United States of America v. Michael Patterson

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0290P (6th Cir.)
File Name: 03a0290p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL PATTERSON,
Defendant-Appellant.
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No. 01-6001
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 01-20033—Jon Phipps McCalla, District Judge.
Argued: March 28, 2003
Decided and Filed: August 15, 2003
Before: MARTIN, Chief Circuit Judge; KENNEDY and
DAUGHTREY, Circuit Judges.
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COUNSEL
ARGUED: Randolph W. Alden, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for
Appellant. Camille R. McMullen, UNITED STATES
ATTORNEY, Memphis, Tennessee, for Appellee.
ON BRIEF: Stephen B. Shankman, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for
2 United States v. Patterson No. 01-6001
Appellant. Camille R. McMullen, UNITED STATES
ATTORNEY, Memphis, Tennessee, for Appellee.
MARTIN, C. J., delivered the opinion of the court, in
which DAUGHTREY, J., joined. KENNEDY, J. (pp. 8-10),
delivered a separate dissenting opinion.
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OPINION
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BOYCE F. MARTIN, JR., Chief Circuit Judge. Michael
Patterson proffered a conditional plea of guilty to possession
of a firearm by a convicted felon in violation of Title 18
U.S.C. § 922(g). He reserved his right to appeal the district
court’s denial of his motion to suppress evidence seized
during a police search of his person. The district court
sentenced Patterson to ten years imprisonment, followed by
three years of supervised release. Patterson now appeals the
district court’s denial of his motion to suppress. For the
reasons set forth below, we REVERSE.
On October 19, 2000, Officer Myron Fair of the Memphis
Police Department was given between fifteen to twenty
citizen complaints to investigate. One of those complaints
regarded a group of males at the corner of Foster and Willet
streets who were conducting illegal drug sales. Officer Fair
had at the time ten years of experience with the police
department, two of which were with the vice-narcotics
division. At trial, he described the corner of Foster and
Willett as a “hot spot,” a constant source of complaints
ranging “from domestic violence to shots fired, from drugs,
carjackings . . . all day every day.”
Fair, along with his partner Felip Boyce, arrived at the
corner on the day in question in an unmarked vehicle. As
they approached they saw “at least eight male blacks standing
from the curb to the sidewalk to the top of the driveway” in

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No. 01-6001 United States v. Patterson 3
front of 1564 Foster, which is “about a house length” from the
intersection of Foster and Willett. Patterson was one of the
individuals in this group. The group did not alter their
behavior until the officers got out of their car dressed in
police gear. At that point, the group moved away while
tucking their hands in their pockets. The officers observed
one of the individuals, not Patterson, making a throwing
motion towards the bushes. Seeing this, the officers
requested that all of the individuals stop, take their hands out
of their pockets, and place them on a nearby vehicle. The
officers claim this was to search for weapons and drugs and
to ensure the officers’ safety. Other officers arrived in a
second unmarked car shortly thereafter.
Officer Fair conducted a pat down of Patterson and found
a .40 caliber revolver in his right side waistband. Patterson
was subsequently handcuffed and arrested.
On February 21, 2001, a federal grand jury in the Western
District of Tennessee returned an indictment charging
Michael Patterson with possession of a firearm by a convicted
felon in violation of Title 18 U.S.C. § 922(g). The defendant
filed a motion to suppress evidence on March 22. The district
court conducted an evidentiary hearing on the motion on
April 6. At the conclusion of the hearing, the court issued an
oral ruling denying the motion. The defendant entered a
conditional guilty plea, reserving his right to appeal the denial
of the motion to suppress evidence, and on August 7, he was
sentenced to the maximum penalty of ten years imprisonment
with three years of supervised release.
We review a district court’s legal conclusions with respect
to a motion to suppress de novo. United States v. McLevain,
310 F.3d 434, 438 (6th Cir. 2002).
In Terry v. Ohio, 392 U.S. 1, 27 (1968), the Supreme Court
held that officers have the authority under the Fourth
Amendment to stop and temporarily detain citizens with only
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reasonable suspicion to justify the stop. According to Terry,
id., this type of warrantless search is legal if
a reasonably prudent man in the circumstances would be
warranted in the belief that his safety or that of others
was in danger . . . And in determining whether the officer
acted reasonably in such circumstances, due weight must
be given . . . to the specific reasonable inferences which
he is entitled to draw from the facts in light of his
experience.
The Court expounded on Terry in United States v. Cortez, 449
U.S. 411, 417-418 (1981), stating that
[a]n investigatory stop must be justified by some
objective manifestation that the person stopped is, or is
about to be, engaged in criminal activity . . . the totality
of the circumstances--the whole picture--must be taken
into account. Based upon that whole picture the detaining
officers must have a particularized and objective basis for
suspecting the particular person stopped of criminal
activity.
With these tests in mind, we now look to the evidence
articulated by the officers to support their reasonable
suspicion to search the group at Foster and Willet. The entire
incident began with an anonymous call to a drug hotline for
the reporting of drug-related crimes. The message on the
hotline complained about drug sales at the corner of Foster
and Willett at some earlier time on the day in question. At
9:30 pm, over five and a half hours after Officer Fair received
the complaint, he and Officer Boyce arrived at the location.
At a house near the corner, the officers observed eight black
males at the front of a house. When the police officers
revealed that they were police officers, the group put their
hands in their pockets and began walking away from the
officers. At this, the officers instructed the group to stop
moving and put their hands on the car. At this point, the
officers needed to have reasonable suspicion in order to stop

