Summary
noting that "[n]ot every detail" of a tip must be verified to support reasonable suspicion
Summary of this case from United States v. BertOpinion
Civ. No. 3:99-cr-128.
July 25, 2000.
Ruling on Defendant's Motion to Suppress
Defendant Dennis Hoskie, who is charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922 (g), moves pursuant to Fed.R.Crim.P. 12(b)(3) to suppress the handgun seized by police during a stop and frisk that was based, in part, on a tip from a neighborhood resident who wished to remain unidentified. Because the tipster was not truly anonymous as indicated in the police report — she gave her name, age and phone number — the Fourth Amendment does not require suppression where, based on the totality of the circumstances, there was reasonable suspicion to stop and frisk the defendant. The motion is DENIED.
I. Background
The following facts, derived from the transcript of a hearing held on May 9, 2000, and exhibits offered therein, have been found by a preponderance of the evidence. See United States v. Matlock, 415 U.S. 164, 178 n. 14, 94 S.Ct. 988, 39 L. Ed.2d 242 (1974) ("the controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence")
References to the Transcript [Doc. No. 41] are denoted as "Tr. at page/line."
At approximately 10:30 p.m. on the night of April 27, 1999, the New Haven Police Department received a call reporting an armed man on a bicycle committing robberies in the vicinity of Dixwell and Shelton avenues. See Gov't Ex. 1; Def's. Mem. [Doc. No. 46] at tab 1 (transcription of tape-recorded call admitted as Gov't Ex. 2) (hereinafter "Call Transcript"). The caller, a twenty-six-year-old woman who identified herself by name and phone number, see id. at 2 (redacted), reported the suspect as a dark-skinned black male with dark brown eyes riding a black or dark grey Huffy bicycle and brandishing a .38 caliber handgun. See Call Transcript at 2-3. She reportedly "got a full description of what he had on": "he has on a black shirt and he has a black Avirex jacket, it has "AVIREX" written on the back [in] red and white letters, and he has on a black Spanish hood, it's like a doo-rag with a hat over the top." Id. The caller also reportedly saw the suspect rob two people, one at the corner and another "right next door to [her] house." Id. at 3. When asked whether she was willing to speak to the officers and tell them what she reportedly saw, the caller replied, "Yea, I'll tell them what I saw." Id. at 1.
A dispatcher immediately relayed this information to the officers on patrol, broadcasting a "signal 75 (report of a weapon, see Tr. at 38/22) black male on a bike [who] has a gun, he's pulling it out on people."Id. at 3. While the officers were in route to the scene, the dispatcher reported further: "It's a black male on a bike with a black shirt and a black jacket with the word Avirex, A-V-I-R-E-X on it, dark complected."Id. at 4. Prior to their arrival on the scene, the responding officers were not told that the report was based on an anonymous tip, as would have been the New Haven Police Department's standard practice. See Tr. at 83/15-84/2. Instead, based on the caller's willingness to speak with police, the dispatcher informed the officers after the gun was seized that "we have a [signal] 17 (complainant willing to tell officers what she saw, see Tr. at 30/25-31/3) at that location." Call Transcript at 5. The dispatcher's spoken representation to the officers is corroborated by the written notation in the narrative portion of the call report, which states "17 willing to tell officer what she saw." Gov't Ex. 1.
Of the three responding officers, the only one to testify at the hearing was the officer who prepared the Case/Incident Report, Officer Michael Wucheck, whose testimony the court finds credible. See Def. Ex. B (hereinafter "Police Report"). Officer Wucheck testified, consistent with his written report, that prior to arriving on the scene, he was made aware the suspect was a black male on a bike with a gun wearing a black leather coat with the words "Averex" [sic] on the back. See Police Report at 1, Tr. at 72/25-73/1. The intersection of Shelton and Dixwell avenues, the location to which the officers were dispatched, was "well known to the officers as an area of street level narcotics sales as well as drug/gang related violence, including several shootings in recent months." Id.; see also Tr. at 71/12-15; 86/24-25.
