address that had called 911, finding out that Defendant and his girlfriend had argued, but there was no emergency. Officers also discovered that Defendant's license was suspended and that he had a probation warrant. They arrested Defendant and searched his car, finding eleven rounds of .380 ammunition under the driver seat and a .380-caliber pistol in the trunk.

PROCEDURE: The United States indicted Defendant in the U.S. District Court for the Western District of Kentucky for possessing a firearm and ammunition while a convicted felon. Defendant moved to suppress all evidence, arguing that no reasonable suspicion supported the Terry stop. The trial court agreed. MOTION TO SUPPRESS GRANTED. The United States appealed to the U.S. Court of Appeals for the Sixth Circuit.

DECISION: Reasonable suspicion, or lack of it, stems from the totality of the circumstances. Here, the 911 hangup was equal to an anonymous tip, which must both assert illegallity and identify a determinate person to carry any weight. 911 calls do not always mean illegality--although, say, a burglar alarm might have--and this one did not identify any determinate person. By the time the officers got there, Defendant did not look suspicious and was not very close to the 911 address. Even considering the early hour and the few people on the road, the Sixth Circuit could not see reasonable suspicion on these facts. SUPPRESSION AFFIRMED.

EDITORIAL: This one's a bladerunner--that is, on the knife edge. I guess I see the Sixth Circuit's point. With only five or six houses on the cul-de-sac, somebody leaving at 0456 could be early for work, or could be taking a breather from beating the crap out of his girlfriend. Had I been there, I sure would have been inclined to pull the guy over and see what he knew about 911 hangups. With the luxury of hindsight, what these officers COULD have done was follow him around until he either committed a traffic violation or voluntarily pulled over. But I'm sure he got into plenty of trouble with his probation officer anyway!