United States of America v.  John Michael Perkins

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4008 
JOHN MICHAEL PERKINS,
Defendant-Appellant. 
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden, II, District Judge.
(CR-02-126)
Argued: October 29, 2003
Decided: April 7, 2004
Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the majority
opinion, in which Judge Shedd joined. Judge Michael wrote a dissent-
ing opinion.
COUNSEL
ARGUED: Jonathan David Byrne, Legal Research and Writing Spe-
cialist, Charleston, West Virginia, for Appellant. Karen B. George,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee. ON BRIEF: Mary Lou Newberger, Federal
Public Defender, George H. Lancaster, Jr., Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Kasey Warner,

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United States Attorney, Joshua C. Hanks, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.
OPINION
WILKINSON, Circuit Judge:
Appellant John Michael Perkins was stopped in his vehicle by
police officers in St. Albans, West Virginia on May 5, 2002. As they
approached the vehicle, one of the officers observed a rifle lying in
the back seat of Perkins’ car. After Perkins volunteered that he had
a prior felony, the officer arrested Perkins and found knives, drug par-
aphernalia, and two other guns in the car. Perkins was charged with
one count of being a felon in possession of a firearm, in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2) (2000). Following the district
court’s denial of Perkins’ pre-trial motion to suppress the evidence,
Perkins entered a conditional plea of guilty. On appeal, Perkins
renews his motion to suppress, arguing that the investigative stop of
his vehicle violated his Fourth Amendment right to be free from
unreasonable searches and seizures. Because we find that the officers
had reasonable suspicion to stop Perkins’ car in view of the totality
of the circumstances, we affirm.
I.
In the evening hours of May 5, 2002, an unidentified woman called
the St. Albans, West Virginia police department and reported that
there were two white males in the front yard of a duplex at 2740 Knox
Avenue who were pointing and displaying rifles in various directions.
She further reported that the men had arrived in a red car bearing a
silver or white stripe. The dispatcher relayed all of this information
to officers in the area.
Officer Mark Burdette and Sergeant T.A. Kemper were patrolling
the area in separate units, and they responded to the call. Officer Bur-
dette had been with the St. Albans police department for seven years
and was familiar with the Knox Avenue area. He knew that Knox
Avenue, a residential street where young children are commonly pres-
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ent, was a notorious high crime and drug trafficking area. Officer
Burdette previously had participated with the police department’s
drug unit in four or five drug investigations on Knox Avenue and
more in the surrounding area. In fact, Officer Burdette knew that 2740
Knox Avenue — the very unit where the caller had reported the dis-
turbance — was one unit in a two-unit duplex, and that the other unit,
2738 Knox Avenue, was a known drug house and was presently under
investigation for drug activity. Officer Burdette had personally
arrested both of the female residents of 2738 Knox Avenue on several
occasions for drug-related offenses. When Officer Burdette received
the information from the dispatcher, he surmised that it was a "drug
deal gone bad."
Although the caller did not identify herself, Officer Burdette
believed that she was Mrs. Hayes, a woman who lived across the
street from the duplex at 2738 and 2740 Knox Avenue. Officer Bur-
dette stated that this belief was based on the detailed nature of the
caller’s description of the individuals and their conduct, which
revealed that she was in "close proximity" to them. Officer Burdette
knew that Mrs. Hayes lived "directly across the street" from the
duplex. Moreover, he knew that she "normally is the one who calls
in and complains and gives reliable information." Indeed, Officer
Burdette testified, just in the instances in which he was involved, Mrs.
Hayes had called and provided reliable information of drug or other
illegal activity on Knox Avenue on at least six to ten prior occasions.
Officers later confirmed that Mrs. Hayes was in fact the caller.
Officers Burdette and Kemper arrived at the duplex and found two
vehicles parked in front of it. Officer Burdette pulled up behind them
and identified the vehicle described by the caller, a small red car with
a silver or white stripe. He saw two men in the car and found that they
met the caller’s description. He further recognized the passenger in
the car as Mark Freeman, a "known drug taker" who lived on Knox
Avenue. Moments later, the red car described by the caller pulled out
from in front of the duplex and began driving off. Officer Burdette
advised Sergeant Kemper that the red car was the vehicle that was
described to them, and the officers initiated a traffic stop of the vehi-
cle.
As the officers approached the car, Officer Burdette saw a loaded,
high-powered rifle lying in plain view in an open gun case on the
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back seat. Perkins explained that he was trying to sell guns for his
wife and openly volunteered that he had a felony conviction. Upon
confirming with a dispatcher that Perkins had several prior felonies,
Officer Burdette placed Perkins under arrest. Perkins consented to a
search of his vehicle, and the officers discovered two more loaded
guns, knives, and a variety of drug paraphernalia.
A grand jury indicted Perkins on one count of possession of a fire-
arm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2) (2000). Perkins filed a pre-trial motion to suppress the evi-
dence seized during the investigative traffic stop. After an evidentiary
hearing, the district court denied the motion. Perkins subsequently
entered a conditional plea of guilty, and the district court sentenced
Perkins to forty-one months in prison followed by a three-year term
of supervised release. Perkins now appeals, claiming that the district
court erred in denying his suppression motion.
II.
When considering on appeal a motion to suppress evidence, we
review a district court’s factual findings for clear error and its legal
determinations de novo. United States v. Johnson, 114 F.3d 435, 439
(4th Cir. 1997). Because the district court denied the motion to sup-
press, we construe the evidence in the light most favorable to the gov-
ernment. See United States v. Seidman, 156 F.3d 542, 547 (4th Cir.