After meeting another officer, David Knickerbocker, at the corner of Shelton Avenue and Munson Street, Officer Wucheck "observed a male subject in a black Averex [sic] style jacket on top of a bike," id., who was pedaling "very very slowly" down Munson Street with no apparent purpose. Tr. at 74/3. Officers Wucheck and Knickerbocker exited their vehicle and approached the suspect on foot from behind. See Police Report at 1; Tr. at 76/16-25. As they converged on him, a third officer, Justin Kasperzyk, passed them in a marked cruiser, stopped in front of the suspect, identified himself as a police officer and "asked the man on the bike to show his hands." Tr. at 77/20-25. Officers Wucheck and Knickerbocker were only a few strides behind the suspect when Officer Kasperzyk stopped him. See Tr. at 78/1-4. Officer Wucheck observed the suspect respond to Officer Kasperzyk's order by taking his hands off the handlebars of the bike and moving them toward his body or his jacket. See Tr. at 78/8-9; Police Report at 1. Fearing their fellow officer was in jeopardy and without cover, Officers Wucheck and Knickerbocker identified themselves as police and immediately began to pat down the suspect's exterior clothing. See Tr. at 78/12-24. Officer Wucheck seized a loaded .9mm semi-automatic handgun from the suspect's right front jacket pocket. See Police Report at 2. After a brief struggle, the suspect was apprehended. See id. Tr. at 81/6-22.
Later that night after defendant was taken into custody, the woman tipster called Officer Wucheck on his cell phone, the number for which she was given by the dispatcher. See Def's. Ex. C (memo dated April 27, 1999, from Officer Wucheck to Detective D. Perkins) (hereinafter "Memo"). Officer Wucheck asked her to step out of her house to identify the suspect in order "to see whether [they had apprehended] the same person" she saw on the bike. Tr. at 100/14-15. The woman refused, stating: "I'm not stepping out. I don't want anybody to know I've call[ed]. I have to live out here." Tr. at 100/16-17. Respecting the woman's wish to remain unidentified, Officer Wucheck did not name her in his police report, nor in his memo to Detective Perkins, listing the complainant as "Anonymous."See Police Report at 1; Memo at 1.
On cross examination, Officer Wucheck conceded that despite being in a high-crime neighborhood, he had not observed any criminal activity that night before stopping the defendant. See Tr. at 89/13-16. Although the caller reported observing robberies first hand, no robberies were reported in that part of town that evening. See Tr. at 98/20-91/1; Def's. Mem. at tab 2 (responses to subpoena of police records revealing no robberies). At the time defendant was stopped, Officer Wucheck was not aware of the reported robberies, only that there was a man with a gun.See Tr. at 97/17-24. Though many people in the neighborhood ride bikes and wear Avirex jackets, Officer Wucheck saw no one else matching the defendant's description that night. See Tr. at 89/17-90/3; 109/14-110/5. In fact, the information given by the caller turned out to be just as she described, except for the type of gun. See Tr. at 102/22-23.
Defendant argues that suppression is warranted because the officer's search of the defendant and seizure of his gun violate the Fourth Amendment to the United States Constitution. Relying primarily on a recent decision of the United States Supreme Court, Florida v. J.L., — — U.S. --- , 120 S.Ct. 1375, 146 L. Ed.2d 254 (2000), defendant claims that the officers lacked a reasonable suspicion to justify a stop and frisk based solely on an anonymous tip.
The government contends that, because the caller gave her first and last name, age and phone number to the 911 call taker, the tip here was by no means anonymous. The government further argues that, even if the tip here were treated as anonymous, independent police investigation corroborated the tip to provide sufficient indicia of reliability to justify the stop and frisk. After surveying the applicable legal landscape, each of these arguments is considered in turn.
II. Legal Standards
A. Reasonable Suspicion
Police have constitutional authority consistent with the Fourth Amendment to detain a suspect briefly and frisk him for weapons when an officer has a reasonable suspicion that, in light of his experience, "criminal activity may be afoot." Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Given the brevity and relative unobtrusiveness of this type of investigative stop, there are fewer Fourth Amendment concerns implicated by a Terry stop than an arrest or a search incident to an arrest. See,e.g., United States v. Bayless, 201 F.3d 116, 132-33 (2d Cir. 2000) (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)). Therefore the reasonable suspicion standard governing Terry stops is qualitatively and quantitatively less than the probable cause standard needed to issue a search warrant or conduct a warrantless search.See Illinois v. Wardlow, — — U.S. ---, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000) (""reasonable suspicion' is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence") (citing Sokolow, 490 U.S. at 7 ("the level of suspicion required for a Terry stop is obviously less demanding than for probable cause")).