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No. 01-6001 United States v. Patterson 5
the defendant. United States v. Buchanon, 72 F.3d 1217,
1226 (6th Cir. 1995).
In Florida v. J.L., 529 U.S. 266 (2000), police officers
received an anonymous tip that a young black male wearing
a plaid shirt was at a bus station and carrying a firearm. In
that case, the Court held that the anonymous tip was not
enough, despite the inclusion of age, race, clothing type, and
specific location of the defendant, to justify reasonable
suspicion. Id. at 271. In this case, Officers Fair and Boyce
had none of that information. The tip merely described drug
activity without any details as to the perpetrators. An
anonymous tip’s reliability stems from its ability to predict
future activities. Alabama v. White, 496 U.S. 325, 332
(1990). The anonymous tip in this case offered no reliable or
meaninfgul information in support of reasonable suspicion
because it was not specific enough as to a prediction of future
unlawful activities.
A comparable case to this one is United States v. Roberson,
90 F.3d 75 (3rd Cir. 1996). In that case, the police acted
immediately on an anonymous tip that indicated that there
was illegal activity occurring at a drug “hot spot” and gave a
description of the perpetrator as “a heavy-set, black male
wearing dark green pants, a white hooded sweatshirt, and a
brown leather jacket.” Id. The Third Circuit held that even
this detailed tip alone was not enough to grant reasonable
suspicion, because the tip had no basis for reliability. Id. at
81. Here, however, we do not have the degree of specificity
of the tip, nor do we have the closeness in time of the trip to
the stop. The hotline tip is of little value as to establishing
reasonable suspicion.
We do, however, recognize the difficulty in fighting drug
crimes and the great success that cities like Memphis have
had in catching and prosecuting drug-related offenders
through tools like this hotline. The problem arises when
officers use vague information about an intersection already
known as a “hot spot” as the sole basis for reasonable
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suspicion to stop and frisk a person. To allow the tip alone to
establish reasonable suspicion would allow officers carte
blanche to search every person in the vicinity.
Without the anonymous tip, the officers merely observed a
group of individuals walking away from the area, in isolation
an innocuous behavior unless the officers have detained them.
Florida v. Royer, 460 U.S. 491, 498 (1983). Walking in the
opposite direction from the police could be considered an
indication of a person’s fear of being caught participating in
illegal activities, but it also could be purely innocent activity.
We addressed innocent activity in the context of reasonable
suspicion in United States v. Smith, 263 F.3d 571, 593-594
(6th Cir. 2001) (internal citations omitted) when we said the
following:
This Court is aware that under the totality of the
circumstances test it is possible that "objective facts,
meaningless to the untrained" can provide the basis for
reasonable suspicion. However, some factors may be
"outrightly dismissed," because they are "so innocent or
susceptible to varying interpretations as to be
innocuous." . . . It is possible for factors, although
insufficient individually, to add up to a reasonable
suspicion--that is the nature of the totality of the
circumstances test. But we think it impossible for a
combination of wholly innocent factors to combine into
a suspicious conglomeration unless there are concrete
reasons for such an interpretation . . . Although the
government presented several factors which could, under
different circumstances, and in combination with other
factors, support a finding of reasonable suspicion, under
the facts of this case, they merit little, if any, weight in
our analysis.
We believe that Patterson walking away from the police when
they got out of their unmarked car constitutes a factor to be
outrightly dismissed. Patterson’s behavior is innocent and
insufficient to provide the police with reasonable suspicion.