1998).
We hold that the totality of the circumstances here justified Officer
Burdette’s decision to stop Perkins’ vehicle. We first detail our basis
for finding that reasonable suspicion existed, and then we address
Perkins’ specific objections.
III.
Under Terry v. Ohio, 392 U.S. 1, 30 (1968), an officer may conduct
a brief investigatory stop where the officer has reasonable suspicion
that criminal activity may be afoot. See Illinois v. Wardlow, 528 U.S.
119, 123 (2000); United States v. Crittendon, 883 F.2d 326, 328 (4th
Cir. 1989). A Terry stop must be based on "at least a minimal level
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of objective justification," but the standard for reasonable suspicion
is less demanding than for probable cause. Wardlow, 528 U.S. at 123.
In assessing a Terry stop’s validity, we consider the totality of the
circumstances. United States v. Sokolow, 490 U.S. 1, 8 (1989); Crit-
tendon, 883 F.2d at 328. Thus, factors which by themselves suggest
only innocent conduct may amount to reasonable suspicion when
taken together. United States v. Arvizu, 534 U.S. 266, 274-75 (2002);
Sokolow, 490 U.S. at 9-10. Moreover, our determination of reasonable
suspicion must give due weight to common sense judgments reached
by officers in light of their experience and training. Wardlow, 528
U.S. at 125. While we require more than a mere "hunch" to justify a
stop, we also credit the "practical experience of officers who observe
on a daily basis what transpires on the street." United States v.
Lender, 985 F.2d 151, 154 (4th Cir. 1993); see also Arvizu, 534 U.S.
at 273-74.
At the time he stopped Perkins’ vehicle, Officer Burdette knew the
following facts: (1) Knox Avenue was a high-crime, drug-ridden
neighborhood in which children were commonly present; (2) he had
taken part in four or five drug investigations on Knox Avenue; (3) the
duplex at 2740 Knox Avenue was a known drug house under investi-
gation by the police’s drug unit; (4) Officer Burdette had personally
arrested the residents of one of the units in that duplex on several
occasions; (5) an unnamed caller had reported observing two white
males pointing rifles in various directions in the front yard of that
duplex; (6) these men reportedly arrived in a red car with a silver or
white stripe; (7) Mrs. Hayes, a resident who lived directly across the
street from the duplex, normally reported this type of conduct to the
police; (8) Mrs. Hayes had given reliable information about illegal
activity in this area at least six to ten times before; (9) shortly after
the phone call to the police, there were indeed two white males in a
red car bearing a silver or white stripe, parked next to another car
right outside the duplex at 2740 Knox Avenue; (10) the passenger in
the car was Mark Freeman, a well-known drug purchaser who lived
in the neighborhood; and (11) the red car pulled away when the offi-
cers arrived.
In view of these circumstances, we find that Officer Burdette had
reasonable suspicion to stop Perkins’ car. Officer Burdette was inti-
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mately familiar with the Knox Avenue neighborhood. He knew it to
be a high crime and drug trafficking area. See Wardlow, 528 U.S. at
124. His personal experience investigating drug activity on Knox
Avenue and at the particular duplex in question, and his awareness
that the duplex was under police investigation as a known drug house,
are also important factors in the analysis. Officer Burdette’s knowl-
edge and experience reasonably led him to conclude that the situation
was potentially dangerous and drug-related. See Arvizu, 534 U.S. at
275-77 (stressing the importance of respecting police officers’ assess-
ments of situations in light of their experience with particular areas
and types of illegal activity).
Moreover, Officer Burdette was justified in relying upon the tip as
part of his basis for reasonable suspicion. The tip itself made clear
both that the caller was in close proximity to the duplex and that the
caller personally had observed the men. The tipster’s basis of knowl-
edge — a contemporaneous viewing of the suspicious activity —
enhanced the tip’s reliability. See Florida v. J.L., 529 U.S. 266, 270-
72 (2000) (noting the usefulness of verifying an informant’s basis of
knowledge). Officer Burdette reasonably assumed that Mrs. Hayes
was the caller, because Mrs. Hayes resided directly across from the
duplex and because she was known to Officer Burdette as a regular
and reliable informant concerning this type of conduct in the Knox
Avenue area. See id. (noting the usefulness of verifying an infor-
mant’s credibility). While it is conceivable that the caller could have
been another (perhaps less reliable) resident, as Perkins contends,
Officer Burdette’s assumption that it was Mrs. Hayes was reasonable
under the circumstances, and we cannot demand scientific certainty
from officers under a Terry analysis. See Wardlow, 528 U.S. at 125.
Before deciding to make an investigative stop, Officer Burdette
confirmed important aspects of the tip. The fact that he found the two
white males in a red car with a silver or white stripe at the precise
duplex reported, just as the caller had described, offers important cor-
roboration of the tip. See United States v. Perrin, 45 F.3d 869, 873
(4th Cir. 1995); see also United States v. Lenoir, 318 F.3d 725, 729
(7th Cir. 2003) ("[P]olice observation of an individual, fitting a police
dispatch description of a person involved in a disturbance, near in
time and geographic location to the disturbance establishes a reason-
able suspicion that the individual is the subject of the dispatch."). In
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addition, Officer Burdette identified the passenger in the car as a
known drug user who lived on Knox Avenue, which further rein-
forced his suspicions of possible drug activity. See id.; see also
United States v. Feliciano, 45 F.3d 1070, 1074 (7th Cir. 1995)
("Knowledge of . . . recent relevant criminal conduct . . . is a permis-
sible component of the articulable suspicion required for a Terry
stop."). Only upon observing these details did Officer Burdette initiate
the traffic stop, and only after the car had pulled away from the
duplex upon his arrival. See Alabama v. White, 496 U.S. 325, 331-32
(1990) (emphasizing the importance of corroborative efforts by offi-
cers). The totality of the circumstances plainly supported Officer Bur-
dette’s decision to stop Perkins’ vehicle.