The standards differ not only in degree, but also in kind. For example, the information in support of probable cause must generally be not only more particularized, but also more reliable. See Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) ("reasonable suspicion can arise from information that is less reliable than that required to show probable cause"). "Reasonable suspicion, like probable cause, is dependent upon both the content of the information possessed by police and its degree of reliability." Id. These two factors -the quantity of information and its quality or reliability — are inverse variables in the reasonable suspicion calculus: if the information is highly reliable, there need not be much of it, but if it "has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion." Id. At a minimum, the officer's suspicion must be based on specific and articulable facts of unlawful conduct. See Bayless, 201 F.3d at 132.
In assessing the reasonableness of a Terry stop, the court must consider the totality of the circumstances, viewed "through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training." Bayless, 201 F.3d at 133 (citation omitted);see also Terry, 392 U.S. at 27 ("And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inferences which he in entitled to draw from the facts in light of his experience."). The totality-of-the-circumstances test is limited, however, to what the officer knew before the suspect was detained or frisked. See J.L., 120 S.Ct. at 1379 ("The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search.") Accordingly, for purposes of deciding this motion, the court finds that the Terry stop occurred when Officer Kasperzyk ordered defendant to show his hands. Consequently, no information gleaned after that moment will be considered in determining whether an objectively reasonable officer would have cause to stop and frisk the defendant.
Information known by one officer prior to a Terry stop is imputed to all officers who are involved in the investigative detention. See Illinois v.Andreas, 463 U.S. 765, 771 n. 5, 103 S.Ct. 3319, 77 L.Ed.2d 103 (1983) ("where law enforcement authorities are cooperating in an investigation . . the knowledge of one is presumed shared by all"); see also United States v. Ramos, 71 F. Supp.2d 40, 44 (D. Conn. 1999) (denying motion to suppress and extending the rationale of Andreas from the arrest context to the Terry stop context where "police officers on the scene had more than sufficient knowledge, collectively, for an investigative stop of defendant").
Because the reasonable suspicion standard for a Terry stop is an objective standard, "the subjective intentions or motivations of the officer making the stop are irrelevant." Bayless, 201 F.3d at 133. District courts, therefore, "must not merely defer to the police officer's judgment." Id.
B. Anonymous Tips
Although "an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity . . . . [t]his is not to say that an anonymous caller could never provide the reasonable suspicion necessary for a Terry stop." White, 496 U.S. at 329. Where independent police investigation corroborates some of the information imparted in an anonymous tip, the reliability of other allegations made by the caller is enhanced. See United States v. Walker, 7 F.3d 26, 31 (2d Cir. 1993) (citing White, 496 U.S. at 332). Even the uncorroborated aspects of the tip become more credible because once "an informant is shown to be right about some things, he is probably right about other facts that he has alleged, including the claim that the object of the tip is engaged in criminal activity." White, 496 U.S. at 331 (citing Illinois v. Gates, 462 U.S. 213, 244, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)); see also United States v. Wagner, 989 F.2d 69, 73 (2d Cir. 1993) ("if an informant's declaration is corroborated in material respects, the entire account may be credited, including parts without corroboration"). Not every detail of the tip, however, need be verified. See White, 496 U.S. at 331.
In White, the Court approved a Terry stop based on an anonymous tip where the caller's information, corroborated by police, predicted the suspect's criminal behavior. 496 U.S. at 332 ("What was important was the caller's ability to predict respondent's future behavior, because it demonstrated inside information — a special familiarity with respondent's affairs."). Four years later, the Second Circuit extended White to allow a Terry stop based on an anonymous tip even where "the anonymous tipster . . . did not predict future events, but instead advised the police of a present situation." United States v. Bold, 19 F.3d 99, 103 (2d Cir. 1994) ("There was no need here for any predictions of future conduct, because when verified by the officers, the tipster's information was sufficient under Terry to warrant further investigation."). The court held that "[t]here is nothing in White that precludes police from acting on an anonymous tip when the information to be corroborated refers to present rather than future actions." Id. at 104; see also Walker, 7 F.3d at 30 (affirming denial of suppression motion even though tip "may not have contained as much "predictive" information as the tips in White and Gates").
In Bold, a case involving a tip reporting a man with a gun, the Second Circuit distinguished White, a case involving a tip reporting an alleged drug deal. The court found this distinction between guns and drugs "significant and important":
Th[e] element of imminent danger distinguishes a gun tip from one involving possession of drugs. If there is any doubt about the reliability of an anonymous tip in the latter case, the police can limit their response to surveillance or engage in "controlled buys". Where guns are involved, however, there is the risk that an attempt to "wait out" the suspect might have fatal consequences.Bold, 19 F.3d at 104 (quoting United States v. Clipper, 973 F.2d 944, 951 (D.C. Cir. 1992)).
