New York, NY - Criminal defense lawyer represented defendant whose motion to suppress evidence was denied.
“We review the District Court’s denial of a motion to suppress for clear error as to
the underlying factual findings and we exercise plenary review over questions of law.”2
“Generally, for a seizure to be reasonable under the Fourth Amendment, it must be
effectuated with a warrant based on probable cause.”3
However, under the exception
established in Terry v. Ohio,
“an officer may, consistent with the Fourth Amendment,
conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion
that criminal activity is afoot.”5
“Any evidence obtained pursuant to an investigatory stop
. . . that does not meet this exception must be suppressed as ‘fruit of the poisonous
The district court had jurisdiction over this criminal matter under 18 U.S.C. § 3231.
This Court has jurisdiction over this appeal under 28 U.S.C. § 1291.
2 United States v. Brown, 448 F.3d 239, 245 (3d Cir. 2006).
3 United States v. Robertson, 305 F.3d 164, 167 (3d Cir. 2002).
392 U.S. 1 (1968).
5 Illinois v. Wardlow, 528 U.S. 119, 123 (2000).
6 Brown, 448 F.3d at 244 (citing Wong Sun v. United States, 371 U.S. 471, 487–88
When determining whether an officer possessed reasonable suspicion for an
investigative detention, we “must consider the totality of the circumstances, including the
police officer’s knowledge, experience, and common sense judgments about human
However, reasonable suspicion “unequivocally demands” that the detaining
officer have “a particularized and objective basis” for suspecting the person detained of
The officers must be able to identify “specific and articulable facts”9
that “raise a suspicion that the particular individual being stopped is engaged in
Where, as here, an officer makes a stop based on a tip, “the reasonableness of the
stop . . . depends on the reliability of the tip itself.”11 Even when “one officer  conducts
a stop and frisk based on information provided by another officer,” reasonable suspicion
“require[s] the presentation of evidence by the government that the officer who issued the
[original report] had reasonable suspicion, not simply that it was reasonable for the
arresting officer  to have relied on the [report].”12
The district court therefore erred in presuming that the tip at issue was reliable
because it was relayed to the arresting officer by a “trusted” probation officer.13 It should
7 United States v. Navedo, 694 F.3d 463, 468 (3d Cir. 2012) (internal citation omitted).
8 Brown, 448 F.3d at 246 (citation omitted).
9 Terry, 392 U.S. at 21.
10 Navedo, 694 F.3d at 468 (internal quotation omitted).
11 United States v. Nelson, 284 F.3d 472, 481 (3d Cir. 2002).
12 Brown, 448 F.3d at 248 (internal quotation omitted).
13 App. 315.
instead have examined the reliability of the original source of the tip rather than assume
that source was reliable merely because the ultimate messenger was.
We have previously identified five factors that indicate the reliability of a tip.14
The tip here possessed few of those five indicia of reliability. The tip was not relayed in a
face to face interaction so the officers could not appraise the tipster’s credibility; and it is
not clear that the tipster could be “held responsible if h[is] allegations turn[ed] out to be
fabricated.”15 Moreover, the tip appears to have been “based solely on observation” rather
14 Brown, 448 F.3d at 249–50. The five factors are:
(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. . . . [And] (5) The tip predicts what will follow, as
this provides police the means to test the informant’s knowledge or
Id. (internal citations and quotations omitted).
15 United States v. Valentine, 232 F.3d 350, 354 (3d Cir. 2000). The record is not well
developed as to what information Parole Officer Riegel knew about the tipster. At the
suppression hearing, Officer Ishman admitted that he “d[id]n’t know the informant,” but
suggested that Parole “Officer Riegle knew who the informant was.” App. 300. Whether
this alleged knowledge consisted simply of knowing the tipster’s first name or whether
Officer Riegel knew more and this knowledge would have been sufficient to hold the
tipster accountable in case the tip was false is not clear. But even if the tipster could have
been held accountable, this factor would not change our analysis here. See, e.g., Brown,
448 F.3d at 250 (concluding that officers lacked reasonable suspicion even though the
tipster “did not make an anonymous call” and “the police would certainly have been able
to find him and hold him accountable had his tip proved to be inaccurate”). As we
explain, considering the totality of the circumstances, the officers lacked reasonable
suspicion to search Bullock.
than any inside knowledge.16 In addition, the court had no way of knowing if the tipster
had recently observed the alleged criminal activity. Finally, the tipster did not “predict
what w[ould] follow.”17
Absent these indicia of reliability, the officers needed something more to establish
the specific and articulable facts suggesting criminality necessary for reasonable
suspicion. “[I]f a tip has a relatively low degree of reliability, more information will be
required to establish the requisite quantum of suspicion than would be required if the tip
were more reliable.”18 There was not sufficient additional information here.19
Once at the scene, officers witnessed Bullock perform only entirely legal activity;
they saw Bullock unhurriedly walk out of the bar to his legally parked car and sit inside.
Although Officer Ishman saw Bullock’s shoulders momentarily dip beneath the
dashboard when Officer Ishman shined his headlights into Bullock’s car, Officer Ishman
admitted at the suppression hearing that such movement was consistent with Bullock
doing any manner of legal activities, such as stowing a cell phone or purse, and indeed it
was. It was also consistent with Bullock attempting to retrieve keys that may have fallen
to the floor. Such innocent actions cannot be pieced together in Lego-like fashion to
16 Nelson, 284 F.3d at 484. “[W]here the tip contains information . . . that is of such a
general nature as to be easily obtained by any observer, there is no reasonable suspicion.”
Id. at 480.
17 Brown, 448 F.3d at 250 (Predictive information “provides police the means to test the
informant’s knowledge or credibility.”) (internal quotation omitted).
18 Id. at 251 (quoting White, 496 U.S. at 330).
19 That the officers confirmed that Bullock’s attire matched the tip’s description does not
establish reasonable suspicion here either. “A tip is not reliable merely because its
description of the suspect’s visible attributes prove accurate.” Id. at 250 (internal citation
construct reasonable suspicion and justify a stop under Terry. Accordingly, the district
court erred when it concluded that officers had reasonable suspicion to search Bullock.
Outcome: For the reasons stated above, we will reverse the district court’s denial of
Bullock’s motion to suppress, vacate his sentence of conviction, and remand to the
district court for proceedings consistent with this decision.