The dissent’s recitation of this scene in its opening paragraph sim-
ply bears no resemblance to the situation that confronted Officer Bur-
dette. In fact, our dissenting brother fails even to mention the fact,
among others, that the rifles were displayed right in front of a duplex
well known for its drug activity. And in its efforts to second-guess
Officer Burdette at every turn, the dissent engages in sheer specula-
tion about what "it appears" might have been the case. See post at 18,
20. In point of fact, Officer Burdette reacted to the circumstances
before him with a measured response. This case does not involve any
intrusion into the home or other areas that rightfully deserve the great-
est Fourth Amendment scrutiny. It concerns rather a preliminary stop
of an automobile in order to investigate clearly suspicious activity.
Only after Officer Burdette saw a high-powered rifle in plain view in
the vehicle, and Perkins then offered that he was a past felon, did the
encounter advance to a full-scale arrest. At that point, Officer Bur-
dette found a veritable arsenal of guns and an array of drug parapher-
nalia in the car. This was a reasonable, measured police response to
a suspicious set of circumstances, which is precisely what Terry was
designed to allow.
IV.
Perkins’ principal objection is that the call to the police was an
anonymous tip that was not sufficiently corroborated as required by
the Supreme Court in Florida v. J.L., 529 U.S. 266 (2000). Therefore,
Perkins claims, the tip could not form the basis for the investigatory
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stop, and Officer Burdette could not possess reasonable suspicion to
stop Perkins’ vehicle.
As an initial matter, it is not even clear whether this was a purely
anonymous tip. It obviously had some characteristics of an anony-
mous tip because the woman did not give her name to the dispatcher.
On the other hand, as detailed above, Officer Burdette reasonably
assumed the caller’s identity to have been Mrs. Hayes, and it was the
nature and substance of the tip that revealed her identity. While an
"anonymous" caller may be defined simply as one who does not iden-
tify herself, she could just as plausibly be defined as one who is
unknown to the police. Such a definition, by focusing on the officer’s
knowledge, would be consistent with the officer-centered nature of
reasonable suspicion analysis. Neither the Supreme Court nor this
court has defined precisely what it means to be an "anonymous"
caller.
We need not resolve that issue here, however. Even if the tip is
deemed "anonymous," we still conclude that Officer Burdette had rea-
sonable suspicion to stop Perkins’ vehicle.
A.
The basic rules governing informant’s tips are well-established. In
cases where an informant’s tip supplies part of the basis for reason-
able suspicion, we must ensure that the tip possesses sufficient indicia
of reliability. See J.L., 529 U.S. at 270; Alabama v. White, 496 U.S.
325, 326-27 (1990); Adams v. Williams, 407 U.S. 143, 147 (1972).
Where the informant is known or where the informant relays informa-
tion to an officer face-to-face, an officer can judge the credibility of
the tipster firsthand and thus confirm whether the tip is sufficiently
reliable to support reasonable suspicion. See Adams, 407 U.S. at 146-
47 (tip from known source); United States v. Christmas, 222 F.3d
141, 144 (4th Cir. 2000) (face-to-face tip from unknown source).
Where a tip is anonymous, it must be accompanied by some corrobo-
rative elements that establish the tip’s reliability. See J.L., 529 U.S.
at 270; White, 496 U.S. at 329-31. In fact, the Supreme Court has
made clear that "there are situations in which an anonymous tip, suit-
ably corroborated, exhibits sufficient indicia of reliability to provide
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reasonable suspicion to make the investigatory stop." J.L., 529 U.S.
at 270 (internal quotation omitted).
Under the circumstances of this case, for the reasons we have
given, the tip was sufficiently reliable to be part of Officer Burdette’s
basis for stopping Perkins’ vehicle. This case is unlike Florida v. J.L.,
in which Miami-Dade police officers, responding to a purely anony-
mous call reporting that "a young black male standing at a particular
bus stop and wearing a plaid shirt was carrying a gun," found a male
meeting that description and searched him and his two friends, based
solely on the tip. 529 U.S. at 268. In holding the search unconstitu-
tional, the J.L. Court emphasized that "nothing [was] known about the
informant" and that, "apart from the tip, the officers had no reason to
suspect any" of the men they searched of any illegal or suspicious
conduct. Id. Indeed, the Court distinguished prior case law by high-
lighting that the stop and frisk in J.L. resulted "not from any observa-
tions of [the officers] but solely from a call made from an unknown
location by an unknown caller." Id. at 270. Thus, the Court held that
there were insufficient indicia of reliability to support the tip, focus-
ing in particular on the lack of information that would demonstrate
the tipster’s credibility or basis of knowledge. Id. at 271.
In the present case, by contrast, Officer Burdette did not rely solely
upon a call made by an unknown person from an unknown location.