Although not mentioned in the United States Supreme Court's J.L. opinion, the Florida Supreme Court took pains to distinguish Bold from its decision to affirm suppression of the gun. See J.L. v. State, 727 So.2d 204, 208 n. 2 (Fla. 1998) The Court's ruling does, however, expressly call Clipper into doubt. See 120 S.Ct. at 1378.
The Supreme Court recently clarified the circumstances in which a properly corroborated tip can support a Terry stop: "reasonable suspicion . . . requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person."J.L., 120 S.Ct. at 1379. In J.L., the Court ruled an anonymous tip reporting that a "young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun" violated the Fourth Amendment. 120 S.Ct. at 1377. Unlike the tip in White, the tip in J.L. "provided no predictive information and therefore left the police without means to test the informant's knowledge or credibility." Id. at 1379. Critical to the Court's analysis was the distinction between tip information that merely identifies the accused and information which "show[s] that the tipster has knowledge of concealed criminal activity." Id. In J.L., the police were able to corroborate only the suspect's identity because the informant "neither explained how he knew about the gun nor supplied any basis for believing he had inside information about [the suspect]." Id.
This court reads J.L. to modify the White analysis, but not to overruleBold. After J.L., reasonable suspicion based on an anonymous tip may still be predicated on verifying future events predicted by the tipster as inWhite. However, the J.L. Court left open the possibility that such suspicion may also be based on a present situation tip like that at issue in Bold, so long as the tipster's allegation of unlawful conduct is corroborated. Both types of corroboration require the police to verify the alleged illegality, not just the suspect's identity. See J.L., 120 S.Ct. at 1379. Regardless of whether a tip alleges that criminal activity is presently occurring or is predicted to occur at some point in the near future, when police independently corroborate an anonymous informant's allegation of illegality, the Fourth Amendment is satisfied.See id.
One district court has construed J.L. to limit the totality assessment to the White predictive information standard, albeit in a different context. See United States v. Lopez-Valdez, No. DROO-CR-2l6WWJ, 2000 WL 744310 (W.D. Tex. June 7, 2000) (granting motion to suppress in border patrol stop where only suspect's identity was corroborated because "[n]one of the caller's information was predictive; that is, the caller did not provide any details regarding the future behavior of the vehicle or its passengers. The agent's independent investigation corroborated only the description of the vehicle."). Contrary to this court's reading, that court interpreted J.L. to hold that "corroboration of non-predictive information can not [sic] be used to confirm the reliability of an anonymous informant for the purpose of establishing reasonable suspicion."Id. at *3 (citing J.L., 120 S.Ct. at 1379). That is not the law in this circuit. Police officers in this district are not required to ignore allegations of presently occurring criminal conduct where the tipster gives no predictive information. Unless J.L. has overruled Bold sub silentio, this circuit's precedent requires the court to consider the reasonableness of suspicion based not only on predictive information tips, but also tips "advis[ing] the police of a present situation." Bold, 19 F.3d at 103.
Another holding from Bold cannot be read so charitably in light ofJ.L. See Def's. Reply [Doc. No. 49] at 9 n. 5 (June 22, 2000). Into its suspicion analysis, the Bold court factored the report of a gun. 19 F.3d at 104 ("Where the tip concerns an individual with a gun, the totality- of-the-circumstances test for determining reasonable suspicion should include consideration of the possibility of the [suspect's] possession of a gun, and the prompt need to investigate."). That no longer appears to be a permissible consideration under the totality-of-the-circumstances test. See J.L., 120 S.Ct. at 1379-80 (declining to adopt a "firearm exception' to the standard Terry analysis). Even if the alleged possession of a gun can still be considered in the totality mix, that factor no longer carries the weight it did in Bold and does not weigh heavily in this case.
