A woman dials 911 and tells the dispatcher that a man with braided hair wearing a red hat is beating up his girlfriend and is about to kill her. The woman also states she thinks the man has a gun. She provides the location and then she hangs up. Police were in the area and they found a man (McCants) matching that description at that location within one minute. Due to the “nature of the call for service” the officers “immediately engaged” McCants and frisked him and found a firearm and heroin in a fanny pack he was wearing. McCants, a felon, was tried and convicted for being a felon in possession of a firearm and possession with intent to distribute heroin. Prior to trial, McCants filed a motion to suppress the evidence, arguing the officers did not have the requisite reasonable suspicion that he was engaged in criminal activity before they frisked him. The District Court denied the motion. On appeal, the Third Circuit identified the issue as: whether the anonymous 911 tip provided sufficient indicia of reliability for reasonable suspicion of ongoing criminal activity. The Third Circuit referenced the Supreme Court decision in Navarette v. California, 572 U.S. 393 (2014) for the rule developed regarding anonymous tips creating reasonable suspicion of ongoing criminal activity. In United States v Torres, 534 F.3d 207 (3d Cir. 2008) the Third Circuit enunciated five factors they use to determine the reliability for an anonymous tip:
(1) The tip information was relayed from the informant to the officer in a face-to-face interaction such that the officer had an opportunity to appraise the witness’s credibility through observation.
(2) The person providing the tip can be held responsible if her allegations turn out to be fabricated.
(3) The content of the tip is not information that would be available to any observer.
(4) The person providing the information has recently witnessed the alleged criminal activity.
(5) The tip predicts what will follow, as this provides police the means to test the informant’s knowledge or credibility.
The Third Circuit affirmed the District Court’s denial of the motion to suppress. They noted that although the caller was not identified, the use of the 911 system added to the tip’s reliability. They also noted that the caller was providing information observed firsthand. Furthermore, the caller provided detailed information regarding both the physical appearance and the location of the suspect and the police found a person matching the specific description in the specific location within minutes of the 911 call. The court found that the second and fourth factors of the Torres test were sufficiently met to provide the reasonable suspicion to justify the Terry Stop and therefore the search was lawful.
Practice Tip: The court stated the issue was whether the search was constitutional, but the entire analysis of the court focused on the Terry Stop which is a seizure. There was no analysis for the Terry Frisk itself, which was the search at issue. Remember, for a Terry Stop you must articulate the facts to develop an objectively reasonable suspicion that a person is involved in criminal activity. But for a Terry Frisk you must articulate facts that develop a reasonable suspicion that a person lawfully detained is presently armed and dangerous. Sometimes, as in this case, the facts that justify a Terry Stop will also justify a Terry Frisk … but that is not always the case! There is no “automatic” Terry Frisk when you have a Terry Stop. Do not assume that the court’s lack of a Terry Frisk analysis in this case means that it doesn’t have to be made. The courts do not always “line up the dominos” for you in their decisions (which are often drafted by law clerks who are not as well-versed in Fourth Amendment jurisprudence as one might expect).
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