Quite the opposite, the caller revealed her general location and her
basis of knowledge, as the nature and substance of her tip made clear
that she was in close proximity to the men and that she was observing
them while she was on the phone. The caller was not entirely
unknown, as Officer Burdette reasonably assumed that it was Mrs.
Hayes. The dissent would have us ignore entirely Officer Burdette’s
reasonable assumption as to the caller’s identity. See post at 19. Its
view that tips fall into two stark categories that are wholly anonymous
or wholly non-anonymous is inconsistent both with reality and with
Fourth Amendment law. For in reality, tips fall somewhere on a spec-
trum of reliability, and under the Fourth Amendment a reviewing
court may — indeed must — take into account all the facts surround-
ing a tip in assessing the totality of the circumstances supporting a
stop. The fact that a tip may be anonymous does not mean that in
assessing the tip’s reliability we then ignore salient facts such as an
officer’s reasonable and informed judgments as to the identity of a
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caller. And here the tip was not the sole basis for the Terry stop, as
Officer Burdette confirmed the tip’s reliability with his own knowl-
edge of the area and with his own observations upon arriving at the
scene.
Unlike in J.L., Officer Burdette suitably corroborated the tip, and
it was accompanied by a number of other relevant factors that indi-
cated the potential for criminal activity. The tip, whether "anony-
mous" or not, carried sufficient indicia of reliability to form part of
Officer Burdette’s reasonable suspicion. We cannot say under these
circumstances that he was unjustified in conducting the Terry stop.
B.
Perkins protests, however, that in this case there was no predictive
information contained in the tip which was confirmed by the officers.
In suppressing the evidence in J.L., the Court focused on the lack of
any predictive information in the tip, thus distinguishing Alabama v.
White, 496 U.S. at 332, in which an anonymous tip was corroborated
by police surveillance that confirmed some of the tipster’s predic-
tions. See J.L., 529 U.S. at 270-71. The Ninth Circuit has relied on
these cases in ruling that "in order for an anonymous tip to serve as
the basis for reasonable suspicion," a tip "must predict the suspect’s
future movements[, and] the future movements must be corroborated
by independent police observation." United States v. Morales, 252
F.3d 1070, 1076 (9th Cir. 2001).
However, in neither White nor J.L. did the Court hold that confir-
mation of predictive information is the only way to assess the reliabil-
ity of an anonymous tip. The central point in those cases is that courts
must ensure, one way or the other, that an anonymous informant’s tip
was sufficiently reliable. White, 496 U.S. at 330-31; J.L., 529 U.S. at
270. As Justice Kennedy made clear in his concurring opinion, "there
are many indicia of reliability respecting anonymous tips" that may
suffice. Id. at 274 (Kennedy, J., concurring). For example, Justice
Kennedy noted, in some cases "experience [with a particular anony-
mous informant] cures some of the uncertainty surrounding the ano-
nymity, justifying a proportionate police response." Id. at 275 (using
the example of an anonymous informant who calls in successive
reports with a recognizable voice). A rigid rule demanding the pres-
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ence of predictive information is thus unjustified by White and J.L.,
and it would be wholly inconsistent with the flexible nature of reason-
able suspicion analysis. See United States v. Sokolow, 490 U.S. 1, 7-
8 (1989) ("The concept of reasonable suspicion, like probable cause,
is not ‘readily, or even usefully, reduced to a neat set of legal rules.’")
(quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)); see also United
States v. Arvizu, 534 U.S. 266, 274-75 (2002).
Furthermore, the need to focus on predictive information in order
to corroborate an anonymous tip, while perhaps present in White and
J.L., does not exist in this case. In both White and J.L., the tip alleged
concealed and possessory criminal activity. The nature of a status
crime such as possession of a concealed firearm may require corrobo-
ration of the extent of the tipster’s inside information, in order to
ensure that the tipster was in a position to know about the alleged ille-
gal conduct. It was therefore understandable for the Court to focus on
the factor of predictive information in those cases. See White, 496
U.S. at 327, 331-32; J.L., 529 U.S. at 268, 270-72, 274.
Here, by contrast, the tip alleged that two males were displaying
and pointing rifles in various directions in a residential neighborhood.
The caller in this case was clearly in a position to know about the
reported activity that gave rise to Officer Burdette’s suspicion. In this
different context, where the suspicious activity is openly and readily
observable, other manners of corroborating a tip are entirely legiti-
mate. Cf. United States v. Wheat, 278 F.3d 722, 734 (8th Cir. 2001)
("Unlike with clandestine crimes such as possessory offenses, . . .
where corroboration of the predictive elements of a tip may be the
only means of ascertaining the informant’s basis of knowledge, in
erratic driving cases the basis of the tipster’s knowledge . . . comes
from his eyewitness observations, and there is no need to verify that
he possesses inside information.").
Where, as here, an officer had "objective reason to believe that [a]
tip had some particular indicia of reliability," id. at 276 (Kennedy, J.,
concurring), the tip can rightfully support an officer’s decision to
investigate further, even without the presence of predictive informa-
tion. Accord United States v. Nelson, 284 F.3d 472, 483-84 (3d Cir.
2002) (noting that while "predictive information can demonstrate par-
ticularized knowledge [as required in White and J.L.], other aspects
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of the tip can reflect particularized knowledge as well."); United
States v. Tucker, 305 F.3d 1193, 1201 (10th Cir. 2002) (noting that
"while the police did not corroborate predictive details in the tip," this
"lack of corroboration is not fatal"); Wheat, 278 F.3d at 734 (noting
that "White did not create a rule requiring that a tip predict future
action, and neither did J.L.") (emphasis in original) (internal citation
omitted)); United States v. Johnson, 64 F.3d 1120, 1125 and n.3 (8th
Cir. 1995) (noting that Alabama v. White "does not create a rule
requiring that a tip predict future action," and pointing out that such
a rule would be inconsistent with the totality-of-the-circumstances
approach to determining reasonable suspicion).