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No. 01-6001 United States v. Patterson 7
Finally, in articulating the basis for their reasonable
suspicion to stop Patterson, the officers argue that their
observation at the scene of one of the group throwing an
object away contributed to the totality of the circumstances
supporting their reasonable suspicion to stop the group. The
Supreme Court has made clear, however, that a warrantless
search must be based on individualized suspicion. Chandler
v. Miller, 520 U.S. 305, 313 (1997). In order to search
Patterson, the officers only could factor in Patterson’s actions
and the circumstances surrounding him alone in order to
constitute reasonable suspicion. Because the officers might
have seen one member of the group throw something lends
little more to the totality of the circumstances surrounding
Patterson. See id.
For the foregoing reasons, the judgment of the district court
is REVERSED. This case is REMANDED for further
proceedings in accordance with this opinion.
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DISSENT
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KENNEDY, Circuit Judge, dissenting. Contrary to the
majority, I believe that under the totality of circumstances test
the officers’ decision to stop Patterson was supported by a
reasonable suspicion that Patterson was engaged, or about to
be engaged in, drug sales. Accordingly, I respectfully dissent.
The Supreme Court has recently clarified the proper
application of the totality of circumstances test. In United
States v. Arvizu, the Court made clear that courts are not to
view in isolation the factors upon which police officers base
their reasonable suspicion. See 534 U.S. 266, 274 (2002)
(stating that “[t]he court’s evaluation and rejection of seven
of the listed factors in isolation from each other does not take
into account the ‘totality of circumstances,’ as our cases have
understood that phrase.”). Rather, courts must consider all of
an officer’s observations, giving due credit to any inferences
drawn by an officer based experience or training. Id. at 275-
77.
The majority dismisses the import of the citizen complaint
that brought the officers to the intersection of Foster and
Willett on the grounds that the information conveyed by the
tip was not specific enough to allow the officers to predict
future criminal activities at the named location or by the
described persons. The majority dismisses out right the
notion that Patterson’s conduct in concealing his hands and
walking away from the officers’ approach could be
considered evasive conduct that could reasonably raise an
officer’s suspicion. And finally, the majority dismisses the
relevance of the officers observing a man in the group
throwing something into the bushes before concealing his
hands in his pockets.

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No. 01-6001 United States v. Patterson 9
While I agree that the tip alone would not support stopping
Patterson, the officers were not acting only on the tip. Officer
Boyce testified that the complaint was about “people hanging
out in that corner of the area selling drugs.” The complaint
provided a framework for observing the street scene and its
participants and applying the officers’ professional expertise
in regards to this neighborhood and the street level sale of
drugs. Officer Fair, a ten-year veteran of the police
department and a two-year veteran of the vice-narcotics unit,
testified that the Foster and Willett area is a “hot spot” for
criminal activity and that he had investigated numerous drug
complaints in the immediate vicinity. Officer Boyce, also a
veteran of the vice-narcotics unit, testified that his suspicion
was raised when the men congregated in front of 1564
Willett attempted to evade contact with the officers once the
men recognized that police officers were approaching them.
Officer Boyce also testified that one of the men made a
throwing motion towards some bushes, conduct Officer
Boyce believed was consistent with disposing of drugs. This
testimony makes clear that the officers reasonably suspected
that the men, Patterson included, were engaged in street drug
sales because the men were loitering after dark in a location
that was both generally known for street level drug sales and
the subject of a recent drug sales complaint, the men
attempted to evade police detection of their activity by
concealing their hands and walking away, and one man in the
group surreptitiously disposed of something in the bushes
prior to concealing his hands. This court must give due credit
to the inferences drawn by Officers Fair and Boyce based on
their specialized training as officers in narcotics division and
Officer Fair’s experience with drug sales in this
neighborhood. Due credit is not given when factors such as
the citizen complaint and evasive conduct are dismissed
outright.
As the Arvizu Court pointed out, “[a] determination that
reasonable suspicion exists . . . need not rule out the
possibility of innocent conduct.” Id. at 277. Though
Patterson’s conduct may have been innocent, his conduct
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when considered in light of the totality of circumstances
provided a basis for the officers to reasonably suspect that he
was engaged or about to be engaged in illegal drug sales. I
would, therefore, affirm the district court’s decision to deny
Patterson’s motion to suppress.

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