A post-J.L. case from this circuit lends further support to the continuing validity of Bold present situation tips. See United States v.Canfield, 212 F.3d 713 (2d Cir. 2000) (vacating suppression order where omissions from a search warrant affidavit were deemed immaterial to the probable cause determination). In Canfield, the Second Circuit reiterated in the probable cause context that "`it is improper to discount an informant's information simply because he has no proven record of truthfulness or accuracy'" with the police. Id. at 719 (quoting Wagner, 989 F.2d at 73). Because the veracity of anonymous tips is assessed similarly for reasonable suspicion, Canfield suggests that, if corroborated, such tips should be credited even absent the type of predictive information that would establish a track record. See id. at 719-20; cf. Adams v. White, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (crediting tip from known informant who had provided information in the past).
Although the court does not weigh the report of a gun among the factors in determining whether the officer's suspicion was reasonable, it may consider among those factors the high crime area where the Terry stop occurred. See Bayless, 201 F.3d at 134 (noting a suspect's suspicious behavior is a more weighty factor that "makes factors such as the high- crime neighborhood . . . more significant"); see also Wardlow, 120 S.Ct. at 676 ("[a]n individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime [but] . . . officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation"); but see Ramos, 71 F. Supp. 2 d at 46 n. 4 (denying motion to suppress where "[t]he court did not weigh as a factor in its analysis the fact that the incident occurred in a high crime area . . . . [because] the fact that a particular individual who is under police scrutiny happens to be in a high crime area does not make that particular individual any more suspicious or potentially dangerous than he or she otherwise would be.")
III. Discussion
Having canvassed the applicable Fourth Amendment stop and frisk jurisprudence, it becomes clear why, if this were a truly anonymous tip case, like J.L. and White, it would be a close one. This is not a close case, however, because the court finds that the tip made here was not anonymous. The caller identified herself to police by first and last name, age and phone number. See Call Transcript at 2. She also unequivocally indicated her willingness to tell the responding officers what she saw.See id. at 1. The police dispatcher, consequently, broadcasted the call as a signal 17 complainant willing to talk to officers, not an anonymous call.See id. at 3. In fact, the caller did speak with the arresting officer after the seizure. See Memo Notwithstanding Officer Wucheck's Police Report listing caller as anonymous, the record amply demonstrates that was not anonymous at all.
This factual distinction makes the case distinguishable from the truly anonymous tips in J.L. and White. Here the caller placed her credibility at risk by giving her name and phone number. She did not cloak herself in anonymity in order to be able to "lie with impunity."J.L., 120 S.Ct. at 1381 (Kennedy, J. concurring) ("If the telephone call is truly anonymous, . . . ., [t]he reviewing court cannot judge the credibility of the informant and the risk of fabrication becomes unacceptable.") Rather than refusing to give her name or number to the 911 call taker, the caller merely expressed — after the officers had frisked defendant — her wish to remain unidentified out of fear that the suspect might exact retribution. This was apparently a well-founded fear given the caller's refusal to even step out of her door to identify the suspect because she lives in the neighborhood. That Officer Wucheck erroneously listed the caller as "Anonymous," instead of perhaps "Jane Doe" or "Unidentified," in an attempt to protect her privacy in no way violates the defendant's Fourth Amendment rights.
Defendant nevertheless contends — without citing any support — that the tip here should be treated as anonymous because the officers' failure to verify the source prior to the Terry stop makes it indistinguishable from anonymous tips in the J.L. and White line of cases.See Def's. Mem. at 4; Def's. Reply at 3. Such a rule requiring police to check every source before acting on it would be unworkable, particularly when weapons violations are reported. Due to the heightened risk to public safety, the New Haven Police Department recognizes weapons complaints as a priority. See Tr. at 41/19-42/2. The time lost rechecking information given to a dispatcher would lead to fewer successful police interventions based on reports from the public, thereby undermining the rationale articulated in Terry for permitting the lesser Fourth Amendment intrusion of a stop and frisk based solely on an officer's reasonable suspicion.
Although the caller made no predictions about the suspect's future illegalities, the tip here was certainly more reliable than the tip inJ.L. and perhaps even more so than that in White. In J.L., the tipster "neither explained how he knew about the gun nor supplied any basis for believing he had inside information about [the suspect]." 120 S.Ct. at 1379. Nor did the tipster in White tell police the source of his information. 496 U.S. at 327. Here, by contrast, the caller stated that she had observed first hand the suspect commit two robberies with the gun near her home. See Call Transcript at 3. Had this case involved a truly anonymous tip, this distinction — that the caller here conveyed the source of her information to police — puts it squarely at odds with theJ.L. and White line of cases.