C.
Perkins further objects that permitting reliance upon anonymous
tips may lead to problems of mischief and harassment, as individuals
can fabricate reports to the police as pranks or as a way of harming
their enemies. See White, 496 U.S. at 333 (Stevens, J., dissenting).
This danger is obviated, however, by the requirement in J.L. — to
which we adhere — that a tip must carry sufficient indicia of reliabil-
ity in order to be part of an officer’s basis for reasonable suspicion.
Where an officer is able to verify the reliability of a tip before acting
upon it, the dangers of harassment are greatly minimized.
There is the equal danger, moreover, that according no weight to
"anonymous" tips in the reasonable suspicion calculus will undermine
the ability of concerned residents to report illegal activity and to
thereby make their neighborhoods more safe. Residents of neighbor-
hoods are in the best position to monitor activity on the streets. But
residents, also fearful of the consequences, may not always wish to
identify themselves and volunteer their names. According no weight
as a matter of law to such "anonymous" tips would only discourage
concerned residents from even calling the police, would burden the
rights of ordinary citizens to live in their neighborhoods without fear
and intimidation, and would render citizens helpless in their efforts to
restore safety and sanctity to their homes and communities. Cf. United
States v. Christmas, 222 F.3d 141, 145 (4th Cir. 2000). The Fourth
Amendment touchstone of "reasonableness" rejects such absolute and
per se rules, and encourages the practical and particularized review of
stops and searches which we have undertaken here. See Illinois v.
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Gates, 462 U.S. 213, 230-35 (1983); White, 496 U.S. at 328-29. We
cannot interpret that Amendment in a manner that severs the connec-
tion between citizens and the most basic services of their government,
here the provision of public safety and personal protection.
V.
Perkins’ final claim is that Officer Burdette’s reasonable suspicion
did not relate to any illegal conduct. Even if Officer Burdette was rea-
sonable to believe that Perkins engaged in the conduct reported by the
caller, Perkins contends, there was no reason for Officer Burdette to
suspect Perkins of criminal activity, as the informant’s tip reported
only open gun possession — a legal activity in West Virginia — and
the officers did not observe any illegal conduct.
Perkins misunderstands the nature of the reasonable suspicion
inquiry. Officers are not required under Terry to have reasonable sus-
picion of ongoing illegal activity in order to make investigative stops.
Indeed, the very point of Terry was to permit officers to take preven-
tive action and conduct investigative stops before crimes are commit-
ted, based on what they view as suspicious — albeit even legal —
activity. See Illinois v. Wardlow, 528 U.S. 119, 125-26 (2000).
Whereas the prevailing probable cause standard is whether an officer
had a reasonable basis for believing that an individual "had commit-
ted or was committing an offense," Beck v. Ohio, 379 U.S. 89, 91
(1964), the Terry standard is whether an officer reasonably believed
that "criminal activity may be afoot," Terry v. Ohio, 392 U.S. 1, 30
(1968). The difference is critical: whereas probable cause looks for
past or present illegalities, an underlying purpose of Terry is to grant
officers the ability to prevent future wrongdoing.
Consequently, the mere fact that particular conduct may be suscep-
tible of an innocent explanation does not establish a lack of reason-
able suspicion. See Wardlow, 528 U.S. at 125. The Supreme Court
has consistently rejected the notion that courts can second-guess
police officers by speculating on possible innocent reasons for a
defendant’s actions. See, e.g., United States v. Arvizu, 534 U.S. 266,
277-78 (2002). It has likewise prohibited courts from engaging in the
sort of "divide-and-conquer analysis" that treats each action by a
defendant in isolation, finds each of them to be possibly innocent, and
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thus picks apart an officer’s reasonable assessments. See, e.g., id. at
274-75. Officers, in other words, are not required to rule out all possi-
bility of innocent conduct or to wait until criminal activity actually
occurs before responding to a suspicious set of circumstances. Id. at
277-78.
In Terry itself, Officer McFadden did not witness any illegal activ-
ity before stopping the men and patting them down. Their conduct —
pacing back and forth and talking to each other outside of a store —
was itself legal and perhaps susceptible of an innocent explanation,
but it rightfully aroused Officer McFadden’s suspicion that they were
casing the store for a hold up. Terry, 392 U.S. at 22-23, 30. It was the
observed legal activity that in McFadden’s practiced judgment was
inconsistent with innocent conduct which aroused his suspicion and
justified his stop and frisk. See Wardlow, 528 U.S. at 125 (noting that
in Terry the observed acts were each innocent, but, taken together in
context, led to reasonable suspicion to investigate).
The situation here is no different. Mrs. Hayes’ tip indicated that
two men were pointing rifles in various directions in the front yard
of a duplex well known for drug activity in a high crime and drug
trafficking area. In West Virginia, it is not illegal to openly carry a
firearm. W. Va. Code § 61-7-3 (2000). Our dissenting friend is surely
correct that "people in West Virginia display their hunting and sport-
ing rifles all the time," post at 15, and this is not only innocent activ-
ity but worthwhile activity as well. What West Virginians do not do
all the time is point rifles around outside of a known drug house in
the middle of a residential but high-crime and drug-ridden neighbor-
hood. This type of activity, as the district court recognized, would
give any officer a commonsensical reason to be suspicious. We
emphatically do not, as the dissent suggests, endorse investigative
stops whenever "police get an anonymous tip that a West Virginia
resident has been displaying his rifle." Post at 15. We do hold, how-
ever, that the reported activity here was not innocuous and that it war-
ranted police investigation.
In sum, the tip relayed, and the surrounding circumstances con-
firmed, dangerous and intimidating behavior that was inconsistent
with innocent action. See United States v. Lenoir, 318 F.3d 725, 729-
30 (7th Cir. 2003) ("Carrying . . . weapons may not be a crime in Indi-
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ana, but the police can still factor this otherwise innocent behavior
into the [reasonable suspicion] equation."). The reported conduct,
while legal, rightfully aroused Officer Burdette’s suspicion. He knew
that it was a drug-ridden residential neighborhood, and that the duplex
itself was a known drug house. He identified the passenger in the car
as a known drug taker. Officer Burdette inferred from all the circum-
stances that the situation was a "drug deal gone bad," a conclusion
that we credit. See Arvizu, 534 U.S. at 276-77; United States v.
Lender, 985 F.2d 151, 154 (4th Cir. 1993). An investigatory stop of
the car was surely warranted in order to assess the dangers and to
ensure the safety of the residents of this area. We cannot afford to
read the Fourth Amendment to require officers to wait until criminal
activity occurs, and perhaps until innocent bystanders are physically
harmed, before taking reasonable, preventive measures.
VI.
The judgment of the district court is therefore
AFFIRMED.
MICHAEL, Circuit Judge, dissenting:
People in West Virginia display their hunting and sporting rifles all
the time. It is not against the law, as the majority acknowledges. Ante
at 13. Yet under the majority’s decision, if the police get an anony-
mous tip that a West Virginia resident has been displaying his rifle,
the police may stop his car without any real confirmation of the likeli-
hood of criminal activity. In this case, the dispatcher at the St. Albans,
West Virginia, police department received an anonymous tip that two
white men were in a yard at a certain address, displaying or pointing
rifles. It was a high crime area, and an officer went to the scene to
investigate. The officer saw no rifles, nor anything else illegal or
suspicious. The officer spotted two white men leaving in a car
described by the tipster and stopped the car. The anonymous tip,
taken with what the officer saw, did not provide reasonable suspicion
that criminal activity was afoot. As a result, the stop violated the
Fourth Amendment’s guarantee against unreasonable seizures. I must
therefore respectfully dissent.
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I.
The dispatcher at the St. Albans police department received a tip
from an unidentified caller on May 5, 2002, during the evening shift.
The caller said that two white men were in the front yard of 2740
Knox Avenue with rifles, pointing them in various directions. A small
red car with a silver or white stripe was also mentioned. The caller
admittedly "didn’t know what was going on." J.A. 34. The dispatcher
radioed this information to Officer Mark Burdette, who was on duty
in his cruiser. Officer Burdette did not know who the caller was, but
he "suspected" the caller was a Mrs. Hayes, who lived across the
street from 2740 Knox Avenue. The officer thought of Mrs. Hayes
because she had called in six to ten complaints in the past, giving reli-
able information. Officer Burdette is familiar with Knox Avenue; it
is a residential neighborhood with children, but it is also a high crime
area, known for drug trafficking. Burdette had assisted the Metro
Drug Unit with four or five investigations on Knox Avenue, and he
had arrested two women who lived at 2738 Knox Avenue for posses-
sion of forged prescriptions and drug paraphernalia. The residences at
no. 2738 and no. 2740 (the latter is the address mentioned by the tip-
ster) are separate halves of a duplex. When the dispatcher relayed the
caller’s tip about men displaying rifles, Officer Burdette "figured that
it was possibly a drug deal gone bad." J.A. 26-27.
Officer Burdette drove to Knox Avenue and stopped in front of no.
2738. As he arrived, he noticed two cars in front of him. One of the
cars, a small red one with a silver or white stripe, was pulling away.
Officer Burdette recognized the passenger as Mark Freeman, a drug
user who lived in the next block of Knox Avenue. Burdette radioed
a fellow officer who was arriving at the same time, and both officers
participated in a stop of the red car. When Officer Burdette walked
up to the car, he noticed a rifle in an open case in the back seat. The
driver of the car, defendant John Perkins, admitted to the officers that
he was a convicted felon. Perkins consented to a search, and two other
guns and certain drug paraphernalia were discovered in the car. Per-
kins said he was trying to sell the guns for his wife.
Perkins was indicted for being a felon in possession of firearms.
See 18 U.S.C. §§ 922(g)(1), 924(a)(2). Thereafter, he moved to sup-
press the evidence seized when his car was stopped, arguing that the
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stop violated the Fourth Amendment. The district court denied the
motion. The court took into account Officer Burdette’s knowledge
that Knox Avenue was a high drug-crime area. Further, the court "did
not deem the informant, Mrs. [Hayes], to be anonymous." J.A. 42.
Officer Burdette, the court found, "reasonably assumed a complaint
about illegal activity might come from Mrs. [Hayes]," and the officer
"correctly believed it to be reliable." Id. In sum, the district court con-
cluded that "the initial stop was based on reasonable suspicion from
a credible informant." J.A. 43.
II.
A.