Even if the failure to track down the caller in order to ascertain the veracity of the tip prior to effecting the Terry stop puts this case within the same realm as the anonymous tip cases, this one falls within theWhite, not the J.L., lineage. Here officers satisfactorily corroborated the present situation reported by the caller to warrant the stop and pat down search. Viewed from the perspective of the responding officers on the scene, the totality of the circumstances known to them on the night of April 27, 1999, reasonably aroused their suspicion.
First, based on the detailed description given by the caller, the officers readily corroborated the tip. Officer Wucheck observed a suspect closely matching the description given by the caller — a male on a bike wearing a black Avirex-style jacket. That this identity information was verified by police lent credibility to the tipster's allegation of illegality — that the suspect had a gun. See White, 496 U.S. at 331;Wagner, 989 F.2d at 73.
Second, not only did the officers corroborate the identity of the suspect, they also independently observed suspicious behavior. See Bayless, 201 F.3d at 134 (relying on suspects' "strange behavior" as a "weighty factor" in affirming denial of motion to suppress fruits of Terry stop). Officer Wucheck testified that he saw the suspect on a bike pedaling slowly with no apparent destination, see Tr. at 74/3-4, and that, given the neighborhood and time, such conduct "would bring [his] suspicions up to perhaps watch the subject for a little while to see if he was engaging in [unlawful] activity." Id. at 119/-3. Combined with the partially corroborated report of a concealed gun, the court finds it entirely reasonable that the officer's suspicion became elevated above the requisite Fourth Amendment threshold to conduct a lawful stop and frisk. Unlike the District Court in Texas, this court is bound to recognize the continuing validity of present situation tips approved by the Second Circuit in Bold.
Continuing to recognize present situation tips after J.L. also makes sense, especially where readily concealable weapons are at issue. A tip about a concealed weapon could never be corroborated by observing subsequent actions predicted by the tipster, assuming the gun remains concealed. Disavowing Bold would restrict police to acting on an anonymous tip about a gun only when predictive information is corroborated, even where police observation revealed suspicious behavior that alone could not justify the stop. Such a rule would gut the core holding of Terry, which empowers officers to stop and pat down a suspect for weapons in order to ensure their own protection when they reasonably suspect criminal activity, including the illicit possession of a handgun.
The government makes two non-tip related arguments for denying the motion, neither of which the court relies on in support of its holding. First, the government claims that the suspect's hand movement from the handlebar to his jacket or body was threatening enough in itself to justify a Terry frisk. See Gov't Response [Doc. No. 39] at 2-5 (April 26, 2000). Because the court finds that the stop occurred the moment when Officer Kasperzyk ordered defendant to show his hands, those subsequent hand movements cannot retroactively justify the precedent stop. See Def's. Reply at 4 n. 4.
Second, the government argues that the gun should not be suppressed even if the initial stop was unconstitutional because "the defendant's conduct during the pat down constitutes an intervening illegal act which can allow for the admissibility of evidence." Gov't Opp'n [Doc. No. 47] at 16 (June 6, 2000) (citing United States v. Crump, 62 F. Supp.2d 560, 570 (D. Conn. 1999)). Given the brevity of defendant's struggle with the police prior to being handcuffed, see Tr. at 81/6-22; Police Report at 1, the suppression issue is best disposed of by the foregoing analysis, not on the untenable premise that struggling with police during an unconstitutional stop and frisk constitutes a new independent crime, probable cause for which may purge an unauthorized search and justify an unlawful seizure.
IV. Conclusion
Based on the totality of the circumstances, including such factors as a partially corroborated report of an armed suspect and independent police observation of suspicious conduct, which occurred in a high-crime area, the court holds that the officers had reasonable suspicion to stop and frisk the defendant. Because their suspicion was reasonable, the Fourth Amendment does not require suppression of the gun seized during the pat down search. Defendant's Motion to Suppress Evidence [Doc. No. 38] is therefore DENIED.
In addition to the gun, defendant also moved to suppress certain statements made prior to receiving Miranda warnings. See Def's. Mot. [Doc. No. 38] (April 14, 2000). Because the government stipulated that the only pre-Miranda statements it would seek to introduce were pedigree information, see Tr. at 121/11-19, that part of defendant's motion is also denied. See Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (exempting "routine booking question[s] from Miranda's coverage [where such questions are offered] to secure the biographical data necessary to complete booking or pretrial services," and "not intended to elicit information for investigatory purposes")
So ordered.
Dated at New Haven, Connecticut, this 25th day of July, 2000.