An officer may "conduct a brief, investigatory stop when [he] has
a reasonable, articulable suspicion that criminal activity is afoot." Illi-
nois v. Wardlow, 528 U.S. 119, 123 (2000) (citing Terry v. Ohio, 392
U.S. 1, 30 (1968). Reasonable suspicion may be supported by second-
hand information, such as a tip. Adams v. Williams, 407 U.S. 143, 146
(1972). Nevertheless, reasonable suspicion depends both on the con-
tent (or quantity) and the reliability (or quality) of the information
possessed by the officer. Alabama v. White, 496 U.S. 325, 330 (1990).
Both of these factors, content and reliability, "are considered in the
totality of the circumstances — the whole picture, that must be taken
into account when evaluating whether there is reasonable suspicion."
Id. (quotation marks and citation omitted).
When suspicion of criminal activity begins with an anonymous tip,
the tip must be assessed with extra caution because an anonymous tip
by itself seldom demonstrates the tipster’s reliability and basis of
knowledge. White, 496 U.S. at 329. The anonymous tipster simply
does "not place[ ] his credibility at risk." Florida v. J.L., 529 U.S.
266, 275 (2000) (Kennedy, J., concurring). Of course, an anonymous
tip may be corroborated through independent police work. White, 496
U.S. at 330. When "a tip has a relatively low degree of reliability,"
as is often the case with an anonymous tip, "more information will be
required to establish the requisite quantum of suspicion." Id. Specifi-
cally, when a Terry stop is based on an anonymous tip, the reasonable
suspicion standard "requires that [the] tip be reliable in its assertion
of illegality, not just in its tendency to identify a determinate person."
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J.L., 529 U.S. at 272. Thus, if an officer merely confirms that an
anonymous tip accurately describes a subject’s location and appear-
ance, a Terry stop would be unreasonable because this minimal cor-
roboration "does not show that the tipster has knowledge of . . .
criminal activity." Id. In any case, the entire picture is the key in
assessing whether the officer has reasonable suspicion of criminal
activity when he makes a Terry stop. Here, when the reliability and
content of Officer Burdette’s information is assessed, it is clear that
he did not have reasonable suspicion that criminal activity was afoot.
B.
A key issue is whether the caller’s tip was anonymous, making it
inherently less reliable. The district court found that Mrs. Hayes was
a known informant because Officer Burdette reasonably assumed she
was the caller. The majority also concludes that Officer Burdette rea-
sonably assumed the tipster was Mrs. Hayes. Any finding or conclu-
sion that Mrs. Hayes was a known tipster or informant in this instance
is clearly erroneous. See United States v. Rusher, 966 F.2d 868, 873
(4th Cir. 1992) (district court’s factual findings in a suppression pro-
ceeding are reviewed under the clearly erroneous standard).
First, if the caller was Mrs. Hayes, anonymity would not be
expected. According to Officer Burdette, Mrs. Hayes was "normally"
the person who called the St. Albans police with complaints from
Knox Avenue. She had called in six to ten prior complaints, and Offi-
cer Burdette knew that she had been the caller on those occasions. It
thus appears that it was Mrs. Hayes’s practice to identify herself. The
caller in this case did not give her name, choosing not to place her
credibility on the line. Second, the activity reported by the caller was
occurring in the open, in a small front yard at 2740 Knox Avenue, a
residential neighborhood. Mrs. Hayes lived across the street, but she
was by no means the only person with a view of the front yard at no.
2740, where two men were reportedly displaying rifles. What the
caller described could have been seen from inside or outside several
nearby houses, so the call could have come from anyone who was in
the vicinity. In sum, the evidence is too inconclusive to permit a find-
ing that Mrs. Hayes was the actual caller or that Officer Burdette rea-
sonably assumed she was the caller. The caller was anonymous, and
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this means that the tip begins with a relatively low degree of reliabil-
ity.
At one point the majority suggests, for the sake of argument, that
it is willing to treat the tip as anonymous. Yet when the majority con-
cludes that Officer Burdette had enough information to confirm the
tip’s reliability, the majority relies on its (unwarranted) conclusion
that "[t]he caller was not entirely unknown, as Officer Burdette rea-
sonably assumed that it was Mrs. Hayes." Ante at 9. If a tip is truly
anonymous, as the tip here is, an officer’s ill-founded assumption that
the tipster is a known informant cannot be weighed in favor of reli-
ability.
The tip in this case suffers from a defect more fundamental than
its anonymity. It is deficient in substance or content. Again, when the
reasonable suspicion for a Terry stop is grounded in an anonymous
tip, the "tip [must] be reliable in its assertion of illegality" or in its
indication "as to the likelihood of criminal activity." J.L., 529 U.S. at
272. The tip here was that two men were in a particular front yard
with rifles, pointing them in various directions. This was not an asser-
tion of illegal conduct because it is not against the law in West Vir-
ginia to display or sight a rifle. Nor did the tip give any indication of
the likelihood of criminal activity. The tipster, who the majority con-
cludes was "in close proximity to the duplex" and had "personally
. . . observed the men," ante at 6, did not say what, if anything, the
men were pointing the rifles toward. The tipster did not report that the
men were threatening anyone or engaging in any violence. She did
not say she had observed any transaction, let alone one that appeared
to have gone awry. In fact, she admitted that she "didn’t know what
was going on at the time." J.A. 34. Because of the tip’s weaknesses,
specifically, its anonymity and its failure to indicate the likelihood of
illegal conduct, more concrete information was "required to establish
the requisite quantum of suspicion." White, 496 U.S. at 330.
The majority argues that Officer Burdette was able to "confirm[ ]
the tip’s reliability with his own knowledge of the area and with his
own observations upon arriving at the scene." Ante at 10. I respect-
fully disagree. I discuss first Officer Burdette’s knowledge of the
area. The officer knew there was drug trafficking on Knox Avenue:
he had assisted the Metro Drug Unit in several investigations there,
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and he had arrested two women who lived at no. 2738, a "drug house"
that was still being watched by the special unit. With this information
and the tip that two men with rifles were in a yard next door to no.
2738, Officer Burdette "figured that it was possibly a drug deal gone
bad." J.A. 26-27. A fouled up drug deal was a possibility, I suppose,
but a rifle would be an unusual weapon for a drug trafficker to take
to a deal in the close confines of a city. Moreover, it appears that Offi-
cer Burdette did not seriously consider the tip to be a complaint about
drug dealing. When Officer Burdette "got a drug complaint . . . any-
where on Knox Avenue," his usual practice was to contact a fellow
officer assigned to the Metro Drug Unit. J.A. 25. This practice
allowed the officer with the drug unit to determine the appropriate
response, and it prevented ongoing drug investigations from being
"mess[ed] up." J.A. 25-26. Officer Burdette did not contact the drug
unit in this instance.
In any event, if we treated a neighborhood’s high rate of drug
crime as an independent factor that bolstered the reliability of a tip,
"we would be, in effect, holding a suspect accountable for factors
wholly outside of his control." United States v. Perrin, 45 F.3d 869,
873 (4th Cir. 1995). The fact that a suspect is spotted "in a high crime
area does not, in and of itself, provide [an] officer[ ] with sufficient
indicia of reliability to justify a Terry [stop]." Id. Along this line, it
should be noted that the men reportedly spotted were not in the yard
at the drug house; rather, they were in the yard next door, at 2740
Knox Avenue. There is no evidence that anyone at no. 2740 was
involved with drugs. I recognize, of course, that Knox Avenue’s repu-
tation as an area of high crime and drug trafficking is relevant to
explain why Officer Burdette believed it was necessary to go to the
scene and investigate. However, the status of the neighborhood does
not bolster the reliability of the anonymous tip and adds little, if any-
thing, to the measure of reasonable suspicion.
Finally, there is what Officer Burdette observed. When the officer
arrived at the scene, he saw two white men in a red car with a silver
or white stripe departing from 2740 Knox Avenue. The tip was there-
fore reliable in its description of the two men and their vehicle. How-
ever, 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., 529 U.S. at 272. Officer Burdette did not see any illegal
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or suspicious activity as he arrived, nor did he see any firearms.
Although the red car was pulling out as the officer drove up, there is
no evidence that the occupants of the red car saw the officer arriving,
and there is no evidence that their departure was in any way suspi-
cious.
As the red car left no. 2740, Officer Burdette noticed that the pas-
senger was Mark Freeman, a known drug taker, who lived in the very
next block. Perhaps Freeman had a criminal record. But a prior "re-
cord is not, standing alone, sufficient to create reasonable suspicion."
United States v. Sprinkle, 106 F.3d 613, 617 (4th Cir. 1997) (internal
quotation marks omitted). "Nevertheless, an officer can couple
knowledge of prior criminal involvement with more concrete factors
in reaching a reasonable suspicion of current criminal activity." Id.
There were no concrete indications that Freeman was involved in
criminal activity on the day in question. Freeman’s presence in his
own neighborhood was not a suspicious event. Moreover, there was
no evidence that he was known to be armed or dangerous, factors that
might have corroborated the tip’s report of rifle possession.
When the whole picture is assessed, the tip is still not infused with
sufficient reliability. The tip did not suggest illegal activity. Officer
Burdette did confirm that the tip was accurate in describing the loca-
tion of the men (2740 Knox Avenue), their appearance (white), and
their car (small and red). This information, however, did not confirm
that the tipster had information about the likelihood of criminal activ-
ity. Officer Burdette saw nothing illegal or suspicious when he
arrived at the scene. Finally, the thinness of the tip is not redeemed
in this case by the character of the neighborhood or by the fact that
one of the men was a drug user. Because Officer Burdette lacked rea-
sonable suspicion, his stop of Perkins’s car violated the Fourth
Amendment’s protection against unreasonable seizures. The incrimi-
nating evidence found in the car should have been suppressed, and the
district court’s order should be reversed.
C.
The majority responds to my dissent by conceding that displaying
a hunting or sporting rifle in West Virginia is an "innocent" and
"worthwhile activity." Ante at 14. The majority adds that it "emphati-
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cally do[es] not . . . endorse investigative stops whenever police get
an anonymous tip that a West Virginia resident has been displaying
his rifle." Id. (internal quotation marks and citation omitted). How-
ever, because of what the majority actually holds, these statements are
of no comfort to the rifle owning West Virginian who happens to live
in a high-crime or drug-ridden neighborhood. When an anonymous
caller tells the police — without making any suggestion of illegality
— that a person in a high-crime area has been displaying or pointing
his rifle, the majority subjects him to a car stop, even though the
police see nothing suspicious when they arrive at the scene. Thus,
under the majority’s analysis, the bad reputation of the neighborhood
(and here, a house next door) carries far too much of the weight in
justifying reasonable suspicion. As a result, today’s decision exposes
too many innocent people in rough neighborhoods to unreasonable
stops by the police.
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